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Denied
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Denied
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Denied
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Denied.
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The opinion of the court was delivered by
Beier, J.:
Defendant Joshua James Robertson appeals the summary denial of his pro se motion to correct an illegal sentence and clerical errors, pursuant to K.S.A. 22-3504.
Robertson was convicted by a jury in 2002 of first-degree murder, arson, and aggravated burglary. The evidence against him included a videotape of his interview with law enforcement, which was played for the jury. Robertson received a hard 50 life sentence after the district judge determined that the murder had been committed in an especially heinous, atrocious, or cruel manner.
Robertson’s unsuccessful direct appeal, among other tilings, attacked the district judge’s denial of his motion to suppress his statements to law enforcement. See State v. Robertson, 279 Kan. 291, 300, 109 P.3d 1174 (2005).
Robertson then filed a motion under K.S.A. 60-1507. The district court dismissed the motion without an evidentiaiy hearing, and the Court of Appeals affirmed that dismissal in Robertson v. State, No. 95,188, 2007 WL 570179 (Kan. App. 2007) (unpublished opinion). His later motion to correct an illegal sentence, raising issues related to the use of his statements to law enforcement, also was denied. Still later motions filed in district court sought relief from his convictions and sentences; one of these motions also was entitled motion to correct illegal sentence and contained arguments similar to those raised before. All of these motions also were denied in the district court.
Robertson recently obtained a copy of the videotape of his interview with law enforcement, and this evidently has prompted the motion underlying this appeal.
Under K.S.A. 22-3504(1), an illegal sentence may be corrected at any time. An “illegal sentence” is a “ ‘sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served.’ ” Trotter v. State, 288 Kan. 112, 126, 200 P.3d 1236 (2009) (quoting State v. Edwards, 281 Kan. 1334, 1336, 135 P.3d 1251 [2006]). K.S.A. 22-3504(2) allows for correction of clerical errors.
When a district judge summarily denies a motion to correct an illegal sentence, an appellate court applies a de novo standard of review because appellate courts have the same access to the motion, records, and files as the district court. Like the district court, the appellate court determines if these documents conclusively establish that the movant is entitled to no relief. State v. Trotter, 296 Kan. 898, 901-02, 295 P.3d 1039 (2013).
This appeal focuses on two arguments. First, Robertson claims that the lack of an evidentiary hearing below precludes meaningful appellate review. Second, he claims that res judicata does not apply because he did not argue that his sentence was illegal on direct appeal.
We reject both of Robertson’s claims.
On Robertson’s first claim-, our review of the record persuades us that the district judge’s findings and conclusions are sufficiently memorialized in a written order. In the process of attempting to recast his dispute over suppression as a sentencing issue, Robertson depends in part on what he asserts were inaccuracies in the district judge’s description of the contents of the interview videotape, a description the judge relied upon at sentencing. We detect no errors in the district judge’s description of the videotape’s content that detract from the essential soundness of tire judge’s description. No evidentiary hearing on Robertson’s latest motion to correct an illegal sentence was needed for us to retrace our steps to a past destination. See Robertson, 279 Kan. at 302-03.
Robertson’s second claim attempts to drive us to the merits of tíre judge’s legal conclusion on suppression. He compares his own transcription of his videotaped interview to the judge’s description and insists diat a detective initiated questioning after Robertson’s unequivocal request for the assistance of a lawyer. Thus, Robertson asserts, under McNeil v. Wisconsin, 501 U.S. 171, 176-77, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991), that all of his subsequent statements should have been presumed involuntary and suppressed. Robertson contends that this claim should somehow avoid the bar of res judicata.
In Kansas, there are four requirements to apply res judicata: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity in the quality of persons for or against whom claim is made. In re Care & Treatment of Sporn, 289 Kan. 681, 686, 215 P.3d 615 (2009). In other words, “ ‘(1) same claim; (2) same parties; (3) claims were or could have been raised; and (4) a final judgment on the merits.’ ” State v. Martin, 294 Kan. 638, 641, 279 P.3d 704 (2012) (quoting Winston v. Kansas Dept. of SRS, 274 Kan. 396, 413, 49 P.3d 1274, cert. denied 537 U.S. 1088 [2002]). The applicability of res judicata is a question of law over which this court has unlimited review. State v. Kelly, 291 Kan. 868, 874, 248 P.3d 1282 (2011).
Robertson’s most recent motion seeks the same relief on the same grounds denied by the district court multiple times on his posttrial motions, by this court on his direct appeal, on his motion and appeal under K.S.A. 60-1507, and on his subsequent motions collaterally attacking his convictions and sentence. The causes of action and parties in each were identical. We will not permit his new motion to correct an illegal sentence to be used as a vehicle to “breathe new life” into an issue previously determined against Robertson on multiple occasions. See Martin, 294 Kan. at 641 (citing State v. Conley, 287 Kan. 696, 698, 197 P.3d 837 [2008]).
The judgment of the district court is affirmed.
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator’s office against Henry H. Blase, of Wichita, an attorney admitted to the practice of law in Kansas. The complaint filed against respondent alleged a violation of Model Rule of Professional Conduct (MRPC) 8.4 (1995 Kan. Ct. R. An-not. 340).
Respondent filed an answer denying the allegations and challenging the sufficiency of the allegations.
A formal hearing before a panel of the Kansas Board for Discipline of Attorneys was held on August 24 and 25,1994. Respondent appeared in person and by and through his attorneys, Stephen E. Robison and Mark F. Anderson, of Wichita.
There is general agreement concerning the facts which led to the filing of the complaint against respondent. There is disagreement as to respondent’s intent.
Respondent was the owner of a 25 percent interest in Air Cap Truck Plaza, Inc. (Air Cap), a Kansas corporation, which operated a fuel stop adjacent to Interstate 135 in Park City, Kansas. The acreage on which this facility was built was deeded to Park City as security with the agreement that Air Cap could purchase it for $100 when the bonds were paid off. Shortly before the scheduled opening, the fuel center operator backed out. The principals of Air Cap decided to operate the fuel center. In order to purchase the fuel dispensing equipment, the canopies, and the interior furnishings, which the lessee operator had been required to provide under the lease agreement, Air Cap obtained a revolving line of credit from Mid Kansas Federal Savings and Loan Association (Mid Kansas) for $495,000. It was secured by a mortgage on the.remaining 64 acres, which were adjacent to the development. In May 1986, Blase Mancine was hired to run the fuel center.
A letter of credit for $150,000 was obtained from Mid Kansas for fuel purchases from Texaco. It was personally guaranteed by the directors, respondent, Robert Blase, Rodger Moran, and Paul Feleciano. The Texaco account fell into arrears, and in July 1987, Texaco called approximately $85,000. Mid Kansas paid that amount to the fuel supplier. When the bank demanded payment from the guarantors, Robert and respondent each paid one-fourth of the approximate $85,000, but Moran and Feleciano refused to pay on the ground that it was a corporate rather than a personal obligation.
In 1984, Laura Jeanne Blase (Jeanne), respondent’s wife, began helping with the bookkeeping for Air Cap. She testified that after Texaco called the $85,000, the fuel center was required to pay for fuel upon delivery. Bécause checks written on the corporate operations account had to be signed by two directors, it was not feasible to pay the fuel supplier from that account. A fuel account on which Mancine could write checks was opened for that purpose. She also testified that Mancine had an agreement with the supplier that the check would be held for 7 days before being deposited. Because Mancine recorded the check when it was given to the supplier and deducted it from the balance, the account had a constant negative balance.
The first fuel account, on which Mancine was the sole signatory, was closed by the bank due to overdrafts. A fuel account then was opened at Chisholm Trail State Bank (Chisholm Trail). Mancine and respondent were authorized to sign fuel account checks, but only one signature was required. Receipts from the sale of fuel and items from the convenience store were deposited into the fuel account, and the fuel supplier was paid out of it. The receipts for fuel paid on open charge accounts and truckers’ credit card companies were received in the corporate office and deposited into the Mid Kansas account. During the first 6 months of 1988, approximately four or five checks a month were drawn on the Mid Kansas operations account in order to transfer money to the Chisholm Trail fuel account. Occasionally, there would be a transfer from the fuel account to the operations account.
On Friday before the July 4th weekend in 1988, Mancine contacted Jeanne for a transfer to the fuel account. She initially refused because there was not enough money in the operations account to pay the bills and transfer money for fuel. Mancine convinced.her by saying he would hold the operations account check until just before the banks closed on Friday and would deposit a fuel account check in the Mid Kansas account first thing on Tuesday. According to Jeanne, this was the first instance in which Advantage was taken of the time required by the banks for processing transfers. The same thing occurred on Friday,.September 2, in connection with the Labor Day weekend.. The checks written on the operations account on those two occasions were approximately. $6,000 each.
On: September 26,. Mancine asked Jeanne , to transfer money from the operations account to the fuel account.-. She initially re-i fused on the basis that the . money in -the operations account was earmarked for other needs. Mancine convinced her by saying that he would have to close the business. She gave him a $7,000 third-party check which otherwise, would have be.en deposited in the-operations account and-a $4,000 check.written- on die.operations account. He did not deposit a corresponding amount into the op.-; erations account the following morning, as promised, but on September 28 he did. Mancine immediately.asked for another transfer from the operations account and promised to pay it back the next day. The next day he gave Jeanne, a check from the fuel account, which repaid the previous transfer, and asked for another check from the operations-account. . ' .... . , ,
The pattern continued, and the. number and amounts of the checks escalated. When the amounts to be drawn from the .-operations account exceeded .$10,000, Mancine told Jeanne to make more than one check .-so that the bank would not be required .to, report the draw to the Internal Revenue Service.
In a memorandum dated November 17, 1988, Jeanne called to the attention of the directors of Air Cap the ever-growing practice of transferring money from one account to another. She began by showing negative bank balances in each of three accounts (fuel, operations, and imprest) as of October 31 and negative checkbook balances in two of the three accounts on November 14.
Examination of the transfer checks written on the Mid Kansas account from October through March, when the accounts were closed, shows that all but the first check, which is numbered 10220 and dated October 3, 1988, were signed by respondent. The first check has only Robert’s signature.
There were 28 more transfer checks written on the Mid Kansas account in October 1988, and all but 5 were signed by respondent and Robert. During November 1988, the number of transfer checks written on the Mid Kansas account rose to 80. Checks dated through November 15 are cosigned by Robert. He died of cancer on November 28 after spending much of the fall of 1988 in the hospital, where respondent visited him every day. Beginning with checks dated November 16 and through mid-December, the second signature on the transfer checks often was supplied by Man-cine. Insofar as the record shows, Mancine was not authorized to sign checks drawn on the Mid Kansas operations account. Moran cosigned eight checks in November 1988.
The number of checks written to the Chisholm Trail fuel account from the Mid Kansas operations account increased in each succeeding month through February 1989. On checks written in December 1988 and January and February 1989, respondent’s signature is paired as follows: On checks written in December, with the signatures of Moran, Feleciano, and Mancine; in January, with the signatures of Moran and Feleciano; in February, with die signatures of Moran, Feleciano, and, on one check, Robert’s wife, Dorothy Dee Blase (Dee). In March, Dee’s signature, followed by “Director,” appears several times. There is an undated signature authorization for her in the record.
A grand jury indictment against respondent and Mancine was filed in the United States District Court for the District of Kansas (Wichita Docket) in January 1992. Each was charged with one count of conspiracy to execute a scheme to defraud federally insured financial institutions; one count of executing a scheme to defraud Chisholm Trail, which resulted in a loss of approximately $66,862.78; and one count of executing a scheme to defraud Mid Kansas, which resulted in a loss of approximately $88,010.28. Man-cine entered into a plea agreement which included his testifying against respondent. Respondent was tried twice. The jury deadlocked each time, and, on September 30,1992, the charges against him were dismissed.
When interviewed by F.B.I. agent Randall Wolverton, respondent’s position was that, even though the check-kiting activity might be illegal, he had not committed a crime because he did not intend to defraud the banks. Respondent stated that he knew that the banks were losing money and that the loss in mid-November would be approximately $40,000 to $50,000, but that he placed a self-imposed ceiling of $100,000 on the losses he would allow the banks to sustain. Respondent “explained that if the loss situation reached or exceeded $100,000, that he would call the banks, put a stop to the activity, and actually take his own money that had been set aside in an annuity program to repay the banks, even though this was a corporate debt.” Jeanne testified that sometime before March 1989, respondent confided in her that he would let the scheme go on until it reached about $100,000, at which time he would no longer be involved in it. He told her that if there was a problem, he would use his annuity. According to Agent Wolverton, the combined losses of the banks exceeded $100,000 on December 20, 1988. Respondent was basing his $100,000 stopping point “on the amount outstanding from the Mid Kansas account on a daily basis.”
Respondent told Agent Wolverton that he monitored the operations account at Mid Kansas and that the loss figure was approximately $90,000, that is, short of his self-imposed limit, when the activity was stopped. Respondent also indicated that he believed that the banks were aware of the activity and acquiesced in it.
As respondent related to Agent Wolverton when first interviewed, the basis for his belief that Chisholm Trail was aware of the check-kiting activity was that it charged a fee on an uncollected balance. Respondent testified that Jeanne’s memorandum of November 17, 1988, alerted him to the exchange of checks between the fuel account and the operations account. To find out why it was happening, he talked to Jeanne about how the practice started and looked at the bank statements for each account. Noticing that the service charge on the Chisholm Trail account had increased significantly in October, respondent checked the account agreement and read that an 18% interest charge is assessed on negative collected balances. Respondent testified that he believed that Chisholm Trail knew that its money was being used and was charging interest on that use.
With regard to Mid Kansas, respondent testified that it was “pretty clear” to him “what was going on” and that he . could not imagine that the bank did not know. Respondent first told Agent Wolverton that he believed any bank officer could see the amount of activity in the Mid Kansas account. On the Mid Kansas statement, there was what respondent described as “what appeared to be a statement of the account on practically a daily basis.” It seemed unusual to him and contributed to his belief that Mid Kansas knew what was going on. Eventually respondent’s explanation of why he did not intend to defraud Mid Kansas came to include the concept of that bank’s being secured against loss as a result of security which had been pledged in connection with existing loans. Respondent noted that Mid Kansas held the mortgage on the undeveloped adjacent acreage as security for the revolving line of credit which, by November 1988, had been paid down from $495,000 to approximately $150,000.
Respondent testified that he brought up Jeanne’s memorandum, which had been made available to each director in advance, for discussion at the board meeting on November 23,1988. In addition to respondent, Moran, Feleciano, and John Vetter, a Wichita attorney and certified public accountant who had been appointed to the board in May 1988, were present. The minutes of the meeting are not in the record. Respondent testified that during the new business portion of the meeting, he held up a copy of the memorandum and said, “ “What are we going to do about these transfers?’ . . . The only response was from Feleciano, who stated, ‘Don’t look at me, I don’t have any money.’ ” Respondent found it very significant that Vetter did not express concern about the trans fers. It was agreed, according to respondent, that a work session would be held the following weekend for the purpose of “get[ting] into it and finding] out what we could do to stop the practice of transferring checks.”
At the work session respondent, Moran, and Feleciano settled on a two-part strategy. They would woik with Mancine to improve his operating procedures in the hope that spending could be cut and deposits could be increased. In addition, they actively would seek to sell some of the undeveloped land. Respondent expected positive results. Mancine had assured respondent before the board meeting that his operation could generate the needed income “within a very short period of time,” which respondent interpreted as “within a couple of weeks.” And during the fall of 1988, Air Cap had closed on two land sales comprising three acres for $355,000.
Knowing that there was no actual money supporting the checks, respondent continued to actively participate in the transfers by signing Mid Kansas checks. At some point the amount began to be left blank on transfer checks presented for signature, and respondent continued to sign them. As noted, many of the Mid Kansas transfer checks which were issued in November and December bore Mancine’s signature along with respondent’s. Respondent admitted that he knew of no purpose for a check kite other than to artificially inflate an account balance so that it appears there is money even though there is none. Respondent testified that he knew that check kiting was illegal and that he never thought of Air Cap’s practice as check kiting, “although the concept of the checks going back and forth in the manner that I saw them being described to me [in the November 17 memorandum] would certainly indicate that.” Respondent also said, however, that he trusted Man-cine to act in the corporation’s best interests. When asked, “And did you trust him to make sure that the kite was run appropriately?” respondent answered, “Well, I continued to sign the checks, so I guess you could say yes.”
When the accounts were closed in March, respondent and Moran went to Mid Kansas to talk with officials. Mid Kansas proposed a new extension of credit in the amount of $135,000, which would include the bank’s loss from the kite and the amounts still unpaid by Feleciano and Moran on their personal guarantees of the letter of credit for Texaco. Respondent refused to sign the note because it would have had the effect of transforming the personal liabilities of Feleciano and Moran into a corporate liability even though Air Cap had not made any accommodation for corresponding amounts paid by respondent and Robert.
Respondent and Feleciano went to Chisholm Trail to talk with officials. Chisholm Trail offered to make a loan to Air Cap in the amount of the loss sustained by the bank. Feleciano and Moran refused to sign the note unless respondent signed the Mid Kansas note. Dee and respondent signed the note with Chisholm Trail and secured it with personal assets. At the time of the disciplinary proceedings in August 1994, the Chisholm Trail loss had been paid, but the Mid Kansas loss was outstanding.
The Disciplinary Administrator contended that respondent violated one or both of subsections (c) and (g) of MRPC 8.4. MRPC 8.4(c) provides: “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” MRPC 8.4(g) provides: “It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.”
The hearing panel found:
“There does not appear to be a substantial dispute regarding the facts established by the evidence presented by the parties. It appears that the disputes or differences involve what conclusions might reasonably be drawn from the evidence, most specifically including conclusions regarding the respondent’s intent or state of mind.
“The Panel feels that the evidence in this case presents a close question, and the panel struggled with the issues presented for decision. However, having reviewed and considered all of the evidence presented and the parties’ respective theories and arguments, the Panel is unable to find by clear and convincing evidence that the respondent violated either of the rules relied upon herein.
“While it might reasonably be argued that at any particular point in time the respondent’s involvement as a participant in the kiting scheme evidences an intent to mislead or deceive the bank, the Panel is not clearly convinced that the respondent intended ultimately to deceive, defraud or cheat the bank in any way.”
Accordingly, the panel concluded that “the charges against the respondent herein be dismissed with no costs assessed to the re spondent, and this formal complaint is hereby dismissed.” The Disciplinary Administrator appealed pursuant to Supreme Court Rule 211(f) (1995 Kan. Ct. R. Annot. 211) from the final hearing report of the panel dismissing the complaint against respondent. On September 15, 1995, this court heard arguments on the Disciplinary Administrator’s appeal.
With regard to the standard of review to be applied when an appeal is taken from the decision of a disciplinary hearing panel, in In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993), the court stated:
“In State v. Klassen, 207 Kan. 414, 415, 485 P.2d 1295 (1971), we explained that we have a ‘duty in a disciplinary proceeding to examine the evidence and determine for ourselves the judgment to be entered.’ In State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975), this court stated that, although the report of the disciplinary board ‘is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony.’ See In re Farmer, 242 Kan. 296, 299, 747 P.2d 97 (1987).”
The Disciplinary Administrator built its appeal of this issue on two federal criminal cases — United States v. Frydenlund, 990 F.2d 822 (5th Cir. 1993), and United States v. Stone, 954 F.2d 1187 (6th Cir. 1992). Both involve convictions for check kiting which were obtained and affirmed despite defendants’ denials of intent to defraud the banks. Respondent ignored the cases cited by the Disciplinar)' Administrator. It was his position that professional misconduct within the meaning of Rule 8.4(c) must be intentional wrongdoing and “[c]onduct that does not indicate a specific intent or knowing calculation to do wrong is not within the rule’s prohibition.” Respondent urged this court to uphold the panel’s decision on the ground that “he did not have the requisite wrongful intent.”
As the Disciplinary Administrator argued, there are a number of aspects of these federal cases which are mirrored in the present case. Notwithstanding the failure of two juried to convict respondent of the federal offenses of bank fraud and conspiracy to defraud, it probably also is accurate to state that the evidence presented to the hearing panel “would have been sufficient to sustain a criminal conviction had the respondent been convicted and appealed that conviction.” Respondent knowingly participated in the check-kiting scheme. He knew its effect would be to artificially inflate the account balances, thereby caüsing the banks to honor checks drawn against accounts with insufficient funds and temporarily placing the bank’s funds at the disposal of the account holder. He knew its effect would be losses for the banks, and he admitted monitoring the loss of Mid Kansas. The Disciplinary Administrator argued, therefore, that because the burden of proof is less onerous for disciplinary than for criminal proceedings, the hearing panel erred “in finding that there was a lack of clear and convincing evidence” of respondent’s violation of MRPC 8;4(c). Respondent served as First Assistant District Attorney of Sedgwick County from 1981 to 1989. In 1989, respondent became Sedgwick County Counselor. The Disciplinary Administrator suggested that' we should consider the fact of respondent’s holding these positions while he was “kiting checks” to be a factor in-judging-his conduct.
The hearing panel did not conclude that the banks were aware of the check-kiting activity before the accounts'were frozen. It found that “a simple review of the banks’ own records would have readily exposed what was happening, and the bank witnesses admitted as much.” Because the panel concluded that the banks so easily could have known, it was not persuaded that respondent unreasonably assumed that they did know.
The panel seems to have concluded that respondent’s repaying the loss to Chisholm Trail demonstrates his lack of intent to permanently deprive the bank of. its money. There is nothing in subsection (c) of MRPC 8.4, however, which indicates that conduct involving dishonesty, fraud, deceit, or misrepresentation necessarily includes the element of intending permanent deprivation. Nor has any authority for this proposition been brought to the court’s attention.
If respondent’s conduct is to be condoned on' the ground that he'did not intend to deprive the bank of its money permanently,' the length of time which the unauthorized loan remained unpaid should be considered. The evidence showed that the $88,000 loss to Mid Kansas' wás still outstanding at the time of the' disciplinary hearing, in August 1994. That was 5Vz years after the accounts were closed. Respondent’s stated reason for not having entered into a repayment agreement with Mid Kansas was that die bank had included in the amount to be repaid what the corporation still owed on the letter of credit which had-been called by Texaco in 1987. It. is understandable that he did not want to pay what he .viewed as . the personally guaranteed- obligations of Feleciano and Moran. These circumstances, however, typify the perils of using another’s money without authorization. Respondent-created, a significant, unbargained-for risk for Mid Kansas irrespective of his disavowal' of any intent permanentiy to deprive the .bank of its money.
Respondent contended that the bank’s -.mortgage on the land adjacent to.and near the fuel.center development protected it from risk. That determination, should be the bank’s; not respondent’s. His rationalization of the sustained and elaborate check-kiting scheme in which he actively participated cannot alter the activity’s-being unknown,, unauthorized, and,unnegotiated by Mid Kansas. The bank’s holding a security interest.in the land from which Air Cap projected making a profit did not entitle respondent to engage in the illegal activity of check kiting. - .
For the purpose of this court’s review7, the final report of the disciplinary panel, will be adopted if. it. is amply sustained by the evidence or not against the clear weight , of the evidence. In this case we concluded, after a thorough examination of the testimony and exhibits presented by the Disciplinary 'Administrator, that there w7as clear and convincing evidence that respondent engaged in conduct involving dishonesty, fraud, deceit, and/or misrepresentation, thereby-violating MRPC 8.4(c). Respondent admitted actively participating in the illegal check-kiting scheme. The evidence supported neither his contention; that the banks knew that he was kiting checks nor-that it was reasonable for him to presume that they knew7. The evidence came much closer to sustaining his stance that he had no intention that either, bank should sustain a loss as a result of the illegal activity. This latter contention, however, as a matter of law7, did not cancel the violation. .
We agreed with the panel that respondent did.not violate MRPC 8.4(g) and affirmed the panel’s dismissal of that:-complaint. We. reversed the panel’s dismissal of the complaint against respondent for violating MRPC 8.4(c) and found by clear and convincing evidence that respondent did violate MRPC 8.4(c).
Due to the panel’s dismissal of the formal complaint, neither the respondent nor the Disciplinary Administrator had an opportunity to address the question of discipline. Nor did respondent have the opportunity to present evidence in mitigation of discipline. Following this court’s reinstatement of the complaint concerning the MRPC 8.4(c) violation, respondent moved that the matter be remanded to the panel for consideration of mitigating or aggravating circumstances and to make a recommendation as to the discipline to be imposed. The motion was granted on October 19, 1995.
Upon remand, the panel, after hearing evidence, recommended that respondent be disciplined by “formal admonition” and that the costs of the proceedings be assessed against him. The Disciplinary Administrator had recommended and continues to recommend that respondent be disciplined by published censure pursuant to Supreme Court Rule 203(a)(3) (1995 Kan. Ct. R. Annot. 191). Thus, the Disciplinary Administrator submitted the matter to this court for the determination of appropriate discipline.
In response, respondent filed a motion to remove the case from the docket for lack of appellate jurisdiction. The Disciplinary Administrator filed a reply requesting “that the matter be retained on the . . . docket ... or, in the alternative, that the [Disciplinary Administrator] be given additional time in which to file an appeal to the panel’s finding of informal admonition.” Respondent’s motion was denied on May 3, 1996.
The panel made the following findings:
“[W]ith respect to considerations of aggravation, the panel finds as follows:
1. Pursuant to the Supreme Court’s finding of a violation of MRPC 8.4(c), the respondent was guilty of a dishonest motive.
2. There was a pattern-with respect to the subject activity.
“With respect to considerations of mitigation, the panel finds as follows:
1. Respondent has no prior disciplinary record.
2. Whatever respondent’s motive, there was no intention to illegally retain or convert monies not belonging to him. (see State v. Scott, 230 Kan. 564 at page 571)
3. Respondent made a timely good faith effort to make restitution. One bank has been repaid in full. Respondent has offered to execute a note and pledge collateral to the other bank.
4. Respondent has fully cooperated in tire disciplinary process and has repeatedly expressed sincere remorse for his actions.
5. The subject conduct did not involve the practice of law.
6. Respondent is of good character and enjoys a good reputation in his community and among his peers as evidenced by numerous letters of support and of the testimony of U.S. District Court Judge Patrick Kelly, Sedgwick County District Judge Clark Owens, Sedgwick County Undersheriff Earl Wathen and past KBA president Jack Focht.
[7], Respondent’s father died during the time period in question. In addition to the obvious familial loss the panel notes that respondent practiced law with his father and relied upon his counsel and advice during trying times.
8. Respondent has suffered other ‘penalties or sanctions’ resulting from the subject conduct including the cost, expenses, trauma, adverse publicity and attendant stress and strain of two (2) federal criminal trials and this disciplinary action, since March or April 1989 and continuing to the present.
9. Respondent has repeatedly expressed heartfelt remorse for his conduct and the resulting trouble and inconvenience to others.
10. The complainant was apparently a business partner with interests adverse to respondent, and the panel received no statement from said complainant.”
Noting that the Disciplinary Administrator recommended published censure and respondent’s counsel suggested informal admonition, the panel stated its recommendation:
“The panel believes that the respondent’s conduct herein is the type which may find ample redress in the criminal and civil laws and exhibits none of the elements of moral turpitude, arising, rather, from the infirmities of human nature. The panel does not feel that the respondent’s conduct herein is the appropriate subject matter of a solemn reprimand by the Supreme Court, (in re Johnson, 106 Ariz 73, 471 p.2d 269) [sic] Accordingly, based upon ABA standard 5.14, the panel unanimously recommends that respondent should be disciplined by formal admonition and should be required to pay the costs herein, as properly certified by the Disciplinary Administrator.”
One member of the panel filed a concurring report. The concurring panel member reached the same conclusion with regard to the recommended sanction as did the other panel members. Her report adds some emphasis to descriptions of the hardships experienced by respondent and his family as a result of his involvement in the check-kiting scheme.
Rule 203(a) does not identify formal admonition as a type of discipline. It is not clear what the panel intended by recommending a type of discipline which is not listed in Rule 203(a). With its recommendation of formal admonition, the panel may have been trying to find a middle ground between the published censure recommended by the Disciplinary Administrator and the informal admonition recommended by respondent’s counsel. If so, subsection (5) of Rule 203(a) provides room for customizing a form of discipline. It might also be that the panel took the word “formal” from the text which accompanies the ABA Standards for Imposing Lawyer Sanctions. The panel stated that its recommendation was based on “ABA standard 5.14,” which states: “Admonition is generally appropriate when a lawyer engages in any other conduct that reflects adversely on the lawyer’s fitness to practice law.” ABA Standards for Imposing Lawyer Sanctions, Black Letter Rule 5.14, p. 12 (1991). There is no commentary on Rule 5.14. Black Letter Rule 2.6, p. 8, provides: “Admonition, also known as private reprimand, is a form of non-public discipline which declares the conduct of the lawyer improper, but does not limit the lawyer’s right to practice.”
In their filings in this court since the panel’s report on discipline, neither the Disciplinary Administrator nor respondent has offered reasons why the court should or should not accept the panel’s recommendation. The Disciplinary Administrator states that published censure “remains the Disciplinary Administrator’s recommendation.” The only suggestions offered by respondent pertain to jurisdiction.
We have carefully reviewed the record herein and the recommendation of the panel. In view of the evidence presented to the panel, we concur with the Disciplinary Administrator and conclude that respondent should be disciplined by published censure.
It Is Therefore Ordered that Henry H. Blase be censured in accordance with Supreme Court Rule 203(a)(3) for violation of MRPC 8.4(c).
It Is Further Ordered that this order shall be published in the official Kansas Reports and that the costs be assessed to respondent.
Lockett and-Abbott, JJ., not participating.
Robert H. Miller, Chief Justice Retired, assigned.
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Per Curiam.-.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Robert L. Mitchell, of Wichita, an attorney admitted to the practice of law in Kansas. The complaint filed against respondent alleged violations of Model Rules of Professional Conduct (MRPC) 1.1 (1995 Kan. Ct. R. Annot. 251) (competence), MRPC 1.3 (1995 Kan. Ct. R. Annot. 257) (diligence), and MRPC 1.4 (1995 Kan. Ct. R. Annot. 263) (communication).
A formal hearing before a panel of the Kansas Board for Discipline of Attorneys was held on September 19, 1995. Respondent appeared in person and by counsel. Respondent stipulated to the facts and that he had violated MRPC 1.1, 1.3, and 1.4.
The panel summarized the facts as follows:
“Respondent, an attorney at law, in Wichita, Kansas, was retained by Velincia Johnson, hereafter called Complainant, to represent her in an action which had been filed to repossess the complainant’s automobile. Complainant paid Respondent $150 on July 12,1994, as a retainer with the agreement that the check would not be cashed until the following week. Also Complainant furnished Respondent the summons and petition on the repossession action that had been filed against Complainant.
“In spite of the agreement the Respondent attempted to cash the Complainant’s check immediately and the check did not clear the bank. The Respondent then called Complainant and Complainant took a money order to the Respondent for $150.
“Later the Respondent sent the initial retainer check to the bank and the check cleared. Complainant was not aware that Respondent had sent the initial check back to the bank until other checks written by Complainant were returned by the bank because of insufficient funds.
“Later the Respondent denied that he had been paid any money for his services by the Complainant, but then the Respondent agreed to refund $150 to the Complainant.
“After being retained, the Respondent failed to take any action on behalf of the Complainant which resulted in a default judgment being entered against the Complainant. Later an order to appear for hearing in aid of execution was issued against Complainant, which was the first notice that complainant had that default judgment had been taken against her.
“The Complainant then contacted the Respondent and he denied any knowledge that he represented the Complainant and further denied he had been paid by the Complainant.
“Since that time Complainant has retained another attorney and a motion has been filed to set aside the default judgment.”
The panel unanimously concluded that respondent’s actions violated MRPC 1.1, 1.3, and 1.4. The panel unanimously recommended that respondent be suspended from the practice of law for a period of 2 years, imposition of suspension be suspended, and respondent be placed on supervised probation. In making its recommendation, the panel stated:
“The main source of the problems of the Respondent are his admitted alcoholism which Respondent admits he has had since about 1987. Also, Respondent has admitted his use of drugs in the past. The Respondent did inform the panel that he has sought treatment for his alcoholism in the summer of 1995 which treatment consisted of a treatment program at the Kansas Multicultural Alcohol and Drug Treatment Center, Wichita, Kansas, from June 2,1995, to July 2,1995.
“Both the attorney for the [Kansas Board for Discipline of Attorneys] and the Respondent and his attorney recommend that it would be best if Respondent were placed under supervision for a period of time and then Respondent is given until October 1, 1995, to submit a plan of supervision to this Board.”
On May 24, 1996, the Chief Deputy Disciplinary Administrator filed the recommendation of the Disciplinary Administrator’s office, pursuant to Supreme Court Rule 212(b) (1995 Kan. Ct. R. Annot. 214). The Disciplinary Administrator’s office changed its recommendation in support of supervised probation to suspension for a definite period of time. The basis of the Disciplinary Administrator’s office’s recommendation was stated as follows:
“4. . . . Subsequent to the panel hearing in this matter the respondent was found to have violated his parole from [a 1994 DUI] conviction by using alcohol. The parole violation occurred on December 19,1995. The respondent was placed in the Sedgwick County Detention facility as a result of. that parole violation by Municipal Court Judge Janet Arndt. On January 17, 1996, the respondent was released from jail by Judge Arndt and ordered into a residential treatment facility. On February 7,1996, Judge Arndt learned that Mr. Mitchell had not returned to the treatment facility for two (2) days. Judge Arndt then confronted the respondent who admitted that he had not returned to the treatment facility due to domestic problems. The judge ordered Mr. Mitchell to take a test for alcohol and drug use. Mr. Mitchell refused to take that test once he was taken to jail. Mr. Mitchell was then ordered by Judge Arndt to complete the remainder of his sentence on the DUI conviction. Mr. Mitchell was placed in jail on February 7, 1996, and was released on April 25, 1996. ...
“5. Because of the respondent’s incarceration in Wichita it was necessary for the Wichita Bar Association to inventoiy the client files of the respondent to protect the interest of his clients and obtain new representation for those individuals.” '
In addition, the Disciplinary Administrator’s office recommends that “[a] reinstatement hearing should also be required of the respondent to address the issue of the respondent’s continued dependence on alcohol and drugs.”
After a careful review of the record, we are of the opinion that respondent’s conduct subsequent to the panel hearing in violating his probation on the DUI conviction, his continued use of alcohol, and the existence of four additional complaints pending hearing or investigation negates the panel’s recommendation of supervised probation. We agree with the Disciplinary Administrator’s office that respondent should be suspended for a definite period of time and conclude that a 1-year suspension and compliance with Supreme Court Rule 219 (1995 Kan. Ct. R. Annot. 229) (reinstatement) is appropriate.
It Is Therefore Ordered that Robert L. Mitchell be and he is hereby suspended from the practice of law in the state of Kansas for a period of 1 year from July 12, 1996.
It Is Further Ordered that respondent shall comply with the provisions of Supreme Court Rule 218(a) (1995 Kan. Ct. R. Annot. 222) and, at the end of the 1-year suspension or anytime thereafter, shall comply with Supreme Court Rule 219.
It Is Further Ordered that the costs of these proceedings be assessed to respondent' and' that this order be published in the official Kansas Reports.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by Shawn Alderson from his convictions for felony murder and severity level 4 aggravated battery. The trial court imposed an upward durational departure on the aggravated battery charge. The defendant raises nine issues, including sufficiency of evidence, merger, lesser included offenses, failure of the trial judge to recuse himself at the trial and at the sentencing, failure to sequester witnesses, upward durational departure sentence, admissibility of victim’s prior conviction, and cumulative error.
On the evening in question, the defendant was riding around Wichita in a red Chevrolet Blazer sport utility vehicle accompanied by Vemon Hams, Jr. The defendant and Harris were part of a three-vehicle caravan that was together throughout the evening. The occupants of the caravan vehicles were witnesses to the events that transpired .throughout the evening.
The red sport utility vehicle in which the defendant and Harris were riding was a stolen vehicle. It was owned by the trial judge’s brother and was stolen from the home of the trial judge’s father, Owen Ballinger, a retired district court judge. The defendant occupied the stolen vehicle as both a passenger and driver during the evening. Depending on whose testimony is believed, he drove the stolen vehicle to the scene of the felony murder and had either exited the vehicle or was sitting in the driver’s seat when he fired the fatal shot.
While the defendant was driving the red sport utility vehicle around, the caravan observed a fight at the Westway parking lot. The occupants of all three vehicles stopped in the parking lot to watch the fight.
The fight involved Larry Goodwin, the victim of the felony murder, and his friend, Jeff Tipton, who were from Hutchinson and had gone to Wichita for the evening. Robert Ross, Victor Trudo, and Pat Benware were also involved in file parking lot fight. These three had stopped in the parking lot when Goodwin and Tipton pulled into the parking lot and accused the trio of “cutting them off” in traffic. Ross, Trudo, and Benware proceeded to beat Tipton into a state of unconsciousness. At this time, the three-vehicle caravan, led by the red sport utility vehicle, with the defendant as the driver and Harris as a passenger, pulled into the parking lot.
While Tipton was lying on the ground, Harris got out of the passenger side of the stolen red sport utility vehicle. Harris then fired two or three shots into the rear of Goodwin’s car. Goodwin was in the driver’s seat at the time. No words were exchanged between Goodwin and Harris. The record indicates the defendant and Harris had never seen Goodwin or Tipton before the incident.
After Harris fired the shots, Goodwin drove his car in a circle, ending up in the same place and facing the same direction from which he started. Goodwin’s vehicle was next to the stolen utility vehicle facing in the opposite direction with the drivers adjacent to each other. Ross testified that the defendant fired three shots from the Blazer’s driver’s seat into Goodwin's car. One of the bullets struck the back of Goodwin’s left shoulder, injuring Goodwin’s spine, paralyzing him from the neck down, and causing his death a few days later.
The defendant testified he was outside of the stolen vehicle and that he fired in self-defense to prevent Goodwin from running over him. This contradicted the defendant’s previous statement in which he denied he was even at the scene. The physical evidence indicates the bullet that killed Goodwin was fired from the side of the car and slightly from the rear.
After Goodwin was shot, the three-car caravan left and ultimately resumed cruising the streets. As they were driving, they came upon two young persons walking beside Hillside Street. The defendant leaned out of the passenger side of the red sport utility vehicle and fired a shot at the pedestrians. When two people in the caravan, Heather Marlett and Richenda Gallardo, looked back, they saw that one of the pedestrians had fallen to the ground. When Heather Marlett later asked the defendant why he shot the young man, the defendant laughed and told her “to keep it on lockdown.”
Tyrone Elam was one of the young men who had been walking along Hillside. He testified at trial. On the evening of June 15, 1994, Tyrone had been walking with- his brother .when three cars, including a red sport utility vehicle, passed them. Tyrone, heard someone yell, “You’re as dead as hell,” and then Tyrone fell to the ground. Tyrone had been shot and part of the bullet is still in his body. Because of this wound, one of Tyrone’s kidneys and 52% of his liver had to be removed, and his lungs collapsed twice. Tyrone testified that he had never seen, the defendant before the evening of June 15.
According to the defendant, he and Harris, who was driving the red sport utility vehicle at the time, decided they would try to scare the pedestrians. The defendant stated that he fired the .9 mm gun one time out of the passenger window. Based on these events, the defendant was charged with and convicted of felony murder and aggravated battery.
Prior to sentencing, the prosecutor filed a motion to depart upward as to the aggravated battery conviction, noting that the defendant acted without provocation and that his “unprovoked attacks clearly demonstrate that he is a menace to anyone who happens to cross his path.” The prosecutor requested that “[f]or the protection of the citizens of this state from the defendant’s random attacks the longest possible term should'be imposed.” The defendant’s presumptive guidelines sentence for the aggravated battery conviction was 38 to 43 months in prison with post-release suspension of 24 months. The trial court granted the State’s motion for upward departure based on the “senseless and random nature of the crime.” The defendant was sentenced to life for felony murder and to a consecutive term of 86 months for the aggravated batteiy conviction.
I. RECUSAL
The day before jury selection began, the Honorable Richard T. Ballinger, the district judge assigned to the case, informed counsel for both parties that he had an extrajudicial connection to the case. The red sport utility vehicle driven by the defendant on the night of the shootings belonged to the judge’s brother and had been stolen from the home of the judge’s father. In informing counsel of this information, the following conversation occurred:
“THE COURT: Excuse me. We have a potential problem here. And I apologize for not bringing this up earlier. The stolen vehicle that was involved, the ‘92 Blazer, was my brother’s car and was stolen from the retired Judge Ballinger’s house. I’m not a witness to that case, nor do I know anything about it; but, like I said, it was stolen from retired Judge Ballinger’s house while my sister-in-law was staying there.
“Miss Roberts, you want to talk to your client about that? I can’t see any potential problem here, but it is a factor.
“MS. ROBERTS: Your Honor, I briefly conferred with my client; and it’s the defense’s position that we prefer to have another judge hear the case.
“THE COURT: Is he charged with the theft of this vehicle?
“MS. ROBERTS: No.
“THE COURT: Well, then, let me, — well, okay. I’ll confer with the Court. We’ll see who we [can] find available for him.. Perhaps Judge Kennedy might be able to assist. We’ll take a short recess, and I’ll check.
“(Pursuant to the recess, proceedings continue as follows:)
“THE COURT: Record should reflect that we are back in session on 94 CR 1189, State of Kansas versus Shawn Alderson. Quite a bit has gone on since last we met. Let the record catch up with us. I went back and talked to the administrative judge, Judge Owens. A lot of things are going on this week. First of all, the new judges’ school is going on; and four of our judges have left the district. Coincidentally, all four of those aye in the criminal division. They will be out of town till . . . the end of this week. . . . That has caused a severe shortage of judges. They have brought in a couple of retired judges currently to handle the preliminary hearing dockets and plea dockets, and because of that there are no other judges available for this trial. That’s a major factor in this Court’s decision.
“Second thing, back in chambers, off the record I had asked Miss Roberts and Mr. Puntch if the State was planning on calling either Mrs. Ballinger or Mr. Ballinger as a witness in these cases. And I was informed that, no, no, even though endorsed, they were not going to be called. I also asked Mr. Puntch in the presence of Miss Roberts why the State would feel it is pertinent to this case to even identify the owner of this vehicle. And again this is really a collateral issue. Mr. Puntch indicated it was an identification question. The car was stolen; but who it was stolen from and the circumstances were not pertinent. And based on the State’s representation that they do not plan on calling any of the Ballingers, because this Court feels, and now the State does, too, that it’s irrelevant for purposes of this hearing. I don’t feel that it’s relevant, nor do I feel a conflict exists. This defendant is not charged with a theft. Nor is he connected in any way. Apparently, he was simply riding in this vehicle; and he was charged with the shootings and the resulting death.
“Miss Roberts, I have informed you; and you have indicated that you would remain objectionable to my rulings. But I have informed you that I am not going to recuse myself at this time. I don’t see a conflict. Either — certainly at the trial stage. The only potential conflict would be in a sentencing stage. And we’re talking about something that is just so far remote when you view what the charges are, this Court doesn’t feel (hat there’s any conflict. And so I’m going — I informed both parties; the record knows what’s going on; and I am going to go ahead and hear the case.
“You want to add something to the record or put anything else on the record, Miss Roberts?
“MS. ROBERTS: No, Yqur Honor. My objection is just noted for the record that you already put on. Thank you-
“THE COURT: Mr. Puntch, have I left something out or something I should say?
“MR. PUNTCH: Yes, there is something else I would like to say. Your Honor. I’m not going to read the name of Nancy Ballinger, who is an endorsed witness to the jury when I talk about who the witnesses may be. I do not intend to ask any witness, the car was stolen, his Blazer, who stole it. where it was stolen from, the issue of who actually took it. It’s the State’s position and most probably the co-defendant in this case, not Mr. Alderson, although Mr. Alderson did drive the vehicle some. There will be evidence of that fact. As the Court mentioned, it’s possible that Judge Brooks might become free from his other jury trial. I need to tell you that to see if it might [a]ffqct your decision.
“THE COURT: Apparently you have some more later information than I have.
“MR. PUNTCH: I think so, Your Honor.
“THE COURT: He was assigned a jury trial, and you say that might be for plea?
“MR. PUNTCH: When I left,'it was either for plea or trial in this court.
“THE COURT: Okay. That sounds like a normal Monday. Okay. Well, let’s proceed. Excuse the interruption.”
On appeal, the defendant contends that the trial judge erred when he refused to recuse himself from the trial at the defense counsel’s request. Thus,- the defendant asserts that he was denied his federal and state constitutional rights to be tried before a fair and impartial tribunal.
The State points out, however, that the defendant did not file a motion for change of judge -under K.S.A.-20-311d(a). Further, when the judge refused to recuse himself, the defendant did not file an affidavit, pursuant to K.S.A.’ 20-311d(b) and (c)(5), which requested the judge’s recusal -from the case and which stated the facts for the defendant’s belief that the judge possessed bias, prejudice, or interest toward the case.
K.S.A. 20-311d states:
“(a) If a party or a party’s attorney believes that the judge to whom an action is assigned cannot afford that party a fair trial in the action, the party or attorney may file a motion for change of judge. The motion shall not state the grounds for the party’s or attorney’s belief. The judge shall promptly hear the motion informally upon reasonable notice to all parties who have appeared in the case. If the judge disqualifies the judge’s self, the action shall be assigned to another judge by the administrative judge. If the judge refuses to disqualify the judge’s self, the party seeking a change of judge may file the affidavit provided for in subsection (b). If an affidavit is to be filed it shall be filed forthwith.
“(b) If a party or a party’s attorney files an affidavit alleging any of the grounds specified in subsection (c), the administrative judge shall at once determine, or refer the affidavit to another district judge for prompt determination of, the legal sufficiency of the affidavit. If the affidavit is filed in a district court in which there is ho other judge who is qualified to hear the matter, the administrative judge shall at once notify the departmental justice for the district and request the appointment of another district judge to determine the legal sufficiency of the affidavit. If the affidavit is found to be legally sufficient, the case shall be assigned to another judge.
“(c) Grounds which may be alleged as provided in subsection (b) for change of judge are that:
“(5) The party or the party’s attorney filing the affidavit has cause to believe and does believe that on account of the personal bias, prejudice or interest of the judge such party cannot obtain a fair and impartial trial or fair and impartial enforcement of post-judgment remedies. Such affidavit shall state the facts and the reasons for the belief that bias, prejudice or an interest exists.”
Based on the defendant’s failure to follow these procedures, the State contends that the defendant is barred from appealing the judge’s refusal to recuse and is barred from requesting a new trial with a new judge. In support of this argument, the State cites to State v. Ames, 222 Kan. 88, Syl. ¶ 6, 563 P.2d 1034 (1977). Ames found that the defendant did not timely file his affidavit for. a change of judge pursuant to an older version of K.S.A. 20-31 If; thus, the district court and the appellate court refused to rule on the merits of the motion. 222 Kan. at 96-98. In so holding, the court stated: “A party who shows a judge is prejudiced against him has a right to have his case tried before some other judge .... But failure to timely file an affidavit alleging prejudice as required by statute . . . may bar the movant’s obtaining a change of judge.” 222 Kan. 88, Syl. ¶ 6. (K.S.A. 20-311d and 20-311f have been amended since Ames was decided to require a defendant to first file a motion for change of judge within 7 days after pretrial. Under current law, if the judge refuses to disqualify himself or herself upon the defendant’s motion, the defendant should file an affidavit seeking recusal.)
The judge did not inform the parties about his extrajudicial connection with the case until the day before the trial commenced. The judge apologized for not informing the parties of this matter sooner. Under these circumstances, the defendant contends that the filing of an affidavit was not necessary.
We acknowledge the “lateness of the hour,” but the defendant did have time to follow K.S.A. 20-311d, albeit that might have been an inconvenient loss of time that could have been better used in trial preparation. The defendant had time to file a motion and an affidavit because the issue was presented to both the trial judge and the judge in charge of the criminal division before the trial judge made the decision not to recuse himself. However, due to the late disclosure, we are somewhat reluctant to bar the defendant’s claim simply because the defendant did not make an effort to comply with K.S.A. 20-311d. Nonetheless, the issue is irrelevant because allowing the defendant to raise the issue of the district court’s refusal to recuse would be of no comfort to the defendant.
In determining whether the defendant received a fair trial or whether his due process rights were violated when the trial judge refused to recuse himself, this court has promulgated a two-part test: (1) Did the trial judge have a duty to recuse himself from this case because he was biased, prejudicial, or partial? (2) If the judge did have a duty to recuse and failed to do so, was there a showing of actual bias or prejudice to warrant setting aside the judgment of the trial court? State v. Logan, 236 Kan. 79, 86, 689 P.2d 778 (1984).
Under the Kansas Code of Judicial Conduct, a judge has a duty to recuse himself or herself from a case “in which the judge’s impartiality might reasonably be questioned, including . . . instances where . . . the judge has a personal bias or prejudice concerning a party.” Rule 601A, Canon 3E(l)(a) (1995 Kan. Ct. R. Annot. 402, 407). In State v. Logan, 236 Kan. at 86, this court clarified when a judge’s impartiality “might reasonably be questioned” regarding the judge’s personal prejudice against a party. A judge should disqualify himself or herself if the circumstances and facts of the case “create reasonable doubt concerning the judge’s impartiality, not in the mind of the judge himself, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.” 236 Kan. at 86.
Even if this court should find that the district judge had a duty to recuse and failed to do so, the second step of the due process test is not met in that there is no showing of actual bias or prejudice in the trial. “Bias” refers to the judge’s mental attitude toward a party to the litigation. See State v. Foy, 227 Kan. 405, Syl. ¶ 2, 607 P.2d 481 (1980). Bias and prejudice east if a judge harbors a “hostile feeling or spirit of ill will against one of the litigants, or undue friendship or favoritism toward one.” 227 Kan. at 411. There is no indication that the district judge harbored a hostile feeling or spirit of ill will against the defendant throughout the trial. The judge allowed the defendant his self-defense jury instruction even though the judge did not think the instruction was justified. It was the jury which convicted the defendant, not the judge. See State v. Griffen, 241 Kan. 68, 72-73, 734 P.2d 1089 (1987). The record does not support the defendant’s claim that the judge actually exhibited bias or prejudice at trial. Thus, in any event, the second step of the due process test requiring recusal is not satisfied and reversible error is not present as a result of the trial judge’s refusing to recuse himself from the trial. The defendant also claims the trial judge erred in not recusing himself from sentencing the defendant. That issue will be disposed of in section VIII of this opinion.
II. SUFFICIENCY OF EVIDENCE
The defendant was convicted of felony murder. The underlying felony was criminal discharge of a firearm pursuant to K.S.A. 21-4219. This statute provides:
“(b) . . . [C]riminal discharge of a firearm at an occupied . . . vehicle is the malicious, intentional and unauthorized discharge of a firearm at a . . . motor vehicle ... in which there is a human being who is not placed in immediate apprehension of bodily harm.
“Criminal discharge of a firearm at an occupied building or occupied vehicle which results in bodily harm to a person during the commission thereof is a severity level 5, person felony.”
The defendant points out that in order to be convicted of felony murder, the State must prove the underlying felony with which he was charged. See State v. Chism, 243 Kan. 484, 491, 759 P.2d 105 (1988). Based on this premise, the defendant asserts that one of the essential elements of the underlying felony criminal discharge of a firearm is that the human being who was shot at in the vehicle “is not placed in immediate apprehension pf bodily harm.” K.S.A. 21-4219(b). The defendant argues that this essential element of the underlying felony was not proven beyond a reasonable doubt in this case. In fact, according to the defendant, the opposite is true because Goodwin, the human being who was shot at in the vehicle, did experience an immediate apprehension of bodily harm.
The defendant points out that when Harris shot the bumper of the car that Goodwin was in, Goodwin became scared and drove the car around the parking lot in a circle. The second set of shots occurred just a short time later; thus, the defendant contends that the person in the occupied vehicle was placed in immediate apprehension of bodily harm at the time of the shooting. As such, the State failed to prove that Goodwin was not placed in immediate apprehension of bodily harm. Thus, the defendant contends there is insufficient evidence to support proof of the underlying felony of criminal discharge and insufficient evidence to support the felony-murder conviction based on such underlying crime.
We find no error. Proof that Goodwin was “not placed on immediate apprehension of bodily harm” is not an essential element of the underlying felony of criminal discharge. State v. Caldwell, 21 Kan. App. 2d 466, Syl. ¶ 4, 901 P.2d 35 (1995), rev. denied September 26, 1995. In Caldwell, the Court of Appeals held that the State did not have to affirmatively prove beyond a reasonable doubt that the victim lacked immediate apprehension of bodily harm in order to convict a defendant of criminal discharge of a firearm. Instead, the court found that criminal discharge is the proper crime with which to charge a defendant if there is an absence of affirmative evidence that the victim. experienced immediate apprehension, as opposed to aggravated assault, which requires the victim to experience apprehension. The Court of Appeals held that the criminal discharge statute does not require actual proof of the victim’s absence of apprehension in. order to convict a defendant for this crime. The court analogized the criminal discharge statute to the former second-degree murder statute. To convict a defendant of second-degree murder under the old statute, the State did not have to prove the absence of premeditation beyond a reasonable doubt. Thus, the Caldwell court held that the fact that the victim was “not placed in immediate apprehension of bodily harm” is not an essential element of the crime of criminal discharge and did not need to be affirmatively proven to convict a defendant of such crime. 21 Kan. App. 2d at 473. In so holding, the Court of Appeals stated:
“It is clear to us that the Kansas Legislature intended that a person found guilty of discharging a firearm at an occupied building [or vehicle] be convicted of a felony whether or not the person or persons inside were put in immediate apprehension of bodily harm. The legislature intended to prohibit stacking offenses by convicting a defendant for both aggravated assault and discharging a firearm at an occupied building, [or vehicle] where the offenses involve the same victim and the same criminal act. Since both offenses cany the same severity level and both are person felonies, a defendant is not prejudiced by the State’s decision to pursue one charge rather than the other.
“. . . Therefore, we discern no fault with the State’s evidence even if the evidence were construed to mean [the victim] was put in immediate apprehension of bodily harm.” 21 Kan. App. 2d at 472.
The defendant takes issue with Caldwell, contending that its holding is incorrect. The defendant points out that PIK Crim. 3d 64.02-A C. indicates that the lack of apprehension by the victim is an essential element of the crime of criminal discharge and the jury was instructed as such. This is true, but PIK Crim. 3d 64.02-A D. also provides that the crime of criminal discharge is committed if the defendant intentionally and without authorization fires a gun at an occupied vehicle and causes bodily harm to a person, regardless of any apprehension the victim might have experienced.
The defendant also contends that the Court of Appeals’ analogy between this statute and the former second-degree murder statute is inappropriate because this statute deals with the victim’s state of mind, while the second-degree murder statute deals with the defendant’s state of mind. Further, the defendant contends that proving a negative — the absence of apprehension — is not impossible and is often required by statutes. The defendant concludes it was the legislature’s intent, based on the direct language of the criminal discharge statute, that proof the person in the vehicle was “not placed in immediate apprehension of bodily harm” is an essential element of the criminal discharge crime which must be proven beyond a reasonable doubt before a defendant can be convicted of the crime. The defendant asserts that there is no substantial evidence to support this element; thus, the underlying crime of criminal discharge is not met and the defendant cannot be convicted for felony murder based on this underlying crime.
When the sufficiency of the evidence to support a conviction is challenged, this court’s scope of review is well settled:
“If the sufficiency of the 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 rationale factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Richmond, 258 Kan. 449, Syl. ¶ 1, 904 P.2d 974 (1995).
See State v. Evans, 251 Kan. 132, Syl. ¶ 1, 834 P.2d 335 (1992).
Looking at the evidence in the light most favorable to the prosecution, a rational factfinder could have found the defendant guilty of criminal discharge. Thus, a rational factfinder could have found the defendant guilty of felony murder.
The record shows the victim’s friend had been beaten unconscious by three strangers who were still at the scene and that shots had been fired at the back of his car. Unquestionably, the victim was apprehensive. However, there is no evidence that the victim was apprehensive of this particular defendant. Instead, the evidence is that the victim was not even aware of the defendant’s presence.
As the record indicates, several witnesses testified that they saw a black man (Harris) get out of the red sport utility vehicle and shoot the bumper of the victim’s car. At this time, the victim drove his car around in a circle, apparently because he was scared. Then the witnesses saw the defendant, who was white, shoot the victim while the defendant was sitting in the driver’s seat of the red sport utility vehicle. After the shots, the victim slumped forward. This testimony is supported by the fact that a bullet was found in the bumper of the victim’s car and in the front doors of the car. However, the victim told his wife and a police officer before he died that a black man had shot him. Looking at this evidence in the light most favorable to the prosecution, the jury could have found that the victim did not see the defendant shoot at him at all. Instead, the victim only saw Harris shoot at him; thus, he assumed Harris was the one who had fired the fatal shot. The juiy could have relied on the other witnesses’ testimony and found that, even if the victim did not see the defendant, the defendant was the one who actually shot the fatal bullet. If the victim did not see the defendant shoot at him in the car, then the victim could not have been placed in immediate apprehension of bodily harm of this shooting. The victim may have had apprehension of Harris’ shot, but the victim does not appear to have had apprehension of the defendant’s shots.
Thus, there is sufficient evidence to support this element of the underlying felony, the underlying felony itself, and the felony-murder conviction. In any event, Caldwell is persuasive. We hold that the State is not required to prove beyond a reasonable doubt as an element of the crime of criminal discharge of a firearm that the victim was not placed in immediate apprehension of bodily harm.
III. MERGER
The defendant contends that he was not properly convicted of felony murder because the underlying felony of criminal discharge of a firearm at an occupied vehicle merged into the crime of felony murder. The State points out that the issue was not raised in the trial court and is not properly before this court. State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992) (“The defendant cannot raise points on appeal which were not presented to the trial court.”) Having failed to raise the issue to the trial court, we will not consider it on appeal.
We would point out that the Legislature has determined criminal discharge of a firearm, K.S.A. 21-4219, does not merge with homicide. K.S.A. 21-3436(a)(15).
IV. LESSER INCLUDED OFFENSES
The defendant was charged with and convicted of first-degree murder (felony murder) and aggravated batteiy. At trial, the defendant requested that the trial court instruct the jury' on the lesser included offenses of first-degree murder, including intentional and unintentional second-degree murder, voluntary manslaughter, and involuntary manslaughter. The trial court refused to instruct on these lesser included offenses, and the defendant contends this was error.
This court reviewed the rules for instructing on lesser included offenses in felony-murder cases in State v. Nguyen, 251 Kan. 69, 86, 833 P.2d 937 (1992):
“ The trial court has an affirmative duty to instruct the jury on all lesser included offenses which are supported by the evidence. [Citations omitted.] Instructions on lesser included offenses must be given even though the evidence supporting those offenses may not be strong. [Citation omitted.]
“ ‘In State v. Strauch, 239 Kan. 203, Syl. ¶ 7, 718 P.2d 613 (1983), we held:
" ’When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to the elements of deliberation- and premeditation which are otherwise required for first-degree murder. It is only when the evidence that the underlyingfelony was committed is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required.
The felony-murder charge was based on the-underlying felony of criminal discharge of a firearm undef K.S.A. 21-4219. The defendant contends that the evidence is weak and inconclusive to support the elements of this underlying felony. According to the defendant, the elements of the criminal discharge crime include: (1) malicious, intentional and unauthorized discharge of a firearm; (2) at a motor vehicle; (3) in which there is a human being; (4) who is not placed in immediate apprehension of bodily harm.
The defendant admitted firing two or three shots at Goodwin’s car, and there is no dispute Goodwin was in the car. The defendant contends that the evidence is weak and inconclusive to support the fourth element — that Goodwin was not placed in immediate apprehension of bodily harm.
We have previously held the fact that Goodwin was not placed in immediate apprehension of bodily harm is not an essential element of the criminal discharge crime. See State v. Caldwell, 21 Kan. App. 2d 466, Syl. ¶ 4. Thus, the evidence that the underlying felony of criminal discharge was committed is not weak or inconclusive. As such, no lesser included offense instructions were required, and thé trial court did not err.
V. THE VICTIM’S PRIOR CONVICTION
At trial, the defendant sought to introduce evidence of Larry Goodwin’s previous aggravated battery conviction. Finding that this fact was not relevant to the case, the trial court excluded this evidence. The defendant contends that the trial court erred when it denied his request, thereby denying the defendant his constitutional right to present a full and complete defense. According to the defendant, this issue involves an interpretation of constitutional law as to how he is allowed to present his defense. See State v. Mays, 254 Kan. 479, 487-88, 866 P.2d 1037 (1994). Thus, the de fendant contends that this is a question of law and this court’s review is unlimited. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
The record is clear that the defendant was allowed to present his self-defense theory of the case. The trial court instructed the jury on the self-defense theory. The defendant testified that Goodwin’s car almost hit a friend of his and was headed toward him. In refusing to present Goodwin’s prior conviction of aggravated battery into evidence, the court simply excluded one piece of evidence which, according to the defendant, was relevant to the self-defense theory. The court did not exclude all evidence of the defendant’s theory". Thus, a constitutional issue is not at stake, and this court’s standard of review is not unlimited. Instead, we determine whether the district court abused its discretion in excluding evidence of Goodwin’s prior conviction for aggravated battery. See State v. Arteaga, 257 Kan. 874, 894, 896 P.2d 1035 (1995).
“Judicial 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. If reasonable persons could differ as to the propriety of the action takeij by the trial court, then it cannot be said that the trial court abused its discretion.” State v. Spresser, 257 Kan. 664, 667, 896 P.2d 1005 (1995).
“Where self-defense is an issue in a homicide ease, evidence of the turbulent character of the deceased is admissible. Such evidence may consist of the general reputation of the deceased in the community, but specific instances of misconduct may be shown only by evidence of a conviction of a crime.” State v. Deavers, 252 Kan. 149, 156-57, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993).
In support of their positions, both parties cite to State v. Arteaga, 257 Kan. 874. In Arteaga, the defendant was convicted of first-degree felony murder and attempted aggravated robbery. The facts involved the meeting in an alley among the defendant, Arteaga, and a few of his friends and Jerry Anderson and David Culbertson, all of whom had been drinking. The victim, Anderson, received a fatal wound caused by a knife held by Arteaga. At trial, the jury was presented with three different theories of the killing — during an attempted aggravated robbery, in self-defense, or by accident.
In analyzing this issue, the Arteaga court cited to K.S.A. 60-447(a), which provides:
“[W]hen a trait of a person’s character is relevant as tending to prove conduct on a specified occasion, . . . evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible.”
In applying this statute, the Arteaga court stated:
“This court has stated that when self-defense is an issue in a homicide case, evidence of the turbulent character of the deceased is admissible. Specific instances of misconduct may be shown only by evidence of a conviction of a crime. State v. Deavers, 252 Kan. 149, 156-57, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993).
“Here, the trial court did not abuse its discretion in excluding evidence of Culbertson’s prior conviction for domestic battery. Culbertson’s role in the incident leading to Anderson’s death was relevant to the defendant’s claim of self-defense. The defendant’s version was that Culbertson pushed him as Culbertson and Anderson attempted to flee with the marijuana. The defendant also testified that Culbertson was being belligerent, and there was evidence that Culbertson was intoxicated. The facts of Culbertson’s prior conviction were that he was intoxicated and that it was in a domestic situation. The prior conviction, while possibly relevant, would have only a minor, if any, bearing on whether Culbertson was violent on this occasion. The evidence of Culbertson’s violence on this occasion was so limited that the trial court did not abuse its discretion in excluding evidence of the prior conviction in a domestic situation.” 257 Kan. at 894-95.
Here, the jury was instructed on self-defense. Thus, Goodwin’s alleged character trait of violence was relevant to prove he was violent and aggressive on the night in question by starting a fight or trying to run the defendant over, thereby requiring the defendant to act in self-defense. As such, relevant evidence of specific instances of prior violent conduct to prove Goodwin possessed a violent character trait could have been introduced through prior criminal convictions. In Arteaga, the court did not admit Culbertson’s prior criminal conviction because it found that Culbertson’s prior conviction for domestic violence had litde bearing on whether Culbertson would be a violent aggressor in an alley fight with strangers. 257 Kan. at 894-95.
In this case, the trial court did not know and this court does not know the circumstances which surrounded Goodwin’s previous aggravated batteiy conviction. It is not clear if the conviction involved Goodwin starting a fight with others, or trying to run another over with his car, or domestic violence. Thus, the trial court did not know if the prior aggravated battery conviction had any bearing on whether Goodwin would be violent by starting a fight in a parking lot with a group of strangers or by trying to run the strangers over with his car. The record does not give a clue as to when or what occurred in the victim’s prior aggravated battery conviction. Since this information was not available, we cannot say the trial court abused its discretion by refusing to allow the prior conviction into evidence.
VI. SEQUESTRATION OF WITNESSES
The district court made the following statement in regard to the sequestration of witnesses: “The record should reflect that Ms. Roberts [defense counsel] asked the court to sequester the witnesses, and the court denied that request.”
The defendant appeals the trial court’s refusal to sequester the witnesses. Both parties agree that the decision to sequester witnesses during a criminal trial is discretionary with the trial court. State v. Ralls, 213 Kan. 249, Syl. ¶ 6, 515 P.2d 1205 (1973). “Judicial discretion must ... be considered as exercisable only within the bounds of reason and justice in the broader sense and be considered abused only when it plainly overpasses those bounds.” State v. Lumbrera, 257 Kan. 144, 148, 891 P.2d 1096 (1995).
The defendant contends that the trial court’s refusal to sequester the witnesses, without providing any reasons to justify the decision, was arbitrary and, thus, an abuse of discretion. According- to the defendant, the act of sequestering witnesses furthers the truth-finding process because when witnesses are separated, they cannot change their testimony to make it consistent with the testimony of previous witnesses. The defendant contends that sequestration was particularly important in this case because there were so many witnesses, because three of the witnesses were acquainted with each other, and because one of these three witnesses had a prior juvenile adjudication regarding dishonesty. Thus, to secure the integrity of the truth-finding process, the defendant argues that sequestration, at least of these three witnesses, was necessary.
On the other hand, the State contends that the trial court did riot abuse its discretion. According to the State, the defendant has failed to show that the district court acted arbitrarily, fancifully, or unreasonably. Further,, the State argues that the truth-finding process was not compromised by the trial court’s refusal to sequester witnesses. The fact that three of the witnesses knew each other and that one of these witnesses had a prior juvenile adjudication for the crime of dishonesty could have been brought out on cross-examination.
“ ‘One who asserts that the court has abused its discretion bears the burden of showing such an abuse of discretion.’ ” State v. Davis, 256 Kan. 1, 26, 883 P.2d 735 (1994). The defendant has not met this burden. The defendant did not indicate on the record why he desired the witnesses to be sequestered or why the district court was mistaken in its ruling. The defendant does not argue that any of the witnesses changed their testimony or gave testimony which was inconsistent with their prior explanations of the events which occurred through the evening. On appeal, the defendant argues that the district court was mistaken because some of the witnesses knew each other and one had a prior juvenile adjudication for dishonesty. However, these considerations do not mean the trial court abused its discretion in refusing to sequester the witnesses. These concerns could have been brought to the jury’s attention through cross-examination. As such, the trial court’s ruling was not arbitrary or unreasonable, and the court did not abuse its discretion in refusing to sequester the witnesses.
VII. UPWARD DURATIONAL DEPARTURE
The defendant was convicted of first-degree felony murder and severity level 4 aggravated battery. The court found that the defendant had a criminal history of I. Neither party objects to the criminal history finding. The defendant was sentenced to the presumptive guidelines sentence of fife in prison for the felony-murder conviction. Neither party objects to this sentence. The presumptive guidelines sentence for the aggravated battery conviction, with the defendant’s criminal history is 38 to 43 months. The defendant filed a motion requesting a downward durational departure from this sentence, and the State filed a motion requesting an upward durational departure for this sentence. The State’s motion stated:
“The evidence produced at trial showed that the defendant shot two different persons on the occasions without provocation. One person died and the other victim, 16 years old, is maimed for life and will probably suffer medical problems for life. The defendant is totally without remorse. His unprovoked attacks clearly demonstrate that he is a menace to anyone who happens to cross his path. He constitutes a clear and present danger to this community or any community where he happens to reside.
“For the protection of the citizens of this state from the defendant’s random attacks, the longest possible term should be imposed.
“The defendant’s sentence in the aggravated battery count should be a departure sentence of 86 months, [to] run consecutively to the life term in the murder count.”
The court denied the defendant’s downward departure motion but granted the State’s upward departure motion. Relying on the 1993 sentencing guidelines, the court sentenced the defendant to 86 months for fire aggravated batteiy conviction. In so ruling, the court stated:
“I’m going to find specifically [the] total senseless randomness of this shooting clearly is one of the most aggravating factors you can ever have in any case. Both individuals were not known to this defendant. Upward departure on Larry Goodwin I don’t think is really the issue because that’s a life sentence, and I can’t double that. Even if I personally felt I would like to, I can’t. However, the aggravated factors specifically go to Tyrone Elam; and again, because of the total, complete randomness of this shooting, the senselessness, just plain mean, just plain mean, those are the factors I’m finding.
“Having regard to the nature and circumstances of the crime, and history, character and condition of this defendant, it is this Court’s opinion that the lowest minimum term is nowhere near appropriate, nor is it consistent with public safety. On the other hand, the maximum sentence on each one of these counts is not only appropriate but demanded.”
The defendant appeals the court’s imposition of an upward durational departure sentence.
K.S.A. 1993 Supp. 21-4716 provides for departure sentences. It states:
“(a) The sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines for crimes committed on or after July 1, 1993, unless the judge finds substantial and compelling reasons to impose a departure. If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.”
K.S.A. 1993 Supp. 21-4718 requires that notice be provided to the defendant before any aggravating circumstance may be used to impose a departure sentence. See State v. Gideon, 257 Kan. 591, 619, 894 P.2d 850 (1995). Both parties agree that the court relied on the “randomness” of the aggravated battery as an aggravating factor justifying departure. In appealing the departure sentence, the defendant contends that he was not given notice by either the State’s departure motion or by the court that the randomness of the crime might be an aggravating factor used to justify departure. The defendant concedes that the State’s motion used the term “random attacks.” However, according to the defendant, randomness was not alleged as an aggravating factor in and of itself in the State’s motion; thus, he was not given proper notice of this factor as required by K.S.A. 1993 Supp. 21-4718.
On the other hand, the State alleges that “randomness” was one of the reasons set out in the State’s motion for an upward departure sentence. Specifically, the motion stated, “For the protection of the citizens of this state from the defendant’s random attacks the longest possible term should be imposed.”
It is true that the “random attacks” language was not set out in the main paragraph of the State’s motion listing the aggravating factors. However, the State’s motion did clearly rely on the randomness of the shooting as a justification for departure. While the defendant is entitled to notice of the aggravating factors, he is not entitled to perfect notice. Cf. State v. Johnson-Howell, 255 Kan. 928, 952, 881 P.2d 1288 (1994) (finding that a defendant is only entitled to a fair trial, not a perfect one.) Thus, the State’s motion for upward departure gave the defendant adequate notice that the aggravating factor of the randomness of the shooting may be used to impose an upward departure sentence for the aggravated battery conviction.
The defendant contends that the use of this “randomness” factor was improper because the sentencing Court combined the randomness of this crime with its dismay at the increasing level of violence in Wichita and because “randomness” of a crime, in and of itself, is not a substantial and compelling reason for departure.
Addressing the former argument first, the defendant points out that the sentencing judge compared this case to a case the judge had previously heard and that the judge stated he was going to break the chain of violence. The defendant contends that the court’s decision to grant an upward departure sentence had little to do with the particular facts of the defendant’s case. Instead, according to the defendant, the court’s imposition of an upward departure sentence in this case was the court’s way of addressing violent crime in general. The defendant asserts that the sentencing court erred in sentencing him based on the frequency with which violent crimes are committed by others. Thus, the defendant contends that the sentencing court’s reliance on this factor, with or without notice, was improper and prejudiced the defendant’s substantial rights.
The trial court did make comments on the record as to other crimes he had heard about and the rising crime rate in Wichita. However, these comments do not mean that this was the basis for the judge’s decision to depart. Instead, the judge based his decision to depart on the “total senseless randomness of this shooting,” “the nature and circumstances of the crime, and the history, character and condition of this defendant.” The sentencing court did not impose this departure sentence based on the increase of crime generally in Wichita. Instead, the court based the departure on the particular facts of this case. It was the defendant’s own act of randomly shooting a man walking on a bridge which was the focus of the court’s decision to impose the departure sentence. As such, the sentencing court did not err in relying on the randomness of this crime when it imposed the departure sentence, and the defendant’s substantial rights were not prejudiced.
Finally, the defendant contends that the sentencing court’s use of the randomness factor to impose a departure sentence was improper because the randomness of a crime is not a substantial and compelling reason justifying departure. K.S.A. 1993 Supp. 21-4721(d) addresses this court’s review of a departure sentence:
‘■‘(d) In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the sentencing grid for- a crime, sentence review shall be limited to whether the sentencing court’s findings of fact and reásons justifying a departure:
“(1) Are' supported by the evidence 'in the record; and
• “(2)-constitute'substantial and compelling reasons for departure.”
The defendant takes issue with subsection (2), contending that “randomness”'of a crime does not constitute a substantial and compelling reason for departure. “K.S.A' 1993"Supp. 21-4721(d)(2) requires, alaw test — are the reasons stated on the record for departure adequate to justify a sentence outside the presumptive sentence?” State v. Richardson, 20 Kan. App. 2d 932, Syl. ¶ 1, 901 P.2d 1 (1995).
' in K.S.A. 1993 Supp. 21-4716(b)(1), the legislature listed several aggravating factors which qualify as substantial and compelling reasons justifying departure. Relying on this list of aggravating factors, the defendant contends that a'departure sentence should be imposed‘for a crime' which is' pürposely committed, with a specific state of miiid, dr whén a particular’relationship exists between the defendant and the victim. Since 'thé randomness of a crime is a fácfót which is opposite from those aggravating factors listed in the statute, the defendant,'contends that the randomness of a crime is not 'á substantial and ’compelling' reason'justifying departure,
fyltls trtie that'the aggravating factors listed in 21-4716(b)(l) relate to a particular intent, a particular victim, or a particular relationship between the defendant and the victim. However, this list specifically states that it is not an exclusive list of factors which may justify departure. We find as a matter of law that other factors, such as' random shooting,' may qualify as a substantial and compelling reason justifying departure.-Here, due to the randomness of the' crime, the'victim had' no'.Vvay to avoid'injufy as opposed to other victims of aggravated battery who' can possibly diffuse a conflict. Thus, the use of the randomness of the crime'as an aggravating factor to justify an, upward duratiqnal sentencing departure was proper .in .this case. . •■■ . , . ■ . .
VIII, SENTENCING RECUSAL
We have previously held in Issue I that Judge Richard Ballinger did not err in refusing to recuse himself from presiding over the trial of this defendant even though the red sport utility vehicle involved in the crime belonged to the judge’s brother and was stolen from the judge’s father’s home. However, Judge Ballinger’s sentencing of this defendant requires a different analysis. We are convinced that the judge’s impartiality at sentencing “might reasonably be questioned . . . not in the mind of the judge himself, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.” State v. Logan, 236 Kan. 79, 86, 689 P.2d 778 (1984). Simply stated, a majority of this court is of the opinion that a reasonable person having full knowledge of the facts would reasonably question the impartiality of the judge if the judge was about to sentence a defendant when the judge’s brother was the victim of a theft involving the defendant being sentenced. We do not question the trial judge’s actual impartiality in this case. Nor do we question the sentence imposed as being'unduly harsh. It may well be that a different judge will impose the same sentence. What we do question is the public perception of impartiality. It is vital to the legal system that the public perceive the system as impartial. The majority of this court is of the opinion a reasonable person with knowledge of all the facts would have reasonable doubt as to the judge’s impartiality. We therefore vacate the sentence and remand the case to the trial court for resentencing by a different judge.
IX. CUMULATIVE ERROR
Finally, the defendant claims that all the errors in the case created cumulative error requiring reversal of his felony-murder conviction and a new trial for this charge. In support of this contention, the defendant cites to State v. Lumbrera, 252 Kan. 54, Syl. ¶ 1, 845 P.2d 609 (1992):
“Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.”
The defendant asserts that the evidence of his guilt was not overwhelming; thus, the cumulative trial errors, considered collectively, are so great as to require reversal of his felony-murder conviction.
The evidence against the defendant is overwhelming, and the defendant’s felony-murder conviction will not be reversed. Cumulative error does not exist. In the previous eight issues, only one error has been found, and this error will be remedied at resentencing. One error cannot constitute cumulative error.
Convictions affirmed, sentences vacated, and case remanded for resentencing.
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It Is Therefore Ordered that Kenneth F. Crockett be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice, law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Kenneth F. Crockett from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1995 Kan. Ct. R. Annot. 222).
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The opinion of the court was delivered by
Six, J.:
This is a statutory construction case arising from an arrest for driving under the influence of alcohol. The State appeals, under K.S.A. 22-3602(b)(3), reserving the question of whether the K.S.A. 1995 Supp. 8-1001(f)(4) savings clause for “technical irregularities” applies only to commercial motor vehicle operators. We hold that the 8-1001(f)(4) savings clause is limited to commercial motor vehicle operators and deny the State’s appeal.
FACTS
Bunker was arrested for driving under the influence, violating K.S.A. 1995 Supp. 8-1567. Undersheriff William Salyers requested that Bunker take a breath test, which Bunker refused. Salyers attempted to give Bunker notice, as required under K.S.A. 1995 Supp. 8-1001, using Kansas Department of Revenue Form DC-27 entitled “Officer’s Certification and Notice of Suspension.” Salyers improperly completed certification on the form by checking certain boxes, instead of initialing them, as required.
At the Kansas Department of Revenue drivers license suspension hearing, Bunker succeeded in defeating the driver’s license suspension because of the improperly completed form. The Department of Revenue agreed with Bunker’s argument that the sav ings clause in K.S.A. 1995 Supp. 8-1001(f)(4) applies only to K.S.A. 8-2,145 notices given to operators of commercial motor vehicles. Bunker was not a commercial motor vehicle operator.
Bunker, in a pretrial motion in limine, sought to keep out any evidence that he had refused to take the breath test. The district court reasoned that K.S.A. 1995 Supp. 8-1001(f)(4) was limited to K.S.A. 8-2,145 notices given to'commercial motor vehicle operators. Bunker’s refusal to take the test was suppressed, although he was thereafter convicted of drunk driving, in violation of K.S.A. 1995 Supp. 8-1567.
DISCUSSION
The State submits that its question reserved is one of statewide interest. We agree.
“An appeal on a question reserved under K.S.A. 1994 Supp. 22-3602(b)(3) is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law. This court will not entertain a question reserved merely to demonstrate errors of a trial court in rulings adverse to the State. Questions reserved generally presuppose that the case at hand has concluded but that an answer to an issue of statewide importance is necessary for proper disposition of future cases.” State v. Roderick, 259 Kan. 107, Syl. ¶ 1, 911 P.2d 159 (1996).
K.S.A. 1995 Supp. 8-1001(f)(4) provides: “(4) No test shall be suppressed because of technical irregularities in the consent or notice pursuant to KS.A. 8-2,145, and amendments thereto.” (Emphasis added.) Because interpretation of K.S.A. 1995 Supp. 8-1001(f)(4) may affect the admissibility of test results or rebasáis stemming from consents or notices containing “technical irregularities” for drivers in Kansas, this question meets the Roderick criteria.
The State argues that the savings clause in 8-1001(f)(4) for “technical irregularities” should affect the implied consent law in general and not be limited only to commercial motor vehicle operators. We do not agree.
Interpretation of a statute is a question of law and, thus, our review is unlimited. Roderick, 259 Kan. at 110.
Under the 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 arid unambiguous, we must give effect to the intention of the legislature, rather than determine what the law should or should not be. State v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 (1995).
Under K.S.A. 1995 Supp. 8-1001(a), all Kansas drivers are deemed to have consented to submit to drug or alcohol tests, subject to the statutory provisions.
K.S.A. 1995 Supp. 8-1001(b) provides in part:
“(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a) if the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or to believe that the person was driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person’s system; and one of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol of drugs, or both, or involving driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person’s system, in violation of a state statute or a city ordinance.” (Emphasis added.)
Under 8-1001(f)(l), tbe officer requesting the test must give oral and written notice to the driver. The driver’s refusal to take the test is admissible at trial on the charge of driving while under the influence. When the driver refuses to take the test, the requesting officer must complete and serve on the driver a certification and notice of suspension of driving privileges. K.S.A. 1995 Supp. 8-1002(c).
K.S.A. 8-2,145 is part of the Uniform Commercial Driver’s License Act, K.S.A. 8-2,125 etseq., and applies, in addition to 8-1001 and 8-1002, whenever a commercial motor vehicle operator is requested to take a drug or alcohol test. Subsection (a) of 8-2,145 imposes additional notice requirements that the officer requesting the test must give to the commercial motor vehicle operator. Under 8-2,145 (b) through (f), if the commercial operator refuses the test, the officer must complete a certification in addition to the one required under K.S.A. 1995 Supp. 8-1002(a) and serve it and notice of disqualification of commercial driving privileges on the operator.
An alcohol concentration of .08 or greater can result in suspension of regular driving privileges. K.S.A. 1995 Supp. 8-1001(f)(l). An alcohol concentration of .04 or greater can result in suspension of commercial driving privileges. K.SA.. 8-2,142(a).
K.S.A. 1995 Supp. 8-1001 and 8-1002 have many references to 8-2,145 and other provisions of the Uniform Commercial Driver’s License Act. See, e.g., 8-1001(b), (f)(1) and (f)(4); 8-1002(a) and (h). These references make clear that the provisions applicable to commercial motor vehicle operators are in addition to, and not in lieu of, the provisions applicable to drivers generally.
K.S.A. 1995 Supp.r8-1001(f)(4) was added by the legislature in an amendment to K.S.A. 8-1001 in 1994. L.1994, ch. 353, § 9. The term “technical irregularities” relates to the consent or notice given to drivers of commercial motor vehicles under K.S.A. 8-2,145, which is in addition to the notice required to be given by the officer requesting the test under 8-1001(f)(l).
Appeal denied.
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The opinion of the court was delivered by
Lockett, J.:
The State appeals the denial of its motion to amend a complaint charging defendant Tung Thanh Le with felony reckless aggravated battery against a law enforcement officer pursuant to K.S.A. 21-3414 and the subsequent dismissal of the complaint. The district judge determined that a law enforcement officer was not a member of the class the legislature intended to protect when it enacted the general aggravated battery statute, K.S.A. 21-3414.
On May 2, 1995, the defendant was shot by a Kansas Highway Patrol Trooper who was being dragged by the defendant’s vehicle as the defendant attempted to flee from a traffic stop. The State charged the driver with intentional aggravated battery against a law enforcement officer, K.S.A. 21-3415, and possession of marijuana.
K.S.A.'21-3415 provides:
“(a) Aggravated battery against a law enforcement officer is: (1) an aggravated battery [intentionally causing great bodily harm to ánother person or disfigurement of another person] committed agáinst a uniformed or properly identified state, county, or city law enforcemeiit officer while the officer is engaged in the performance of the officer’s duty; or •
(2) an aggravated battery, [intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted] or [intentionally causing physical contact with another person when doné in a rude,' insulting, or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted] committed against a uniformed of properly identified state, county or city law enforcement officer while the officer is engaged in the performance of the officer’s duty.” . .
After evidence was presented at. the preliminary examination, the judge dismissed the charge of aggravated battery against a law enforcement officer, finding that there was no probable cause that the defendant’s actions were intentional, a statutory element of K.S.A. 21-3415.
The State refiled the complaint. Cpunt I of the second complaint charged that the defendant “recklessly cause[d] bodily harm to another person, to-wit: Daniel Dick, a uniformed State Law Enforcement Officer, with a deadly weapon, to-wit: Ford Bronco” (emphasis added) and cited K.S.A. 21-3415 as authority for the charge. Count II remained the same. Le was bound over for arraignment on both counts. An information was filed.
. After the arraignment, Le filed a motion to dismiss the aggravated. battery against a law enforcement officer charge, pointing out that K.S.A. 21-3415 required that he be charged for an intentional act of battery and not a reckless act. Le pointed out that the legislature had not enacted a statutory crime of reckless aggravated battery against a law- enforcement officer. The State moved to amend the information to charge Le with recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be in flicted pursuant to K.S.A. 21-3414(a)(2)(B), the general aggravated battery statute. ■ •
At the hearing on the motion, the judge determined that the State’s proposed amendment violated the rule of statutory construction requiring a specific statute to be charged over a'general statute. The district judge observed that the legislature intended intentional aggravated battery against a law enforcement officer to be a distinct act from aggravated battery set out in K.S.A. 21-3414. The district judge denied the State’s motion to amend the information, holding that the State could not proceed with-the general aggravated battery statute because the victim was a law enforcement officer, a distinct class protected under specific statutes. In reaching this conclusion, the judge-stated: .
“The State should not be allowed to circumvent the legislative intent with'the pretext that Trooper Dick is merely a member of the general public. Trooper Dick is a member of a particular specific class that has been identified by the legislature. An amendment to the information would not prejudice the defendant. However, the particular proposed amendment I believe violates the rule óf statutory construction which requires a specific statute to be charged over a general statute.”
The judge then opined that K.S.A. 21-3413, the simple battery against a law enforcement officer statute, provided the authority for charging the defendant with reckless aggravated battery against a law enforcement officer, a misdemeanor. The judge observed that the State could proceed with the prosecution of a misdemeanor battery against a law enforcement officer or dismiss the case. The State declined to prosecute the defendant for misdemeanor battery, and the judge granted the defendant’s motion to dismiss. The State timely appealed pursuant to K.S.A. 22-3602(b)(1), claiming that the district court erroneously applied the law of statutory construction in concluding that the legislature did not intend law enforcement officers to be members of the class protected by the general aggravated battery statute, K.S.A. 21-3414.
In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable har mony and giving effect to the entire áct if it is reasonably possible to do so. State v. Gonzales, 255 Kan. 243, 248, 874 P.2d 612 (1994). “ ‘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.’ ” State v. Sodders, 255 Kan. 79, 81-82, 872 P.2d 736 (1994) (quoting Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 353, 770 P.2d 423 [1989]).
In 1992, the legislature amended the battery statute to include both intentional and reckless acts. L. 1992, ch. 298, § 11. During the same session, the legislature amended the general aggravated battery statute to include reckless and intentional acts. L. 1992, ch. 298, § 12.
K.S.A. 21-3412 provides:
“Battery is:
(a) Intentionally or recklessly causing bodily harm to another person; or
(b) intentionally causing physical contact with another person when doné in a rude, insulting or angry manner.” (Emphasis added.)
K.S.A. 21-3414 provides:
“(a) Aggravated battery is:
(1)(A) intentionally causing great bodily harm to another person or disfigurement of another person; or
(B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted; or
(C) intentionally causing physical contact with another person when done in a rude, insulting, or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted; or
(2)(A) recklessly causing great bodily harm to another person or disfigurement of another person; or
(B) recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted.
“(b) Aggravated battery as described in subsection (a)(1)(A) is a severity level 4, person felony. Aggravated battery as describéd in subsections (a)(1)(B) and (a)(1)(C) is a severity level 7, person felony. Aggravated battery as described in subsection (a)(2)(A) is a severity level 5, person felony. Aggravated battery as described in section (a)(2)(B) is a severity level 8, person felony. A person con victed of aggravated battery shall be subject to the provisions of subsection (h) of K.S.A. 21-4704 and amendments thereto.” .
The aggravated battery against a law enforcement officer statute was enacted in 1969. L. 1969, ch. 180. Prior to that time, no distinction was made between aggravated battery against á law enforcement officer and aggravated battery of other's. The 1969 enactment of 21-3415 increased file felony classification for intentional aggravated battery against'a law enforcement officer from a Class C felony applicable, to the general aggravated battery statute to a Class B felony. The enactment carried out the policy of the legislature to provide for increased penalties for attacks upon law enforcement officers performing théir.duties.
In 1992, when the legislature amended the aggravated battery statute to include reckless aggravated battery, the aggravated battery against a law enforcement officer statute was not ámended to include the element of recklessly causing great bodily harm or bodily harm. Only intentional acts of aggravated battery against a law enforcement officer are set out in K.S.A. 21-3415.
In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. State v. Gonzales, 255 Kan. at 249. As one commentator has noted- in discussing the legislature’s intent in not amending 21-3415 to include reckless acts against a law enforcement, officer:
“This section [K.S.A. 21-3415, level 6 person felony] continues die policy of increasing the felony class for the intentional aggravated battery of a law enforcement officer. Reckless aggravated battery of a law enforcement officer is covered by the general provision on aggravated battery. If reckless aggravated battery received the same felony class increase, an anomalous situation would result because the penalty for a reckless aggravated battery of a law enforcement officer would result in a higher penalty than that proscribed for a reckless act causing the death of a law enforcement officer [covered by K.S.A, 21-3404, involuntary manslaughter, a level 5 person felony].” (Emphasis added.) Tonkovich, The Kansas Criminal Code: 1992 Amendments, 41 Kan. L. Rev., Crim. Proc. Ed. 73, 84 (1993).
The legislature is presumed to intend that a statute be given a reasonable construction so as to avoid unreasonable or absurd results. Todd v. Kelly, 251 Kan. 512, 520, 837 P.2d 381 (1992). Surely the legislature did not intend that recklessly causing the death of a law enforcement officer would have a lesser penalty than reckless aggravated battery against a law enforcement officer. The legislature did not amend K.S.A. 21-3415 to include reckless aggravated battery against a law enforcement officer because it intended that a charge of reckless aggravated battery against a law enforcement officer should continue to be charged under the general aggravated battery statute, K.S.A. 21-3414.
The district court is reversed, and the case is remanded for further proceedings.
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The opinion of the court was delivered by
Davis, J.:
The defendant, Maurice Pierce, appeals from his premeditated first-degree murder conviction, raising issues which challenge instructions to the jury and question the sufficiency of evidence. Finding no reversible error, we affirm.
On June 5, 1995, the victim, Devron Bowers, age 14, was participating in Children’s Day at his church, the Freeman Avenue Church of God. The celebration was held in the basement of the church and at Zion Hill Park, which was located close to the church in Wyandotte County.
After church services, Bowers and another young member of the church, Keith Harbin, age 16, walked from the church to the park to set up games. When it began to rain, Bowers and Harbin decided to bring balls and other equipment back to the church. Seeing them from his grandmother’s home across the street from the park, Excell “Buddy” Gray, age 13, a third young member of the church, joined to help them.
The three boys gathered the equipment into a box and began to walk back to the church. They walked through the alley between Zion Hill Park and the church in order to cut through the church parking lot. The boys intended to enter a side door of the church.
As the boys walked back to the church, the defendant yelled at them from about a quarter of a block away, saying such tilings as, “[H]ey, you all fools better get up off my block,” and “[Y]ou all must think I’m a pussy, a punk.” Harbin testified that none of them recognized the defendant. The boys kept walking while the defendant continued to shout at them. When they reached the church door, the defendant flashed a small silver gun at them. Gray, then Harbin, quickly went inside the church. Bowers, however, froze and could not enter the church. As Bowers moved and placed his hand on the church door, Harbin and Gray heard a bang.
From inside the church, Latisha McCracken, age 13, and Joy Primm, age 18, witnessed the defendant hollering at the boys. They saw the defendant flash the gun twice, the second time appearing to shoot towards Bowers. Bowers stepped into the church, holding himself in the chest. He told the people around that he had been shot. Bowers then collapsed and died.
Dr. Erik Mitchell, who performed the autopsy, testified that Bowers suffered a gunshot wound that entered the outside of the right arm and exited the inside of the right arm. Another wound entered in the right side of the body. Bowers had two wounds, but Dr. Mitchell believed that there may have been a single gun shot. Dr. Mitchell also testified that he removed a bullet from under the skin on the left side of the body. He stated that in order to suffer this type of wound, Bowers would have had to be turned away from the gun. In the doctor’s opinion, Bowers died as. a result of internal bleeding.
After the shot, a witness driving by saw the defendant traveling in a direction away from the church. She testified that he had a gun in his hand. The defendant arrived at the duplex of his sister, Angela Pierce, located up the street from the Freeman Avenue Church of God. Upon entering he flashed a gun at Yolanda Sanders, a friend of Angela Pierce, who was exiting the duplex. Sanders testified that the defendant asked for his sister.
Angela Pierce testified that she was lying in bed when she heard a gunshot. Then she heard sirens. Her roommate and son reported that her brother had arrived and had a gun. She saw the defendant outside the duplex acting suspiciously. When she approached the defendant, he pointed a small gray gun at her. She began to cry and asked him what he had done; he said that he had shot somebody.
As Angela Pierce returned to her duplex, she noticed the crowd growing outside the Freeman Avenue Church of God. She joined the crowd and discovered that a boy had been shot. She reported to the police that she. thought her brother had' shot the boy and that he was at her duplex with a gun.
The defendant left his sister’s home and went to the neighboring duplex, the home of Juanita Valiant. Valiant noticed the defendant was nervous and kept looking out the window. He told her that some people had tried to rob him and that he had shot one in the leg. He showed her his gun. She testified that he then ran upstairs and hid in her closet. Valiant went out of the house and told the police, who were already coming up the street, where the defendant was hiding.
The officers on the scene at the Freeman Avenue Church of God acted on Angela Pierce’s statements and searched her duplex. They went to Valiant’s neighboring duplex and were informed that the defendant was upstairs. Officers surrounded the building. The police caught the defendant as he jumped from a window in the back and arrested him.
In their search of Valiant’s duplex, the police found a silver semiautomatic pistol hidden between two mattresses in an upstairs bedroom. In addition, the police found a shell casing at the scene of the shooting. These items, along with the bullet recovered at Bowers’ autopsy, were sent to the Kansas Bureau of Investigation (KBI) for testing. L.J. Stephenson, a firearms examiner for the KBI, tested the gun and concluded that the recovered bullet and casing were fired from the recovered gun.
The defendant was taken to the police station and was advised of his -Miranda rights. He waived his rights and gave a full statement to the police regarding the shooting. He stated that three boys approached him, threatening him. The defendant felt they were coming to hurt him with a knife, so he shot one. After the shooting, he panicked and ran first to his sister’s house and then to his friend Rynita’s home. The defendant stated that he gave his gun to Rynita’s boyfriend, Laun Cortez. He hid in a closet but after seeing police coming down the street, he jumped out the window.
The defendant contends that the trial court erred by failing to instruct on the lesser included offense of reckless second-degree murder, or “depraved heart murder” at common law, defined in K.S.A. 21-3402(b). Second, he argues that jury instruction No. 4 dilutes his statutory presumption of innocence by using the phrase “claims made by die State” instead of “elements of the offense.” The defendant finally claims that the evidence is insufficient to support a conviction of premeditated first-degree murder.
RECKLESS SECOND-DEGREE MURDER
The defendant was charged with and convicted of premeditated murder in the first degree, K.S.A. 21-3401. The trial court instructed the jury on first-degree murder, K.S.A. 21-3401; intentional second-degree murder, K.S.A. 21-3402(a); voluntary manslaughter, K.S.A. 21-3403; and involuntary manslaughter, K.S.A. 21-3404. No objection to these instructions was made at trial. The defendant argues that the district court failed in its duty to instruct the jury on the lesser included crime of reckless second-degree murder, K.S.A. 21-3402(b).
The defendant correctly asserts that the court has a statutory duty to instruct the jury on lesser included offenses. K.S.A. 21-3107(3) states:
“In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced.”
The duty arises whether or not the defendant requests the instruction at trial. State v. Sanders, 258 Kan. 409, 413, 904 P.2d 951 (1995); State v. Bowman, 252 Kan. 883, 892, 850 P.2d 236 (1993).
A. Reckless second-degree murder as a lesser included offense of premeditated first-degree murder.
Reckless second-degree murder, or “depraved heart murder” at common law, is defined in K.S.A. 21-3402, which states in full:
“Murder in the second degree is the killing of a human being committed:
(a) Intentionally; or
(b) unintentionally hut recklessly under circumstances manifesting extreme indifference to the value of human life.
“Murder in the second degree as described in subsection (a) is a severity level 1, person felony. Murder in the second degree as described in subsection (b) is a severity level 2, person felony.” (Emphasis added.)
Subsection (b) was added to the definition of second-degree murder and became effective July 1, 1993. L. 1992, ch. 298, § 4.
Reckless second-degree murder is distinguished from first-degree murder (“intentionally and with premeditation,” K.S.A. 21-3401[a]) and intentional second-degree murder by the level of intent required. In his treatise, Professor LaFave explains:
“Extremely negligent conduct, which creates what a reasonable [person] would realize to be not only an unjustifiable but also a very high degree of risk of death or serious bodily injury to another or to others — though unaccompanied by any intent to kill or do serious bodily injury — and which actually causes the death of another, may constitute [depraved heart] murder.” 2 LaFave, Substantive Criminal Law § 7.4 (1986).
Reckless second-degree murder is similar in nature to involuntary manslaughter, K.S.A. 21-3404(a), which requires a level of recklessness resulting in death.
In determining whether a crime is a lesser included offense of another crime, there is some statutory guidance. K.S.A. 21r3107(2) states in part:
“(2) ... An included crime may be any of the following:
(a) A lesser degree of the same crime;
(b) an attempt to commit the crime charged;
(c) an attempt to commit a lesser degree of the crime charged; or
(d) a crime necessarily proved if the crime charged were proved.”
Under the plain language of subsection (2)(a), the legislature can determine whether a crime is a lesser included crime by defining it as a lesser degree. This subsection is applicable in the present case.
Under K.S.A. 21-3107(2)(a), second-degree murder is a lesser degree of first-degree murder and, therefore, an included crime. It is presumed that the legislature intended depraved heart murder to be a lesser included crime of first-degree murder when the leg islature expanded the definition of second-degree murder. “The legislature is presumed to understand the meaning of the words it uses and the procedures it establishes.” State Bank Commissioner v. Emery, 19 Kan. App. 2d 1063, 1071, 880 P.2d 783 (1994).
This result is consistent with precedent explaining the theory of lesser included crimes of homicide under K.S.A. 21-3107(2)(a). In State v. Gregory, 218 Kan. 180, 542 P.2d 1051 (1975), the court examined whether manslaughter was a lesser included crime of murder. The Gregory court turned to the common law and noted:
“ ‘Homicide, of which murder is the highest and most criminal species, is of various degrees, according to circumstances. The term, in its largest sense, is generic, embracing every mode by which the life of one man is taken by the act of another.’ ” 218 Kan. at 182-83 (quoting Commonwealth v. Webster, 59 Mass. 295, 303 [1850]).
The court held that “manslaughter is a lesser degree of homicide than murder, and for purposes of K.S.A. 21-3107(2)(a) is a ‘lesser degree of the same crime.’ ” Gregory, 218 Kan. at 183. This holding included involuntary manslaughter, which like depraved heart murder, is predicated on recklessness. In summary, both statutory rules and case law support the conclusion that reckless second-degree murder, or depraved heart murder, is a lesser included crime of first-degree murder.
B. Duty to instruct on lesser included offense
The duty to instruct arises only where the record shows evidence upon which the accused might reasonably be convicted of the lesser offense. State v. Coleman, 253 Kan. 335, 352, 856 P.2d 121 (1993); State v. Dixon, 252 Kan. 39, 43, 843 P.2d 182 (1992). In State v. Harris, 259 Kan. 689, 702, 915 P.2d 758 (1996), we set forth the evidentiary standard to be followed in determining whether the trial court was required to instruct.
“We have held that a criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial so 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.”
The defendant did not testify at trial. However, the defendant’s nine-page confession was admitted into evidence for the jury’s consideration. Several other witnesses testified as to what the defendant did and what the defendant said. We must, therefore, review this evidence in the light most favorable to the defendant’s theory and determine whether such evidence, and all evidence at trial, would justify a jury verdict in accord with the defendant’s theory. Harris, 259 Kan. at 702.
The defendant asserts that several points of evidence support a possible conviction of reckless second-degree murder. He states in his brief that “[wjielding a gun, flashing it at people, is certainly reckless conduct, and pointing and shooting a gun at another person, clearly manifests indifference towards that person’s life.”
However, the defendant’s statement clearly and consistently seeks to establish that he shot in self-defense. First, the defendant stated that the three boys addressed him with some derogatoiy comments and he responded in kind. He then pulled out the gun, two of the boys ran, and the third, the victim, was “gonna pull a blade out on me, so you know I thought he was coming to hurt me so I popped him.”
Later in the same statement, the defendant stated that the victim “pulled a blade out, and ... I pulled my gun out first and he pulled a blade out.” After the two boys ran, the victim “stood there like I’m a punk. He said man you a punk. So I said man you wouldn’t think I wouldn’t pull the trigger dude. And he said what’s up man, I’m gonna cut you — and popped him.” Finally, in his statement the defendant says,
“Yeah, when he pulled his knife out that’s when I said, man, what’s up, you know clink, clink [the defendant showed how he put a bullet in the chamber of the gun]. You know he pulled his knife out, so I said what’s up, I pulled my — and then he stood up with the knife like oh, man you a punk niger [sic], you ain’t gonna shoot nobody. . . . [H]e pulled his knife out first, then I pulled my gun out. . . . And then I feel that I was gonna get harmed, so I pulled my gun out, and he got shot. I wasn’t trying to kill him though man.”
Finally, in the last part of his statement the defendant again mentions the knife and states, “I wasn’t trying to kill him.”
Valiant, in whose duplex defendant hid after the shooting, testified that the defendant told her that some “dudes” up by the church tried to rob him, that they got his money, and that he pulled a gun on them and got his money back and shot one person in the leg.
Consistent with the defendant’s testimony and all the evidence at trial, the court instructed on self-defense and involuntary manslaughter, a lawful act (self-defense) done in an unlawful manner. However, other than the two self-serving statements of the defendant that he did not intend to kill the victim, the record contains only tenuous evidence regarding a duty to instruct on reckless second-degree murder.
There is no evidence of recklessness. The defendant’s actions were intentional, according to the only evidence admitted, including his own statements. At best the evidence on behalf of the defendant suggested that he did not intend to kill the victim but only defended himself by shooting the victim in the leg. The instructions given by the court, including the involuntary manslaughter instruction, are consistent with the defendant’s theory. Under these circumstances, since all evidence supports an intentional shooting, the evidence, when viewed in the light most favorable to the defendant’s theory of reckless second-degree murder, would not have justified a jury verdict on this offense. Accordingly, the trial court was under no duty to instruct on this lesser included offense.
STATUTORY PRESUMPTION OF INNOCENCE IN JURY INSTRUCTION
The defendant challenges jury instruction No. 4 on two grounds. This instruction presents a slight modification of PIK Crim. 3d 52.02. The defendant does not argue that the modification is erroneous, rather he bases his contentions on the language which duplicates PIK Crim. 3d 52.02. Instruction No. 4 provides:
“The State has the burden of proving the defendant is guilty. The defendant is not required to prove he is not guilty. You must assume the defendant is not guilty unless the evidence convinces you of the defendant’s guilt.
“Your determination must-be made in accordance with these instructions, and this is the test you should apply: If you have no reasonable doubt as to the truth of any of the claims made by the State, you must find the defendant guilty. If you have reasonable doubt as'to any ofthe claims made by the State, .you must find the defendant not guilty.” (Emphasis added.)
The defendant first argues that the use of the words “not guilty” in the first portion of the instruction, rather than a statement that the defendant is presumed “innocent,” is clearly erroneous because it dilutes the presumption of innocence guaranteed by statute. K.S.A. 21-3109. Second, he argues that the phrase “claims made by the State” instead of “elements bf the offense” is clearly erroneous because it leads'tb confusion'regarding the burden of proof. He asserts that the latter problem is exacerbated .when instruction No. 4 is read together with instructions Nos. 5, 7, 8, and 9.
The defendant did not object to the above instruction at trial. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of the objection unless the instruction is clearly erroneous. K.S.A. 22-3414(3).
, An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict. State v. Deavers, 252 Kan. 149, 164-65, 843 P.2d 695 (1992), cert. denied. 508 U.S. 978 (1993).
A. The use of the words “not guilty” rather than “presumed innocent” in instruction No. 4.
■ The defendant contends that the failure to include the presumption of innocence and the use of the terms “guilty” and “not guilty” in the instruction do not. accurately convey the law and do not fully convey the fundamental constitutional right to the presumption of innocence. The defendant relies on the analysis of Flores v. State, 896 P.2d 558, reh. denied 899 P.2d 1162 (Okla. Crim.), cert. denied 133 L. Ed. 2d 450 (1995).
In Flores, the Oklahoma Court of Criminal Appeals examined the identical issue of whether the terms “not guilty” or “innocent” best preserved a defendant’s rights. After discussing the legal importance of the presumption of innocence in criminal trials, the Flores court focused on the effect of the language on the jury. The court stated:
“The presumption of innocence commands the jury to start their deliberations from the premise there exists an absence of guilt while the presumption of not guilty conveys there exists an absence of sufficient proof of guilt. While the distinction is subtle, we find it amounts to an impermissible lessening of the burden of proof by expanding the degree of doubt that is permissible. . . . Instruction No. 2, [using “not guilty” language] conveys to the minds of the jury an erroneous impression, in that it may be construed as varying the rule of law. Further, it imparts a qualification of the meaning, scope, manifest design and operation of the legal presumption of innocence.
“The term presumed innocent has a self-evident meaning comprehensible to the lay juror. The meaning is hardly susceptible to improvement by judicial efforts. Instead of improvement, the most likely outcome of [instruction No. 2] is unnecessary confusion and a constitutionally impermissible lessening of the required standard of proof.” Flores, 896 P.2d at 562.
The defendant urges this court to accept the reasoning of Flores and find PIK Crim. 3d 52.02 invalid.
Under the instruction given by the trial court in this case, the defendant’s presumption of innocence is preserved. We have examined the Flores argument and adopted an opposing view. In State v. Keeler, 238 Kan. 356, 710 P.2d 1279 (1985), we held that “not guilty” was preferable to “innocent” in an instruction to the jury. We found authority persuasive that stated in part:
“ ‘In ordinary lay usage, the term not guilty is often considered to be synonymous with innocent. In American criminal jurisprudence, however, they are not totally synonymous. “Not Guilty” is a legal finding by the jury that the prosecution has not met its burden of proof. A “Not Guilty” verdict can result from either of two states of mind on the part of the jury: that they believe the defendant is factually innocent and did not commit the crime; or, although they do not necessarily believe he is innocent, and even “tend” to believe he did not commit the crime, the prosecution’s case was not sufficiently strong to convince them of his guilt beyond a reasonable doubt.
“ “Within this second state of mind (reasonable doubt) resulting in a “Not Guilty” verdict fies the distinction between the terms not guilty and innocent.
“ ‘Since a “Not Guilty” verdict can be predicated on the “gray zone” of uncertainty somewhere between a belief in innocence and the required proof of guilt, it would be incorrect to state that a conclusion of “Not Guilty” means that the jury believes the defendant is innocent. Although a verdict of “Not Guilty” certainly may be based upon a belief in the defendant’s innocence, it just as certainly may be based on a hesitation in belief of guilty which amounts to a reasonable doubt in the minds of the jury.’ ” 238 Kan. at 362-63 (quoting Bugliosi, Not Guilty and Innocent: The Problem Children of Reasonable Doubt, Vol. 20, No. 2, Court Review 16 [1983]).
We further noted in Keeler:
“The Advisory Committee on Criminal Jury Instructions recognized the problem in part and now PIK Crim. 2d 52.02 refers to a determination of whether the defendant is guilty or not guilty’ rather than the earlier version which directs the jury to ‘determine the innocence or guilt of the defendant.’ ” 238 Kan. at 363.
We concluded that “not guilty” was preferable language to “innocent.” 238 Kan. at 364.
More recently, in State v. Johnson, 255 Kan. 252, 259, 874 P.2d 623 (1994), the same challenge to PIK Crim. 3d 52.02 arose. In Johnson, we found Keeler to control the issue and held that the instruction was not clearly erroneous. Keeler and Johnson control here. We hold that the provisions of PIK Crim. 3d 52.02 accurately reflect the law of this State and properly advise the jury in a criminal case of the burden of proof, the presumption of innocence, and reasonable doubt.
B. The use of the words “claims made by the State” rather than “elements of the crime” in instruction No. 4.
The defendant argues that the use of “claims made by the State” rather than “elements of the crime” allows the jury to make a finding of guilt based on other reasons than whether the prosecution has carried its burden for each element of the crime. He asserts that this instruction violates his due process rights. However, it must be noted that the defendant did not object to this instruction at trial.
The defendant’s argument fails to consider the instructions as a whole. The law is well settled that upon review of a challenged jury instruction, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error, although they may be in some small way erroneous. State v. Johnson, 255 Kan. 252, Syl. ¶ 4.
A consideration of the instructions given in this case demonstrates that the instruction complained of properly and fairly states the law as applied to the facts in this case and further demonstrates that the jury could not reasonably have been misled by the instruction. At no time in the trial court’s instructions is the phrase “elements of the offense” used. Each time the trial court instructed on charges, it used the language “to establish this charge, each of the following claims must be proved.” (Instructions Nos. 5, 7, 8, 9.)
The trial court instructed the jury that “[i]f you have no reasonable doubt as to the truth of any of the claims made by the State, you must find the defendant not guilty. If yoii have reasonable doubt as to any of the claims made by the State, you must find the defendant not guilty. Clearly, the “claims made by the State” language refers directly to the “cláinis” the' State múst prove beyond a reasonable doubt to convict the defendant. The language used in the trial court’s instruction clearly defines the responsibility of the jury. The language used is taken directly from PIK Grim. 3d. We' approve of the language used as a clear statement of the burden of the State in criminal trials. ,
SUFFICIENCY OF EVIDENCE
“When the sufficiency of the 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.” State v. Knighten, 260 Kan. 47, Syl. ¶ 1, 917 P.2d 1324 (1996).
“The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of a charge are sustained. State v. Patterson, 243 Kan. 262, Syl. ¶ 1, 755 P.2d 551 (1988).” State v. Pratt, 255 Kan. 767, 768, 876 P.2d 1390 (1994).
The defendant ásserts that the record does not sustain the element of premeditation required for a first-degree murder conviction. First-degree murder is defined in K.S.A. 21-3401 as “the killing of a human being committed . . . - [ijntentionally and with premeditation.” The defendant argues that the evidence only proves that he was trying to intimidate the boys but not that he was intending to commit a deliberate and premeditated murder.
The standard of review for the sufficiency of proof of the element of premeditation is stated in State v. Sanders, 258 Kan. 409, 414-15, 904 P.2d 951 (1995).
“We have held that the element of premeditation is not inferred from' use of a deadly weapon alone, but if additional circumstances are shown, such as lack of provocation, the defendant's conduct before and after the killing, or the striking of a lethal blow after the deceased was rendered helpless, the evidence may be sufficient to support an inference of premeditation.”
In reviewing the record, it is clear that there is sufficient evidence to support an inference of premeditation. The witnesses’ testimony unanimously stated that the defendant acted without the least provocátion. Despite the defendant’s claim that he was confronted with a switchblade, Harbin and Gray testified that they were unarmed. The nature of the wounds' entering the arm' and side of the chest suggest that Bowers was turning away from the defendant in an evasive action when he was shot. Filially, the defendant hid his gun and attempted to evade the police. Therefore, sufficient evidence supports the element of premeditation for first-degree murder, and the verdict should not be reversed.
Affirmed.
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The opinion of the court was delivered by
Davis, J.:
The defendant, Carlos Moore, appealed from the denial of his motion to modify sentence and the sentence imposed after his plea of guilty to á charge of aggravated batteiy on a law enforcement officer. He contends that he was- denied his right to allocution at sentencing and is, therefore, entitled to a new sentencing hearing. We concludé that the defendant waived his right to allocution and affirm.
On May 22, 1993, a disturbance took place at the Lansing Correctional Facility. Officer Mark Aveiy was killed, and Officer Michael Bidatsch was severely beaten. On August 26, 1993, a complaint was filed against the defendant charging hiiii ■ with first-degree murder in the death of Officer Aveiy and aggravated battery on a law enforcement officer in the beating of Officer Bidatsch. A grand jury returned an indictment agáinst the defendant on both counts. •
Pursuant to a plea agreement, the State amended Count I to a charge of aggravated batteiy on a law enforcement officer (as to Officer Avery) and dismissed the charge of aggravated batteiy on a law enforcement officer as to the beating of Bidatsch; the defendant pled guilty to the amended charge of aggravated battery on a law enforcement officer. Based upon his plea, the defendant was convicted of aggravated battery on a law enforcement officer and sentenced to the maximum of 15 years to life imprisonment.
A criminal defendant has an absolute right to allocution which is not waived by the defendant’s silence or arguments of counsel. State v. Johnson, 255 Kan. 156, 159, 872 P.2d 247 (1994). K.S.A. 1992 Supp. 22-3424(4)(c), tire allocution statute in effect at the time defendant’s crime was committed, provided:
“(4) Before imposing sentence the court shall . . . (c) address the defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant’s own behalf and to present any evidence in mitigation of punishment.”
The defendant does not contend that the court did not comply with the allocution statute but asserts that he did not understand. He argues that he was intellectually unable to understand what the court meant when the judge asked him if he wanted to add anything in mitigation of sentence and was, therefore, denied his right to allocution.
In support of his argument, the defendant cites a variety of findings contained in the Department of Corrections’ evaluation and classification report. The defendant tested at the low end of the borderline intelligence range. His cognitive skills were determined to be concrete. Two diagnostic tests (MMPI-2 and MCMI) were considered invalid because of the defendant’s low borderline verbal comprehension; the report says he definitely misunderstood a large number of items on the tests.
The record establishes that the defendant was represented by competent counsel who made an extensive statement in mitigation at the sentencing hearing. Counsel used the term “mitigation” and asked the court to consider the fact that defendant had no past record for violent crimes and that he was only minimally inyolved in the beating of the officer. Counsel asked for a downward departure from the sentencing guidelines. Immediately following counsel’s statement the court addressed the defendant:
“THE COURT: Is there anything you want to add personally in mitigation of sentence today?
“DEFENDANT: No, sir.”
The argument made by the defendant is made for the first time on appeal. Although the defendant filed a motion to modify his sentence and personally appeared before the court with counsel for hearing on his motion to modify, the defendant did not mention his right to allocution. Recently, in State v. Bowen, 259 Kan. 798, Syl. ¶ 3, 915 P.2d 120 (1996), we said: “A defendant waives his or her right to allocution if the defendant files a motion to modify which fails to raise the allocution issue or fails to plead with particularity the evidence the defendant would have presented at sentencing had allocution been provided.” See State v. Duke, 256 Kan. 703, 728, 887 P.2d 110 (1994).
In Bowen, the defendant filed two pro se motions to modify sentence, neither of which raised the issue of his right to allocution. The defendant filed the second motion after he had been appointed counsel. Without a hearing, the court denied the motions; the defendant’s court-appointed counsel signed his approval of the order denying modification. At sentencing, the court had asked the defendant personally if there was any statement the defendant wished to make; the defendant replied in the negative. But the court did not ask the defendant if the defendant wished to present any evidence in mitigation of his sentence. We concluded that the defendant had been denied allocution. However, because the motions to modify sentence did not raise the issue of allocution, we found that the defendant had waived any objection to the lack of allocution. State v. Bowen, 259 Kan. at 805.
In contrast to Bowen, the trial court in this case specifically asked the defendant if he wished to add anything “in mitigation of sentence.” Moreover, the defendant in this case was personally present at his modification hearing and did not mention his right to allocution, nor did he proffer any evidence he would have presented at allocution. The defendant waived his right to allocution.
Affirmed.
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The opinion of the court was delivered by
Allegrucci, J.:
Michael Crane appeals his convictions of kidnapping (K.S.A. 21-3420 [Ensley 1988]), attempted aggravated criminal sodomy (K.S.A. 1992 Supp. 21-3301; K.S.A. 21-3506 [Ensley 1988]), attempted rape (K.S.A. 1992 Supp. 21-3301; K.S.A. 21-3502 [Ensley 1988]), and lewd and lascivious behavior (K.S.A. 21-3508 [Ensley 1988]). His controlling sentence is'35 years’ to life imprisonment.
Crane’s convictions in this case stemmed from two separate incidents on the evening of January 6, 1993. The first incident gave rise to the conviction of lewd and lascivious behavior; the second incident resulted in Crane’s being convicted of kidnapping, attempted aggravated criminal sodomy, and attempted rape.
At approximately 7 o’clock in the evening of Wednesday, January 6, 1993, Crane entered a tanning salon at 129th and State Line in Johnson County, Kansas. C.H., who was 19 years old at the time, was working there alone. C.H. showed him to one of the private tanning rooms and showed him how to use the tanning bed. Approximately 10 minutes later Crane emerged from his tanning room, went to the salon door, and stood there. When C.H. asked about his tanning, “he started making noises . . . and dropped his pants right below his genitals and had his hand around his penis and was moving it up and down.” Crane started walking toward C.H. and said, “You know you want it.” C.H. reached for the telephone and told Crane to get away. Crane backed up, said, “You could have had this, baby,” and laughed as he walked out the door. He ran toward an alley.
Approximately 30 minutes later, Crane entered a video store at 123rd and State Line in Johnson County. B.R., who was 20 years old at the time of trial, was working there alone. When Crane first came into the store, it was full of customers. He approached B.R. and asked for her help in locating a movie called Revenge. B.R. checked the computer listing of the store’s inventory and found that a movie by that title was shelved with new releases. As she helped him look for the movie, he moved close enough so that their arms brushed. She moved away, and he moved close again. After they had looked for the video for quite a while without success, Crane told B.R. he was going to check with his wife at the grocery store about the title of the movie and a possible alternative. There still were other customers in the store when Crane left and walked toward the grocery store. After he was gone, B.R. found the movie Crane had requested and set it on the counter.
There was at least one other customer in the store when Crane returned approximately 20 minutes later. He said the movie B.R. handed him was not the one he had in mind and asked to see the cover it came in. She showed him the cover; he looked at it and said it was not what he wanted. Crane moved off to another part of the store, saying he would look for something else. By then, he was the only customer in the store. Standing between the movie racks and a walkway, B.R. turned her attention to a movie which was playing on the television in the store.
After she had become absorbed in the movie, B.R. was lifted off the ground by Crane. B.R. kicked and screamed. Crane was car rying her away from the door and window at the front of the store. B.R. got her feet back on the ground; Crane “had ahold” of her shoulders and was trying to push her down, and she was fighting him. Crane had his sweatpants down, and he said, “Do you see this?” B.R. testified that Crane’s exposed penis “was rather flaccid.” At least three times he ordered B.R. to perform qral sex. Crane put his hands around B.R.’s neck and squeezed, still trying to force her down. B.R. said that she continued “to fight and scream and kick and shove and punch.” She hit Crane in the face and kneed him in the groin. Crane was constantly edging her toward the doorway to the store’s children’s room. Crane pushed B.R.; she knocked movies onto the floor as she fell against the wall, and then she fell to the floor. B.R. described Crane as being “hunched over” her, and he said, “I’m going to rape you.” She continued to fight and scream. She then testified that Crane “stopped all of a sudden and looked up real quick.” Then Crane stood up, ran to the front of the store, jumped over the turnstile, and ran out of the store toward the grocery store. B.R. chased him out of the store, screaming and yelling at him to get out. There was no one else around. When she went back into the store, B.R. locked the front door and called 911.
Dr. William Logan, a psychiatrist, evaluated Crane and testified on his behalf. In interviewing Crane and studying his records, Dr. Logan found very strong evidence of sexual dysfunction and deviancy which was manifested primarily in exhibitionism. He testified that persons “who suffer from this particular disorder . . . want to- induce some kind of shock or fear in the individual and there is also a sort of an adrenaline rush or boost of being in a dangerous situation.” Dr. Logan further testified that persons who engage in exhibitionism sometimes need to escalate their behavior beyond just exposing themselves in order to get the shocked or fearful response they want. Dr. Logan knew of two incidents in 1986 when Crane had touched women, in addition to exposing himself, and then fled. He testified that for some persons the progression from pure exhibitionism to more shocking behavior may continue, but for others it will not. Because exhibitionism typically is a telease from built-up stress, it can be episodic rather than progressive. Dr. Logan described it as voluntary but “a bit like an addiction.” He testified that persons who engage in exhibitionism sometimes are and sometimes are not sexually aroused while exposing themselves, “[b]ut very frequently they will use the experience as a masturbatory fantasy later on.”
Crane first argues that his right to speedy trial, pursuant to K.S.A. 22-3402, was violated. He relies on the following chronology:
Arraignment March 10, 1993
Notice of intent to rely on insanity defense April 6, 1993
Order to transport Crane to Lamed State Hospital for evaluation April 16, 1993
Report received from Lamed State Hospital July 2, 1993
Defense continuation for independent evaluation August 4, 1993
Report received from independent evaluation December 20, 1993
Trial began February 28, 1994
The State would add the following dates from the interval between receipt of the report from the independent evaluation and the beginning of trial:
State filed motion for continuance for purpose of obtaining another evaluation January 4, 1994
Continuance granted January 11, 1994
K.S.A. 22-3402 provides, in part:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).
“(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:
(a) The defendant is incompetent to stand trial;
(b) A proceeding to determine the-defendant’s competency to stand trial is pending and a determination thereof may not be completed within the time limitations fixed for trial by this section.”
In State v. Maas, 242 Kan. 44, Syl. ¶ 1, 744 P.2d 1222 (1987), the court stated:
“The filing of notice of intent to rely on the insanity defense, pursuant to K.S.A. 22-3219, operates as a waiver by the defendant of the requirements of the speedy trial statute (K.S.A. 22-3402) insofar as any such trial delay was reasonably occasioned by and attributable to the assertion of the insanity defense.” (Emphasis added.)
On appeal; Crane concedes that the time from April 6, 1993, when he filed notice of his intent to rely on an insanity defense, until July 2, 1993, when the report from his evaluation at Lamed State Hospital'was received are not chargeable to the State. He also agrees that the time from August 4 to December 20, 1993, is hot chargeable-to the State.: On August 4, Crane was granted a continuance for the purpose of obtaining an independent evaluation from Dr. Logan. Dr. Logan’s report was received on December 20,1993. By the time Dr. Logan’s report was received, 60 days which Crane contends are chargeable to the State already had elapsed since his arraignment. Crane contends that all the time which elapsed between the December 20, 1993, receipt of Dr. Logan’s report and-the-beginning of trial on February 28, 1994, is chargeable to the State. His contention includes the delay after January 11 even though it was occasioned by the State’s obtaining an evaluation of Crane’s mental condition from Dr. Hippe. The total, according to Crane, is T30 days chargeable to the State.
' It does not appear from the record that Crane filéd the initial request for evaluation. Instead, the question of evaluation arose at a hearing on the State’s motion to admit evidence of prior wrongdoing which was held on April* 16, 1993: The State called three witnesses whose testimony was about prior incidents the State wanted to introduce to'prove criminal intent. Following the testimony, the district court expressed the opinion that its admissibility might depend on the evaluation of Crane’s mental state. When the trial court had asked at the beginning of the hearing whether there were matters in addition to the evidence of prior wrongdoing which should be taken up, the prosecutor responded:
“The only other thing I believe would be in regards to the notice filed by the defendant in regards to his intent to assert the defense of insanity, allowing a defense of mental disease or defect. I am assuming the Court will want to issue appropriate orders in that regard with regard to a mental examination.”
The trial court asked what needed to be done, and the prosecutor answered that “the Court will need to designate the place where that mental examination will take place.” The court took the State’s evidentiary motion under advisement pending Crane’s evaluation and ordered that he be “transported to the state hospital at Lamed for purposes of a mental examination.” In any case, the parties agree that the time chargeable to Crane as delay occasioned by his anticipated insanity defense begins on April 6, 1993. At that time, 27 days had passed since Crane’s arraignment.
It is further agreed that the report from Lamed State Hospital was received on July 2, 1993. A period of time chargeable to the State was initiated by receipt of the report. See State v. Prewett, 246 Kan. 39, 42, 785 P.2d 956 (1990); State v. Warren, 224 Kan. 454, Syl. ¶ 4, 580 P.2d 1336 (1978). The State’s clock was stopped on August 4, 1993. On that date, the district court granted Crane’s request for continuance so that he could obtain an independent evaluation by Dr. Logan. Thirty-three days passed between July 2 and August 4, 1993.
It was not until December 20,1993, that Dr. Logan’s report was received. On January 4, 1994, the State asked that the January 18 trial setting be postponed. The continuance sought and obtained by the State in January 1994 was primarily for the purpose of having Crane examined and evaluated by a doctor of the State’s “choosing.” After being assured by the prosecuting attorney that “there are no issues about speedy trial because that has been waived,” the trial court granted the continuance over defense counsel’s objection in order to allow the State to have Crane examined by its expert.
Thus, the defendant agrees that on December 20,1993, 60 days chargeable to the State had elapsed. Seventy additional days passed before trial began on February 28, 1994. Crane argues that the entire 70-day period is chargeable to the State.
The State contends first that the entire period should be charged to Crane and, second, that at the most only the time from January 11 to February 28, 1994, is chargeable to the State. The reason offered by the State why its clock would not be restarted on December 20 with the receipt of Dr. Logan’s report is that the jury trial already had been set over to January due to Dr. Logan’s slowness. No record reference is given by the State to support its factual assertion. The motion for continuance filed by the State on January 4, 1994, makes the following reference to the case being set over another time: “Prior to completion of defendant’s second evaluation (November 15, 1993), the matter was set for jury trial.” The certified copy of the appearance docket at the beginning of the first volume of thé record on appeal shows that the case was called for hearing each month during the pendency of Dr. Logan’s examination. The November entry in the appearance docket states: “11/15/93 . . . Case called for hearing court #1. Plf appears by M Whitman. Def appears, in custody in person with counsel J Don-ham. —Next hearing in court #1 01/10/94 at 8:30 a.m. for trial.” We also know from the trial court’s statement on January 11,1994, that, as of that date, “[tjhis matter was set with regard to the trial setting in this matter for next Tuesday [January 18, 1994].”
Following receipt of Dr. Logan’s report, the State filed on January 4, 1994, a motion for continuance. The motion contains the assurance that “[t]here is no prejudice to the defendant as the defendant has waived his speedy trial rights in this matter to pursue the defense of insanity.” A notice that a hearing on the motion will be held on January 11 accompanies the motion.
At the January 11 hearing on the motion for continuance, the prosecutor introduced the subject: “[W]e would ask the case be continued from next Tuesday [January 18, 1994].” The State’s motion was granted, and the case was given “a go setting for a continued jury trial . . . on February 28th.” Trial actually did begin on Februaiy 28, and it may be inferred that sometime before that date, Dr. Hippe’s report was received. The record does not indicate when his report was received. At a hearing on February 16, the prosecutor told the trial court judge that she expected Dr. Hippe’s report to be completed by her scheduled meeting with him on February 21.
It is Crane’s position that the district court abused its discretion in granting the State’s January 1994 request for a continuance. The premise from which he develops his arguments is that the State already had the Lamed report which concluded that Crane was not insane. Thus, he argues, delay of trial for the purpose of obtaining another evaluation favorable to the prosecution was not necessary. Nor was that delay of trial “reasonably occasioned by and attributable to the assertion of the insanity defense,” as contemplated in Maas, because the State could have had its own second evaluation conducted and reported during the 4-Vz month delay occasioned by the defense-requested evaluation, the argument continues.
The argument made on behalf of Crane has little merit:
“Judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts and situations which occur prior to and during the trial. [Citation omitted.] 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.” McKissick v. Frye, 255 Kan. 566, 577, 876 P.2d 1371 (1994).
In State v. Warren, 224 Kan. 454, Syl. ¶ 4, the court stated.:
“The time between the date on which a defendant files a motion for a psychiatric examination, and the date on which the report of the psychiatrist is received, is chargeable against the defendant, whether the purpose of the examination is to determine competency to stand trial or to support an insanity defense.”
The time for the State to obtain a reciprocal expert report should also be bounded by the State’s request and the receipt of the report.
Here, as in Maas, the argument is made that the defendant should not be charged with such a delay because it was not his “fault” as within the meaning of the statute. Maas had filed his notice to rely on insanity defense on December 5, 1985, and the report of the State’s second expert was filed on March 27, 1986. The court rejected the argument in Maas, and we do so here. In Maas, this court said:
“The reports of the State’s experts were filed by March 27,1986. Based upon the undisputed evidence contained in the record, we have concluded that the delays occasioned by the psychiatric evaluations by both parties were reasonably attributable to the assertion of the insanity defense and properly chargeable against the defendant.
“The trial court properly considered the factual circumstances, thus the period of delay from December 5, 1985, to March 27,1986, was reasonably attributable to the assertion of the insanity defense in accordance with State v. Topham, 231 Kan. 167, Syl ¶ 1 [, 642 P.2d 986 (1982)].” 242 Kan. at 51.
Here, there were 15 days between December 20, 1993, and January 4,1994, the date the State filed its motion for continuance, which is chargeable to the State. That makes a total of 75 days chargeable to the State.
In addition to the showing that the court’s action was contrary to that of any reasonable person, Crane also must show “ ‘substantial prejudice before an appellate court will find an abuse of discretion by the trial court.’ ” State v. Grissom,, 251 Kan. 851, 931, 840 P.2d 1142 (1992) (quoting State v. Stallings, 246 Kan. 642, 646, 792 P.2d 1013 [1990]). In the present case, he has shown neither. In particular, he has not shown how the trial court’s granting the State’s request for postponement of the trial substantially prejudiced his case. Once the request for continuance was made, the clock stopped against the State and, since the request was granted, the clock did not restart until Dr. Hippe’s report was received on February 21. The 7-day period between receipt of the report on February 21 and trial on February 28 is chargeable to the State, for a total of 82 days. The trial court did not err in denying Crane’s motion to dismiss based upon a denial of speedy trial under K.S.A. 22-3402.
Crane next contends the trial court erred in allowing the victim to be present during the readback of her testimony. During its deliberations, the jury requested that a portion of B.R.’s testimony be read to them. The trial court decided that all, ráther than a part, of her testimony should be read back. Just before the court reporter began reading, defense counsel asked to approach the bench, and the following discussion was had out of the hearing of the jury:
“MR. DONHAM: Judge, since this is kind of deliberations, is it appropriate to have the victim in the courtroom?
“MS. VERMILLION: It’s an open courtroom. It’s not deliberations. They’re re-listening to the evidence, it’s not—
“MR. DONHAM: We normally would go back in the jury room and do this. Something like this should occur in the jury room and we should go back in there for the readback, but they requested to come out here and it just occurred to me, what if, for instance, she starts to cry again?
“THE COURT: I think the law specifically requires this be done in open court in front of everybody, unless everybody waives their attendance. And so I think that is the usual way to do it. And I think they are entitled to be here and if there is something distracting to that that goes on, that would be dealt with.”
After part of B .R.’s testimony had been read, defense counsel again asked if he could approach the bench. This time he objected to continuing the readback on the ground that the court reporter was having difficulty reading her notes, which might result in inaccuracies. The balance of B.R.’s testimony was read. The jury resumed its deliberations at 7:30 p.m. on March 2, 1994, and returned verdicts of guilty on all counts before leaving the courthouse that evening.
On March 7, Crane appeared before the district court judge along with defense counsel for the purpose of “plac[ing] something on the record that happened in the course of the jury deliberations in this matter.” The following remarks of defense counsel were recorded:
“Just for the record, I’d like to state that during that portion of the deliberation where the transcript was being read back to the jury that [B.R.] was in the courtroom at the time, she became distraught and began weeping again and progressed to full-blown crying. And she got up and went out of the courtroom where she could be heard outside in the hall sobbing.
“After she calmed down apparently, I noticed some of the jurors were looking back at the doors, which have glass windows, and I looked over and [B.R.] was standing outside of the doors where she was crying and her husband then got up and was embracing her while she cried.
“And I just stepped over to the District Attorney’s table and asked either Ms. Baehofer or Ms. Vermillion to ask them to please step away from the view of the jurors and I just wanted that to be on the record.”
The State urges this court to refuse to consider this issue: “Defendant never objected before the read-back, never moved for a mistrial after the read-back, never raised the issue in a motion for new trial, and cannot now be heard to complain for the first time on appeal.” In his reply brief, Crane cites State v. Bowman, 252 Kan. 883, 887-88, 850 P.2d 236 (1993), for this court’s rule that an objection need not be made in any particular prescribed form in order to preserve an issue for appellate review. In Bowman, defense counsel argued against introduction of certain evidence on the ground that it was not relevant. On appeal, the State asserted that defendant failed to preserve the issue for appeal because the discussion in which defense counsel characterized the evidence as irrelevant “did not constitute an objection.” The court disagreed: “We have reviéwed the record on appeal and are satisfied defense counsel’s statements to the trial court sufficiently lodged his opposition to the introduction of this evidence even though he did not use the words T object.’ ” 252 Kan. at 888.
Bowman involves an objection to the admission of evidence, which by statute requires a specific and contemporaneous objection. K.S.A. 60-404. This court also generally precludes appellate consideration of nonevidentiaiy issues which have not first been presented to the trial court. But neither the time nor the manner in which nonevidentiary issues are presented to the trial court has been rigidly adhered to. The purpose of requiring the objection is to allow the trial court to correct an error, if one occurred.
In the present case, the point raised on appeal centers on the victim’s presence and conduct during the readback of her testimony. Crane is not complaining about matters governed by K.S.A. 22-3420(3), the content of the readback, or the manner of the trial court’s response to the jury request. Thus, Crane’s counsel had adequately raised the issue in the trial court, and we are not precluded from considering the question on appeal.
Crane urges the court to read the statute as expressly authorizing only defendant and his or her counsel to be present during a read-back. The plain language of the statute, however, does not support this construction. The statute requires that defendant and counsel be given the opportunity to attend the readback, but it neither requires nor implies that any other persons should be excluded from the proceeding. In fact, designation of “the court” as the location of the readback seems to imply that an open proceeding was contemplated by the legislature. This is the meaning which the statute has been given in a case involving an ex parte communication between the trial court judge and a juror. Crease v. State, 252 Kan. 326, 333, 845 P.2d 27 (1993). The court stated that there was no dispute that the ex parte communication violated Crease’s constitutional right to be present at all critical stages of the trial because the court has held that a conference between a trial judge and juror is a critical stage of the proceeding. 252 Kan. at 333. In addition, the court stated: “K.S.A. 22-3420(3) requires that once the jury has begun deliberations, any questions from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant’s presence, unless the defendant is absent voluntarily.” (Emphasis added.) 252 Kan. at 333.
Anticipating an argument centering on victims’ rights, Crane contends that the codified list of court proceedings from which attendance cannot be barred does not include jury-requested read-backs. K.S.A. 1995 Supp. 74-7335 provides, in part:
“(a) The victim of a crime or the victim’s family shall be notified of the right to be present at any public hearing . . . concerning the accused or the convicted person ....
“(c) As used in this section: (1) ‘Public hearing’ means any court proceeding or administrative hearing which is open to the public and shall include but not be limited to the:
(A) Preliminary hearing;
(B) trial;
(C) sentencing:
(D) sentencing modification;
(E) public comment sessions, pursuant to K.S.A. 22-3717, and amendments thereto;
(F) expungement hearing; and
(G) granting of probation or parole by a judge.”
This is the basis of Crane’s insistence that a juiy-requested read-back is part of jury deliberations rather than part of trial. Crane has no basis, however, for treating the two as separate and independent proceedings. It is contrary to common sense to define a trial so that it is over before a verdict or other conclusion has been reached, and, in a jury trial, the deliberative process by which the verdict is reached necessarily is a component of the trial.
The most forceful argument Crane makes is that the victim’s display of emotion during the readback was tantamount to introducing additional evidence of B.R.’s emotional trauma after the close of the evidence. Crane also likens the display of emotion to a communication between the victim/witness and each individual juror.
Rules applicable and analogous in this court’s review of this issue were stated in State v. Myers, 255 Kan. 3, Syl. ¶ 1, 872 P.2d 236 (1994): “Under K.S.A. 22-3420(3), a trial court must accede to a jury’s request to read back testimony. The manner of acceding to the request is subject to trial court discretion.” The questions posed by Crane are whether the trial court abused its discretion in permitting B.R. to be present for the readback and, if not, whether the trial court abused its discretion by not removing her once she began crying. Crane has offered no authority for initially excluding B.R. from the courtroom during the readback, and he is in no position to be complaining about her remaining in the courtroom after she began crying. No request to remove B.R. from the jury’s presence was made to the trial court after she began crying, and she left the courtroom of her own accord. When she remained within the jury’s view outside the courtroom doors, defense counsel chose to handle the matter by speaking to the prosecutor. At the suggestion of the prosecutor, it seems, B.R. moved out of sight.
Having the jurors witness an emotional collapse by the victim during deliberations should be avoided where possible. In this case, her distress might have been obscured somewhat if, at the outset, defense counsel had suggested how to minimize its impact on the jurors. The victim’s right to be present in the courtroom is subject to reasonable rules of conduct applied by the trial court in its management of the trial. Thus, in the circumstances of this case, we find there is no abuse of the district court’s discretion.
We next consider if the amended complaint was jurisdictionally defective. The amended complaint against Crane states the following for Counts II and III:
“COUNT II — Further, that on or about the 6th day of January, 1993, in the City of Leawood, County of Johnson and State of Kansas, MICHAEL T. CRANE did then and there unlawfully, feloniously and willfully commit an overt act, to-wit: expose his penis to [B.R.] and demand she engage in sodomy with him toward the perpetration of the crime of Aggravated Criminal Sodomy as defined by K.S.A. 21-3506 with the intention to commit said crime but failed in the perpetration thereof or was prevented or intercepted in the execution thereof, in violation of K.S.A. 21-3301 and K.S.A. 21-4501(c).
“COUNT III — Further, that on or about the 6th day of January, 1993, in the City of Leawood, County of Johnson and State of Kansas, MICHAEL T. CRANE did then and there unlawfully, feloniously and willfully commit an overt act, to-wit: expose his penis to [B.R.] and tell her he was going to rape her toward the perpetration of the crime of Rape, as defined by K.S.A. 21-3502 with the intention to commit said crime but failed in the perpetration thereof or was prevented or intercepted in the execution thereof, in violation of K.S.A. 21-3301 and K.S.A. 21-4501(c).”
These allegedly defective counts were the subjects of Crane’s post-trial motions for arrest of judgment. Crane followed the procedure prescribed by this court:
“The proper post-trial procedure for a defendant to follow in asserting a contention that either an information does not charge a crime or that the trial court was without jurisdiction of the crime charged is to file a motion for arrest of judgment under K.S.A. 22-3502. If the court did not have jurisdiction, or if the information did not charge a crime for which the defendant was convicted, the defendant is entitled to a determination of that condition at the.trial court level.” State v. Sanford, 250 Kan. 592, Syl. ¶ 2, 830 P.2d 14 (1992).
In one motion for arrest of judgment, Crane argued that the attempted rape conviction should be set aside because the amended complaint omitted mention of the essential elements, “ ‘nonconsensual’ and ‘overcome by force or fear.’ ” In the other motion, he argued that the attempted aggravated criminal sodomy conviction should be set aside for the same omissions and because the elements of sodomy were not listed. The district court found that the amended complaint sufficiently set out the elements of the offenses in Counts II and III. The district court also expressed the opinion that the jury was properly charged and instructed.
The parties agree that appellate review of this issue is unlimited. They are in partial agreement that the rationale of “pre-Hall cases” governs in cases such as the present one where the trial court was given the opportunity to consider the sufficiency of the amended complaint. In State v. Hall, 246 Kan. 728, Syl. ¶¶ 12, 13, 793 P.2d 737 (1990), the court established a prospective rule for appellate review of information defect challenges raised for the first time on appeal. Although the State seems to suggest that Hall should be applied to Crane’s complaints that the victim’s age and gender are not mentioned in Counts II and III because they are raised for the first time on appeal, split consideration seems unnecessarily complicated. Crane seems to mention the victim’s age and gender only as additional factors tending to demonstrate the insufficiency of the amended complaint.
K.S.A. 1992 Supp. 21-3301(a) provides: “An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” Counts II and III of the amended complaint reflect 21-330.l(a). In Count II, Crane was charged with the overt act of exposing his penis to B.R. and demanding that she engage in sodomy with him. He is charged with committing the overt act with the intention to commit aggravated criminal sodomy, but failing. In Count III, Crane was charged with the overt act of exposing his penis to B.R. and telling her he was going to rape her. He is charged with committing the overt act with the intention to commit rape, but failing.
The problem with the way the offenses were charged in Counts II and III, according to Crane, is that the State failed to specify the elements of the offenses he was charged with attempting. Because rape and aggravated criminal sodomy each may be committed in several quite different ways, Crane argues, he was not made aware of the nature of the crimes against which he had to defend. The relevant statutes provided:
“(1) Rape is sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circumstances:
(a) When the victim is overcome, by force or fear;
(b) when the victim is unconscious or physically powerless; or
(c) when the victim is incapable of giving consent because of mental deficiency or disease, which condition was known by the offender or was reasonably apparent to the offender; or
(d) when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance administered to the victim by the offender, or by another person with the offender’s knowledge, unless the victim voluntarily consumes or allows the administration of the substance with knowledge of its nature.
“(2) Rape is a class B felony.” K.S.A. 21-3502 (Ensley 1988).
The definition of sodomy is “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object; or oral or anal copulation or sexual intercourse between a person and an animal.” K.S.A. 21-3501(2). Aggravated criminal sodomy is:
“(a) Sodomy with a child who is not married to the offender and who is under 16 years of age;
“(b) causing a child under 16 years of age to engage in sodomy with any person or an animal; or
“(c) sodomy with a person who does not consent to the sodomy or causing a person, without the person’s consent, to engage in sodomy with any person or an animal, under any of the following circumstances:
(i) When the victim is overcome by force or fear;
(ii) when the victim is unconscious or physically powerless;
(hi) when the victim is incapable of giving consent because of mental deficiency or disease, which condition was known by the offender or was reasonably apparent to the offender; or
(iv) when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance administered to the victim by the offender, or by another person with the offender’s knowledge, unless the victim voluntarily consumes or allows the administration of the substance with knowledge of its nature.
“(2) Aggravated criminal sodomy is a class B felony.” K.S.A. 21-3506 (Ensley 1988).
Crane seems to rely most heavily on Sanford, 250 Kan. 592. There, the court stated:
“In Kansas, all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute. An information which omits one or more of the essential elements of the crimes it attempts to charge is jurisdictionally and fatally defective, and a conviction based on such an information must be reversed. See State v. Jackson, 239 Kan. 463, Syl. ¶ 4, 5, 721 P.2d 232 (1986).
“We have held that the citation to the statute cannot substitute to supply a missing element of the charge. Incorporation by reference cannot be implied or inferred. It must be explicit. Jackson, 239 Kan. at 466. A proper instruction does not remedy the defect in the complaint. State v. Howell & Taylor, 226 Kan. 511, 513, 601 P.2d 1141 (1979).
“In Hall, the failure of the complaint to allege that Hall took control of the cattle with the intent to permanently deprive the owner of its possession rendered the complaint fatally defective. Hall’s conviction of theft, under K.S.A. 21-3701, was reversed. 246 Kan. at 747. (A detailed analysis of our pre-Hall cases is set out at 246 Kan. at 758-59.)” 250 Kan. at 601.
Thus, in Sanford and Hall, the court stated and applied the rule that an information which omits one or more essential elements of an offense it purports to charge is jurisdictionally defective. In the present case, the complaint seems to sufficiently charge attempt, but omits the essential elements of the offenses Crane is charged with attempting to commit. Neither Sanford nor Hall addresses the question whether omission of the essential elements of the attempted offense renders the information or complaint jurisdictionally and fatally defective.
In State v. Cory, 211 Kan. 528, 533, 506 P.2d 1115 (1973), the court stated:
“In alleging an attempt to commit a crime if such attempt is sufficiently charged under the statute it is not additionally necessary to set forth all essential elements of the crime attempted but not consummated. In the crime of an attempt some elements of the completed crime attempted are of necessity lacking.”
Crane would distinguish Cory on several grounds. He contends that elements of the offense Coiy was charged with attempting to commit were alleged as the overt acts, which is not true for Counts II and III against Crane. According to Crane, “the overt acts alleged in this case are not elements of the crime of aggravated criminal sodomy or rape.” He also contends that proper jury instructions were a factor considered by this court in concluding that the charge against Cory was not jurisdictionally defective but, since then, proper instructions have been held not to remedy a defective information. State v. Howell & Taylor, 226 Kan. 511, 513, 601 P.2d 1141 (1979).
The pertinent charge against Cory was stated as follows:
“ ‘. . . (O)ne Charles Edgar Cory did then and there unlawfully, feloniously ‘[Count I omitted.]
‘COUNT II: in perpetration of the crime of burglary as defined by K.S.A. 21-3715, commit the following overt act, to-wit: cut through a window bar and force open a window of the Modem Jewelry, 1118 Military, Baxter Springs, Kansas, with the intention to commit said crime, but failed in the perpetration thereof and was intercepted in executing said crime by Charles Sharp, Deputy Sheriff, Cherokee County, Kansas.’ ” 211 Kan. at 531.
The “crime of burglary includes the entering of a building without authority.” 211 Kan. at 532. The alleged overt acts — cutting a window bar and forcing the window open — were measures taken in order to gain entry to the jewelry store.
Crane would contrast the charges against him in which the overt acts alleged with respect to attempted aggravated criminal sodomy were exposing himself to B.R. and demanding she engage in sodomy wilh him. The crime of aggravated criminal sodomy as it read at die time of the alleged offense herein included any combination of the following:
oral contact of the female genitalia
oral penetration of the female genitalia
oral contact of the male genitalia
anal penetration of a male by a body part
anal penetration of a male by an object
anal penetration of a female by a body part
anal penetration of a female by an object
oral copulation between a person and an animal
anal copulation between a person and an animal
sexual intercourse between a person and an animal
involving a child under 16 years of age
involving a person who does not consent
who is overcome by force or fear
who is unconscious or physically powerless
who is incapable of giving consent
due to mental deficiency or disease
due to the effect of alcohol or drugs
known to the offender
reasonably apparent to the offender.
Crane’s point is well taken. Count II of the complaint provided him with little more than the elements of attempt and the name of the offense he was charged with attempting. This concern was discussed by the Court of Appeals in State v. Snyder, 10 Kan. App. 2d 450, 457-58, 701 P.2d 969 (1985):
“The purpose of the information in a criminal case is to advise the accused and the court of the charges alleged to have been committed and the essential facts constituting the crime charged. State v. Carpenter, 228 Kan. 115, 612 P.2d 163 (1980). In a felony action, the information is the jurisdictional instrument upon which the accused stands trial. An information must be stated with enough clarity and detail to inform a defendant of the criminal act with which he is charged. City of Altamont v. Finkle, 224 Kan. 221, 579 P.2d 712 (1978). The failure to so inform the defendant denies the defendant procedural due process and violates his right to be informed of the charges against him. K.S.A. 22-3205; Kansas Const. Bill of Rights, § 10; U.S. Const., 6th Amend.; State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977).”
Even if the essential elements of the offense defendant is charged with attempting do not have to be meticulously enumerated in the complaint, as stated in Cory, the charge must advise defendant of the offense he is alleged to have attempted to commit.
Here, Crane was alleged to have exposed himself and demanded that B.R. engage in sodomy with him. As he points out, the victim’s age is not stated nor is it stated whether she consented and, if she did not consent, what the circumstances were. It did not state what act Crane demanded B.R. engage in, nor did it state her gender.
Although it is a less dramatic example than Count II, Count III of the amended complaint suffers the same shortcomings. Count III provided Crane with the elements of attempt and the name of the offense he was charged with attempting. None of the elements of rape is described in the count; the alleged overt acts of exposing himself and telling B.R. he was going to rape her are not elements of rape.
In Hall, the court reversed defendant’s conviction of theft in Count II of the complaint on the ground that it failed to allege that the intent was to permanently deprive the owner of his cattle. 246 Kan. at 746-47. The court’s ruling was made despite the following circumstances;
“There can be little doubt of what the State intended to charge in Count II. The theft statute was specifically mentioned. However, we have held that an information which omits one or more of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective and a conviction on that offense must be reversed. State v. Wilson, 240 Kan. 606, 607, 731 P.2d 306 (1987). The information does not charge theft in Count II. Our past precedent requires a reversal as to Count II.” 246 Kan. at 747.
We must therefore reverse Crane’s convictions as to Count II, attempted aggravated sodomy, and Count III, attempted rape.
Crane next complains that the trial court abused its discretion in denying his motion for mistrial. Immediately before trial began, defense counsel announced that defendant would not assert an insanity defense. Defense counsel told the court at that time that Dr. Logan had found evidence of a dissociative disorder in Crane which did not always affect him, but which prevented him from differentiating right from wrong when it was active. It appears that the theory of insanity which defense counsel had contemplated asserting would have been that Crane was “in the grip of that dissociative disorder” at the time of the alleged incidents.
During the testimony of Officer Scott Hansen of the Leawood Police Department, the prosecuting attorney asked him to tell the jury about his interview of Crane after defendant was arrested on January 6. Officer Hansen testified that Crane described waking from a nap at approximately 3 p.m., watching some television, and then remembering nothing about the intervening period until he was arrested. Defense counsel objected to testimony about the blank spot in Crane’s memory on the ground that “[i]t puts us in the position of not being able to answer this without getting into a dissociative disorder, which opens up the door into another defense.” Defense counsel asked the trial court to declare a mistrial. The prosecuting attorney responded that the evidence was admissible because it was the defendant’s statement to police. The trial court overruled the objection and denied the motion for mistrial.
Defense counsel did not claim to be surprised by Officer Hansen’s testimony about Crane’s statement to him. In fact, it is conceded that he “was aware of the contents of Officer Hansen’s report.” Defense counsel, however, did not object when the prosecuting attorney asked Officer Hansen to relate to the juiy “the responses Mr. Crane made to you that night.” It was only after the witness had testified about Crane’s statement that defense counsel interposed an objection.
The State’s next question was, “Did Mr. Crane indicate to you whether or not he had any memory or recollection of the events that had occurred that night?” Defense counsel did not object. Officer Hansen answered:
“No. After he said he didn’t recall anything until he was standing on the curb with the officers we talked at length about that situation. And he said he has had a previous history of these type of blackout periods and in fact he had been arrested for these types of incidents in the past. And he didn’t feel he was responsible for those incidents because of those blackouts.”
Again at the bench, defense counsel renewed the motion for mistrial. In response, the trial court said, “I guess the only thing that concerns me is the prior incidents.” Defense counsel asked the rhetorical question, “Did you or did you not order us to avoid this issue?” The trial court judge remarked:
“Well, I don’t think the issue that he blacked out or claimed to have blacked out is the same issue as claiming an insanity defense. I think what he said to an officer in a statement is admissible independent of whether or not an insanity defense is raised.
“But there is a little trouble about the comment of any prior incidents. But I’m going to go ahead and.allow it.”
Crane views this issue as a matter of prosecutorial misconduct so that the question for this court is the trial court’s failing to declare a mistrial rather than its allowing the introduction of evidence over objection. The parties agree that it is a matter entrusted to the discretion of the trial court. The decision will not be disturbed on appeal absent a showing of abuse of discretion. State v. Cahill, 252 Kan. 309, 314, 845 P.2d 624 (1993). In order to prove an abuse of discretion on appeal, Crane must show that he was substantially prejudiced by the court’s refusal to grant a mistrial. State v. Pioletti, 246 Kan. 49, 65, 785 P.2d 963 (1990).
Defense counsel announced that the insanity defense would not be pursued. In her opening statement, the prosecuting attorney stated that Crane was interviewed by Officer Hansen and Crane had told him that he blacked out and had no memory of anything after 3 p.m. At the conclusion of the State’s opening statement, defense counsel stated the following grounds for a mistrial: “We have talked about the fact we weren’t going to talk about the blackouts. That is plainly putting evidence out there that shouldn’t be out there.” To which the trial court asked: “Why wouldn’t his statement to the police be admissible?” Defense counsel offered two reasons — it was taken out of context and the prosecutor made “it sound like he manufactured some hokey thing to tell the police.” The trial court expressed the opinion that Crane’s “statement to the police would be admissible whether there is an insanity defense or not.” The State’s position on appeal echoes the trial court’s reasoning.
The basic reasoning for admitting the statement is that it is defendant’s statement, which he has offered no sound reason for excluding. Taking part of the statement out of its context might call for restoration of context, but would not be a reason for excluding otherwise admissible evidence. Likewise, Crane’s complaint that the prosecutor made “it sound like he manufactured some hokey thing to tell the police” is not a legal basis upon which evidence should be excluded. The complaint is not that the statement was distorted.
With regard to evidence of prior criminal incidents, Crane’s argument why its introduction was prosecutorial misconduct seems to be that when the insanity defense was withdrawn, the State agreed not to refer to prior crimes. The State argues that its position at trial is being misrepresented. Before trial, the State filed a motion seeking admission of evidence of Crane’s being convicted of two earlier sexual assaults. The State proposed to introduce the evidence detailing the earlier assaults for the purpose of refuting Crane’s insanity defense by showing his intent and knowledge and absence of mistake. Thus, when the insanity defense was withdrawn, the State no longer had reason to call the victims of the earlier attacks and stated its intention not to pursue introduction of the “60-455 evidence.” The State contends that Crane’s statement to police in which he incidentally mentions the prior incidents is an entirely separate matter from the evidence which had been the subject of its K.S.A. 60-455 pretrial motion.
This appears to be an instance in which defense counsel could have anticipated Officer Hansen’s testimony about the prior incidents, but did not. Once the jury had heard about prior crimes, defense counsel did not request a limiting instruction. In light of defense counsel’s failing to prevent or minimize the impact on the jury, the trial court did not abuse its discretion in denying a mistrial. Moreover, Crane has failed to show that the conduct complained of amounted to prosecutorial misconduct.
The final issue' raised by Crane is sufficiency of the evidence to support his conviction of kidnapping. K.S.A. 21-3420 (Ensley 1988) provided:
“Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
(a) For ransom, or as a shield or hostage; or
(b) To facilitate flight or the commission of any crime; or
(c) To inflict bodily injury or to terrorize the victim or another; or
(d) To interfere with the performance of any governmental or political function.”
Crane was charged under subsection (b) or, in the alternative, subsection (c). This court has stated the following rules with respect to crimes charged in the alternative, as the kidnapping offense was charged in the present case:
“In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.” State v. Timley, 255 Kan. 286, Syl. ¶ 1, 875 P.2d 242 (1994).
“ ‘In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.’ ” 255 Kan. at 289 (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]).
It is Crane’s contention that there was insufficient evidence to support the charge of kidnapping to facilitate the commission of crime under 21-3420(b). In State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), the court stated:
“Our kidnapping statute, K.S.A. 21-3420, requires no particular distance of removal .... Under that statute it is the fact, not the distance, of a taking . . . that supplies a necessary element of kidnapping.” Syl. ¶ 7.
“The word ‘facilitate’ in K.S.A. 21-3420 means something more than just to make more convenient. A taking ... , in order to be said to ‘facilitate’ a crime, must have some significant bearing on making the commission of the crime ‘easier.’ ” Syl. ¶ 9.
“If a taking ... is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement . . . :
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(,b) Must not be of a kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” Syl. ¶ 10.
This example was given by the court to illustrate the difference between movement of a victim which did not constitute kidnapping and a taking within the meaning of the kidnapping: “The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of the rapist is not a kidnapping; the removal from a public place to a place of seclusion is.” 219 Kan. at 216.
Crane concedes that B.R. was picked up and moved. According to B.R.’s testimony, Crane was moving her toward a separate room. Crane argues, though, that the movement was insufficient to support conviction under subsection (b). The factors he urges the court to consider are as follows:
Crane and B.R. remained in the store, and the store was open for business.
B.R. was not removed to a place of seclusion.
If it had been Crane’s intention to remove B.R. to the seclusion of the separate room, he could have done so.
Crane did not confine B.R. when he left-the video store.
The movement was inherent in the other crimes charged.
The State contends that this case and State v. Zimmerman, 251 Kan. 54, 833 P.2d 925 (1992), are factually indistinguishable. Zimmerman was convicted of entering an apartment, hitting D.Y. on the head, and dragging her from the living room with a sliding glass door into the laundry room. There, the court concluded that a rational factfinder could find beyond a reasonable doubt that defendant moved the victim to a place of seclusion, thereby substantially lessening his risk of detection. 251 Kan. at 59. Here, Crane moved B.R! away from the front of the store and toward a separate room. The distinction, as defendant points out, is that he did not succeed in moving B.R. into the separate room.'Crane did hot take or confine her in the separate room, and his intent to do so is based solely on B.R.’s assumption.
Crane’s contention that the movement was inherent in the underlying offenses is true with respect to his pushing her down;' however, picking B.R. up and moving her toward the back of the store where the children’s room is located is questionable.
The cases relied on by Crane are State v. Fisher, 257 Kan. 65, 891 P.2d 1065 (1995); State v. Hays, 256 Kan. 48, 883 P.2d 1093 (1994); and Buggs. This court has termed Buggs “[t]he leading case on what is required to be proven to establish the facilitation of the commission of any crime provision of K.S.A. 21-3420(b).” State v. Richmond, 250 Kan. 375, 377, 827 P.2d 743 (1992). In Buggs, a woman and her son were confronted as they left work at the Dairy Queen. Defendants Buggs and Perry forced the victims to go back into the store, where they took the day’s receipts from the victim’s purse. Then Perry held what was believed to be a gun on the son while Buggs raped the woman at knifepoint. The risk of detection was substantially lessened when the victims were moved from outside to inside the restaurant, and the confinement facilitated commission of robbery and rape. Thus, the court rejected the argument that the movement and confinement.of the victims was only incidental to the robbery. 219 Kan. at 209-17. In Hays, the victim was held against the-wall of her hallway by a mán with a crowbar while three other men took computer equipment and other items from the house. The State argued that die victim could have hindered the robbers or fled if she had not been confined. The court concluded that the evidence was insufficient to support a conviction for kidnapping because the victim was not moved, the confinement was incidental to and inherent in the nature of the robbery, and the confinement had no significance independent of the robbery. 256 Kan. at 63. In Fisher, in order to get the key to open the floor safe, the owner and manager of a restaurant walked “through the waitress station, down a hallway, and through the kitchen to the office,” followed by one of the gunmen. 257 Kan. at 66. After obtaining the key, they returned to the front of the restaurant, defendant unlocked the safe with the key, and the robbers left with the money from the safe. The court reversed the convictions for aggravated kidnapping of the owner and kidnapping of the manager on the following grounds:
“The movement of Spears and Traffas neither made the crime substantially easier of commission, nor did it substantially lessen the risk of detection. The forced direction of Spears and Traffas through the restaurant was merely for the purpose of convenience, not to make the crime substantially easier of commission. It was more convenient to have Traffas and Spears, who knew where the key to the safe was located, obtain the key rather than the robber alone looking for the key and rather than attempting some other means of entry into the safe. Moreover, Spears and Traffas were not forced to remain in the back office, out of sight of any passersby, to lessen the risk of detection; rather, they returned to the front of the store. Indeed, while one robber walked with Spears and Traffas to the office, the one who remained in the front area of the store with the other victims was fully visible through the window of the restaurant. (The officer responding while the robbery was taking place observed the other robber through the window.)” 257 Kan. at 78.
In this case, evidence which might support the kidnapping conviction is very thin. Testimony about the layout of the video store was provided by B.R. and the store owner. Testimony about what happened and where was provided solely by B.R. During her testimony a diagram of the store was used, but it does not seem to be in the record on appeal. There are some slides of the store in the record on appeal. In addition to seeing the diagram and slides, the jurors saw photographs and were taken to the video store. Using the diagram, B.R. showed where Crane first grabbed her and where she was when he ran from the store.
The evidence contained in the record on appeal suggests that Crane’s moving B.R. was inconsequential. Nor did it have signifi canee independent of the other crimes in that it did not substantially lessen the risk of detection. If Crane had moved her into the separate room, the risk of detection would have been lessened. They did not go into the separate room, although B.R. testified that Crane intended to take her into the children’s room and that she foiled his intention by struggling to free herself. B.R. was making an assumption that Crane intended to take her into the children’s room. Even if the jurors reasonably could have inferred from the evidence other than B.R.’s assumptions about Crane’s intentions and motivations that Crane was trying to remove her from the main room of the store, he did not succeed. The movement did not make the alleged offenses of attempted aggravated sodomy or attempted rape substantially easier. In fact, the alleged acts constituting those crimes occurred while Crane was moving B.R. toward the rear of the store. Nor did the movement lessen the risk of detection since, at all times, B.R. was not concealed from view. The movement was incidental to the commission of the alleged crimes. Not only was B.R. not bound or concealed, but when Crane suddenly stopped and ran, B.R. testified, “I was so angry that I chased him out of the store screaming and yelling at him to get out. And I chased him out and I came back in and I locked the door and I called 911 at that point.” Thus, there is not sufficient evidence to support the conviction of kidnapping.
The defendant’s conviction of lewd and lascivious behavior is affirmed. The defendant’s convictions of kidnapping, attempted aggravated sodomy, and attempted rape are reversed.
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The opinion of the court was delivered by
Allegrucci, J.:
This is a direct appeal by Leck Kaesontae from his conviction by the district court of one count of attempted aggravated robbery and one count of felony murder. The controlling term of his sentence is life imprisonment.
Kaesontae contends the district court erred in (1) finding that the killing was committed in an attempt to commit aggravated robbery; (2) admitting into evidence the tape recording of a 911 call made by a witness to the shooting; and (3) admitting into evidence the statement Kaesontae made to police.
The early morning hours of February 5, 1994, found five young men in two cars, with Matt Edgington alone in one car and Leck Kaesontae, David Edgington, Matt Journey, and Tim Blaine be hind him in Blaine’s car. Blaine testified that Kaesontae had explained Matt Edgington’s being by himself as follows: “So he can start shit so they think he’s by himself and actually he wouldn’t be because we’d be behind him.” Shortly after 2 a.m. they saw a man walking by himself. Blaine stopped in a parking lot to let Matt Edgington catch up. Blaine testified that Kaesontae said he wanted “to jack” the walking man, which meant that he wanted to rob him. Blaine said he was not going to be a part of robbing him. Kaesontae got out of Blaine’s car and got into the front passenger seat of Matt Edgington’s car.
Within a few minutes of arriving there, Matt Edgington drove off, and Blaine followed him. Soon Blaine saw Matt Edgington’s car stop by the walking man. At first Blaine held back, but at the urging of Journey he pulled to within 30 to 35 feet of the lead car. The front window on the passenger side of Matt Edgington’s car was down, and the man walked over to the car. The man bent down and acted as if he were pointing directions for the young men in the lead car. Then Blaine saw Kaesontae point a gun toward the man.
The man threw his hands up in the air and backed toward the rear of the car. He continued moving away from the window until his back was against the rear end of the passenger side of the car. Then, keeping his back against the side of the car, the man walked toward the front of the car and swung his right arm into the window. From Blaine’s car it looked like the man fell or was pulled into the car. The man’s feet were on the ground, but his body from the chest up was inside the car. Blaine saw the gun in Kaesontae’s hand, pointed towrard the man’s chest, and heard two shots fired.
The man grabbed at his chest and walked back from the car. Matt Edgington immediately drove away. When Blaine drove off, the man was still upright in the street, but stumbling.
Matt Edgington made a 911 call at approximately 2:30 a.m. In response, Officer Cross went to a convenience store near the scene of fixe shooting and met Matt Edgington. During the 911 call, Matt Edgington had reported that a passenger in his car shot at a pedestrian. He also reported that he had dropped the passenger off at his house before making the call. Officer Cross and Matt Ed gington first drove by Kaesontae’s residence, and then Edgington was taken to the city'building to be interviewed.
Before 3 a.m., police found the body of a man with a bullet wound below the rib cage lying in the yard of a residence. The man, Chance Pratt, died of a gunshot wound that resulted in massive internal bleeding. The bullet entered the right side of his chest, lacerated the front of the liver, perforated the heart and lower lobe of the left lung, and exited on the left side. The shot was fired at close range.
Timothy Blaine was the chief witness for the State at trial. The State indicated that Matt Edgington was available as a witness but was not called by the State or the defense.
We first consider Kaesontae’s contention that the findings of the district court judge do not, support the conviction of felony murder. The findings singled out by Kaesontae are contained in these comments made by the judge at the close of the evidence:
“Mr. Blaine saw the gun pointed, saw Mr. Chance Pratt raise his hands and back away and that after backing away he went towards the rear of the car, crouched and put his back to the rear quarter panel while Mr. Edgington and Mr. Kaesontae simply sat there in the car. Mr. Chance Pratt came forward, either reached in or hit into the car in a sudden manner, there was a scuffle, the gun went off.
“[A]t the point at which Mr. Leek Kaesontae raised the gun and asked for the wallet this became an attempt at aggravated robbery. . . .
“The attempted aggravated robbery had stopped. That’s not a legal term or a legal conclusion, it just had stopped. Mr. Kaesontae and Mr. Edgington were apparently simply sitting there in the car. What they were talking about or doing or thinking, we don’t know. I suspect they may not know. We have no idea of what Chance Pratt was thinking. . . .
“It does not feel right to say that Mr. Kaesontae did a premeditated first-degree murder; however, the public policy on felony murder is that a person who commits a felony assumes all the risks of that action, whatever happens. It’s clear to the Court that but for this felony for which Mr. Kaesontae bears responsibility, Chance Pratt would not have been killed on that night, and that the imperfect tool of felony murder is the box, the pigeon-hole which best fits this particular set of facts.”
K.S.A. 21-3401(b) provides: “Murder in the first degree is the killing of a human being committed ... in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” Aggravated robbery is designated an inherently dangerous felony. K.S.A. 21-3436(a)(4).
Kaesontae argues that the district court found that the killing of Pratt was not committed in the attempt to commit or flight from the aggravated robbery of Pratt. The district court found that the attempt to commit aggravated robbery had “stopped.” It further found that Kaesontae and Edgington “simply sat” in the car while Pratt backed away ánd then “went towards the rear of the car, crouched and put his back to the rear quarter panel.” Then, “Pratt came forward, either reached in or hit into the car in a sudden manner, there was a scuffle,- the gun went off.” In Kaesontae’s summation, before Pratt was shot he had “essentially escaped” and was not being pursued. Nor were Matt Edgington and Kaesontae fleeing or attempting to flee. Pratt opened a new episode by “reinsert[ing] himself into the situation.”
The State’s position is that a victim’s resistance to an underlying felony may extend the duration of the criminal transaction beyond the time when the felony is technically complete. For the proposition, the State quotes State v. Giddings, 226 Kan. 110, 113, 595 P.2d 1115 (1979) (quoting State v. Branch and Bussey, 223 Kan. 381, 383, 573 P.2d 1041 [1978]):
“ ‘A felon’s attempt to commit a robbery sets in motion a chain of events which should cause him to contemplate that a death might occur. This is particularly true of a robber who carries a deadly weapon (as these robbers did) and forces his way into an occupied dwelling. The impulse for an individual to resist the sudden show of force, to defend himself or to come to the aid of a family member or loved one, is a basic human instinct. Under such circumstances every robber who expects human opposition to his quest to steal, as he must when he commits a statutory robbery, is a potential assassin because he knows he may be forced to use his weapon either to carry out his criminal act or to escape without being pursued and captured by his victim.’ ”
The State contends that in applying this rationale to the circumstances of the present case, the conclusion that the killing and the attempted aggravated robbery were part of one continuous transaction is unavoidable.
The connection between the inherently dangerous felony and the killing has been the subject of other decisions of this court. In State v. Rider, Edens & Lemons, 229 Kan. 394, Syl. ¶ 4, 625 P.2d 425 (1981), the court stated:
“Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony and, therefore, subject to the felony-murder rule. Whether the underlying felony had been abandoned or completed prior to the killing so as to remove it from the ambit of the felony-murder rule is ordinarily a question of fact for the jury to decide. (Following State v. Hearron, 228 Kan. 693, 619 P.2d 1157 [1980].)”
In State v. Lashley, 233 Kan. 620, 631, 664 P.2d 1358 (1983), we said:
“[The victim’s] property stolen in Arkansas was brought into Wilson County, Kansas. Time, distance, and the causal relationship between the underlying felony and killing are factors to be considered in determining whether the killing is a part of the felony and therefore subject to the felony murder rule. Whether the underlying felony had been abandoned or completed prior to the killing so as to remove it from the ambit of the felony murder rule is ordinarily a question of fact for the jury to decide. [Citation omitted.] When the evidence is conclusive, as a matter of law, and the murder occurred within the res gestae of the crime, the trial court need not instruct that determination of whether the murder occurred within the res gestae is a fact question for the jury. [Citation omitted.]”
Here, the district court judge was the trier of fact, and he found that the attempted aggravated robbery had “stopped” before the killing. He also found that Matt Edgington and Kaesontae were “simply sitting there in the car,” which Kaesontae equates with a finding that they were not fleeing from the scene of the felony. The only conclusion which can be drawn from these findings, according to Kaesontae, is that the attempted aggravated robbery had been completed prior to the killing so as to remove it from the scope of the felony-murder rule.
We do not agree. Kaesontae’s contention ignores the circumstances as they would have been perceived by the victim of the robbery attempt. Pratt was alone and on foot in the early morning hours. A young man in the car ahead of him had' tried to rob him at gunpoint, and behind him was a car occupied by three young men who seemed to be affiliated with the would-be robber and the driver of the lead car. A reasonable person in these circumstances would not have assumed that the danger had passed. Thus, it can be said that the chain of events set in motion by Kaesontae when he attempted to rob Pratt continued after Kaesontae “stopped” tiying to take the victim’s money.
Although the district court judge stated that the attempted aggravated robbery “just had stopped,” he went on to conclude that “a person who commits a felony assumes all the risk of that action, whatever happens” and “but for this felony Pratt would not have been killed.” The trial judge concluded that the facts fit into a “box, the pigeon-hole” of felony murder. A causal connection existed between Pratt’s death and Kaesontae’s attempt to rob him. This is true whether expressed in the terms used by the district judge in the present case or in terms that the death was the proximate cause of, tiie direct or indirect result of, or a continuous part of the criminal conduct of Kaesontae.
Applying the factors of time, distance, and the causal relationship between the attempted aggravated robbery and Pratt’s death, we have no hesitancy in concluding that the killing of Pratt was a part of the attempted aggravated robbeiy and subject to the felony-murder rule. We further hold that the findings of the district court support the conviction of the defendant of felony murder.
We next consider if the trial court erred in admitting into evidence the tape recording of a 911 call made by Matt Edgington. He did not testify at Kaesontae’s trial. A tape recording of the call and a transcript made from the tape were admitted into evidence under the business records exception to the hearsay rule. The following exchange preceded playing of the tape:
“MR. KAUFMAN: Your Honor, I move for the admission of State’s Exhibit No. 37, the 911 tape.
“THE COURT: Mr. Pullman, 37?
“MR. PULLMAN: If the basis is only the business records exception to hearsay, Your Honor, I would have no objection.
“MR. KAUFMAN: That would be the basis for my moving it.
“MR. PULLMAN: Then I would have no objection to that basis, Your Honor.
“THE COURT: Very well. 37 will be admitted.”
On appeal, Kaesontae contends that his right to confront witnesses against him was violated by introduction of the tape. Be cause the constitutional issue was not raised below, it is not properly before this court. State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993). Failure to object also waives a challenge on appeal to admission of the evidence. Noel v. Pizza Management, Inc., 258 Kan. 3, 9, 899 P.2d 1013 (1995).
In his fallback position, Kaesontae asks the court to overlook the failure to object “in light of fundamental fairness.” This court has exercised its power to hear new, issues where necessary to.serve the interest of justice or prevent denial of fundamental rights. State v. McCloud, 257 Kan. 1, 10, 891 P.2d 324 (1995). Kaesontae does not raise such an issue. Entertaining the issue would be a futile exercise. The well-established rule in this state' is that sound recordings made and kept in the ordinary course of business by public authorities are not excludable on hearsay grounds. See K.S.A. 60-460(m); State v. Rainey, 233 Kan. 13, 16-17, 660 P.2d 544 (1983).
Kaesontae also makes the argument that the evidence was insufficient to sustain his conviction of felony murder based upon his contention that the 911 call was inadmissible. His theory is that his felony-murder conviction cannot stand because the State’s case did not include the corpus delicti, proof of an attempt to rob Pratt. According to Kaesontae, “[t]he only evidence that any demand was made for property” was the- tape recording of Matt Edgington’s 911 call. Because the tapé “should not háve béen admitted,” proof of the robbery attempt fails. Without proof of the underlying felony of attempted aggravated robbery, the argument continues, the body (corpus) or substance of the crime (delicti),of felony murder cannot have been proved. The argument fails because the 911 tape was properly admitted.
Finally, Kaesontae argues that the trial court erréd in admitting into evidence his statement to.the police.. Over the»objection of defense counsel, tape recordings of Kaesontae’s statements made during an interview conducted by police on Saturday morning, February 5, 1994, were admitted into evidence. Kaesontae’s pretrial motion to suppress this evidence was denied by the district court on the following grounds:
“The defense would be if they tried to overbear this man’s will or somehow mislead him into doing it. I don’t see any evidence whatever of that. The time periods here the Court sees the paperwork it takes to get people processed through the system and a half hour here and there is easily lost. I don’t' think this time period is time enough that time itself is — was used as a weapon against him.
“The police did pay attention to Miranda, they Mirandized him orally and in writing, they referred back to Miranda,.they left off,.gave him another chance to think about it. As soon as he talked about getting a lawyer they didn’t just start talking to him again as soon as he was ambivalent, they tried to clarify to him that a lawyer could be available, they didn’t tell him he’d have to wait a long time for one.”
The district court also ruled out the possibility that Kaesontae’s alcohol consumption affected his decision to talk with police. In the words of the district court judge, “We’re talking about over eight hours before.”
This court’s review of the trial court’s decision to admit the evidence is somewhat limited, although this court’s standard of review is well settled. State v. Garcia, 250 Kan. 310, Syl. ¶¶ 2, 3, 827 P.2d 727 (1992), states:
“If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court.”
“Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, ‘substantial evidence’ is such.legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.”
In this case, the evidence presented by the State at the hearing on the motion to suppress showed that Kaesontae was awakened at his house at approximately 6 a.m., arrested, read his rights from a plastic Miranda card, and taken to an interview room at the city building. Handcuffed to the table, Kaesontae reviewed; read aloud, and signed a written Miranda form at 6:55 a.m. Kaesontae asked about a lawyer, and one of the detectives advised him “that if he could not afford a lawyer the Court would appoint a lawyer to him at any time he wanted one.” Kaesontae told the detective that he wanted to talk to him “about what occurred.” They talked until 7:25 a.m. At 7:30 the detective asked Kaesontae if he wanted anything to drink and then gave him a soft drink as requested. It was not until 9:17 that there was additional contact between Kaesontae and police officers. At that time Kaesontae told the detectives, Relph and Chisholm, “that he wanted to talk to his lawyer first.” The detectives left the interview room at 9:24. At approximately 9:43 Detective Chisholm, following standard procedure, opened the door and looked in on Kaesontae and immediately left again. As he “was walking back past the interview room” a few minutes later, Detective Chisholm heard Kaesontae asking for a detective to come to his room. Chisholm opened the door and asked Kaesontae what he wanted. According to Chisholm, “He told me that it was driving him crazy, that he wanted to talk to us about the incident, about what had happened.” Chisholm responded by
“explain[ing] to him that he had invoked his right, he’d asked for a lawyer, that we wouldn’t — that we weren’t allowed to talk to him because of that unless he had — unless he wanted to talk to us. I asked him if he wanted to talk to us without his lawyer being present.”
Chisholm testified that Kaesontae told him, “[Y]es, he did, that it was driving him crazy.” Chisholm told Kaesontae that “we’d be back with him in a couple minutes.” The tape recording which was admitted into evidence was made when Detectives Relph and Chisholm talked to Kaesontae between 10:20 a.m. and 12:20 p.m. This evidence was uncontroverted.
Kaesontae cites State v. Johnson, 253 Kan. 75, 853 P.2d 34 (1993). There, the court stated: “The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused.” 253 Kan. at 83-84. The court further stated the “totality of the circumstances” is to be considered, including “the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation.” 253 Kan. at 83.
Kaesontae complains, not about the duration of the interrogation, but rather about the length of time he was kept in the interrogation room. In this regard, he suggests that “the officers were playing a waiting game” with him. He intimates that his youth, foreign birth, and hangover contributed to his being adversely affected by being left alone in the interrogation room. The district court, however, found that the police were not using time as a pressure tactic, and there is substantial evidence to support that finding. The district court also discounted any effect from alcohol consumption the previous night. The complete absence of any evidence indicating that Kaesontae’s behavior was affected by his earlier consuming alcohol supports the district court’s determination. Concerning his ability upon request to communicate with the outside world, Kaesontae first contends that there is no evidence that he was permitted to speak with his family or others. Nor, however, is there any indication which has been brought to the court’s attention that he requested to do so. Second, he contends that “[tjhere is no indication that [he] was offered the opportunity to have counsel any sooner than Monday.” [Kaesontae was interrogated on a Saturday morning.] Nor is there any indication that Kaesontae asked to have counsel made available to him sooner than that. He states that the witnesses were not able to rule out the possibility that one of the detectives may have stated that appointment of counsel would have to wait until Monday. This falls short of evidence that he requested an opportunity to communicate with an attorney, and his request was denied. Hence, review of the record shows that there was substantial competent evidence to support the trial court’s decision.
Affirmed.
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The opinion of the court was delivered by
Davis, J.:
This is a wrongful death action based upon a loss of chance of survival because of medical malpractice. We granted the defendant’s petition for review on a single issue involving the calculation of nonpecuniaiy damages. For die reasons set forth below, we agree with die trial court and the Court of Appeals’ conclusion that in such an action nonpecuniaiy damages awarded by the jury are to be multiplied by the percentage of lost chance of survival before application of the statutory cap in K.S.A. 60-1903.
Facts and Procedural History
On July 3, 1990, Nancy L. Dickey was taken by ambulance to St. Francis Hospital complaining of respiratory distress. Her condition deteriorated and she developed Adult Respiratory Distress Syndrome. She was placed under the care of the defendant, Dr. Ted Daughety, a pulmonologist. On July 30,1990, Daughety, while attempting to replace a chest tube, accidentally lacerated Dickey’s pulmonary artery, causing her death. The decedent’s heirs at law brought this wrongful death action against Daughety for malpractice.
The jury determined that Dickey had an appreciable chance of survival before the laceration of her pulmonary artery. It also determined that had she been given proper medical care, that chance would have been 30%. The jury further found that Dickey had no chance of survival under the medical care that she actually received and that Daughety was 100% at fault.
Based upon trial evidence, the jury awarded the heirs pecuniary damages totalling $114,000 and nonpecuniary damages totalling $270,000. The trial court multiplied the damages by 30%, the percentage of lost chance of survival, arriving at a figure of $37,200 for pecuniary damages and $81,000 for nonpecuniary damages, for total damages of $118,000. Daughety appealed, contending that the total nonpecuniary damages should have been $30,000 instead of $81,000. He claimed that the $100,000 cap for nonpecuniary damages under K.S.A. 60-1903(a) should be applied before the nonpecuniary damage award of $270,000 is multiplied by the percentage of lost chance.
The Court of Appeals affirmed the trial court’s finding that the nonpecuniary damage award should be multiplied by the percentage of lost chance prior to the application of the statutory cap in K.S.A. 60-1903(a). Dickey v. Daughety, 21 Kan. App. 2d 655, 661, 905 P.2d 697 (1995). We granted Daughety’s petition for review on the sole issue involving the proper calculation of damages in a loss of chance case as affected by the statutory cap on nonpecuniary damages found in K.S.A. 60-1903(a).
Discussion, Analysis, and Resolution
The total amount of nonpecuniary damages awarded by the jury was $270,000. .The defendant contends that the trial judge should have fixed nonpecuniary damages at $30,000 using the following method: First, reduce the .$270,000 to $100,000, the statutory cap mandated by K.S.A. 60-1903(a); then multiply the $100,000 by the percentage of lost chance of survival, found by the jury tó be-30%, for a nonpecuniary damage award of $30,000. The trial court and the Court of Appeals decided that the nonpecuniary damage award of $270,000 should be multiplied by the 30% loss of chance of survival for an award of $81,000 in nonpecuniary damages.
The defendant relies upon our recent decision of Delaney v. Cade, 255 Kan. 199, 218, 873 P.2d 175 (1994), to support his contention that the $100,000 cap should be applied first. Delaney was a loss of chance of recovery case. It came before this court on certified questions by the United States Court of Appeals for the Tenth Circuit. In Delaney, we determined that (1) Kansas does recognize a cause of action for loss of chance of recovery; (2) in such an action, the loss of chance of recovery must be substantial; and (3) “the proper method for calculating damages in a medical malpractice action based upon the loss of a chance for survival ... is the proportional recovery method as described in Boody and by Professor King.” 255 Kan. at 218.
A close examination of Boody v. U.S., 706 F. Supp. 1458 (D. Kan. 1989), and Professor Joseph.H. King, Jr.’s, article in the Yale Law Review undermine the defendant’s reliance upon Delaney and his contention that the $100,000 cap on nonpecuniary damages should be applied before the percentage of lost chance is multiplied by total nonpecuniary damages. In his article, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, Professor King describes the proportional recovery method as one where the total damage award is multiplied by the percentage of lost chance. See King, 90 Yale L. J. 1353, 1380-86 (1981). Application of this method under the facts of our case results in a nonpecuniary damage award of $81,000.
The same result occurs when the rationale of Boody is applied to the facts of our case. Boody was a loss of chance of survival case which determined that the plaintiff’s damages would be calculated by multiplying the total value of the decedent’s life by the percentage of life lost due to the physician’s negligence. In Delaney, we quoted with approval the following language from Boody:
“This method is preferable because it apportions damages in direct relation to the harm caused; it neither overcompensates plaintiffs or unfairly burdens defendants with unattributable fault. Second, the percentage method gives juries and judges concrete guidelines on how to measure damages, alleviating the ‘pulling out of the hat’ problem identified with the [valuation approach]. If the decision maker believes plaintiff’s expert(s) on causation, the percentage of chance lost, then it makes the usual finding on the value of a Ufe ($X) and multiplies $X by the percentage of chance lost to arrive at the compensation for the lost chance to survive.” 706 F. Supp. at 1465-66.
There is no doubt that the proportional method as contemplated in Delaney involves a determination of the total damages multiplied by the percentage of lost chance. Nevertheless, the defendant seizes upon two words in the following sentence from Delaney to support his contention that the cap of $100,000 is to be applied before the percentage of loss: “Under the proportional damage approach, the amount recoverable equals the total sum of damages ordinarily recovered for the underlying injury or death multiplied by the percent of lost chance.” 255 Kan. at 218. (Emphasis added.)
Daughety argues that the amount “ordinarily recovered” in a wrongful death action is not necessarily the amount awarded by the jury. According to Daughety, if a jury awards an amount for nonpecuniary damages over $100,000 in a wrongful death action, the amount recovered is limited to $100,000. Thus, Daughety argues, the amount normally recovered is the amount awarded by the jury but reduced by the statutory cap.
The defendant misses the point of Delaney. Delaney does not deal with caps under our wrongful death statute K.S.A. 60-1903(a). It deals with the method of calculating damages in a loss of chance case. Our use of the words “ordinarily recovered” relates to total damages awarded by the finder of fact for the injury or wrongful death. In a loss of chance case, damages awarded by the finder of fact are to be multiplied by the percentage of lost chance to compute actual damages for the loss of chance. If the resulting amount exceeds the $100,000 cap set forth in K.S.A. 60-1903(a), the court “shall enter judgment for damages of $100,000 for nonpecuniary loss.” K.S.A. 60-1903(b).
An analysis of the provisions of K.S.A. 60-1903 further supports our determination. K.S.A. 60-1903(a) provides that the damages in a wrongful death case cannot exceed $100,000. The cap has no relationship to actual damages awarded by the finder of fact except to provide a limit on the amount that the plaintiff may be awarded. The cap is by statute a “monetary limitation” not disclosed to the jury. K.S.A. 60-1903 is not a cap on the damages that may be awarded by the jury but rather a cap on the damages that may ultimately be recovered after reductions for comparative fault and loss of chance. The limitation under our wrongful death statute is not a measure of compensation but is simply a limitation upon recovery. McCart v. Muir, 230 Kan. 618, 630, 641 P.2d 384 (1982) (quoting Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 445, 581 P.2d 372 [1978]).
The defendant also contends that Boody supports his position that caps be applied first before the percentage of chance is determined. In Boody, the court determined total damages, including the statutory maximum of $100,000 for nonpecuniary damages, and multiplied the total amount by the percentage of lost chance to find die damage award. 706 F. Supp. at 1466-67. However, in Boody, the plaintiff’s claim of nonpecuniary damages was limited to the amount of the statutory cap of $100,000. Boody did not address the application of the statutory cap. See 706 F. Supp. at 1466. Boody offers no support for the defendant’s position.
We hold that in a wrongful death action involving a loss of chance of survival, the nonpecuniary damages awarded by the finder of fact are to be multiplied by the percentage of lost chance before the statutory cap in K.S.A. 60-1903(a) is applied. We conclude that the trial court did not err in determining that the total nonpecuniary damages of $270,000 was to be multiplied by the 30% loss of chance in arriving at $81,000 nonpecuniary damages for the loss of chance of survival.
The result we reach today is not inconsistent with the calculation of damages in cases of comparative negligence. In Bright v. Cargill, Inc., 251 Kan. 387, 417, 837 P.2d 348 (1992), we held that the trial court is to apply comparative fault principles before entering judgment for the amount recoverable under tire $250,000 statutory cap on damages for pain and suffering. See also McCart v. Muir, 230 Kan. 618 (holding that deductions due to comparative negligence are to be made from nonpecuniary damages before the cap in K.S.A. 60-1903 is considered); Gann v. Joeckel, 20 Kan. App. 2d 136, 884 P.2d 451 (1994) (following holdings of McCart).
Daughety argues that the above cases are distinguishable because they were decided based on the, application of K.S.A. 60-1903(b), which expressly states:
“If the jury verdict results in an award of damages for nonpecuniary loss which, after deduction of any amounts pursuant to [the statute on comparative negligence], exceeds the limitation of subsection (a), the court shall enter judgment for damages of $100,000 for nonpecuniary loss.”
However, we note that McCart v. Muir, which concerned application of K.S.A. 60-1903, was decided prior to the 1984 enactment of K.S.A. 60-1903(b). See L. 1984, ch. 214, § 1. Thus, the statute at issue in McCart v. ■ Muir did not expressly compel this court to consider comparative negligence before applying die cap. Instead, we determined that such consideration was the correct result, relying upon the rationale advanced in Benton v. Union Pac. R. Co., 430 F. Supp. 1380 (D. Kan. 1977). 230 Kan. at 630. Benton considered the effect of the comparative negligence statute on the statutory cap in K.S.A. 60-1903 and stated:
“Accordingly, when the comparative negligence statute is called into play, we cannot say the wrongful death limitation was intended to be the measure of damages sustained. On the other hand, it clearly is a limitation on the amount of damages recoverable. Under all the circumstances we agree with the view expressed in Olsen [v. Hartwig, 288 Minn. 375, 180 N.W. 2d 870 (1970)], that it is far more equitable to allow the plaintiff the opportunity to recover the statutory maximum than to further reduce her recovery. The injustice of allowing a plaintiff whose decedent was contributorily negligent to perhaps recover as much as a plaintiff whose decedent was not negligent seems slight, compared with the in justice of further reducing plaintiff’s recovery, when her maximum recovery is already far less than her actual damages.” 430 F. Supp. at 1386.
Affirmed.
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The opinion of the court was delivered by
Abbott, J.:
This case is before the court on three questions certified by the United States Court of Appeals for the Tenth Circuit pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. The questions are:
I. ‘Whether Kansas law recognizes a civil cause of action for embracery against an expert witness who causes a civil jury case to end in a mistrial as a result of his contacts with jury members.”
II. ‘Whether. Kansas law recognizes a civil cause of action for negligence against an expert witness who causes a civil jury case to end in a mistrial as a result of his contacts with jury members.”
III. ‘Whether Kansas law recognizes a civil cause of action for fraud against an expert witness in a civil jury case who has contacts with jury members and who either fails to reveal those contacts to, or attempts to conceal those contacts from, the court or the opposing party.”
The questions basically ask whether Kansas recognizes a civil cause of action for embracery, negligence, or fraud against an expert witness who causes a mistrial as a result of contacts with jury members. Embracery is “[t]he crime of attempting to influence a jury corruptly to one side or the other, by promises, persuasions, entreaties, entertainments, douceurs, and the like.” Black’s Law Dictionary 522 (6th ed. 1990).
The facts are set forth in the certification order as follows:
“Plaintiff OMI Holdings, Inc., was the defendant in Manildra Mill Corp. v. Ogilvie Mills, Inc., Case No. 86-2457-S, a complex and protracted case in the United States District Court for the District of Kansas involving patent issues, alleged antitrust violations, and pendent state law claims. On March 4, 1991, a combined bench and jury trial commenced in the Manildra matter. After 18 days of testimony, a mistrial was declared due to conversations overheard between John M. Howell, one of plaintiff Manildra Milling Corporations expert witnesses, and several members of the jury. OMI subsequently filed a motion for reimbursement of attorney fees incurred in the aborted trial. OMI’s motion was denied by the trial court, which concluded that ‘the conversation which resulted in a mistrial was partially the fault of the expert witness and partially the fault of the jurors who disregarded th[e] [trial] court’s admonitions.....Manildra Mill. Corp. v. Ogilvie Mills, Inc., 782 F. Supp. 102, 103-04 (D. Kan. 1991).
“On March 25,1993, OMI filed this action against Howell in the District Court of Shawnee County, Kansas. In Count I of its petition, OMI asserted a cause of action for embracery against Howell, alleging that Howell ‘owed a duty to OMI to refrain from influencing or attempting to influence the acts of Manildra jurors in any manner other than through sworn testimony given in the presence of Court and the parties in the courtroom,’ and further alleging that Howell violated this duty by participating in contacts with the jurors with the intention to influence or attempt to influence their decision. Appellant’s append, at 4. In Count II of its petition, entitled “Negligence,” OMI asserted thát Howell violated a duty to use reasonable care to avoid contacting the Manildra jurors by participating in contacts with the jurors ‘with knowledge or reason to know that his contacts would harm OMI, with the intention to influence or attempt to influence the decisions of the Manildra jurors to adopt Manildra’s positions, and with knowledge or reason to know that his acts would violate the rules prohibiting contact between witnesses or attorneys and the Manildra jurors.’ Appellant’s append, at 5. In Count III of its petition, entitled “Fraud,” OMI asserted that Howell failed to inform the trial court or OMI of his contacts with the Manildra jurors ‘with knowledge that his omission to reveal these facts would cause the court and OMI to incorrectly believe that no such contacts had taken place.’ Appellant’s append at 6. OMI further asserted in Count III that it justifiably relied on Howell’s silence by continuing to participate in the trial and ‘needlessly incurring additional fees, costs and other losses.’ id.
“The case was subsequently removed from state court to the United States District Court for the District of Kansas upon diversity jurisdiction grounds. On May 12, 1993, Howell filed a motion to dismiss pursuant to Fed. R. Civ. P[roe]. 12(b) (6), claiming that OMI’s petition failed to state a claim upon which relief could be granted. On September 8,1994, the district court issued a memorandum and order granting Howell’s motion. In it memorandum and order, the district court concluded that Kansas would not recognize a civil cause of action for embracery under the circumstances alleged by OMI. In support of this conclusion, the district court noted that the Kansas courts, in Koplin v. Rosel Well Perforators, Inc., [241 Kan. 206,] 734 P.2d 1177 [1987], and Hokanson v. Lichtor, [5 Kan. App. 2d 802,] 626 P.2d 214 [1981], had previously rejected civil causes of action for spoliation, of evidence and for perjury. Noting the similarities between this case and Koplin and;Hokanson {e.g., the existence of other penalties for the alleged wrongful conduct, the concern for duplicative litigation), the district court concluded the Kansas courts would likewise reject a civil cause of action for embracery. In addition, thé district court rejected the notion that section 18 of the Kansas Constitution’s Bill of Rights could be used to create a cause of action for embracery. Finally, the .district court rejected the argument that federal or state criminal statutes, which prohibit contact with jurors outside of open court, could be used tp create a private cause of action. As for OMI’s negligence and fraud claims, the district court concluded that both were ‘back-door’ efforts to bring a civil' action for embracery. Moreover, the district court concluded there were no duties, under Kansas law, to exercise reasonable care in following a court’s instructions. to avoid communications with jurors'" outside of open court or to disclose embracery:” . , ■■
I. EMBRACERY
In support of its position that Kansas ’should recognize the tort of embracery, OMI cites to the following cases: Doans Case (No. 2), 17 Pa. D. & C. 521, 5 Pa. DR. 211 (1896); Employers Insurance v. Hall, 49 N.C. App. 179, 270 S.E.2d 617 (1980), cert. denied 301 N.C: 720 (1981); LaBarre v. Payne, 174 Ga. App. 32, 329 S.E.2d 533 (1985); Trudell v. Heilman, 158 Cal. App. 3d 251, 204 Cal. Rptr. 551 (1984).
In Doan’s Case (No. 2), 17 Pa. D. & C. 521, the defendant attempted to influence niémbers of a grand jury to insure that the grand jury would criminally indict two people the defendant wished to have indicted. 17 Pa. D. & C. at 521. Based on this conduct, the court found that the defendant could be held in contempt of court and indicted for a misdemeanor. The court stated in dicta:
“One who attempts to influence or prejudice a juror in the discharge of his office, ■incurs a threefold liability. He may be summarily punished by the court, or when not within the provisions of the statute, by indictment for .contempt in interfering with the process and obstructing justice, he is indictable under the statute or at common law for embracery, or he may be sued for damages by one who has suffered through his unwarrantable interference.” 17 Pa. D. & C. at 521. (Emphasis added.)
OMPinterprets this language as authorizing a civil cause of action against one who improperly influences the trial process resulting in a'mistrial for money damages, including trial expenses and attorney fees related to the first trial. Howell contends, however, that this highlighted clause in Doans quoted above is not referring to and does not allow an embracery action. Instead, according to Howell, the clause is simply referring to the fact that a person injured by improper juror influence may sue the influencer and receive damages for malicious prosecution, false imprisonment, defamation, or any other civil action recognized at the time. Howell argues that this clause in Doans did not create and should not be interpreted as creating a new civil cause of action for embracery.
The focus of Doans is whether the influencer could be found in contempt of court or indicted for an embracery misdemeanor or both. We are of the opinion the Doans court did not intend to create a new embracery tort in a dicta clause of one sentence of the case.
Next, OMI cites to Employers Insurance v. Hall, 49 N.C. App. 179. In Hall, the plaintiff was an insurance company that spent money defending an insured/hospital in a prior suit. In the prior suit, an attorney involved in the case attempted to improperly influence a juror. After 6Vz days of trial, the judge declared a mistrial. The judge found that the attorney could be held liable under the common law for the insurance company’s monetary damages as a result of the attorney’s juror contacts and the subsequent mistrial. In so finding, the court stated:
“Defendant contends he is not responsible in civil damages for the act of embracery. We reject this argument and hold that a person who commits an act of embracery is liable in civil damages to one who is damaged thereby. 29A C.J.S. Embracery § 10 (1965). Surely an act so abhorrent to the fair administration of justice requires that the perpetrator pay the full measure for his acts, both to society in the form of criminal punishment and in civil damages to individuals who suffer from his actions. The crime strikes to the foundation of law and shatters the very bedrock of justice.” 49 N.C. App. at 181.
Howell tries to discredit Hall. Howell points out that Hall relied on the 1965 C.J.S. Embracery section. The 1965 version of C.J.S. relied on Doan’s as authority. However, the 1992 version of C.J.S. omits Doan’s as authority for an embracery tort. Howell contends that 1992 C.J.S. omitted Doan’s because the C.J.S. authors realized that the 1965 C.J.S. misinterpreted Doan’s as recognizing an embracery tort. Thus, according to the defendant, the Hall court improperly relied on the 1965 version of C.J.S. in holding that an embracery tort exists; therefore, Hall is not persuasive authority.
Further, Howell suggests that the fact North Carolina recognizes a common-law felony for embracery may explain why a North Carolina court, in Hall, also recognized a common-law tort for embracery. As Howell points out, neither Kansas nor the federal courts recognize a common-law felony for embracery. Instead, both Kansas and the United States have promulgated criminal statutes which punish embracery. Thus, the defendant contends that since Kansas does not recognize a common-law felony for embracery, it would not recognize a common-law tort for- embracery either.
Hall, as we read it, did not base its recognition of the common-law tort of embracery on the fact that North Carolina recognizes a common-law felony of embracery. Further, it is not significant that Hall relied on the 1965 version of C.J.S. It is true that the 1992 version of C.J.S. omits Doan’s. However, the 1965 C.J.S. did not cite to Doan’s as authority for the existence of a common-law embracery tort. Rather, the 1965 C.J.S. cited Doan’s as an example of a case interpreting a criminal embracery statute. Thus, the omission of Doan’s in the 1992 C.J.S. does not affect C.J.S.’s conclusion that a common-law action for embracery exists. The 1992 version of C.J.S. still recognizes a common-law embracery tort. Thus, even if the 1965 C.J.S. misinterpreted Doan’s (which it does not appear that it did), the validity of 1965 C.J.S. conclusion — that an embracery tort exists — is not in question.
OMI also cites to LaBarre v. Payne, 174 Ga. App. 32, as recognizing an embracery tort. Payne was the plaintiff in a prior action who sued a member of a bank’s board of directors. As an employee of the bank, LaBarre became interested in the case and began attending the trial. LaBarre was a friend of one of the jurors in the prior action and contacted her frequently during the trial. After one day of jury deliberations, LaBarre contacted her juror friend, and the juror asked LaBarre about a legal issue in the case. LaBarre told the juror her opinion and LaBarre also contacted her (La- Barre’s) former attorney for advice on the issue. The attorney recognized the issue, discovered that LaBarre had been communicating with a juror, and brought this to the attention of the trial court. The trial court declared a mistrial over Payne’s objections. Payne settled the case with the board of director member and brought this action against LaBarre for, inter alia, embracery. The appellate court reversed the trial court’s grant of summary judgment to LaBarre and recognized the tort of embracery, stating: “We reject LaBarre’s argument that there is no civil cause of action for embracery and hold that a person who commits embracery is liable in civil damages to one who thereby injured. [Citations omitted.]” 174 Ga. App. at 34. The fact that LaBarre’s actions also violated Georgia’s criminal embracery statute did not affect the court’s recognition of an embracery tort.
Howell points out that LaBarre cited Hall and the 1965 version of C.J.S., without analyzing Doans or the Georgia criminal embracery statute, in determining that an embracery tort exists. According to Howell, the LaBarre court assumed an civil action for embracery existed simply because LaBarre violated the criminal embracery statute.
It is true that the 1992 C.J.S. no longer relies on the same cases as the 1965 C.J.S., but the 1992 C.J.S. still recognizes an embracery tort, which is the reason why LaBarre cited to 1965 C.J.S. in the first place. LaBarre did not directly rely on Doan’s- thus, the omission of this case in the 1992 C.J.S. is irrelevant. The LaBarre court found an independent action for embracery tort existed in common law. Thus, this case supports OMI’s position.
Finally, OMI cites Trudell v. Heilman, 158 Cal. App. 3d 251. In Trudell, the plaintiff had previously sued the defendant in a personal injury action. In this prior case, the defendant secretly met with a juror and told the juror that he (the defendant) was a poor man and could not afford to pay a large judgment. The juror told the jury that the defendant was poor and that the jury should award a small judgment to the plaintiff. The jury was influenced and awarded a much smaller damage award to the plaintiff than the amount of damages actually suffered by the plaintiff. The plaintiff became aware of the defendant’s improper juror influence before the damage judgment became final,- but the plaintiff, after being informed of the facts, elected not to request a mistrial or a new trial. Instead, the plaintiff sued the defendant and the juror in this later action for civil damages under the tort of embracery. 158 Cal. App. 3d at 253. The trial court refused to recognize a tort of embracery under the circumstances because the plaintiff did not file a motion for -a new trial in the original action where the improper juror contact occurred. 158 Cal. App. 3d at 253. The appeals court affirmed, stating:
“[I]t seems clear that any such [embracery] action would be disfavored for reasons of public policy and it should not be allowed unless a litigant has no other means of redress. Here, the facts now relied on obviously were known to the plaintiff before the judgment in the prior case had become final and within time for him to have acted on the first trial judge’s suggestion to move for a new trial. Having failed to utilize that mode of redress, which, if his present allegations are true, probably would have resulted in an order granting a new trial at least on the issue of damages, the present action for damages cannot be maintained.” 158 Cal. App. 3d at 254. (Emphasis added.)
OMI contends that Trudell supports its position because OMI is a litigant with no other means of redress; thus, an embracery action should be recognized under this situation. OMI reasons that it does not have any other means of redress, except for an embracery action, because it has already utilized all of the other means of redress in order to receive compensation for its damages without success. For instance, OMI filed attorney fee petitions which were denied by the federal courts. Thus, OMI contends that it has not been compensated for the damages which the defendant caused and that it has. no other means of redress except for an embracery cause of action. As such, OMI contends that an embracery tort should be recognized in this situation.
Howell contends that OMI has misinterpreted the Trudell case. According to Howell, Trudell does not imply that an embracery tort exists just because a party has unsuccessfully tried to receive compensation through eveiy other means of redress and has no other means of redress available except for an embracery tort. Instead, Howell reasons that Trudell would only recognize an embracery tort if a party discovered the juror influence after it was too late for the parly to achieve relief through a motion for mistrial or new trial, thereby leaving the plaintiff without other means of redress. Using this interpretation of Trudell, Howell contends that OMI did have other means of redress available throughout the first trial. For instance, OMI sought and received a mistrial and a new trial upon learning of the juror influence. OMI also sought a fee petition in the federal court. Thus, according to Howell, OMI does not qualify as party eligible to use the embracery tort under Trudell because OMI had other means of redress available to it, some of which were successful and some of which were not.
We agree with the defendant’s interpretation of Trudell. If Trudell is interpreted otherwise, then the plaintiff is rewarded for the fact that its other requests for relief were denied, possibly because they were meritless, by receiving the opportunity to bring a civil embraceiy tort because all of its other means of redress have been unsuccessful. However, the more injured plaintiffs, those who receive relief at trial because their claims have merit, are not allowed to bring a tort claim for embracery because they have other successful means of redress available. This does not make sense. Instead, Trudell found that if a party became aware of juror influence at trial, then it should fix the problem by requesting a mistrial and a new trial. If the plaintiff does this or had the opportunity to do this, as is the case in Trudell, then an embracery tort is not allowed. However, if the party does not become aware of the juror influence until after it is too late to repair the prejudice at trial by requesting a mistrial, then no other means of redress is available, and an embracery tort may be allowed. Here, OMI discovered the juror influence while the underlying trial was still going on, and OMI had an opportunity for redress by receiving a mistrial, a new trial, and requesting a fee petition. Thus, Trudell does not support OMI’s position by allowing an embracery tort under these circumstances. Therefore, two of OMI’s cited cases support the recognition of an embracery tort (Hall, LaBarre), one does not (Trudell), and one case does not really address an embracery tort at all (Doans).
Kansas courts have never ruled upon whether embracery is a tort which should be recognized in Kansas. OMI contends' that public policy requires this court to recognize an embracery tort. In support of its position, OMI cites to some basic principles of tort law, such as: “A tort is a violation of a duty imposed by law.” Mills v. City of Overland Park, 251 Kan. 434, 445, Syl. ¶¶ 2, 3, 4, 5, 6, 837 P.2d 370 (1992) (finding that a tort cause of action did not exist for the failure of a law enforcement officer to take an intoxicated person into custody because the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large, not to a specific individual); see Prosser and Keeton, Law of Torts §§ 1, 4, pp. 6, 20 (5th ed. 1984) (when imposing tort liability, the court should take into account the policy considerations of the victim’s right to compensation and the reasonableness of the defendant’s conduct).
Further, OMI cites to several cases in which Kansas courts have found that it was proper to adopt a new cause of action based on public policy, such as wrongful birth, wrongful discharge, outrage, loss of chance of survival, false light, intrusion upon seclusion, and invasion of privacy. Arche v. United States of America, 247 Kan. 276, 798 P.2d 477 (1990); Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981); Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104 (1974); Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984); Rinsley v. Frydman, 221 Kan. 297, 559 P.2d 334 (1977); Froelich v. Adair, 213 Kan. 357, 516 P.2d 993 (1973); Kunz v. Allen, 102 Kan. 883, 172 Pac. 532 (1918); see also Ling v. Jan’s Liquors, 237 Kan. 629, 640, 703 P.2d 731, 739 (1985) (stating “Indeed, we have not hesitated to adopt a new cause of action by judicial decision where we have determined that course was compelled by changing circumstances,” but refusing to impose civil liability upon vendors of alcoholic beverages for torts of inebriated patrons because this is a matter of public policy which the legislature is best equipped to handle); and Hoffman v. Dautel, 189 Kan. 165, 168, 169, 368 P.2d 57 (1962) (stating “[njovelty is not sufficient to prevent recovery and the absence of precedent does not prove that a cause of action cannot be maintained. [Citation omitted.] One of the basic characteristics of the common law is that it is not static, but is endowed with vitality and capacity to grow” but holding that children do not have an action for loss of consortium based on parent’s injury due to “possibility of multiplicity of actions based upon a single tort.”).
On the other hand, Howell also cites to some general principles of tort law, such as Prosser’s comment, that “[t]here are many interferences with the plaintiff’s interests, such as negligently causing him mere mental suffering without physical consequences or depriving him of the benefit of a contract, for which the law will give no remedy, although the defendant has clearly been at fault.” Prosser, Law of Torts § 1, p. 4 (4th ed. 1971). See Allin v. Schuchmann, 886 F. Supp. 793, 799-800 (D. Kan. 1995) (no civil action under Kansas law for intentional infliction of emotional distress caused by alleged perjury.)
In finding that Kansas would not recognize the tort of embracery, the federal district court relied on Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, Syl. ¶ 2, 734 P.2d 1177 (1987) (refusing to recognize a common-law tort action for spoliation of evidence), and Hokanson v. Lichtor, 5 Kan. App. 802, 626 P.2d 214 (1981) (refusing to recognize a civil action for perjury).
In Koplin, a federal district court certified a question to this court, asking “whether Kansas would recognize a common-law tort action for intentional interference with a prospective civil action by spoliation of evidence.” 241 Kan. at 207. In the Koplin case, the plaintiff was injured at work by a clamp which malfunctioned. The plaintiff planned to sue the manufacturer and the distributor of the clamp. However, the plaintiff was not able to bring the lawsuit against the manufacturer and distributor because the clamp disappeared. Instead, the plaintiff sued his employer for intentional interference with a prospective civil action by spoliation of evidence. The plaintiff alleged that his employer intentionally destroyed the clamp in order to deny him access to evidence so that he would not be able to sue the clamp manufacturer and distributor. 241 Kan. at 208.
In determining whether Kansas recognizes this cause of action, this court pointed to the fundamental rule that before a plaintiff can recover under a to,rt claim, the defendant must have violated a duty which it owed to the plaintiff. 241 Kan. at 212. Based on this rule, the court found that the employer could not be held liable unless it owed a duly to the plaintiff to preserve the clamp. 241 Kan. at 213. This court also pointed to the general rule that one does not have a duty to preserve potential evidence for another party unless some special relationship exists between the two parties arising though an agreement, contract, statute, or other special circumstances. 241 Kan. at 208. In this case, the court found no special circumstances which would have created a duty the defendant/employer owed to the plaintif&'employee. 241 Kan. at 213. This court found that “[t]o adopt such a tort and place a duty upon an employer to preserve all possible physical evidence that might somehow be utilized in a third-party action by an injured employee would place an intolerable burden upon every employer.” 241 Kan. at-212.
Finally, in refusing to recognize this tort, this court cited with approval a dissent written by Chief Judge Schwartz in Bondu v. Gurvich, 473 So. 2d 1307 (Fla. Dist. App. 1984), rev. denied 484 So. 2d 7 (Fla. 1986). Bondu recognized a negligent spoliation of evidence action, but Judge Schwartz stated:
“ ‘In my view, such a rule runs counter to the basic principle that there is no cognizable independent action for perjury, or for any improper conduct even by a ivitness, much less by a party, in an existing lawsuit. [Citation omitted.] Were the rule .otherwise, every case would be subject to constant retrials in the guise of independent actions.’ ” 241 Kan. at 214 (quoting 473 So. 2d at 1313-14). (Emphasis added.)
Thus, this court stated:
“We conclude that absent some independent tort, contract, agreement, voluntary assumption of duty, or special relationship of the parties, the new tort of ‘intentional interference with a prospective civil action by spoliation of evidence’ should not be recognized in Kansas." 241 Kan. at 215.
. Based on this case, Howell contends that the key to a new tort is whether the defendant owed a duty to the plaintiff. Here, Howell argues that he did not owe a duty to OMI. Instead, Howell contends that he owed a duty to the court to refrain from improper juror contacts; he did not owe this duty to, OMI. Thus, according to Howell, a, tort of embraceiy cannot exist .under these circumstances.
The second case which the federal district court relied on in ruling that Kansas would not recognize an embracery tort is Hokanson v. Lichtor, 5 Kan. App. 2d 802. In Hokanson, the plaintiff was involved in a car-motorcycle accident. The plaintiff, in a prior suit, sued Margaret Faulkner for injuries arising out of this accident. Faulkner was insured by State Farm Mutual Insurance Company against liability arising out of the use of her automobile. In defending Faulkner, State Farm hired an attorney, Lee Turner, to represent Faulkner in the personal injury case. State Farm and Turner hired a doctor, Joseph Lichtor, to evaluate the plaintiff’s injuries and testify at trial as a defense expert. Lichtor testified at the trial, and the jury awarded the plaintiff $50. The plaintiff thought that Lichtor had lied regarding her medical injuries at the trial. Thus, the plaintiff filed this action against State Farm, Turner, and Lichtor, alleging that the three had conspired to present perjured testimony through Lichtor. The trial court dismissed the plaintiff’s action for failure to state a claim and the plaintiff appealed. The Court of Appeals addressed the issue of whether a civil action exists for perjury or conspiracy to commit perjury.
The Court of Appeals pointed to the rule that a plaintiff who has lost a case due to perjured testimony may not sue the perjurer for damages. This rule is based on the fact that the remedy for perjury should be criminal sanctions or an action to set aside the judgment instead of civil damages. Based on this rule, the. Hokanson court refused to recognize a cause of action for perjury or conspiracy to commit perjury.
In affirming the trial court’s dismissal of the plaintiff’s petition for failure to state a claim, the Court of Appeals stated:
“We adopt the reasoning of the majority of jurisdictions — that litigants must have access to expert opinion evidence and witnesses must be available to testify unthout fear of having to incur fees and expenses to defend their testimony in subsequent actions, which would do nothing more than ‘rehash’ the same issue determined in an original case; i.e., what testimony is the jury to believe? Litigation must end at some point. To permit actions such as plaintiff contemplates in this case might ultimately result in depriving the judicial system of expert witnesses who are invaluable to all segments of the bar. Most improvements in science, the law and society have resulted because some person has thought and expressed views different from the prevailing view. The advocacy system is designed to test those views, and the trier of facts decides whether to accept or reject the opinion evidence of an expert or the testimony of a nonexpert. Here, through discovery, the plaintiff had an opportunity to learn of and expose any perjury that in his opinion defendants had committed. The courts must zealously protect the rights of all litigants to present their evidence within the framework of the law. If perjury is committed in a trial, a litigant is not left helpless; procedure is available to obtain a new trial. Criminal penalties are available against the perjurers and those who engage in a conspiracy to commit perjury. Disciplinary rules are available to punish lawyers who engage in such reprehensible conduct.” 5 Kan. App. 2d at 810-11. (Emphasis added.)
In Koplin and Hokanson, the courts rejected these civil actions because of the policy problems they would create. Here, the federal district court found that many of the policy problems present in those cases are also present in the recognition of an embracery tort. For instance, recognition of an embracery tort would impose a new duty on all witnesses, which they owe to adverse litigants, not to communicate with jurors. Further, an embracery tort would create duplicative litigation because other penalties exist to punish jury tampering. Finally, an embracery tort might constitute a collateral attack upon the first judgment and would create difficulty in determining damages. As such, the district court refused to recognize an embracery tort.
Imposition of a New Duty
Here, OMI contends that an embracery tort does not impose any additional duties on a defendant/witness because a witness has a preexisting duty to avoid contact with jurors imposed on the witness by the criminal embracery statute, by the trial judge’s admonition against juror contact, and by the ethical rules for attorneys. OMI reasons that when a reasonable duty already exists on a defendant, then Kansas law has no reason not to impose tort liability; thus, it should do so in this case. See Foster v. Lawrence Memorial Hosp., 809 F. Supp. 831, 838 (D. Kan. 1992).
In Foster, the plaintiffs’ son was injured and treated at Lawrence Memorial Hospital by Dr. Geist. Dr. Geist made some personal notes concerning the treatment he rendered. When their son died, the plaintiffs brought a medical malpractice action in federal court against Dr. Geist and Lawrence Memorial Hospital. After finding out that he might be sued, Dr. Geist prepared a chronology of events using his personal notes. He then threw away his personal notes. After becoming aware of this conduct, the plaintiffs amended their complaint, alleging that Dr. Geist negligently or intentionally destroyed his notes in violation of his common-law or statutory duty as set out in K.A.R. 100-24-1. Dr. Geist filed a motion for partial summary judgment on this claim, arguing that Kansas does not recognize a cause of action for intentional or negligent spoliation of evidence.
Geist contended that he did not owe a duty to the plaintiffs to keep the notes intact because he did not agree to keep the notes, nor does K.A.R. 100-24-1 require a physician to keep personal notes. On the other hand, the plaintiffs contended that Geist owed them a duty based on the special doctor/patient relationship which existed between Geist and the victim of malpractice. Further, the plaintiffs contended that K.S.A. 60-427 (physician-patient privilege statute), the physician’s code of ethics, and K.A.R. 100-24-1 all impose a duty on Geist to keep the notes.
The Foster court pointed to the Koplin case in which this court stated: “ °We conclude that absent some independent tort, contract, agreement, voluntary assumption of duty, or special relationship of the parties, the new tort of ‘intentional interference with a prospective civil action by spoliation of evidence’ should not be recognized in Kansas.’ ” 809 F. Supp at 837.
Based on this language, the Foster court concluded that the Kansas Supreme Court would recognize the tort of spoliation if the defendant already owes an independent duty to the plaintiffs to preserve the evidence and this duty is not a new common-law duty imposed on the defendant as a part of the tort. The court then found that K.A.R. 100-24-1 imposed an independent duty on Dr. Geist to retain the records of patients he treats. As such, it was a factual question for the jury to determine whether Dr. Geist breached this duty and committed the tort of spoliation of evidence. Thus, the court denied Dr. Geist’s request for partial summary judgment on this issue. 809 F. Supp. at 838. Later, the district court held that the plaintiffs could not assert a claim for spoliation of evidence because they did not claim any damages which were distinct from the underlying medical malpractice claim. See Foster v. Lawrence Memorial Hosp., 818 F. Supp. 319, 322 (D. Kan. 1993).
Thus, OMI argues that a new duty which is intolerably burdensome is not created by recognizing the embracery tort. According to OMI, the policy reason in Koplin which prevented this court from recognizing a spoliation tort — that the defendant did not owe a preexisting duty to the' plaintiff to protect the evidence and that it would be too burdensome to impose such a new duty on the defendant — is not implicated here. Here, OMI asserts that the defendant already owed a preexisting duty to refrain from juror contact imposed by the criminal embracery statute, the trial judge’s admonition against juror contact, and the attorney ethical rules.
Howell concedes that he does have a duty to refrain from improper jury contacts which is imposed on him by the criminal embracery statute, the trial judge’s admonition against juror contact, and the attorney ethical rules. However, Howell contends that he only owes this duty to refrain from improper juror contact to the court, not to an adverse litigant. In support of this argument, Howell addresses each of the factors which impose a duty on him to refrain from juror contact — the criminal embracery statute, the judge’s admonitions, and the attoniey ethical rules- — and evaluates whether these factors impose a duty on him which he owes to the court or to an adverse litigant such as OMI.
First, Howell contends that the Kansas criminal embracery statute (K.S.A. 21-3815) imposes a duty on him which he only owes to the court, not to the litigants, because the purpose of such a statute is to protect the integrity of the court. See State v. Torline, 215 Kan. 539, 527 P.2d 994 (1974) (“[0]ur [embracery] statute appears to have been designed to achieve twin goals of protecting a judicial officer in specific proceedings and to prevent a miscarriage of justice in cases which are or may be brought before such judicial officer.”) See also State v. Reed, 213 Kan. 557, 560, 516 P.2d 913 (1973) (holding that K.S.A. 1972 Supp. 21-3806, “which makes it an offense to corruptly influence a witness, is primarily designed to prevent the corrupt interference with the administration of justice.”).
In further support of Howell’s position that the embracery statute imposes a duty on him which he only owes to the .court and not to adverse litigants, Howell points out that there are a number of other duties which attorneys and-witnesses only owe to the courts or to the public but do not owe, to adverse litigants. For instance, Howell cites to Lewis v. Swenson, 126 Ariz. 561, 617 P.2d 69 (Ct. App. 1980). In Lewis, a woman had previously filed a medical malpractice action against a,doctor . The doctor hired Seidel as his attorney and Seidel hired Swenson as an expert witness for the defense. In response to a direct examination question asked by Seidel, Swenson mentioned, the high cost of medical malpractice insurance. The trial court granted a mistrial. The woman died, and the person appointed as the woman’s personal ..representative brought this action.. The plaintiff sued the expert witness, (Swenson) for intentionally or recklessly disclosing prejudicial information -to the jury and sued the-attorney (Seidel)-for negligently failing to instruct the witness to refrain from, disclosing prejudicial: infer-: mation to the jury. The plaintiff sought-to recover as-damages the money spent on the medical malpractice trial and the money originally claimed as damages in the malpractice action, -
- The plaintiff’s complaint alleged’that, the attorney, Seidel, owed a duty to the opposing party in the original lawsuit and to the-court to prevent his expert witness from testifying .about prejudicial, and inadmissible information. Further,-the complaint alleged that the expert, Swenson, owed a duty to the opposing .party to refrain from mentioning information which the expert knew was pr.ejudiciál and inadmissible. The trial court granted the defendants^ motions to dismiss for failure to state a claim. The Arizona Court of Appeals found that even if an attorney and a witness had a duty to refrain from presenting insurance information. to,.the jury,, this duty was owed only to the court, not to the adverse, party.-. The court- held that a breach of the attorney’s or the. witness’ duty owed to the court would not give rise to tort action by the adverse party. Thus, using this case as an analogy, Howell contends that the criminal embracery statute imposed a duty on him. to ..refrain from juror contact which he only owed to the court, not to the adverse litigant OMI. We agree. '
Further, Howell contends that the federal embracery statute could not have imposed a duty on him to refrain from contacting jurors which he owed to OMI because the federal courts do not recognize an implied civil action for embracery based on a violation of that statute. See Odell v. Humble Oil & Refining Co., 201 F.2d 123 (10th Cir. 1953), cert. denied 345 U.S. 941 (1953) (finding that federal embracery statute was passed in the interest of the public). This argument is irrelevant because the federal district court ruled that Kansas substantíve law applies to Howell. If the federal court should later determine that Kansas law does not apply, the federal court can determine what the federal law is regarding embracery.
Next, Howell contends that the district court’s admonition against juror contact only imposed a duty on him which he owed to the court, not to the adverse party. In support of this argument, the defendant cites Hendrix v. Consolidated Van Lines, Inc., 176 Kan. 101, 269 P.2d 435 (1954). In Hendrix, the plaintiff sued Consolidated Van Lines for personal injury based on a car accident. The appellee in this case, American Automobile Insurance Company and Associated Indemnity Company (insurance companies) were not involved in the personal injury action in any way. However, in the 3 months before the personal injury trial, the insurance companies published, in two widely distributed magazines, a series of full-page ads which discouraged future jurors from awarding large damage awards so that insurance premiums would not rise.
The plaintiff of the personal injury action filed a motion for the insurance companies to appear and show cause why they should not be held in indirect contempt of court, alleging that the companies’ actions constituted jury tampering. The trial court found the insurance companies were not guilty of indirect contempt of court. The plaintiff appealed. The insurance companies filed a motion to dismiss, alleging that the “contempt charged is criminal in nature, not civil, and that no appeal lies from a judgment of not guilty of criminal contempt.” 176 Kan. at 106.
While Hendrix is not directly on point, it discusses a judge’s power to punish a nonparty for jury tampering through contempt proceedings. This court found that such punishment is criminal in nature because it is imposed to protect the government, the people, the administration of justice, and the dignity of the court; the punishment is not given to protect the adverse litigant. Thus, it makes sense that if a judge is admonishing (instead of punishing) a non-party from participating in jury tampering, the admonition would also be entered to protect the government, the people, the administration of justice, and the dignity of the court, and not meant to protect the adverse litigant. Since this is the case, then the judge’s admonition against juror tampering would only place a duty on the witness to refrain from jmy tampering owing to the court and not to the adverse party.
Finally, Howell concedes that as a witness/attomey, the attorney ethics rules imposed a duty on him to refrain from juror contact. However, Howell again contends that he only owed this duty to the court and not to the adverse party. In support of this argument, the defendant cites Nelson v. Miller, 227 Kan. 271, 607 P.2d 438 (1980).
The defendants/attomeys in Nelson had previously filed a malpractice action against the plaintiff/doctor on behalf of a third party. Upon conclusion of the malpractice action, the doctor filed this action against the attorneys who filed the malpractice action, alleging negligence and malicious prosecution of a civil action. The district court granted the attorneys’ motions to dismiss the action for failure to state a claim. The district court held that the doctor did not have a claim against the attorneys based on negligence because the attorneys had not been employed by the doctor. This court addressed whether the district court properly dismissed the doctor’s claim based on negligence.
In his petition, the doctor alleged that the attorneys were negligent because they failed to investigate the claim against him and because they continued to prosecute the claim knowing that it was unjust and without merit. In support of his negligence claim, the doctor pointed to DR 7-102(A) of the Code of Professional Conduct (now MRPC 3.1 [1995 Kan. Ct. R. Annot. 308]), which prohibits an attorney from asserting claims which the attorney knows are groundless.
This court pointed to the general rule that an attorney can only be held liable for negligence to a client who the attorney has a contract with or to a third-party beneficiary of the contract. Typically, an attorney is not liable for negligence to a nonclient or non-beneficiary because the “attorney’s paramount and exclusive duty” is to his or her client. 227 Kan. at 287. This court upheld the rationale that a lawyer’s duty must be to his or her client alone and “there is no room for any duty running to the client’s adversary.” 227 Kan. at 287. In affirming the district court’s dismissal of the negligence claim, this court held that “a violation of the Code of Professional Responsibility does not alone create a cause of action against an attorney in favor of a third party.” 227 Kan. at 289. Based on this case, Howell contends that if the Code of Professional Responsibility (now MRPC 3.5[b] [1995 Kan. Ct. R. Annot. 317]), which prohibits attorney contact with jurors, imposed a duty on him at all while he was acting as a witness, it was a duty he owed to the court and not to the adverse litigant, OMI.
However, OMI contends that Nelson is distinguishable. OMI points out that the defendant’s duty as an expert witness, who was not representing a client, cannot be compared to the exclusive duty owed by an attorney to a client. OMI contends that the Code of Professional Responsibility imposed on the witness/attomey, Howell, a duty not to contact jurors which Howell owed to both the party who hired him and the adverse litigant. Thus, according to OMI, civil liability against Howell can be based on this duty. We do not agree.
The attorney ethics rules do not impose a duty on a witness, owing to an adverse litigant, to refrain from juror contact. This is because most witnesses are not also lawyers and the attorney ethics rules would not apply to them at all; .thus, the rules could not impose a duty on them. It is true that the ethics rules applied to Howell because he was not only an expert witness but was also an attorney. However, Howell was acting as a witness and all witnesses, whether or not they are attorneys, should owe the same duties to the adverse party. Since the ethics rules do not place a duty on the nonlawyer witness owing to the adverse litigant, then the rules should not place a duty on the attomey/witness owing to the adverse litigant. Any duty which the ethics mies impose on an attomey/witness is owed to the court.
More importantly, an attorney’s violation of the ethics rules cannot create a cause of action available to adverse litigants or even to clients. This is because the ethics rules do not impose a legal duty on the attorney owing to either a client or a third party. Occasionally, attorney conduct which violates an ethics rule may also violate an independent legal duty, and a cause of action may ensue. It is the violation of the independent legal duty, not the ethics rule, that gives rise to a cause of action. -This is made clear by Rule 226, Model Rules of Professional Conduct, Scope of Rules, which states:
“Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are involved by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antágonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.” Rule 226 (1995 Kan. Ct. R. Annot. 249).
Duplicative Litigation
The United States District Court also found that, like in Hokanson and Koplin, the recognition of an embracery tort should not be recognized because it would result in duplicative litigation. For instance, the trial court granted a new trial at OMI’s request. Further, OMI requested a fee petition to recover the money wasted on the mistrial, but the federal court denied its request. The United States District Court reasoned an embracery tort would relitigate many of the issues already considered by the trial judge in granting OMI’s motion for a new trial and in denying OMI’s fee petition. Thus, the United States District Court ruled that recognition of an embracery tort was contrary to public policy favoring finality in judgments. The United States District Court found that the issues in question would be best handled by the trial judge of the underlying litigation where the jury tampering allegedly occurred, rather than by a new judge assigned to hear the embracery tort action who was not familiar with the underlying litigation. However, OMI contends that these policy concerns are not implicated here because an embracery tort is not a collateral attack, is not subject to abuse, and is not a duplicative relitigation of a prior issue.
OMI concedes that Koplin and Hokanson properly held that perjury and spoliation torts should not be recognized because they could lead to endless litigation without finality. According to OMI, actions for perjury and spoliation of evidence are an attack on a prior judgment because the actions question whether the prior judgment would have been entered had a witness not committed perjury or had evidence not been destroyed. OMI points out, however, that this can never occur in an embracery tort because one of the elements of an embracery tort is the requirement that an order granting a mistrial or new trial be issued. This element insures that the final judgment of the underlying litigation will not be collaterally attacked. Instead, OMI contends that an embracery tort only addresses the witness’ conduct which caused the mistrial and only seeks to recover the expenses spent on the mistrial.
Further, OMI contends that this element of the embracery tort — an order granting a mistrial or new trial — will prevent abuse of the tort. In order for a judge to grant a mistrial or new trial, the judge must find that a witness’ improper communication with a juror interfered with a party’s fair trial. Thus, according to OMI, improper pleading of an embracery tort will be rare because the plaintiff must have already had the trial judge find the witness’ juror contact was improper and declare a mistrial. OMI also points out that very few embracery torts are reported across the nation, thereby indicating that the tort occurs infrequently. Thus, recognition of the tort will not impose any serious burden on the dockets of the Kansas courts.
Finally, OMI contends that an embraceiy tort is not duplicative of the trial court’s decisions to grant a mistrial and to deny OMI’s fee petition. OMI acknowledges that an embracery tort may involve consideration of some of the same facts that were reviewed in these previous trial court rulings. However, OMI points out that the issues, the elements, and the burdens of proof are not the same in a declaration of a mistrial or the determination of a fee petition as they are in an embracery tort.
For instance, according to OMI, the issue raised in its fee petition under 28 U.S.C. § 1927 (1994) was whether the court found that the witness had engaged in unreasonable and vexatious conduct which caused a mistrial. In the fee petition proceeding, the trial court was not concerned with whether OMI should be compensated for the damages caused by Howell’s juror contacts. Instead, the court was concerned only with the integrity of the trial process. Further, the parties did not have an opportunity for discovery or to present witnesses before the trial court decided to grant a mistrial and deny OMI’s fee petition. OMI contends that in an embracery tort, it would engage in discovery and present witnesses to prove that Howell should compensate OMI for the damages caused by his juror contacts. Thus, OMI contends that the embracery tort would not be duplicative of or relitigate the trial judge’s decision to grant a mistrial and deny its fee petition. See U.S. Aluminum Corp./Texas v. Alumax, Inc., 831 F.2d 878 (9th Cir. 1987), cert. denied 488 U.S. 822 (1988) (finding that denial of fee petition in patent infringement action did not collaterally estop an action for malicious prosecution because the burden of proof for the fee petition was clear and convincing evidence, while burden of proof for malicious prosecution was preponderance of the evidence.)
On the other hand, Howell contends that an embracery action would result in duplicative litigation. Howell points out that OMI has previously attempted to recover the same damages it seeks in the embracery action through fee petitions in federal court. Howell argues that OMI’s embracery action is simply a collateral attack on the federal court’s denial of OMI’s fee petition. Howell concedes that the embracery tort and the fee petition motion require different burdens of proof. However, according to Howell, this does not, in and of itself, prevent the embracery tort from being duplicative of the prior fee petition or mistrial proceedings. Howell argues that the issues at stake in the embracery tort have already been decided in the mistrial and fee petition rulings by the federal court, which was familiar with the underlying litigation. Howell contends that these proceedings provided an adequate remedy to protect OMI’s interest. According to Howell, there is no need for yet another layer of relief by recognizing a civil damage action, for embracery. In fact, Howell contends drat if one óf OMI’s prior efforts in federal court to recover its mistrial expenses had been successful, then the embracery tort suit never would have been filed. ' • ... .
OMI apparently sought to recover its wasted mistrial expenses from Howell under 28 U.S.C. § 1927, which states:
“Any attorney or other person admittéd to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”
While the denial of the fee petition would not act-ás res-judicata upon the embracery tort, there is no -reason to give;- a .totally different trial court, without knowledge of the underlying litigation, another chance to determine who should bear the wasted mistrial costs. , •, .
Other Remedies
The district court also found that, as in Hokanson and Kóplin, remedies other than a civil suit exist to deal with jury tampering, such as criminal penalties, mistrials, new trials, sanctions under 28 U.S.C. § 1927, or the inherent power of the court to find a partic-. ipant in contempt of court. See McComb v. Jacksonville Paper Co., 336 U.S. 187, 193, 69 S. Ct. 497, 93 L. Ed. 599 (1949) (finding that when a party violates a court decree [or court admonitition] , whether or not if be intentional, a coiirt can order compliance through civil contémpt, including payment of money, stating that, “the measure of the court’s power in civil contempt proceedings is determined by the requirements of full remedial relief”).
Howell agrees, contending that the creation of a civil action for embracery is inconsistent with both the federál and state legislative scheme for dealing with embracery. For instance, Howell points out that' both the United States and Kansas have enacted criminal embracery statutes which punish those witnesses who engage in jury tampering. 18 U.S.C. § 1503 (1994); K.S.A; 21-3815'. Further, a court may exercise its contempt powers against a witness who violates a court admonition by improperly influencing a juror. K.S.A. 20-1204a (“If the court determines that a.person is. guilty of contempt, such person shall be punishéd as.the court shall direct.”). See Electronic Realty Assocs., Inc. v. Gomez, 18 Kan. App. 2d 122, 128, 848 P.2d 458 (1993) (“ ‘ “Where a party has acted in willful and deliberate disregard of reasonable and necessary orders of the court, the application of a stringént sanction is fully justified.” ’ ”). The court may also grant a mistrial or new trial to protect the rights of a party who was' prejudiced-by the witness’ improper juror contacts. Finally, the court may impose monetary 6r evidentiary sanctions upon a party whose witness engages in jury tampering.
However, OMI contends that the existence of-a criminal embracery statute or the availability of other court sanctions does not preclude the recognition of an embracery tort. OMI points to intentional tort actions such as- assault, battery, and false imprisonment which exist even though a criminal statute also punishes the same conduct. OMI reasons that improper juror contacts by a witness can affect individual and state interests differently. Thus, these interests should be protected by two different suits for the' same conduct — a civil tort action and a criminal prosecution. The plaintiff then points to Fasse v. Lower Heating & Air Conditioning, Inc., 241 Kan. 387, 392-93, 736 P.2d 930 (1987).
In Fasse, the defendant contracted to construct a building for. Washburn University. The contract provided that the defendánt would pay its laborers equivalent to the wages set for federally assisted construction projects pursuant to K.S.A. 44-201 (Ensley 1986). The defendant did not do so. The laborers, as third-party beneficiaries, sued .the defendant and sought to, recover unpaid wages, alleging that the defendant violated the contract provision requiring compliance with 44-201. The statute provided fines and imprisonment for violations of 44-201, but did not .provide a civil remedy for employees damaged by an employer’s failure to comply with the statute. As such, the defendant alleged that 44-201 did not provide the employees with a private cause of action for unpaid wages.
This court stated: .
“Generally, the common-law procedure is regarded as the proper remedy where a right is created or a duty is required by statute and no adequate statutory remedy is provided for its enforcement or breach or where the special remedy created by statute is void. 1 Am. Jur. 2d, Actions § 75.
“Courts do not require explicit statutory authorization for familiar remedies to enforce statutory obligations. When the legislature has left the matter at large for judicial determination, the court’s function is to decide what remedies are appropriate in light of the statutory language and purpose and the traditional modes by which courts compel performance of legal obligations. If civil liability is appropriate to effectuate the purposes of a statute, courts are not denied this traditional remedy because it is not specifically authorized. [Citations omitted.]” 241 Kan. at 392-93.
Thus, this court held that the employees were able to request any civil remedy which they had available, including a civil action asserting a claim for unpaid wages. 241 Kan. at 393.
In comparison, OMI contends the federal and state criminal embracery statutes impose a duty on a witness not to influence jurors — a duty which OMI claims the witness owes to adverse litigants. OMI concedes that the criminal embracery statutes punish witnesses who improperly contact jurors and deter other witnesses from participating in this same behavior. Yet, OMI points out that the criminal embracery statutes do not compensate those injured by a witness’ wrongful conduct. Thus, OMI argues that the criminal statutes do not provide an adequate statutory remedy for the breach of these statutes. Since the criminal statutes do not provide an adequate statutory remedy, OMI reasons, this court does not need an explicit statutory authorization to allow OMI to recover the familiar common-law remedy of damages in order to enforce Howell’s statutory obligation. According to OMI, civil liability is appropriate to effectuate the language and purpose of the criminal embracery statutes. As such, OMI contends that the existence of criminal embracery statutes should not deprive those injured by improper juror contacts from compensation through a common-law embracery tort.
OMI is correct' in that the mere existence of a criminal statute does not preclude a civil action. However, there is a problem with OMI’s reasoning. To use civil liability as a way to enforce a statutory duty without specific statutory authorization, the statute must fail to provide an adequate statutory remedy for its breach. The federal and state embracery statutes provide criminal sanctions for violation of the statute. Based on a balancing of the interests between deterring improper juror contact, encouraging witness testimony, and preventing duplicative litigation, these criminal sanctions provided by the statutes are adequate to effectuate the language and purpose of the statutes.
Next, OMI addresses the existence of other court sanctions which punish improper juror contacts, contending that these sanctions do not preclude the recognition of an embracery tort. OMI argues that these other court sanctions are used by the court to insure order within the court system but that the sanctions are not intended to compensate anyone. For instance, contempt proceedings punish the witness for improper juror contact, while mistrials and new trials repair the prejudice which might have occurred from the juror contact. However, none of these remedies compensate the adverse party for lost effort and expense due to improper juror contact and a subsequent mistrial. Thus, OMI reasons that the other court sanctions for jury tampering should not preclude a tort action to compensate the party injured by improper conduct. Instead, any money recovered by the harmed party through the court’s contempt power should simply be set off against the damages claimed in the tort action; they should not bar the tort claim altogether. See LaBarre v. Payne, 174 Ga. App. 32, 329 S.E.2d 533 (1985); Employers Insurance v. Hall, 49 N.C. App. 179, 270 S.E. 2d 617 (1980) (plaintiff’s embracery tort actions for civil damages were not precluded by the existence of a criminal embracery statute or the existence of court sanctions in the underlying action).
We think the current court remedies for jury tampering are adequate; thus, the recognition of an embracery tort is not necessary. While mistrials and new trials are not compensatory, the legislature and the courts seem to agree that compensatory remedies are not always necessary. See K.S.A. 21-3815; Hokanson v. Lichtor, 5 Kan. App. 2d 802, 810-11, 626 P.2d 214 (1981) (refusing to recognize a tort for perjury, stating: “If perjury is committed in a tort, a litigant is not left helpless; procedure is available to obtain a new trial. Criminal penalties are available against the perjurers and those who engage in a conspiracy to commit perjury. Disciplinary rules are available to punish lawyers who engage in such reprehensible conduct.") Further, fee petition and contempt proceedings are compensatory remedies.
Absence of Civil Statute
In refusing to recognize an embracery tort, the federal district court stated:
“We acknowledge that defendant had a duty not to make contact with jurors outside of open court. But, plaintiff has not argued that this duty, as codified in the Kansas and federal criminal statutes, creates a private right of action. Nor do we believe a private right of action can be based on the criminal statutes or any court rule.”
Howell also argues in his brief that the federal criminal embracery statute, not the state criminal embracery statute, applies to his conduct and that a private civil right of action for damages does not arise out of this federal statute.
OMI points out, however, that its cause of action is not based on an implied right of action arising from any statute. Instead, the plaintiff contends that Kansas should recognize a tort action for embracery arising out of the common law.
Several federal cases have found that an embracery cause of action cannot be brought as an implied right of action under the federal embracery statute. Odell v. Humble Oil & Refining Co., 201 F.2d 123 (10th Cir. 1953). However, the district court found that Kánsas substantive law should- apply, both statutory law and common law. In order for this court to recognize a civil embracery action, it does not need to arise as an implied right of action from an existing statute. Instead, if this court should recognize an embracery tort, the court should recognize the action as arising from the general body of law in Kansas known as the common law. See Mainelli v. Providence Journal Company, 207 F. Supp. 453 (D.R.I. 1962), aff’d in part and vacated in part on other grounds 312 F.2d 3 (1st Cir. 1962) (finding that while 18 U.S.C. § 1503, which prohibits jury tampering, does not create a federal cause of action for civil damages, a cause of action for civil damages may still exist under state law from statute or common law). Thus, it is irrelevant that Kansas does not have a civil statute prohibiting juror contacts or a criminal law from which an implied right of embracery could arise. An embracery tort could arise simply from the common law. We hold it does not.
Calculation of Damages
Finally, one of the policy concerns which prevented the federal district court from recognizing an embracery tort was that, just as in Koplin, it found it would be. difficult to calculate the damages which the tort had caused. The court found that if a mistrial was granted, it would be difficult to determine the amount of time and effort OMI had spent at the first trial which would be valuable in the second trial as opposed to the time and effort from the first trial that was totally wasted. Further, the court reasoned that OMI may have even benefitted from the mistrial because it became aware of its adversary’s trial strategy. Thus, it would be impossible to tell how much money had been wasted due to the mistrial.
OMI concedes that it may require some care for a jury to award damages which reflect only the time and effort actually wasted at the mistrial. However, OMI reasons that this determination is not any more difficult than the damage decisions which juries are called on to make each day. In fact, OMI contends that this particular embracery action presents a far easier damage calculation than most tort actions because the damages include all the actual expenses incurred in presenting the first trial. OMI contends that it should be compensated for all of the money which it spent on the first trial because none of the preparation on the first trial was valuable at the second trial. OMI points out that the trials involved complex, fact-specific issues of patent law. Due to the 4-month delay between the mistrial and the start of the second trial, OMI contends that it needed to “essentially reinvent the wheel to prepare for retrial.” Thus, according to OMI, all of the time and effort expended at the mistrial was wasted and did not mitigate the expenses incurred in preparing for the second trial.
OMI also rebuts the district court’s contention that it may have benefitted from mistrial by becoming aware of its opponent’s trial strategy. In fact, OMI contends that the only party who could have benefitted from the mistrial was the adverse party, who hired Howell, because the mistrial gave this party a dress rehearsal for its case in chief. As such, the adverse party had an opportunity to better prepare its witnesses for cross-examination and to alter its presentation of the case for the second trial. Thus, OMI contends that its damages for the embracery tort should not be reduced by any benefit which it might have gained from the mistrial, such as preparation or knowledge of opponent’s strategy, because it did not gain such a benefit. OMI contends that its damages will be very easy to determine — the money it spent on the mistrial — and that the policy consideration of difficulty in determining damages is not implicated here and should not prevent the recognition of the embracery tort.
It appears to this court that the damages for the embracery tort would be difficult to calculate. Further, even if OMI’s damages under these particular facts would be easy to determine, this would not be the case for all plaintiffs who bring an embracery tort action. When deciding whether to recognize a new tort, this court should take into account the circumstances of all potential plaintiffs. The damages of most plaintiffs for the tort of embracery will be very difficult to calculate because they will have gained preparation and knowledge of the opponent’s trial strategy from the first trial. Thus, the difficulty in determining damages for an embracery tort is a policy concern which weighs against recognition of the tort. See Bruggeman v. Schimke, 239 Kan. 245, 718 P.2d 635 (1986) (refusing to recognize a cause of action for wrongful life because, inter alia, it would be too difficult to measure damages — the court must set off any special benefits to the plaintiff, such as life, resulting from defendant’s negligence in genetic counseling).
II. NEGLIGENCE
Negligence is the lack of due care which a reasonable person would exercise given a particular set of circumstances. Rowell v. Wichita, 162 Kan. 294, 300, 176 P.2d 590 (1947); see Blackmore v. Auer, 187 Kan. 434, 440, 357 P.2d 765 (1960) (“It may be said negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vig ilance which the circumstances justly demand, as a result of which such other person suffers injury.”).
To prevail under a negligence action, OMI must prove that Howell owed a duty to it, that Howell breached this duty, and that such breach proximately caused injury to OMI. See Rowell, 162 Kan. at 300. OMI alleges that Howell owed a duty to it to exercise reasonable care in avoiding improper contact with the jurors and that Howell was aware of this duty. OMI contends that Howell breached this duty by engaging in improper contacts with the jurors and that this breach proximately caused OMI to be injured in the form of legal expenses wasted on the mistrial.
According to the district court, OMI’s negligence claim is an effort to allege negligent embracery. The court found that this was a paradoxical concept because embracery requires the willful effort to influence a juror and cannot be committed without wrongful intent. Howell agrees with the district court, contending that if one does not intend to improperly influence a juror, then one’s conduct cannot amount to embracery. According to the defendant, it is impossible to negligently attempt to influence jurors.
OMI rebuts the district court’s position. OMI points out that this action is based on simple negligence, not embracery or negligent embracery. Under this negligence action, OMI seeks to recover damages from Howell even if he did not intend to influence the jurors’ decision. OMI intends to prove that Howell owed a duty to OMI to refrain from improperly influencing the jurors and that Howell breached this duty, proximately causing injury to OMI.
We agree. Intent is irrelevant in the simple negligence analysis. There are numerous circumstances in which if a defendant engages in certain conduct with intent, then the defendant commits an intentional tort, but if the defendant engages in the same conduct without intent, then the defendant has engaged in simple negligence, such as battery versus negligently bumping into someone. OMI is not alleging that defendant has committed negligence by engaging in the intentional tort of embracery, and a contradiction does not arise.
The district court also pointed out that Howell’s conduct could not qualify as negligence unless Howell breached a duty which he owed to OMI to act with reasonable care in communicating with the jurors. The district court acknowledged that attorneys and witnesses have a duty not to communicate with jurors. However, the district court apparently found that this duty is owed to the public and the court, but is not owed to an adverse litigant. Thus, according to the district court, a witness or an attorney does not owe damages to an adverse litigant for the breach of this duty. See Nelson v. Miller, 227 Kan. 271, 287, 607 P.2d 438 (1980) (attorney not liable to adversary for negligently failing to investigate claim because attorney owes exclusive duty to client); Tappen v. Ager, 599 F.2d 376, 378-79 (10th Cir. 1979) (no duty running from plaintiff or plaintiff’s attorney to adversary to investigate or use reasonable care in filing a lawsuit because in an adversary system, a lawyer owes an exclusive duty to his or her client and the legal system).
OMI tries to distinguish Tappen and Nelson. OMI contends that these two cases are distinguishable because they were based entirely on public policy concerns which are not present here. These cases were concerned with avoiding certain deterrences which might make an attorney choose not to represent a client, thereby prohibiting free access to the courts. The courts ruled that allowing an adversary to bring suit against an attorney for professional negligence would significantly chill attorney representation and impede access to the courts. See Tappen, 559 F.2d at 378-79; Nelson, 227 Kan. at 287-88. The courts also held that an attorney’s duty to his or her client is so paramount that there is not room for the existence of a duty running to an adversary. 227 Kan. at 287.
According to OMI, these public policy concerns regarding chilled attorneys, access to the court system, and an attorney’s ethical duty to his or her client, upon which Tappen and Nelson are based, are not applicable to this case. Thus, permitting OMI to be compensated for Howell’s improper contact with the jurors does not subvert any of these policies. OMI points out that the defendant’s duty as an expert witness cannot be compared to the exclusive duty owed by an attorney to his or her client. OMI also contends that witnesses will not be deterred from testifying due to the recognition of an embracery tort because even the existence of a criminal embracery statute does not chill witnesses’ testimony. Further, even if some witnesses are chilled from testifying by an embracery tort, such deterrence is not as significant as a chilled attorney who may choose not to represent a client because access to courts is not at stake.
With Tappen and Nelson apparently distinguished, OMI argues that the defendant owed a duty to OMI to act with reasonable care. According to OMI, the principles of tort law&wkey;foreseeability of the harm which may be caused by certain conduct — imposed a duty on Howell which he owed to OMI to not engage in unreasonable conduct. In support of this argument, OMI cites Durflinger v. Artiles, 234 Kan. 484, 489, 673 P.2d 86 (1983), which states:
“An act is wrongful, or negligent, only if the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation-, it is the risk to another or to other within the range of apprehension. [Citation omitted.] The existence of negligence in each case must depend upon the particular circumstances which surrounded the parties at the time and place of the occurrence on which the controversy is based.”
According to OMI, Howell owed a duty to refrain from improper contact with the jurors because Howell could foresee the harm which the improper juror contact would cause to OMI, including the expense of mistrial. Howell could foresee the harm his conduct would cause because he was an attorney who had been practicing law for over 26 years. Howell also should have known that his contact with the jurors violated the ethical rules prohibiting contact between attorneys and jurors and that violation of such rules was likely to result in a mistrial. Further, Howell knew that if a mistrial was declared, OMI’s efforts in preparing for the first trial would be wasted, and Howell also knew how expensive it is to participate in a trial. Thus, OMI contends that Howell could plainly foresee his improper contacts with the jurors would result in harm to OMI. According to the OMI, the foreseeability of the harm imposed a duty on Howell which he owed to OMI to not engage in improper contacts with the jurors. See Ceretti v. Flint Hills Rural Electric Co-op Ass'n, 251 Kan. 347, 351, 837 P.2d 330 (1992) (“[T]he test of negligence ... is not whether the [defendant] should have anticipated the particular act from which the injury resulted, but whether it should have foreseen the probability that injury might result . . . .”) (citing Henderson v. Kansas Power & Light Co., 184 Kan. 691, 695-96, 339 P.2d 702 (1959).
OMI also contends that there are not any public policy problems in finding that Howell owed a duty to OMI. According to OMI, a witness’ conduct off the stand, such as communication with jurors during trial breaks, is not entitled tó special protection. Further, OMI contends that improper contacts with the jurors is an act which so harms the administration of justice that it should be deterred by every means available. Based on the foreseeability principle of tort law and the lack of public policy concerns militating against it, OMI contends that Howell owed a duty to OMI to not engage in improper contact with the jurors.
OMI contends that Howell owed the same duty to OMI as he owed to the party who hired him — the duty to exercise reasonable care as a participant in the trial process. Thus, OMI contends that Howell owed a duty to it to use reasonable care to avoid contact with jurors. The defendant breached this duty, proximately causing OMI to waste legal expenses spent on the first trial. As such, OMI contends that Kansas law should recognize an action for negligence under these circumstances.
It is hard to disagree with the concept that foreseeability of harm by a defendant can impose a duty on the defendant, owing to the injured parly, not to engage in conduct which might cause the harm. However, the fact that a duty may arise from the foreseeability of harm does not always mean that such duty actually arises. A court may choose not to recognize the duty if the duty goes against public policy. See Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985) (recognizing that the serving of liquor to a minor or an inebriated person may initiate a foreseeable chain of events but still refusing to hold the tavern owner liable for negligence due to public policy concerns): This is the case here. Imposing a duty on the defendant, which he owes to OMI, not to engage in improper juror contacts is against public policy because it places an intolerable burden on all witnesses and may deter witnesses from testifying. Thus, just because Howell might have foreseen the harm his actions would cause, this does not mean he can be sued for such conduct.
OMI also contends that even if the common law did not impose a duty on Howell, the criminal embracery statute imposed a duty on Howell, which he owed to OMI, not to contact the jurors. OMI points out that criminal statutes often impose a duty to refrain from certain conduct. If one violates the statute, thereby breaching the duty, then this constitutes negligence per se. As such, the breacher may be liable for damages if . the breach proximately results in an injury which the statute was intended to prevent. See Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 843, 610 P.2d 1107 (1980); Parman v. Lemmon, 119 Kan. 323, 325-26, 244 Pac. 227 (1925); see also Noland v. Sears, Roebuck & Co., 207 Kan. 72, 74-75, 483 P.2d 1029 (1971) (“It is the unquestioned rule of this jurisdiction that the breach of a duty imposed by law or ordinance constitutes negligence per se, providing a basis for recovery of damages proximately resulting therefrom.”).
The elements of negligence per se are: “(1) A violation of a statute, ordinance or regulation, and (2) the violation must be the cause of the damages resulting therefrom.” Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 25, 578 P.2d 1095 (1978). As examples of cases which have found a defendant liable based on negligence per se, OMI cites Parman v. Lemmon, 119 Kan. at 325-26, and Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, 804 P.2d 978 (1991).
In Parman, a father, in violation of a statute, provided his son with a shotgun. The plaintiff was proximately injured as a result of the son’s use of the gun. The court found that this accident was precisely the type which the statute was designed to prevent. Thus, violation of the statute proximately caused injury of the type the statute was meant to protect, thereby constituting negligence per se. 119 Kan. at 325. Upon rehearing, the Parman court found that the son’s possession of the gun was not prohibited by the statute. According to OMI, this subsequent history does not affect the theory of negligence per se which the Parman court analyzed.
In Schlobohm, the plaintiff entered a building and injured herself. She sued the owner of the building and the builder of the entranceway under the theory of negligence per se, contending that the elevation differential between the sidewalk and the doorway violated a city ordinance. This court held that the ordinance was promulgated to protect the specific class of persons who may enter the building. Since the plaintiff was a member of this class, the defendant’s violation of the ordinance was admissible evidence of negligence per se. In so holding, this court reviewed some of the basic concepts of negligence per se.
In order for the violation of a statute or ordinance to constitute negligence per se, the statute must be designed to protect a specific group of people, not just designed to protect the general public with incidental consideration given to the protection of a certain group. A statute which is clearly promulgated to provide safety and welfare for the public at large.does not impose a duty on the statute violator which is owed to the person injured; thus, negligence per se is inapplicable. Further, the test to determine whether the violation of a statute may constitute negligence per se depends upon legislative intent. Legislative intent is primarily determined by the language of the statute, the purpose of the statute, and the nature of the evil the statute sought to remedy.
OMI points out that the Kansas criminal embracery statute prohibits improper communication with a juror. K.S.A. 21-3815. According to OMI, this statute was designed to protect trial participants, to uphold the integrity of the trial process, and to insure that the parties receive a fair trial. Thus, OMI contends that it was a member of the class which the' statute was designed to protect. As such, the statute imposed a duty on Howell, owing to OMI, to not'engage in improper contact with jurors. When Howell violated the statute, he breached his duty to OMI and proximately caused injury to OMI of the type which the statute was designed to prevent: Thus, OMI reasons that Howell is liable for negligence per se.
Howell contends that both the federal and state criminal embracery statutes create duties which he owes to the public, not to an adverse litigant. See Odell v. Humble Oil & Refining Co., 201 F.2d 123, 126-27 (10th Cir. 1953) (finding that the purpose of federal embracery statute is to protect the administration of justice; State v. Torline, 215 Kan. 539, 543, 527 P.2d 994 (1974) (older version of 21-3815 had “twin goals of protecting a judicial officer in specific proceedings and to prevent the miscarriage of justice in cases which are or may be brought before such judicial officer”); Hendrix v. Consolidated Van Lines, Inc., 176 Kan. 101, 110, 269 P.2d 435 (1954) (finding that jury tampering obstructs the administration of justice in a general sense).
K.S.A. 21-3815, the criminal embracery statute, states:
“(a) Attempting to influence a judicial officer is communicating with any judicial officer in relation to any matter which is or may be brought before such judge, magistrate, master or juror with intent improperly to influence such officer.
“(b) Attempting to influence a judicial officer is a severity level 9, nonperson felony.”
The language of the statute indicates that the legislature did not intend for the statute to protect adverse litigants. The purpose of the statute is to protect the sanctity of the trial process, and the evil sought to be remedied by the statute is the derogation of the trial process brought about by improper juror influence. See Torline, 215 Kan. 539; Hendrix, 176 Kan. 101. The problem with OMTs negligence per se argument is that the Kansas Legislature intended for the criminal embracery statute to protect the general public and the trial process but did not intend for the statute to protect a specific group of people such as the parties to the litigation. If a witness violates this statute, the witness simply breaches a duty which it owes to the court, not to an adverse litigant. If the legislature finds that this state should recognize a negligence action for improper juror contacts, then it can enact a statute which specifically provides for such an action instead of forcing the court to base the action on a criminal statute which is designed to protect the general public and the court system, not litigants. See Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, Syl. ¶ 5, 819 P.2d 587 (1991) (finding that if the legislature had intended to grant a private right of action in K.S.A. 1990 Supp. 38-1522, the child abuse reporting statute, it would have specifically done so.).
Finally, the district court found that if a witness owed a duty to an adverse litigant and could be held liable for negligence should the witness breach this duty, then it would be very difficult to determine damages for this negligence action. This is because under the Kansas comparative fault system, the defendant would be entitled to designate phantom parties in order to assess and apr portion the fault between the defendant and any others who might have contributed to the plaintiff’s damages, including the jurors, the court staff, the judge, and the adverse counsel. See Hefley v. Textron, Inc., 713 F.2d 1487, 1496 (10th Cir. 1983); Brown v. Keill, 224 Kan. 195, 201-07, 580 P.2d 867 (1978); K.S.A. 60-258a(c) and (d). See also Chavez v. Markham, 256 Kan. 859, 866, 889 P.2d 122 (1995) (“On motion of any party against whom a claim is asserted for negligence resulting in . . . economic loss, any other person whose causal negligence is claimed to have contributed to such . . . economic loss shall be joined as an additional party to the action.”); Manildra Mill. Corp. v. Ogilvie Mills, Inc., 782 F. Supp. 102, 103-04 (D. Kan. 1991). In the underlying case, the federal district court found that “the conversation which resulted in a mistrial was . . . partially the fault of the jurors who disregarded the [trial] court’s admonitions.” Thus, the federal district court found that an action for negligence based on this conduct did not exist because the damages would be too difficult to determine. The defendant agrees, contending that it would unduly intrude upon the integrity of the judicial process if a second jury in a negligence action was asked to determine the relative percentages of fault between the witness, the jurors, and the trial judge from the first trial, who may all be called as witnesses in the negligence trial.
However, OMI contends that the assessment of fault would not be a problem in this case because Howell would not be able to designate the federal judge or the jurors as phantom parties in a federal negligence action. Mireles v. Waco, 502 U.S. 9, 116 L. Ed. 2d 9, 112 S. Ct. 286 (1991) (judge immunity from, liability); Hefley v. Textron, Inc., 713 F.2d at 1497 (federal court does not have to apply Kansas comparative fault statute).
Howell concedes that the federal courts do not have to follow the Kansas comparative fault statute. However, Howell points out that this court is being asked to determine whether Kansas courts would recognize a negligence action under these circumstances. Kansas courts must apply 60-258a. Thus, in Kansas courts, state judges and jurors may be joined as phantom parties for the purpose of allocating fault. As such, this policy concern should be considered in determining whether Kansas recognizes a negligence action based on this conduct, even if this policy concern might not affect this particular case in federal court.
However, OMI contends that even if the defendant would be able to designate judges or jurors as phantom third parties, it is irrelevant. OMI asserts that it has stated a sufficient negligence claim against the defendant and that this claim is not dependent on the practical problem of damage apportionment and phantom parties.
We disagree. The district court refused to grant OMTs fee petition because it found the mistrial was not only the fault of the defendant, but was also potentially the fault of the jurors and the judge. Thus, in any negligence action in Kansas, the defendant would be able to designate the judge and jurors as phantom parties, possibly have them testify, and have the jury apportion the fault among them, even if the judge and jurors were immune from liability. This would impose upon the integrity of the judge, the jurors, and the trial process. Based on this practical policy problem, this negligence action will not be recognized under Kansas law. The federal Court of Appeals asked whether Kansas law recognizes a civil cause of action for negligence under these circumstances. The answer is no.
III. FRAUD
The federal district court also rejected OMI’s claim that Howell fraudulently concealed his wrongful juror contacts from the plaintiff and the court. The court noted that nondisclosure does not constitute fraud unless the defendant has a duty to speak or disclose information and has failed to do so. Chiarella v. United States, 445 U.S. 222, 235, 63 L. Ed. 2d 348, 100 S. Ct. 1108 (1980). The court acknowledged that a legal duty exists to avoid embracery, but it was unaware of any duty requiring a witness who commits embracery to disclose it. Roeder v. Alpha Industries, Inc., 814 F.2d 22, 27-28 (1st Cir. 1987) (no duty on corporation under laws against securities fraud to disclose bribes it allegedly paid). Since Howell did not have a duty to disclose his embracery conduct, the district court held that Howell could not be held liable for fraud in failing to disclose his embracery conduct.
OMI contends that the cases cited by the district court, Chiarella and ,Roeder, are not applicable because the cases concern what constitutes fraudulent activity under § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1994). It is true that both of these cases deal with fraudulent activity under § 10(b). However, 10(b) simply prohibits fraud in the particular area of securities. Thus, the fraud rules of laws discussed in these cases apply to fraud in all other areas, such as the fact that fraud does not occur absent a duty to speak. See Chiarella, 445 U.S. at 234-35 (“Section 10[b] is aptly described as a catchall provision, but what it catches must be fraud. When an allegation of fraud is based upon nondisclosure, there can be no fraud absent a duty to speak.”).
In alleging that Howell is liable for fraud, OMI points to the definition of fraud found in a Kansas case, Moore v. State Bank of Burden, 240 Kan. 382, 389, 729 P.2d 1205 (1986), cert denied 482 U.S. 906 (1987), which states:
“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. [Citation omitted.] . . . There must be a concealment of facts which the party is under a legal or equitable duty to communicate and in respect of which he could not be innocently silent. [Citation omitted.]”
Further, Lesser v. Neosho County Community College, 741 F. Supp. 854, 863 (D. Kan. 1990), clarifies the elements necessary to establish fraud by concealment or silence:
"To establish fraud by silence, the plaintiff must show by clear and convincing evidence the following elements: (1) that defendant had knowledge of material facts which plaintiff did not have and which plaintiff could not have discovered by the exercise of reasonable diligence; (2) that defendant was under an obligation to communicate the material facts to the plaintiff; (3) that defendant intentionally failed to communicate to plaintiff the material facts; (4) that plaintiff justifiably relied on defendant to communicate the material facts to plaintiff; and (5) that plaintiff sustained damages as a result of defendant’s failure to communicate the material facts to the plaintiff. [Citation omitted.]” Lesser, 741 F. Supp. at 863.
See Tetuan v. A. H. Robins Co., 241 Kan. 441, 465, 738 P.2d 1210 (1987); see also State ex. rel. Stephan v. GAF Corp., 242 Kan. 152, 154-55, 747 P.2d 1326 (1987) (citing PIK Civ. 2d 14.42 for fraudulent concealment).
Under the first element enunciated in Lesser, Howell points out that the fraud of nondisclosure depends upon his superior knowledge of the juror contacts which he conceded from OMI. According to Howell, he did not have superior knowledge of the juror contacts because OMI had just as much knowledge regarding Howell’s juror contacts as Howell did. Howell points out thkt the fee petition affidavits which OMI filed seeking attorney fees indicate that OMI’s attorneys and employees were well aware of Howell’s juror contacts despite his nondisclosure. Thus, Howell contends that the first element of fraud is not met.
However, OMI claims that the question of whether Howell had superior knowledge of the juror contacts is an issue of fact-which should not be addressed by this court. In rebuttal, Howell argues that OMI does not want this court to consider the facts provided by OMI’s employees in the fee petition affidavits because if the court considers the facts,' then it will become clear that the fraud claim should not be recognized. Thus, Howell asks this court to consider the facts as described in OMI’s fee petition -affidavits to determine that he did not have superior knowledge of the jurors contacts. Howell acknowledges that appellate courts do not normally consider affidavits filed in support of a motion to dismiss unless the district court expressly considered them and gave notice to the plaintiff that it was doing so. However Howell contends that this case should be an exception. See Wheeler v. Hurdman, 825 F.2d 257, 259-60 (10th Cir.), cert. denied 484 U.S. 986 (1987) (district court properly converted motion to dismiss to motion for summary judgment because both parties submitted affidavits be yond the pleadings and the court properly considered them); Moody v. Town of Weymouth, 805 F.2d 30, 31 (1st Cir. 1986) (finding it proper for a court to convert a motion to dismiss to a motion for summary judgment and consider information outside pleadings, such as affidavits, even when the plaintiff was not given notice of this consideration if the plaintiff had received the affidavits, had an opportunity to respond, and did not controvert the accuracy of the affidavits). Further, Howell contends that even if this court scrupulously refuses to consider the facts as stated in the affidavits, OMFs complaint is still deficient as a matter of law because it fails to allege that OMI could not have obtained superior knowledge of the alleged improper contacts through due diligence.
This court does not have a copy of OMI’s complaint and does not know whether OMI alleged that it could not have discovered knowledge of the embracery conduct by due diligence. Further, this court does not have a copy of the fee petition affidavits and cannot use the affidavits to determine whether Howell had superior knowledge of the juror contacts. Even if this court had access to the affidavits, this is a question of fact which this court should not decide when analyzing a certified question. All of the cases cited by Howell are inapplicable because this is not a motion to dismiss which the court can convert into a motion for summary judgment using outside information. This is a question of law regarding whether Kansas law would recognize a fraud action for failure to reveal or attempting to conceal improper conduct with juror. The first element of the fraud claim — superior knowledge of the undisclosed material by the defendant which the plaintiff could not discover with due diligence — is a question of fact for the federal court to determine.
Under the second element, concerning whether the defendant had a duty to disclose, OMI contends that such a duty may arise in a number of ways, such as through equity or good conscience, or when a party is in a position where his or her deliberate silence will convey a false delusion. See 37 C.J.S. Fraud § 16; 37 Am. Jur. 2d Fraud and Deceit § 146; see also Doe v. Johnson, 817 F. Supp. 1382, 1389 (W.D. Mich. 1993) (defendant has duty to disclose HIV infection to sex partner, and failure to disclose supports fraud claim); Cisneros v. Cisneros, 163 Colo. 245, 251, 430 P.2d 86 (1967) (fraud action may be based on any circumstances where a material fact is concealed which in equity and good conscience should be disclosed); Jones v. Arnold, 359 Mo. 161, 169, 221 S.W.2d 187 (1949) (duty to disclose may arise from circumstances of case, including inequality of condition and superior knowledge of one party).
OMI contends that a duty was imposed on Howell, through equity and good conscience, to disclose to the court and OMI that he had had contact with the jurors. As OMI points out, Howell was an experienced attorney who knew that his contact with the jurors violated the court’s rules and the integrity of the trial process. Further, OMI contends that participants in the trial process have a duty imposed on them to disclose any misconduct which may breach the integrity of the trial process. Thus, OMI contends that Howell owed a duty to disclose his misconduct to OMI and to the court.
OMI is mistaken. None of the cases cited by OMI support the position that a duty to disclose can be imposed merely by equity and good conscience. This argument can be immediately dispensed with because it has no authority. A party has a duty to disclose material facts if the party “ ‘knows that the other is about to enter into the transaction under mistake as to such facts, and that the other, because of relationship between them, the customs in trade, or other objective circumstances, would reasonably expect disclosure of such facts.’ ” Boegel v. Colorado Nat’l Bank of Denver, 18 Kan. App. 2d 546, 550, 857 P.2d 1362, rev. denied 253 Kan. 856 (1993). No such duty to disclose existed under these circumstances. Litigation is an adversarial process. A party may owe a duty to the court to disclose this information, but it does not owe a duty to its adversary.
In Lewis v. Swenson, 126 Ariz. 561, 565-66, 617 P.2d 69 (Ct. App. 1980), a woman had previously filed a medical malpractice action against a doctor. At this prior trial, an expert witness caused a mistrial by mentioning the high cost of medical malpractice insurance. The plaintiff sued the witness and the attorney for damages caused by the mistrial. The court found that even if an attor pey and a witness had a duty to refrain from presenting insurance information to the jury, this duty was owed to the court, not to the adverse party. In comparison, Howell contends that any duty he may have had to disclose his juror contacts was owed to the court, not to -OMI; thus, he could not be liable for fraud.
. OMI contends- that Lewis is distinguishable because it did not involve a fraud claim or the duty to disclose. Further, OMI reasons that Howell’s duty as a witness is not comparable to an attorney’s duty and does not deserve the same type of protection in order to preserve the exclusive duty which an attorney owes to his client. In. attempting to distinguish Lewis, OMI fails to address that Lewis also involved an action against an expert witness -who improperly mentioned the high cost of malpractice insurance. The.court found that the witness did not owe a duty to the adverse party to refrain from improper conduct. We hold that Howell did not have a duty to disclose his improper jury contacts to OMI. Any duty to. disclose which Howell might have- had was owed to the court.
Under element three, OMI contends that Howell breached his duty to disclose because he did not tell OMI or the court that he had engaged in improper juror contacts. Since Howell did not have a duty to, disclose-to OMI, he could not have breached this duty so as to be liable to OMI.
Under element four, OMI contends that even if Howell’s duty to disclose is only owed to the court, this duty and breach, and the court’s justifiable reliance on Howell’s nondisclosure can be imputed to OMI. OMI contends that a- trial court justifiably relies on the participants in a trial to refrain from engaging in improper juror contact. Further, the litigants in a trial justifiably rely on the court to safeguard their .right .to fair trial and bring any misconduct affecting the trial to their attention. Since the trial court justifiably relied on Howell’s concealment of his juror contacts, then, according to OMI, this justifiable reliance should be imputed to OMI because it justifiably relied on the district court to safeguard its right toa fair trial. Thus, OMI contends that it justifiably relied on Howell’s failure to disclose. See Tetuan, 241 Kan. at 464-65 (physician justifiably relied on manufacturer’s failure to disclose problem? with ethical product and patient justifiably relied on physi dan’s failure to warn, so physician’s justifiable reliance on manufacturer was imputed to patient, making manufacturer liable to patient for fraud.)
OMI’s cite to Tetuan to support its justifiable reliance on the defendant’s nondisclosure as imputed through the court is misplaced. In Tetuan, the imputed justifiable reliance theory was used because the defendant failed to disclose information to a doctor or learned intermediary about an ethical product; thus, the doctor could not properly inform the patient of the product risks, as a doctor is required to do. As the Tetuan court points out, a patient places primary reliance upon a doctor instead of upon the manufacturer of an ethical product because the manufacturer may have a difficult time directly communicating with a patient. Thus, this court held that “where a patient relies on a physician for treatment or advice as to an ethical or prescription device, justifiable reliance by the physician on misrepresentations or concealment by the manufacturer of that device constitutes justifiable reliance by the patient.” 241 Kan. at 464.
Comparatively, the witness in this case was not able to directly communicate with the adverse litigant and the litigant may have placed primary reliance on the court, rather than the adverse litigant, to disclose information. However, an ethical product or learned intermediary was not involved. The relationship between participants in litigation is not comparable to the relationship between a manufacturer, a doctor, and a patient. Thus, OMI did not justifiably rely on Howell’s nondisclosure, and element four is not met.
We hold a fraud claim should not be recognized because the defendant did not have a duty to disclose its juror contacts to OMI. The defendant may have had a duty to disclose to the court, but this duty and the court’s reliance on the defendant’s nondisclosure cannot be imputed to OMI as it was in Tetuan.
In Hutchinson Travel Agency, Inc. v. McGregor, 10 Kan. App. 2d 461, 465, 701 P.2d 977, rev. denied 238 Kan. 877 (1985), the Court of Appeals stated:
“[The counterclaimant] was in much the same position that any party to a suit is in when he or she believes an adverse witness is not being truthful or is giving an inaccurate and biased expert opinion. One has expended time, effort and money, and has suffered anxiety while being forced to defend a claim one knows is untrue. [Citation omitted.] [The counterclaimant’s] remedy, if any, is not an action for fraudulent misrepresentation.”
Here, OMI was in the same position as any party to a suit where the adverse party or one of the adverse party’s witnesses causes a mistrial. OMI has expended time, effort, and money on a wasted mistrial. However, OMI’s remedy is not an action for fraud. The answer to the three certified questions is no.
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The opinion of the court was delivered by
Lockett, J.:
Providers of cellular radio service appealed to the Court of Appeals the Board of Tax Appeals’ (BOTA) determination that they were “public utilities” under K.S.A 79-5a01 and the tax assessment based on that determination. The appeal was transferred to this court on the joint motion of the parties. See K.S.A. 20-3017.
K.S.A. 79-5a01 states:
“(a) As used in this act, the terms “public utility” or “public utilities” shall mean every individual, company, corporation, association of persons, lessees or receivers that now or hereafter are in control, manage or operate a business of:
“(1) A railroad or railroad corporation if such railroad or railroad corporation owns or holds, by deed or other instrument, an interest in right-of-way, track, franchise, roadbed or trackage in this state;
“(2) transmitting to, from, through or in this state telegraphic messages;
“(3) transmitting to, from, through or in this state telephonic messages;
“(4) transporting or distributing to, from, through or in this state natural gas, oil or other commodities in pipes or pipelines, or engaging primarily in the business of storing natural gas in an underground formation;
“(5) generating, conducting or distributing to, from, through or in this state electric power;
“(6) transmitting to, from, through or in this state water if for profit or subject to regulation of the state corporation commission;
“(7) transporting to, from, through or in this state cargo or passengers by means of any vessel or boat used in navigating any of the navigable watercourses within or bordering upon this state.
“(b) The terms “public utility” or “public utilities” shall not include; (1) Rural water districts established under the laws of the state of Kansas; or (2) any individual, company, corporation, association of persons, lessee or receiver owning or operating an oil or natural gas production gathering line which is situated within one county in this state and does not cross any state boundary line; or (3) any individual, company, corporation, association of persons, lessee or receiver owning any vessel or boat operated upon the surface of any manmade waterway located entirely within one county in the state.”
At issue here is the definition of public utility in K.S.A. 79-5a01(a)(3), operating a business of “transmitting to, from, through, or in this state telephonic messages.”
Appellants Topeka SMSA Limited Partnership, Southwestern Bell Mobile Systems, Inc., Kansas City SMSA Limited Partnership, and Wichita SMSA Limited Partnership (collectively, Taxpayer) are providers of cellular radio service. The Director of Property Valuation (Director) determined that the Taxpayer is a “public utility” under K.S.A. 79-5a01 and centrally assessed tax based on that determination. The Director issued to Taxpayer a “1994 Notice of Value Indicators, Correlated Value, Allocation Factor & Assessed Value in Kansas,” (1994 Notice). The 1994 Notice assessed value at 33% based on the Taxpayer’s status as a “public utility.” If the Taxpayer’s property had been assessed locally by counties, rather than as public utility property by the Director, the property would have been assessed at 25% of the fair market value, except machinery and equipment would have been assessed at 25% of the depreciated value as determined under K.S.A. 1995 Supp. 79-1439.
The Taxpayer filed a notice of appeal to BOTA pursuant to K.S.A. 74-2438 on June 27,1994, claiming that it was not a “public utility” because it did not operate a business of transmitting telephonic messages and that it should have been taxed pursuant to K.S.A. 1995 Supp. 79-1439. The Taxpayer also sought a refund of taxes paid for the tax years 1984-1993. The parties entered into a stipulation which covers the relevant facts and will be discussed later. Following argument by the parties, BOTA dismissed the Taxpayer s appeals as to the years 1984-1993. In a 3-2 decision, BOTA sustained the Director s 1994 Notice and held that the Taxpayer is a public utility. The Taxpayer filed a petition for reconsideration. See K.S.A. 74-2426(b). BOTA denied reconsideration of the issues decided but granted limited reconsideration as to issues raised by the Taxpayer but not decided by BOTA in its initial order. Prior to BOTA’s decision on reconsideration, the Taxpayer appealed the original order to the Court of Appeals. That appeal was dismissed as- interlocutory. Subsequently, the Taxpayer voluntarily dismissed some of the other issues raised, and in a final order on reconsideration, BOTA decided the remaining issues adversely to the Taxpayer’s position. The Taxpayer appealed to the Court of Appeals. The appeal was transferred to this court on the joint motion of the parties. Prior to oral argument before this court, the Taxpayer dismissed the appeals relating to the tax years 1984-1993.
At the time the stipulation was filed (October 1994), approximately 8% of-the United States population subscribed to cellular service. The parties stipulated that the Taxpayer operates a domestic public cellular radio telecommunications service within Kansas on specific radio frequencies. The cellular service system divides a large area or city into, many smaller areas called “cells.” Near the center of each cell is an antenna coupled to a transmitter and transceiver, called a “cell site.” The equipment at each cell site is capable of receiving and transmitting signals to the radio handsets/cellular telephones operated by the Taxpayer’s customers. The parties do not agree as to whether the equipment should be referred to as a “radio handset” or a “cellular telephone.”
When a cellular customer originates, a communication from his or her radio handset/cellular telephone, the customer’s handset/ telephone sends a signal by radio waves to the nearest cell site. The equipment at the cell site receives the signal generated by the customer and transmits the signal by microwave, or over dedicated local exchange telephone company facilities, to a central cellular switching office in Kansas City, Missouri. Any landlines used to transmit the signal from the cell site to the switching office are owned by local exchange or interexchange telephone companies, not the Taxpayer, and are purchased by the Taxpayer out of the local exchange telephone company .tariff.
When a cellular customer communicates with another cellular customer in the same service area (a mobile-to-mobile call), the switching office receives the originating customer s signal from the cell site and transmits the signal by microwave, or over local exchange telephone company facilities purchased by the Taxpayer, to the cell site nearest the recipient of the communication. This cell site then relays the signal by radio waves to the radio handset/ cellular telephone of the recipient of the communication. When a cellular customer communicates with a telephone customer of a local exchange telephone company (a mobile-to-telephone call), the switching office receives the cellular customer’s signal from the originating cell site. The switching office then transmits the signal over local exchange telephone company facilities to the local exchange telephone company’s central office. At this point, the signal is routed over standard land telephone lines of the appropriáte local exchange or interexchange telephone company (local or long distance) to the telephone customer to whom the communication was directed. When a telephone customer communicates with a. cellular customer, the procedure for a mobile-to-telephone call is simply reversed and the signal is passed over standard land telephone lines to the telephone company’s central office, over local exchange telephone company facilities to the switching office, by microwave or local exchange facilities to the cell site nearest the cellular customer and by radio waves to the handset/telephone of the cellular customer.
The Taxpayer cannot and does not own or operate telephone lines in Kansas. The landline facilities between the various cell sites and the switching office, and between the switching office and the local exchange telephone company’s central office, are owned and operated by the local exchange telephone company or an interexchange carrier. These land lines are circuits dedicated entirely to the Taxpayer’s cellular service system. For the landline facilities the Taxpayer pays the local exchange telephone company a monthly fee. The fee for the landline facilities between the cell site and the switching office is based on the length of the line, and the fee for the landline facilities between the switching office and the local exchange telephone company’s central office is usage sensitive.
The Taxpayer provides cellular service to its customers pursuant to a written contract and bills its customers monthly for the cellular service provided. The monthly fee includes a base cellular service access charge plus separate charges for air time on the cellular service system. For a mobile-to-mobile call, the Taxpayer charges both the sending and receiving customer for air time on the cellular service system. For a local mobile-to-telephone call, the Taxpayer charges the cellular customer for air time on the cellular service system. For a long-distance mobile-to-telephone call, the cellular customer receives a bill from the Taxpayer for air time on the cellular service system, and the cellular customer also receives a bill from the long distance carrier based on the customer’s relationship with the long distance carrier. The cellular customer does not become the customer of any local exchange telephone company or long distance company through the receipt of cellular service.
The Taxpayer is licensed by the Federal Communications Commission (FCC) to operate cellular service within Kansas on specific radio frequencies. The FCC license was granted pursuant to Title 47, Part 22 of the Code of Federal Regulations, the stated purpose of which is (a) to regulate radio transmission and the issuance of licenses for radio stations, and (b) to prescribe the conditions under which portions of the radio spectrum are made available for domestic common carrier radio communications. 47 C.F.R. § 22.0(a), (b) (1993). As a licensed operator of a cellular service, the Taxpayer is prohibited from owning any facilities for the provision of landline telephone service. 47 C.F.R. § 22.901(c)(1) (1993).
Under FCC regulations, cellular service is one of several types of radio communication classified under the more general category of “commercial mobile radio service” (CMRS). 47 C.F.R. § 20.9(a)(7) (1994). To be classified as a CMRS, a radio communication service must first be classified as a “mobile service.” 47 C.F.R. §20.3 (1994). FCC regulations define a “mobile service” as a “radio communication service carried on between mobile stations or receivers and land stations, and by mobile stations communicating among themselves.” 47 C.F.R. § 20.3. Cellular service is both a “mobile service” and a CMRS. 47 C.F.R. §§ 20.7, 20.9 (1994). In addition to cellular service, the following “mobile services” are also treated as CMRS providers: paging service, business radio service, public land mobile service, specialized mobile radio, air-ground radiotelephone service, offshore radio service, and personal communication service. 47 C.F.R. § 20.9(a). All of these businesses, including cellular service, use radio technology to provide communication services to their customers. By definition, all CMRS providers are interconnected with the public switched telephone network, typically through a local exchange landline telephone company, such as Southwestern Bell Telephone Company. 47 C.F.R. § 20.3. Congress has expressed an intent to treat all CMRS providers similarly from a regulatory standpoint. The FCC is currently in the process of amending its regulations to comply with this Congressional mandate. In re Implementation of Sections 3(n) and 332 of the Communications Act, Regulatory Treatment of Mobile Services, 9, F.C.C.R. 1411 (March 7, 1994).
Of the CMRS providers listed above, cellular carriers, paging services, specialized mobile radio services, and air-ground radio services conduct business in Kansas. Of these, only cellular providers are presently subjected by the Director to central assessment as a public utility under K.S.A. 79-5a01 et seq.
The Taxpayer is a “radio common carrier” within the definition of K.S.A. 66-1,143(a), which includes all companies operating a public “for hire” radio service engaged in the business of providing a service of radio communication, including cellular radio, which is one-way, two-way, or multiple, between mobile and base stations, between mobile and land stations, including landline telephones, between mobile stations or between land stations, but not engaged in the business of providing a public landline message telephone service or a public message telegraph service within this state. Under K.S.A. 66-1,143(b) and K.S.A. 66-1,145, a cellular service provider is not subject to the jurisdiction, regulation, supervision, or control of the Kansas Corporation Commission (KCC).
There are no federal, state, or local laws which regulate the rates charged by the Taxpayer for cellular service provided to customers in Kansas. The Omnibus Budget Reconciliation Act of 1993 preempts state or local regulation of the rates charged by any provider of CMRS, including the Taxpayer, as set forth in 47 U.S.C. § 332(c)(3) (1994). Under special circumstances, a state may seek authority from the FCC to regulate such rates. The KCC is prohibited by Kansas law from regulating radio common carriers and has made no effort to obtain FCC authority to regulate such rates.
The Taxpayer has never been subject to rate of return regulation in Kansas. There is no federal, state, or local law that guarantees the Taxpayer a rate of return on investment. Further, the FCC eliminated any implication that cellular providers could file federal tariffs and ordered any such providers with tariffs on file to cancel the tariffs by July 18, 1994. In re Implementation of Sections 3(n) and 332 of the Communications Act, Regulatory Treatment of Mobile Services, 9 F.C.C.R. 1411 (March 7,1994). The Taxpayer does not offer cellular service to the public under tariffs approved by the FCC or the KCC. ■
The Taxpayer does not hold a monopoly, on cellular service in its service areas. For FCC licensing purposes, the United States is broken down into smaller cellular markets. Each service market area has at least two cellular service providers. Pursuant to FCC regulations, the Taxpayer is one of two cellular carriers entitled to provide cellular service in its service areas. Additionally, the FCC is facilitating “personal communication service” (PCS) providers who, using radio technology similar to that used by cellular carriers, will provide mobile to land line, land line to mobile, and mobile to mobile communication services that will compete directly with the services provided by cellular carriers.
All of the property used by the Taxpayer in Kansas is either owned or leased at arm’s length by the Taxpayer. Except for leases negotiated at arm’s length with local - governmental authorities (generally tower space leased by the Taxpáyer from local governmental authorities), the Taxpayer does mot make use of public property or rights-of-way in the operation of its cellular service business. Unlike local exchange landline telephone companies and other public utilities, the Taxpayer does not have the power to condemn property in Kansas.
Is Taxpayer a “Public Utility” Under K.S.A. 79-5a01?
The question in this appeal concerns the determination of the Director and BOTA that the Taxpayer is a public utility within the meaning of K.S.A. 79-5aOL K.S.A. 79-5a01(a)(3) defines “public utility” as “every individual, company, corporation, association of persons, lessees or receivers that now or hereafter are in control, manage or operate a business of . . . transmitting to, from, through or in this state telephonic messages.”
BOTA orders are subject to judicial review under the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. See K.S.A. 74-2426(c). The party challenging BOTA’s action has the burden to prove that the action taken by BOTA was erroneous. See K.S.A. 77-621(a). The Taxpayer suggests that BOTA “erroneously interpreted or applied the law” and that BOTA’s decision was “otherwise unreasonable, arbitrary or capricious.” See K.S.A. 77-621(c)(4), (8).
The interpretation of a statute by an administrative agency charged with the responsibility of enforcing a statute is entitled to judicial deference, called the doctrine of operative construction. See State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991). Deference to an agency’s interpretation is particularly appropriate when the agency is one of special competence and experience. See Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 246, 834 P.2d 368 (1992). However, although an appellate court gives some deference to the agency’s interpretation of a statute, the final construction of a statute lies with the appellate court, and the agency’s interpretation, while persuasive, is not binding on the court. Interpretation of a statute is a question of law over which an appellate court’s review is unlimited. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
The Taxpayer makes several arguments in support of its position that it is not a public utility subject to K.S.A. 79-5a01 et seq. based on (1) this court’s decision in First Page, Inc. v. Cunningham, 252 Kan. 593, 847 P.2d 1238 (1993); (2) the legislature’s indication of an intent not to treat cellular service as a telephone service in various statutes; (3) the decisions of other jurisdictions indicating that cellular service is not a telephone service; and (4) the contention that the “natural and ordinary meaning” of telephonic does not include cellular communications. After reviewing each of the arguments and the Kansas statutes and decisions of other jurisdictions, we determine that our decision in First Page controls.
First Page, 252 Kan. 593, involved the appeal of First Page from the district court’s decision upholding the Director’s determination that its business was a public utility. At issue was the same definition of public utility with which the court is here faced — transmitting telephonic messages, K.S.A. 79-5a01(a)(3). First Page, like the Taxpayer here, was a radio common carrier. First Page offered one-way paging services transmitted by radio frequency. The district court recognized that “transmitting telephonic messages” was not defined in Chapter 79 of the Kansas Statutes Annotated, so the district court applied the definition found in K.S.A. 66-104, which defines public utilities subject to the supervision of the KCC and states:
"The term ‘public utility,’ as used in this act, shall be construed to mean every corporation, company, individual, association of persons, their trustees, lessees or receivers, that now or hereafter may own, control, operate or manage, except for private use, any equipment, plant or generating machinery, or any part thereof, for the transmission of telephone messages or for the transmission of telegraph messages in or through any part of the state .... As used herein, the term 'transmission of telephone messages’ shall include the transmission by wire or other means of any voice, data, signals or facsimile communications, including all such communications now in existence or as may be developed in the future,” (Emphasis added.)
The district court ruled that First Page was a public utility for property tax purposes. First Page appealed.
In rejecting the application of the K.S.A. 66-104 definition to K.S.A. 79-5a01, the First Page court recognized the legislature removed radio common carriers from KCC supervision by enacting K.S.A. 66-1,143. 252 Kan. at 599. Radio common carriers are defined in K.S.A. 66-1,143 to include all companies
“operating a public Tor hire’’radio service engaged in the business of providing a service of radio communication, including cellular radio, which is one-way, two-way or multiple, between mobile and base stations, between mobile and land stations', including land line telephones, between mobile stations or between land stations, but not engaged in the business of providing a public land line message telephone service or a public message telegraph service within this state.”
The First Page court concluded that the K.S.A. 66-104 definition of “transmission of telephone messages” should not be read into K.S.Á. 79-5a01. The court noted that tax statutes will not be extended by implication beyond.the clear import of the language employed ..therein , and will not be enlarged so as to include matters not specifically embraced. The court also recognized that a tax statute will be. construed most favorably to the taxpayer where the^e. is a reasonable doubt as to the meaning of it. 252. Kan. at 600. Although both K.S.A. 66-104 and K.S.A. 79-5a01 define public utility, they contain different definitions of the term and do so for different purposes, 66-Í04 for determining the KCC’s scope of regulatory authority and 79-5a01 for determining the Director’s scope of assessment authority. Thé First Page court held that the definitions are not interchangeable.
The First Page court also reviewed decisions of appellate courts of Illinois and Ohio holding that one-way paging services were not businesses engaged in the transmission of telephone messages and of Connecticut holding that a one-way radio paging company was not a “telephone answering service.” 252 Kan. at 602-03. The First Page court found those decisions persuasive. The court also noted:
“First Page has none of the trappings of a public utility. Its service is a convenience rather than an essential service. It is highly competitive rather than a monopoly. It does not make use of public property or rights-of-way and does not require a franchise or, authority to operate. It is not guaranteed a rate of return on investments and cannot offset á tax increase by requesting a rate increase.” 252 Kan. at 605.
Further, the court found that the natural and ordinary meaning of transmitting telephonic messages does not include one-way radio paging. 252 Kan. at 605. For all of these reasons the court concluded that First Page was not a public utility within the meaning of K.S.A. 79-5a01. :
The Taxpayer points out that, like First Page, it is a “radio common carrier” within the meaning of K.S.A. 66-1,143(a). According to the Taxpayer’s analysis, this court decided in First Page that the Kansas Legislature did not intend for a radio common carrier to be a public utility under K.S.A. 79-5a01.
The Taxpayer also highlights the statement in First Page concerning the “trappings” of a public utility. There are no other Kansas cases discussing the trappings of a public utility but, as the Taxpayer points out, the Kansas Attorney General has recognized those factors as being useful in determining what types of entities are included in the definition of public utility for purposes of tax classification. See Atty. Gen. Op. No. 93-142.
The Taxpayer notes its similarity to the one-way radio paging company in First Page as to the trappings analysis: (1) The Taxpayer’s business provides a service of convenience rather than an essential service. Only 8% of the population of the United States subscribes to cellular service. (2) The Taxpayer’s business is a competitive one rather than a monopoly. There are at least two cellular providers in each cellular market area. (3) The Taxpayer does not make use of public property or rights-of-way. Rather, its property is owned by the Taxpayer or leased in arm’s-length transactions, and it does not have the power to condemn property in Kansas. (4) The Taxpayer requires federal, rather than state, licensing to operate its cellular business. It is classified as a “radio common carrier” under K.S.A. 66-1,143 and is not subject to the jurisdiction of the KCC. (5) The Taxpayer is not guaranteed a rate of return on investments but is subject to the competitive market.
BOTA rejected the trappings analysis, stating that these factors were not the determinative point in First Page. Further, accepting the argument made by the Director, BOTA distinguished First Page on the basis that it involved a one-way radio paging service rather than two-way communication.
The Taxpayer, citing a report of the FCC, asserts that the distinction between a one-way radio paging service and a two-way cellular radio communication is insignificant. In In re Implementation of Sections 3(n) and 332 of the Communications Act, 9 F.C.C.R. 7988 (September 23, 1994), the FCC adopted rules to implement the statute and establish regulatory symmetry among similar mobile services. The report notes that cellular service is expected to reach 20% penetration, or approximately 54 million customers, by the year 2000, and the paging industry is expected to have 41.5 million customers by the year 2000. 9 F.C.C.R. at 8018. The FCC determined that services will be deemed to be substantially similar if they compete against each other or have the potential to compete against each other. 9 F.C.C.R. at 8024. The report states:
“In approaching the issue of ‘reasonable interchangeability,’ we must first determine the types of customer uses and needs that are served in the mobile marketplace. It could be argued that the mobile marketplace is nothing more than a constellation of diverse service offerings that seldom intersect in meeting highly differentiated customer needs. Thus, it could be argued . . . that cellular customers could not reasonably be expected to purchase one-way paging as a substitute. We do not subscribe to such a balkanized view of the CMRS marketplace. Such a narrow conception does not comport with the realities of the marketplace, does not advance our objectives under the Communications Act, and, we believe, is not consistent with antitrust principles.” (Emphasis added.) 9 F.C.C.R. at 8020-21.
The report goes on to note that the common characteristic of mobile service customers is their need to communicate electronically on a real-time basis while they are “on the move.” While this need cannot be met by conventional wireline telecommunications services, it can be met by the services comprising the CMRS marketplace. Although the CMRS’s such as paging services, cellular services, and mobile data services meet the communications needs of their customers in different ways by providing services with different features and functions, the FCC report concludes that all of the services compete or have the potential to compete with one another to serve customers’ needs. In other words, the report found that services meeting the same customer needs in different ways can in fact be viewed as competing with each other. 9 F.C.C.R. at 8021.
“One-way paging service illustrates this . . . point. One-way paging and cellular service meet customer needs in substantially different ways: the paging subscriber can receive communications through a single tone, multiple tones, numeric messages, or alphanumeric messages. The cellular customer, on the other hand, has the capability of establishing two-way voice communication. Notwithstanding these functional differences, we conclude that there is a basis for finding that these services compete with one another. First, paging and cellular companies perceive themselves as competing for the same customers. .. .
“Second, cellular carriers are in a position to begin offering one-way paging in conjunction with their cellular offerings. . . . [C]ellular operators are seeking to combine their service with one-way paging in order to compete against paging providers, hoping that customers will find the combined cellular-paging .more attractive than a ‘stand-alone’ paging offering. ...
“Finally, it appears that both cellular and paging companies are pursuing marketing strategies that emphasize the need to establish nationwide service and to expand their offerings to meet the needs of non-business customers. This commonality in marketing strategies, coupled with the other factors described in the preceding paragraphs, suggest that one-way paging and cellular carriers are or will be competing with one another.” 9 F.C.C.R. at ,8021-24.
The Taxpayer reasons that because the FCC recognizes that one-way paging systems and cellular systems provide similar services, this court should also find that the systems are similar. Thus, , according to the Taxpayer, it is insignificant that First Page involved a one-way paging provider because the same analysis would apply to the Taxpayer as a cellular provider.
■ BOTA was not convinced by the Taxpayer’s argument that the legislature would have included specific reference to both telephone service and subscriber radio service in K.S.A. 79-5a01 if it had intended for both to be taxed as public utilities. A majority of the members of BOTA observed that .the First Page court stated that “the natural and ordinary meaning of transmitting telephonic messages does not include one-way radio paging” (emphasis added), and BOTA determined the First Page decision was limited to a conclusion that a company in the business of providing “one-way radio paging” is not transmitting to, from, through, or in this state telephonic messages and thus is not a public utility under K.S.A, 79-5a01. They noted that the Kans.as Supreme Court considered the five attributes of a regulated public utility but opined that these factors were not the determinative point in First Page,.
In reaching its conclusion BOTA focused too closely on the fact that the taxpayer in First Page was providing one-way radio.paging service rather than on our statutory interpretation that the taxpayer was not subject to assessment under K.S.A. 79-5a01. Simply stated, a majority of BOTA found that because the advancement in CMRS technology from one-way paging .to two-way voice communication allowed radio common carriers to compete with telephone utilities, the radio common carrier providing cellular service was a “public utility” and subject to state assessment pursuant to K.S.A. 79-5a01.
Competition alone is not a determinative factor for changing the Taxpayer s classification under the statutes. Commercial transportation includes buses and airplanes, both of which are common carriers competing for passengers. Buses travel upon the land. Airplanes use the land for take-off and landing but travel through the air. The fact that an airplane must use the land in providing its services does not mean that an airplane should be classified and taxed in the same manner as a bus.
We find First Page controlling. A radio common carrier operating a public “for hire” radio service engaged in the business of providing a service of radio communication, including cellular radio, which is one-way, two-way, or multiple, but not engaged in the business of providing a public landline telephone or telegraphic service within this state, is not “transmitting to, from, through or in this state telephonic messages” within the meaning of K.S.A. 79-5a01. BOTA erred in holding that the radio common carrier is a “public utility” within the meaning of K.S.A. 79-5a01 and therefore subject to state assessment for property tax purposes.
Reversed and remanded.
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The opinion of the court was delivered by
Abbott, J.:
The plaintiffs filed this action to force the defendant to submit to arbitration under a collective bargaining agreement. The Shawnee Coiinty District Court granted summary judgment to the plaintiffs, finding that the agreement required the defendant to submit to arbitration. The defendant appeals.
The individual plaintiffs in this case, Duane Pomeroy, Mari John, Káthy Fox, and Nancy Meschke, are employed by Unified School District 501 (U.S.D. 501). Duane Pomeroy is employed as an Adult Homeless Literacy Program Instructor. Mari John is employed as a Kan-Work Instructor. Kathy Fox and Nancy Meschke are employed as Adult Basic Education Instructors. All the individual plaintiffs perform their duties during the regular professional day and are required by the Kansas State Board of Education to meet teacher certification requirements for employment. The National Education Association-Topeka (NEA-Topeka) is a union which represents employees, of U.S.D. 501.-
During 1991 and 1992, U.S.D. 501 and NEA-Topeka entered into professional negotiations pursuant .to K.S.A. 72-5413 et seq. The negotiations resulted in a Professional Agreement' (Agreement) which covered the terms and conditions of professional employment in the district. Both the U.S.D. 501 Board of Education and the select professional employees who made up the bargaining unit ratified the Agreement. The Agreement was effective from August 1, 1992, through July 31, 1995. It has since been replaced by a new Agreement which, hopefully, makes it clear how the issue before us should be handled in the future.
NEA-Topeka institutéd a grievance under the Agreement on behalf of the individual plaintiffs herein, alleging that the plaintiffs were not receiving the proper salary or benefits as set out in the Agreement. U.S.D. 501 refused to recognize or process the grievance. According to U.S.D. 501, the plaintiffs were “continuing education only” employees who were riot members of the bargaining unit as defined in Article 3 of the Agreement and were not entitled to file a grievance under the Agreement. When U.S.D. 501 refused to process the grievance, the plaintiffs requested arbitration. U.S.D. 501 refused to arbitrate, again alleging that the plaintiffs were not parties to the negotiated Agreement and were not, entitled to the Agreement remedy of arbitration.
The plaintiffs filed an action in the Shawnee County District Court, pursuant to K.S.A. 72-5424(b), asking the court to compel U.S.D. 501 to submit to arbitration. The plaintiffs contend that, according to the Agreement, questions involving the application or interpretation of the Agreement must be submitted for arbitration.. Further, the plaintiffs point to the language in the Agreement which provides that questions- of arbitrability shall be decided by the arbitrator before the arbitrator decides questions of substantive merit. Thus, the plaintiffs argue that; the defendant,must submit to arbitration so an arbitrator can interpret -the Agreement and determine if the plaintiffs are a part of thé bargaining unit and are in fact entitled to grievance or-arbitration procedures. The plaintiffs filed a motion for summary judgment in this action tp compel the defendant to submit to arbitration.
The defendant filed a cross-motion for summary judgment. U.S.D. 501 argued that only a court can decide if the plaintiffs are actually parties to the. arbitration agreement because an arbitrator lacks the power to determine his. or her own jurisdiction. U.S.D. 501 asked the court to find, as a niatter of law, that the plaintiffs are not a part of the bargaining unit and cannot compel U.S.D. 501 to submit to arbitration.
The Shawnee County District Court granted the plaintiffs’ motion for summary-judgment and denied the defendant’s motion for summary judgment. According to.the district court, the question before it was whether the plaintiffs were members of the bargaining unit so that the Agreement applied to the plaintiffs and could be enforced by them. The court found that it, not the arbitrator, should decide what matters the parties have agreed to submit to arbitration. The court ruled that under Article 10 of the Agreement, the parties had agreed to arbitrate all matters dealing with the “application or interpretation” of the Agreement. Since the question of whether the plaintiffs were a part of the bargaining unit was a question dealing with- the “application or. interpretation” of the Agreement, the court found that the parties had contractually agreed to allow an arbitrator to decide the issue. Thus, the court ordered the defendant to submit to arbitration.
The defendant timely appealed the ruling to the Court of Appeals. The case was transferred to the Supreme Court pursuant.to K.S.A. 20-3018(c). . .
It is this court’s duty to raise the issue of jurisdiction on its own motion. In re K-Mart Corp., 232 Kan. 387, 389, 654 P.2d 470 (1982). K.S.A. 72-5424(b), as a part of the Teachers’ Contracts Act, allows a party to file a motion with the district court asking the. court to compel the opposing party to submit to arbitration. However, this statute does not mention anything about the right to appeal from the grant or denial of such motion. Under K.S.A. 60-2102(a)(4), á party has the right to appeal' a final decision in any action. The question here is whether the trial court’s grant of the plaintiffs’ motion for summary, judgment, or its denial of the de fendant’s motion for summary judgment, or its order compelling the defendant to submit to arbitration equates to a final, appealable order.
The Kansas Uniform Arbitration Act, K.S.A. 5-401 et seq., does not apply to employer/employee arbitration agreements. NEA-Topeka v. U.S.D. No. 501, 7 Kan. App. 2d 529, 532, 644 P.2d 1006 (1982). This casé involves an émployer/employee arbitration agreement; thus, the Kansas Uniform Arbitration Act does not apply to this case. However, several cases under the Kansas Uniform Arbitration Act; which áddresses what type of orders are appealable, are analogous to this case and may be used as persuasive authority. The statute which govéms appeals under the Kansas Uniform Arbitration Act is K.S.A: 5-418. It provides:
“(a) An appeal may be taken from: (1) An order denying an application to compel arbitration made under K.S.A. 5-402;
(2) An order’granting an application to stay arbitration made under subsection (b) of K.S.A: 5-402; . .....
(3) An order confirming or denying confirmation of an award;
(4) An order modifying or correcting an award;
(5) An order vacating an award without directing a rehearing; or '
(6) A judgment or decree entered pursuant! to the provisions of this act.
“(b) The appeal shall be taken in the manner and to the same extent as from orders or judgments'in a'civil action.” -
Under this statute, a few cases have discussed whether an arbitration order is appealable. In Kansas Gas & Electric Co. v. Kansas Power & Light Co., 12 Kan. App. 2d 546, 551, 751 P.2d 146, rev. denied 243 Kan. 779 (1988), the court found that the trial court’s order denying a motion to compel arbitration was an appealable final order. In so holding, the Court of Appeals commented as follows:
“K.S.A. 5-418 was adopted without change from the Uniform Arbitration Act approved by the National Conference of Commissioners bn Uniform' State Laws in 1955. The drafters of the uniform act considered certain orders sufficiently final to merit appeal. According to the Prefatory Note to the uniform act, ‘The section on Appeals is intended to remove doubts as to what orders are appealable and to limit appeals prior to judgment to those instances where the element of finality is present.’ Unif. Arbitration Act, 7 U.L.A. 2 (1985). (Emphasis added.) The chairman of the committee that drafted the uniform act explained the rationale for making certain orders, but not others (appealable: '
“ ‘Appeals likewise are commonly neglected in arbitration statutes. Under the new act, the appealable orders are specifically designated and are confined to those final in nature, such as orders denying motions to compel arbitration or granting motions to stay arbitration. Orders directing, or refusing to stay, arbitration are not appealable but the point at issue can be raised oh appeal from an order confirming the award should one be rendered. Appeals are permitted also from the judgment or decree rendered on :an award.’ Pirsig, The New Uniform Arbitration Act, 11 Bus. Law, April 1956, at 44, 51. (Emphasis added.)” 12 Kan. App. 2d at 550.
Thus, it appears the' Uniform Arbitration Act follows the Kansas general rule of not permitting piecemeal appeals by requiring a final judgment.
In Hodes v. Comprehensive Health Associates, 9 Kan. App. 2d 36, 670 P.2d 76 (1983), the trial court refused to grant a motion to stay arbitration. The Court of Appeals found that this was not a final appealable order under K.S.A. 5-418. It ruled that the parties must submit to arbitration.
The Court of Appeals quoted a California case with approval as follows:
“ ‘[T]he fact that the legislature saw fit to specify in one code section the different orders and judgment from which appeals may be taken clearly indicates, in our opinion, an intention to restrict the appeals in such proceeding to the orders and judgment therein specified; and the obvious reason for not including among such appealable orders the one which directs the parties to proceed with the arbitration was that if at the very threshold of the proceeding the defaulting party could appeal and thereby indefinitely delay the matter of arbitration, the object of the law and the purpose of the written agreement of the parties would be entirely defeated.’ ” 9 Kan. App. 2d at 38 (quoting Jardine-Matheson Co., Ltd., v. Pacific O. Co., 100 Cal. App. 572, 575-76, 280 Pac. 697 [1929]).
The Court of Appeals further held:
“The trial court decision denying plaintiff’s stay application and ordering the parties to proceed with arbitration is interlocutory. No immediate appeal is available. Except as it may be affected by other developments, the purported error of the trial court will be reviewable after the entry of a final decision and judgment.” 9 Kan. App. 2d at 38.
From a synthesis of these cases under K.S.A. 5-418, we conclude the following: If the trial court denies a motion to arbitrate, then no other action can be taken by either party. Thus, this is a final order and appealable. However, if the trial court grants a motion to compel arbitration, then the parties must submit to arbitration and then challenge the arbitrator’s decision before there is a final order which is appealable to an appellate court.
This is consistent with several other rules regarding final, appealable orders. For instance, an order granting a new trial, which is similar to an order compelling arbitration, is generally not a final or appealable order. Oertel v. Phillips, 197 Kan. 113, 415 P.2d 223 (1966). A trial court order remanding an administrative proceeding to the administrative agency for additional findings of fact, which is similar to an order compelling arbitration, is not a final or appealable order. Holton Transport, Inc. v. Kansas Corporation Comm’n, 10 Kan. App. 2d 12, 690 P.2d 399 (1984), rev. denied 236 Kan. 875 (1985).
Further, the denial of a party’s summary judgment motion is not usually a final or appealable decision. In re Estate of Ziebell, 2 Kan. App. 2d 99, 100-01, 575 P.2d 574 (1978) (“[A]n order must have ‘some semblance of finality’ to be appealable.”) If a party’s summary judgment motion is denied, the party must first proceed to trial before an appeal can be taken. Typically, a party can only appeal from a summary judgment if the trial court has granted the opposing party’s summary judgment motion. See Kauk v. First Nat’l Bank of Hoxie, 5 Kan. App. 2d 83, Syl. ¶ 3, 613 P.2d 670 (1980). In the case at hand, the trial court did grant NEA-Topeka’s (the opposing party) summary judgment motion at the same time it denied U.S.D. 501’s motion for summary judgment. However, this grant of NEA-Topeka’s motion for summary judgment resulted in an order compelling arbitration. Thus, there is more for the parties to resolve before this becomes a final and appealable order. Cf. Southwest Nat’l Bank v. Simpson & Son, Inc., 14 Kan. App. 2d 763, 768, 799 P.2d 512 (1990), rev. denied 248 Kan. 997 (1991). The general rule is that to be final, an order must finally decide and dispose of the entire merits of the controversy, reserving no further questions or directions for the future or further action of the court. Gulf Ins. Co. v. Bovee, 217 Kan. 586, 587, 538 P.2d 724 (1975). There are exceptions to this general rule, but none of them are applicable here.
We hold there is no right to an immediate appeal from an order to submit to arbitration: ...
The appeal is dismissed for lack of jurisdiction.
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The opinion of the court was delivered by
McFarland, C.J.:
Jerry D. High appeals his jury trial convictions for aggravated kidnapping (K.S.A. 21-3421 [Ensley 1988]), first-degree murder (K.S.A. 1992 Supp. 21-3401), and felony theft (K.S.A. 21-3701 [Ensley 1988]). He was sentenced to consecutive prison terms of life, life, and 1 to 5 years.
The convictions of Donice Johnson and Joe Johnson, III, two codefendants, have previously been affirmed by'this court. See State v. Johnson, 258 Kan. 100, 899 P.2d 484 (1995); State v. Johnson, 258 Kan. 607, 907 P.2d 140 (1995).
The victim of the crimes .was. Amanda Gardner. Ms. .Gardner worked at the McDonald’s restaurant in the Hypermart located in Topeka. She disappeared on her way home from work on April 25, 1993. Two days later her body was found-in a-field near the Kaw Valley Vocational Technical School in Topeka. The cause of death was determined to be strangulation, blunt trauma to the head, or a combination thereof. Códeféndants Dónice and Joe Johnson are sister, and brother. Defendant was the boyfriend of, Donice, who worked with Amanda. All three defendants were from Camden, New .Jersey, and had been in. Topeka a. relatively short time. The basic motivation underlying .the crimes was to obtain Ms. Gardner’s automobile, which-the three would use ter ¡return to-New Jersey. Defendant was arrested iri New Jersey on April 28,-1993, and returned to Kansas. Additional facts will be' set forth as necessary for the discussion of particular issues. , . ...
For his first claim of error] defendant contends the district court erred in admitting the tape-recorded statement, he,gave to New Jersey law enforcement officers shortly after his arrest-. '
The tape is not included in the record before us. Defendant does not rely on the contents of the tape to support his claims in. this issue. Rather, he contends the circumstances ‘under which ■ he talked to law-enforcement officers render the,tape inadmissible. Defendant does not contend he was physically coerced-irito.talking. His version of the events leading to the tape varies from that.of the officer’s. Defendant states he had smoked marijuana-, prior to his arrest and was under the influence thereof. The Interviewing officer testified he saw no sign of the defendant being intoxicated in any respect. There are discrepancies between defendant’s and the officer’s versions as to when die Miranda warnings were given, but defendant admits a Miranda warning was given before.the tape was made. Defendant advised the officer that his guardian was his aunt. She was contacted, came to the juvenile facility where defendant was being held, and waived her presence in writing prior to the tape being made. There was evidence of defendant’s prior contact with the criminal justice system.
In determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible shall be on the prosecution, and the required proof is by a preponderance of the evidence. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, this court accepts that determination if it is supported by substantial competent evidence. State v. Perkins, 248 Kan. 760, 764, 811 P.2d 1142 (1991). See State v. Cady, 254 Kan. 393, 402-03, 867 P.2d 270 (1994); State v. William, 248 Kan. 389, 406, 409, 807 P.2d 1292, cert. denied 502 U.S. 837 (1991).
Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with die outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. State v. Johnson, 253 Kan. 75, 83-84, 853 P.2d 34 (1993). See State v. Ferguson, 254 Kan. 62, 83-86, 864 P.2d 693 (1993).
In addressing confessions made by juveniles, this court has stated:
“In State v. Young, 220 Kan. 541, 552 P.2d 905 (1976), we adopted a totality of the circumstances test for determining whether the confession of a juvenile is admissible, and held:
‘A confession is not inadmissible merely because the person making it is a juvenile. The age of the juvenile, the length of the questioning, the juvenile’s education, the juvenile’s prior experience with the police, and the juvenile’s mental state are all factors to be considered in determining the voluntariness and admissibility of a juvenile’s confession into evidence.’ Syl. ¶ 2.
‘Whether a confession was freely and voluntarily given is based upon a consideration of the totality of the circumstances, and where there is a genuine conflict in the evidence great reliance must be placed upon the finder of fact.’ Syl. ¶ 6.” State v. Hooks, 251 Kan. 755, 764, 840 P.2d 483 (1992).
The trial court held a full hearing on the admissibility of the tape. In making its ruling, the trial court reviewed the criteria to be applied as set forth in State v. Young, 220 Kan. 541, 552 P.2d 905 (1976). In making its ruling, the trial court stated, inter alia:
“ ‘Appellant’s use of drugs does not prevent the trial court from finding the confession had been freely and voluntarily given.’ [220 Kan. at 548.]
“Let’s see, there was some others, length of questioning is important; educational level is important; mental ability. Well, all of those things, I think, go to the totality of the circumstances and here the totality of the circumstances are that— and also Court’s listening to the tape, I think, bolsters these conclusions that defendant was lawfully and validly in custodial state, he was properly advised of his rights; the record is simply devoid of any evidence of coercion involved..... There are some examples given in this case where persons held in custody for hours, questioned by teams of police officers; when one team became tired another team took over and that sort of thing. We don’t have anything like that in this particular case. It’s simply, to me, the evidence is that defendant was properly advised of his rights; the police went to extra lengths of obtaining a person that was his guardian and that individual gave a, a non-coerced permission for the police to question the defendant. And we get back simply to the conclusion that the statement was voluntary and not coerced and Court would so find and that same would be admissible, assuming the other matters as to foundation, other relevancy, are adduced properly.”
The trial court heard the witnesses, including defendant, called at the suppression hearing. The trial court also heard the tape, something we have not had the opportunity to do by virtue of its absence from the record. The record presented supports the trial court’s determination that the statement was freely and voluntarily given, and we find no error in its admission into evidence.
For his second issue, defendant contends he is entitled to a new trial by virtue of the trial court’s questioning a juror in camera as to an anonymous telephone call.
On July 7, 1994, during the first full day of trial, the Shawnee County District Court Administrator’s office received an anony mous phone call left on the voice mail during the lunch break. The defendant, his attorney,, the State’s attorneys, and the administrative assistant from the court administrator’s office gathered in chambers after lunch. The trial court described the contents of the call as follows:
“Well, we are all assembled outside the presence of the jury for the purpose of considering an anonymous phone call received in the Court Administrator’s office which I think could be best described as a, a message which purports to tell us that, that one of the jurors, namely Deana Smith, has some sort of, apparently, telephonic business contact with persons or I guess she says members of the Gardner family in a business sense through her employment with the Kansas Building Trades, and we, in discussing it, thought maybe — and I think the word ‘Fund’ is mentioned, and it probably does relate to workmen’s compensation claims that the union, I guess, is processing in one way or another for employees at Gardner Floor.”
The judge then asked for suggestions as to how to proceed. The State suggested that no further inquiry needed to be made as there was no indication of juror misconduct given the questions that were asked during voir dire. The defense requested that the juror be struck and that an alternate juror be used. The State then suggested, because there was no actual misconduct on the part of this juror, that the court question the juror in chambers without the parties being present.
The judge then proposed that he talk with this juror in chambers and make a record of the conversation. Afterwards, the judge would have the record read back for the parties. All agreed that a recording of the phone call would not be played for the juror, but that a copy of the recording would be made for the record. Although neither party affirmatively agreed to the judge’s proposal, neither party objected to the plan. The court reviewed with the parties what questions he intended to ask the juror. The judge proposed that he tell the juror about receiving the phone call and that the call raised a question of whether or not she had communications with the Gardner family. He proposed to then discuss with the juror the content and context of those contacts if there were any.
After talking with the juror, the record of the conversation was read to the parties. The court asked for suggestions as to how to proceed. The State had no requests. Defense counsel stated, “Mr. High’s position would be the same.’’ The court found that any contact between this juror and the victim’s family was “extremely low level contact” and that the juror’s relationship with the Gardner family was “rather anonymous.” The court declined to strike the juror off the panel. There were no objections raised by either party at this time and the trial proceeded.
Defendant asserts on appeal that this ex parte communication with the juror violated his constitutional right to be present at all critical phases of the trial. Defendant argues that because he did not specifically waive this right, he is entitled to a new trial.
We have previously held that a conference between a trial judge and a juror is a critical stage of the trial to which a defendant has a constitutional right to be present. However, defendant’s failure to be present or to waive his appearance may constitute harmless error. ...
In Crease v. State, 252 Kan. 326, 845 P.2d 27 (1993), there was ex parte communication between the trial judge and one or more jurors who came into the judge’s chambers very upset about the difficulty of the deliberations. No court reporter was present. Immediately after repeating the previously given instructions to the jurors, admonishing them to put their questions in writing, and instructing them to continue to deliberate, the judge reported the contact to the attorneys involved in the case. Neither side requested a mistrial or substitution of jurors. Defendant was not present at this meeting.
This court first noted that “[t]here is no dispute that an ex parte communication between Judge Hodge and at least one juror occurred and that this communication violated Crease’s constitutional right to be present at all critical stages of the trial.” 252 Kan. at 333.
The trial court then stated:
“The question before us is whether this constitutional error requires reversal.
‘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 it was harmless beyond a reasonable doubt. [Citations omitted.] Thus, before we may declare the error harmless, we 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. [Citation omitted.]’ State v. White, 246 Kan. 28, 37, 785 P.2d 950, aff’d as modified 246 Kan. 393, 789 P.2d 1175 (1990).” 252 Kan. at 334.
It would be difficult to conceive of a matter requiring a conference between a trial judge and a juror involving a factual basis of less significance. An anonymous telephone caller advised there was a possible business contact between the victim’s family and the juror’s place of employment. The trial judge, in essence, conducted a sort of supplemental voir dire after consultation with both counsel in the presence of the defendant. No objection was voiced to the plan as stated by the trial court. No complaint was voiced when the record of the conference was read to the parties. No facts came out of the meeting which cast any doubt on the juror’s fitness to sit on the case. The trial court should have addressed the defendant personally as to whether he would waive his right to be present at the conference with the juror. The failure to do so was error. The facts of the ex parte conference herein involve a matter considerably less significant than shown in Crease. In that case, a juror, or jurors, were having problems reaching a verdict and application of the felony-murder rule. The actual verdict-reaching process was involved in Crease, but the error was held harmless.
We have absolutely no hesitancy in declaring, beyond a reasonable doubt, that the error had little, if any, likelihood of having changed the result of the trial.
For his final issue, defendant challenges the sufficiency of evidence supporting his conviction of first-degree murder and aggravated kidnapping. Approximately one page of the defendant’s brief is devoted to this issue, and it is difficult to state specifically in what respect the evidence is claimed to be insufficient as to each count. Defendant appears to be contending that Joe Johnson was the individual who decided to kidnap and kill Ms. Gardner and, as felony murder was not charged, this renders the evidence insufficient to support the conviction.
“ ‘If 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.’ ” State v. Timley, 255 Kan. 286, 307-08, 875 P.2d 242 (1994) (quoting State v. Grissom, 251 Kan. 851, Syl. ¶ 4, 840 P.2d 1142 [1992]).
It would appear that the statement defendant gave in New Jersey which was admitted into evidence was very incriminating. As previously noted, the tape was not included in the record. An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. State v. Richardson, 256 Kan. 69, 84, 883 P.2d 1107 (1994). We have no alternative but to assume defendant’s taped statement supports the convictions.
It is undisputed that Ms. Gardner was the victim of a brutal murder and aggravated kidnapping. Defendant and the two John-sons planned to take Ms. Gardner’s car from her by force. According to defendant’s trial testimony, the three talked about tying her up and leaving her in the woods. Defendant stated Joe Johnson said he would kill Gardner. Ms. Gardner knew defendant and the two Johnsons. If left alive, she could easily identify them as the individuals who took her car.
It is undisputed that defendant was present in the vehicle when the various attacks occurred and that he hit the victim with a gun and participated in her strangulation. Defendant drove the car after the victim was initially choked and placed in the back seat. Joe Johnson testified defendant was telling him to kill Gardner as he, Johnson, was choking her the second time. (She had survived the first strangulation attempt.) Defendant helped carry the victim’s body from the car.
We find no merit in defendant’s claim that the evidence is insufficient to support the convictions herein of first-degree murder and aggravated kidnapping.
The judgment is affirmed.
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Per Curiam:
This is an uncontested proceeding in discipline filed by the Disciplinary Administrator s office against Philip D. Gordon of Valley Falls, an attorney admitted to the practice of law in Kansas. The complaint filed against respondent alleged violation of Model Rules of Professional Conduct (MRPC) 1.1 (1995 Kan. Ct. R. Annot. 251) (competency); 1.2 (1995 Kan. Ct. R. Annot. 255) (representation of client); 1.3 (1995 Kan. Ct. R. Annot. 257) (diligence); 1.4 (1995 Kan. Ct. R. Annot. 263) (communication with client); 8.1 (1995 Kan. Ct. R. Annot. 338) (false material statement); and 8.4 (1995 Kan. Ct. R. Annot. 340) (misconduct); and Supreme Court Rule 207 (1995 Kan. Ct. R. Annot. 202) (grounds for discipline).
The facts may be summarized as follows. Christopher and Glenda Mills experienced financial problems which led them to consult with respondent in August 1992 relative to the possible institution of bankruptcy proceedings. Mr. Mills expressed a desire to retain his truck as it was his only means of transportation to and from work. On August 17, 1992, respondent filed a Chapter 13 bankruptcy on behalf of his clients. His representation was deficient in a number of respects. The hearing panel found:
“3. ... In connection with this fifing, Respondent was required to send out notice of the bankruptcy plan. Respondent failed to notice up the plan prompting the Bankruptcy Trustee, William Griffin, to send the notice.
“4. Subsequent to the bankruptcy fifing, Mr. Mills attempted, on several occasions, to contact Respondent. Mr. Mills was unsuccessful, due in large part to Respondent’s failure to return Mr. Mills’ telephone calls.
“5. On September 25, 1992, the Chapter 13 Bankruptcy Trustee moved to dismiss the Mills’ action because Respondent failed to provide income verification, failed to notice up the plan and failed to file an affidavit regarding Mrs. Mills’ failure to appear at a prior hearing. Respondent compounded these omissions by failing to appear at a hearing set to resolve these issues, leaving his clients, who did appear, without representation.
“6. On November 5,1992, the Bankruptcy Trustee forwarded correspondence to Respondent informing him of his clients’ appearance at the September 25, 1992 [hearing]. In this correspondence, the Trustee expressed his surprise at the Judge’s failure to dismiss the case. The Trustee admonished Respondent that if he failed to comply with the Rules of Procedure, he would move to disallow all attorneys fees and reset the first meeting of the creditors. The Trustee further indicated that he would move for appointment of other counsel to represent the Mills. Respondent acted with indifference.
“7. On November 9,1992, the Bankruptcy Judge ordered Respondent’s attorney fees reduced for failure to prepare notice of the plan.
“8. In February 1993, Columbia Savings Association, the institution holding the security interest in the Mills’ truck, filed a Motion and Memorandum for Relief from Stay. In its Motion, Columbia claimed that the Mills’ truck was uninsured, and, pursuant to Local Bankruptcy Rules, sought to take possession of the vehicle. Columbia, however, was mistaken. The Mills did have insurance on the vehicle. Unfortunately, Respondent failed to reply to Columbia’s Motion, failed to inspect the allegations of Columbia, and failed to communicate to his clients the allegations of Columbia. As a result of Respondent’s multiple failures, the Mills’ truck was foreclosed and repossessed. Mr. Mills relates that he drove the truck to work one day and at the end of his shift returned to the lot only to find his truck missing.
“9. In March of 1994, without consulting with his client, Respondent converted the Mills’ Chapter 13 Bankruptcy to Chapter 7. Prior to initiating this change, Respondent failed to explore alternatives to this conversion, failed to advise his clients of the conversion, and failed to explain to his clients the impact of the consequences of such an action. . . .
“12. Respondent’s mishandling of the Mills’ action continued throughout the Chapter 7 proceeding prompting Darcy D. Williamson, Chapter 7 Bankruptcy Trustee, to conduct her own inquiry. Ms. Williamson’s inquiry revealed that the Chapter 7 bankruptcy was being mishandled in much the same manner as the Chapter 13 bankruptcy. Consequently, Ms. Williamson contacted the Disciplinary Administrator’s Office.
"14. As a result of the acts and omissions of Respondent, the Mills terminated Respondent’s employment on March 31,1994. Shortly thereafter, the Disciplinary Administrator conducted an investigation. John R. Bullard headed the investigation. Mr. Bullard attempted to contact the Respondent by letter and by telephone. Mr. Bullard’s efforts were met with indifference. Respondent failed to contact Mr. Bullard and failed to cooperate in the investigation.
“15. Respondent’s indifference continued throughout this proceeding. Respondent, although duly noticed, failed to appear as requested and failed to file a timely Answer to the Complaint.”
The panel further found that respondent’s mishandling of the Mills’ proceeding caused the clients economic damage, as follows:
Loss of Kansas tax refund $ 180.00
Loss of federal tax refund 1,361.14
Loss of the vehicle 6,000.00
Additional attorney fees 500.00
Loss of opportunity to discharge medical expenses 700.00
Total $8,741.14
Based upon these findings of fact, the hearing panel then concluded that respondent was guilty of each of the charged violations of the MRPC and Supreme Court Rule 207.
The hearing panel’s report then makes the following analysis and recommendations:
“The Respondent has a record of prior discipline. The Respondent was indefinitely suspended from the practice of law in the State of Kansas effective December 8, 1995. [In re Gordon, 258 Kan. 784, 908 P.2d 169 (1995)]. The Respondent’s history, coupled with the separate instances of aggregated neglect revealed by the facts in this case, establishes an egregious pattern which warrants public discipline.
“The Respondent’s December 8, 1995, indefinite suspension was for the very sort of misconduct presented in this case. In fact, the misconduct presented in this case occurred during the same time period of the offenses which led to Respondent’s indefinite suspension. Given these considerations, Respondent has requested that this action be consolidated with the prior action.
“RECOMMENDED SANCTIONS
“The members of the panel, having found by clear and convincing evidence that the Respondent violated the Kansas Rules of Professional Conduct as set forth above and based upon our evaluation of the evidence in aggravation and mitigation, do hereby recommend that the Respondent be suspended indefinitely from the practice of law and that the reinstatement be contingent upon restitution to the Mills in the amount of $8,741.14.”
We hold that the findings and conclusions of the hearing panel are supported by clear and convincing evidence, with one exception. That exception is the $700 designated as loss of opportunity to discharge medical expenses. We concur that this case should be consolidated with the prior action filed December 8, 1995. We conclude, however, that the appropriate discipline is disbarment, which shall be deemed to have commenced on December 8,1995, for purposes of computing reinstatement eligibility under Supreme Court Rule 219(e) (1995 Kan. Ct. R. Annot. 229).
It Is Therefore Ordered that Philip D. Gordon be and he is hereby disciplined for violations of MRPC 1.1, 1.2, 1.3, 1.4, 8.1, and 8.4, and Supreme Court Rule 207.
It Is Further Ordered that Philip D. Gordon be and he is hereby disbarred from the practice of law in the State of Kansas, effective December 8, 1995, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Philip D. Gordon from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that Philip D. Gordon shall make restitution to the injured clients in the amount of $8,041.14, plus interest, prior to the filing of any petition for reinstatement pursuant to Supreme Court Rule 219.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to respondent, and that respondent shall comply with Supreme Court Rule 218 (1995 Kan. Ct. R. Annot. 222).
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The opinion of the court was delivered by
Larson, J.:
Edgar Banks appeals his jury convictions of first-degree murder, K.S.A. 21-3401, aggravated robbery, K.S.A. 21-3427, and unlawful possession of a firearm, K.S.A. 1994 Supp. 21-4204(b), contending his confession was unlawfully induced by a law enforcement promise and a mistrial should have been granted when the prosecutor improperly attempted to define reasonable doubt during closing arguments.
This case arises out of the robbery and shooting of Marcus Tucker on August 23,1994, outside the Paradox Club he co-owned in Kansas City, Kansas. He was killed by a single shot fired at close range.
The police found a black ball cap believed to be owned by Banks about 38 feet from Tucker’s body. Upon learning he was a suspect, Banks went to the police station and, after being properly Mirandized, confessed to the murder during an interrogation. He told police his gun accidentally discharged while he was attempting to rob Tucker. After the shooting, Banks said he used the $160 he obtained to buy drugs. The defense unsuccessfully sought the suppression of the confession.
Banks was tried along with Bernard Ingram, who was also accused in connection with the crime. At trial, Samuel Crumbles testified under immunity that he had talked to Banks and Ingram a few hours before the robbery. Banks had asked Crumbles for a pistol because he wanted to rob someone. Crumbles testified he gave Banks a gun he was holding for someone else.
Jeanetta Taylor testified she saw Banks and another man approach Tucker as he walked toward his car with a pouch under his arm. She saw Banks shoot Tucker, the other man take his pouch, and both run away.
Jerome Lewis testified he saw Banks and Ingram outside Tucker’s club. Banks told Lewis he had a gun. Banks told him to get the women Lewis was with away because he wanted to “take care of business.” Later, Lewis heard a shot and turned to see Tucker fall near Banks. Banks then ran away.
In closing argument, Banks’ counsel conceded that Banks’ gun had discharged during the course of a robbery, but argued the bullet that killed Tucker must have been fired by some unknown third person at the same time Banks’ gun accidently discharged.
The jury convicted Banks of all charges but was unable to reach a verdict against Ingram. Banks was sentenced to life imprisonment for the first-degree murder conviction, 51 months for the robbery conviction, and 9 months for the weapons violation, with the sentences to run consecutively. Banks appeals, raising three issues, which we will consider in order.
Did substantial competent evidence support the trial court’s decision not to suppress Banks’ confession on the basis it was involuntary because he was told his cooperation would be noted by the authorities?
The evidence before the trial court at the suppression hearing established the following circumstances surrounding Banks’ confession:
On August 25, 1994, Banks voluntarily came with his mother to the Detective Bureau in Kansas City, Kansas, after officers had mounted a search to locate him. Detective Michael Shomin and Detective Louis Jones interviewed Banks. The interview commenced with Shomin reading Banks his Miranda rights, which Banks, acknowledged he understood. Shomin testified he believed Banks did indeed understand his rights and was not then under the influence of drugs or alcohol. Shomin testified there were no threats, inducements, or coercions involved in obtaining Banks’ statement. At no time did Banks request an attorney.
Banks initially denied any knowledge or participation in the shooting of Tucker. Shomin then asked if Banks would consent to giving samples of hair, blood, and saliva. Banks asked why Shomin wanted the samples. Shomin told him that near the victim’s body, the police had found a black ball cap which Shomin wanted to test for hair or perspiration. Banks refused to give samples. He became nervous and apprehensive, and started asking questions about the ball cap.
Shomin told Banks he believed he had sufficient information from the police investigation to obtain a warrant for the samples and he would get such a warrant. He then left the room, asking another officer, Ron Kellogg, to sit with Banks while he obtained a warrant.
Kellogg testified that they engaged in no conversation for about 10 minutes, but when Banks looked at him, they began to converse about the victim. Banks repeatedly looked down, put his face in his hands, and at one point began crying.
Kellogg then suggested that he thought the ball cap found at the scene belonged to Banks, that it was being analyzed for hair fibers, that Shomin was getting a search warrant for Banks’ hair fibers, and that if the hair matched those from the ball cap, Banks had a problem. Kellogg then said, “The only thing that you can do is help yourself and it will be noted by the authorities that you did cooperate.”
Kellogg testified he promised Banks nothing in return for his statement and he had no authority to make any promises. Banks did not immediately respond, but looked down at his hands and started sobbing. When he looked back at Kellogg, Kellogg said, “Iggy, you were involved in that, weren’t you?” Banks responded, ‘Tes, sir.”
Kellogg then confirmed with Banks that Shomin had read him his rights, and he offered to repeat them, which Banks declined. Kellogg then asked, “Iggy, what was your involvement?” Banks replied, “I was the shooter.” Banks then told Kellogg more details of the crime and was very cooperative. Kellogg testified Banks appeared to be very intelligent and unimpaired by drugs or alcohol. He stated Banks never requested an attorney.
When Shomin returned with a warrant, Kellogg told him Banks had changed his statement and admitted that he shot Tucker. Shomin then took a recorded statement from Banks in which Banks admitted accidently shooting Tucker in the course of a robbery. Again, Banks was informed of his rights and stated he nevertheless wanted to give a voluntary statement. The statement began at 2:55 p.m., 3 hours and 18 minutes after the initial interview began. Banks said no one had made any threats or promises inducing him to give a statement and he was doing so of his own free will.
Prior to giving his statement, Banks did not indicate he wanted to leave, request anything to eat or drink, request an attorney, or ask to speak to his mother, who had come to the police station with him.
The facts as set forth above were developed in a Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), hearing before the Honorable David Lamar. Because of Judge Lamar’s untimely death, a transcript of the hearing was obtained, briefs submitted, and arguments made to Judge Daniel Duncan, who denied the motion to suppress and held that Banks had been timely advised of his rights before making the statement.
The admissibility of a criminal confession into evidence as an exception to the hearsay rule is set forth in K.S.A. 60-460, which states:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove fhé truth of the matter stated, is hearsay evidence and inadmissible except:
“(f) Confessions. In a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged, but only if the judge finds that the accused (1) when making the statement was conscious and was capable of understanding what the accused said and did and (2) was not induced to make the statement (A) under compulsion or by infliction or threats of infliction of suffering upon the accused or another, or by prolonged interrogation under such circumstances as to render the statement involuntary or (B) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same.”
In addition, “[t]he U.S. Constitution, under the Fifth Amendment, guarantees the accused the privilege against self-incrimination from statements that are not freely and voluntarily given or are given under the threat of force or compulsion.” State v. Waugh, 238 Kan. 537, 540, 712 P.2d 1243 (1986).
In State v. Waugh, Justice Lockett, citing State v. Soverns, 215 Kan. 775, 777, 529 P.2d 181 (1974), stated:
“Under the Fourteenth Amendment due process voluntariness test, a case-by-case evaluation approach is employed to determine whether coercion was impermissibly used in obtaining a confession. Coercion in obtaining a confession from an accused can be mental as well as physical. In determining the voluntariness of a confession of crime, the question in each case is whether the defendant’s will was overborne at the time of the confession; if so, the confession cannot be deemed the product of a rational intellect and a free will.” 238 Kan. at 541.
In State v. William, 248 Kan. 389, Syl. ¶¶ 11, 12, 807 P.2d 1292, cert. denied 502 U.S. 837 (1991), the rule was again set forth that the voluntariness of a confession is determined from the totality of the circumstances, with the burden of proving admissibility on the State by a preponderance of the evidence. William further held that when a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, this court should accept that determination if it is supported by substantial competent evidence. 248 Kan. 389, Syl. ¶ 13.
When, after a hearing, the trial court has determined the confession was voluntary, the appellate court will not reweigh the evidence. State v. Perkins, 248 Kap. 760, 765-66, 811 P.2d 1142 (1991).
In deciding whether the confession is a product of a rational intellect and free will, the question is whether such free will was overborne at the time of the confession. State v. Strauch, 239 Kan. 203, Syl. ¶ 3, 718 P.2d 613 (1986). The factors relevant in determining whether a statement is the product of the free and independent will of the accused include the accused’s mental condition, the duration and manner of interrogation, the ability of the accused on request to communicate with the outside world, the accused’s age, intellect, and background, and the fairness of officers in conducting the interrogation. State v. Cady, 254 Kan. 393, 404, 867 P.2d 270 (1994). A statement may be considered voluntary if the accused was not deprived of his free choice to admit, deny, or refuse to answer. State v. Zimmerman, 251 Kan. 54, 62, 833 P.2d 925 (1992).
Banks’ specific argument on appeal, that his confession was rendered involuntary because Kellogg stated “it will be noted by the authorities that you did cooperate,” is not persuasive.
In State v. Johnson, 253 Kan. 75, 853 P.2d 34 (1993), a finding of voluntariness was upheld on appeal when a law enforcement officer stated he would go to the district attorney and tell him if the person was cooperating. After reviewing the record, we found that the officer did not bargain with or promise Johnson anything either directly or by implication.
In State v. Harwick, 220 Kan. 572, 575-76, 552 P.2d 987 (1976), we held the mere offer to talk to the district attorney by the officer who interviewed the defendant does not make a confession involuntary. The Harwick opinion relied in part on People v. Hubbard, 55 Ill. 2d 142, 302 N.E. 2d 609 (1973), where the court decided the mere promise by a detective to inform the prosecuting attorney of the defendant’s cooperation did not render the defendant’s confession inadmissible.
In State v. Perkins, 248 Kan. 760, we held a law enforcement officer’s request for truth and statement that “a lot of it depends on the help that you [are] willing to put out for yourself” did not amount to an abuse of police authority, nor was it a threat or a promise. We viewed the officers actions as an attempt to calm an upset individual, which did not make the confession involuntary. We refused to reweigh the evidence supporting the trial court’s determination of voluntariness.
A similar situation exited in State v. Strauch, 239 Kan. at 211-13, where the use of a “good guy, bad guy” technique by two detectives who made no statements or promises was not deemed to be coercive or to render the confession involuntary.
In none of these cases were statements similar to those made by Kellogg found to be coercive or of such nature as to cause the accused to believe he would obtain any significant benefit in exchange for his statement. All of the substantial evidence in this case supports the trial court’s conclusion that Banks’ confession was voluntary.
Banks was 26 years old at the time of the statement. He appeared to be intelligent and unimpaired by drugs or alcohol. He was properly Mirandized and never requested an attorney, food, water, or any contact with any other person. The police interrogation lasted only slightly more than 3 hours, and Kellogg questioned Banks in a conversational tone without raising his voice. Kellogg testified that when Banks was asked whether his statement was given in exchange for any promises, Banks said, “No threats or promises were made to him.”
There was never any promise of a benefit sufficient to induce the confession. See State v. Brown, 217 Kan. 595, 602, 538 P.2d 631 (1975). In order to render a confession involuntary as a product of a promise of some benefit to the accused, including leniency, the promise must concern action to be taken by a public official, the promise must be such as would likely cause the accused to make a false statement to obtain the benefit of the promise, and the promise must be made by a person whom the accused reasonably believed to have the power or authority to execute it. State v. Norris, 244 Kan. 326, Syl. ¶ 6, 768 P.2d 296 (1989). There is absolutely no evidence of any such promise or benefit made in this case.
The trial court was not compelled to find the confession was involuntary just because it may have followed a statement by Kellogg that Banks’ cooperation would be noted by authorities. ..This statement is not of the type likely to induce a false confession. In addition, the fact that an investigator exhorts an accused to speak the truth or asks the accused to confess will not exclude the confession or cause it to be deemed involuntary. State v. Newfield, 229 Kan. 347, 359, 623 P.2d 1349 (1991).
Based upon our standard of review, we hold there was substantial competent evidence to support the trial court’s finding that the confession in this case was voluntary.
Did the trial court commit reversible error by refusing to grant a mistrial when Banks objected to the State’s attempt to define “reasonable doubt” in closing argumentP
In the State’s final closing argument, the following exchange took place:
“[MR. RUSSELL:] My burden is the burden that you must consider this case beyond a reasonable doubt. It is not beyond any doubt, it is not beyond the shadow of a doubt, it is beyond a reasonable doubt.
“Reasonable doubt means if you are going to say these men are not guilty of something, you have to give a reason for it.
“MR. DONHAM: Judge, can we approach?
“THE COURT: Come on up.
“MR. DONHAM: Judgé, I find it that very objectionable. What he essentially is characterizing is we have to present some sort of alternate proof in order for them to have a reasonable doubt in order to carry his burden. I move for a mistrial.
“THE COURT: It is also dangerous to start telling the jury what reasonable doubt means, because the legislature and the courts have said what reasonable doubt means, and nothing defines it better than the instructions. But everybody ought to be cautioned. It is too late to caution you fellows [the defense attorneys] but the State should be cautious. I am not going to sustain the objection at this time.”
This issue raises the question of whether the trial court abused its discretion in its refusal to grant a mistrial after the above statement. .
The first two sentences of the prosecutor’s statement were proper, but the last sentence, “Reasonable doubt means if you are going to say these men are not guilty of something, you have to give a reason for it,” was improper. Such, however, is not the basis for our decision. The issue we must decide is whether the, trial court erred in refusing to grant a mistrial based upon this one isolated statement. We hold that it did riot.
K.S.A. 22-3423(l)(c) authorizes the trial court to order a mistrial where “prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” Declaration of a mistrial is a matter entrusted to the trial court’s discretion and will not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Mayberry, 248 Kan. 369, Syl. ¶ 8, 807 P.2d 86 (1991).
“Judicial discretion is abused if judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only if no reasonable person would take the view adopted by the trial court. If reasonable persons could differ regarding the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion.” State v. Warden, 257 Kan. 94, 116, 891 P.2d 1074 (1995).
We cannot conclude that the trial court abused its discretion here or that reversal is otherwise required. The statement of which Banks complains was not a statement sanctioned by the court or included in the jury instructions, but was part of the State’s closing arguments. The trial court explicitly instructed the juiy as follows:
"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 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 made 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 made by the State, you should find the defendant guilty.”
It is true, as Banks argues, that this court has long held that a jury instruction defining reasonable doubt is unnecessary. See State v. Mack, 228 Kan. 83, 88, 612 P.2d 158 (1980); State v. Bridges, 29 Kan. 138, 141 (1882); PIK Crim. 3d 52.04 (“The Committee recommends that there be no separate instruction defining reasonable doubt.”). However, contrary to Banks’ argument, it has also long been held that the giving of such an instruction is not erroneous where the instruction is a restatement of judicially approved definitions. See State v. Johnson & Underwood, 230 Kan. 309, 311, 634 P.2d 1095 (1981); State v. Ling, 91 Kan. 647, 652, 138 Pac. 582 (1914). In addition, the instruction given to the jury by the court does not contain any alleged infirmity.
Banks further argues that the definition the prosecutor used improperly implies the juiy must find him guilty unless it is able to articulate a reason for finding him not guilty. We agree the prosecutor’s statement was improper; however, it does not require the court to declare a mistrial. When the prosecutor’s argument is considered in its entirety along with the language immediately preceding the objectionable sentence, the statements fully indicated a recognition that the burden of proof falls on and remains with the State.
The State’s attempt to justify the statement as being similar to ones approved in State v. Osbey, 213 Kan. 564, 572, 517 P.2d 141 (1973), and State v. Mae McLaughlin, 207 Kan. 584, 588, 485 P.2d 1352 (1971), is not persuasive. To the extent this court found it proper in Osbey and McLaughlin to define reasonable doubt as “such a doubt as a juror is able to give a reason for,” we specifically disapprove that language in those opinions.
The prosecutor’s argument was not so grossly and flagrantly improper as to prejudice the juiy against Banks and deny him a fair trial in light of all the other substantial and compelling evidence going directly to his guilt. See State v. McKessor, 246 Kan. 1, Syl. ¶ 7, 785 P.2d 1332, cert. denied 495 U.S. 937 (1990). We hold the trial court did not abuse its discretion in refusing to grant a mistrial.
Does the failure of the trial court to instruct the jury that evidence of Banks’ prior conviction was introduced for the limited purpose of establishing an element of the KS.A. 1994 Supp. 21-4204(a)(3) charge of unlawful possession of a firearm after imprisonment for a felony, in the absence of a request for such an instruction, constitute reversible error?
This court has recently considered whether the failure of a trial court to give a limiting instruction regarding evidence of a felony conviction constitutes reversible error. In State v. Denney, 258 Kan. 437, 441-446, 905 P.2d 657 (1995), we held that when evidence of a prior crime is introduced for the limited purpose of establishing an element of the current crime, and the defendant requests a limiting instruction, the trial court should give the instruction, under K.S.A. 60-406. However, we found the error in Denney to be harmless beyond a reasonable doubt in part because of the substantial compelling evidence of guilt.
In the case we now consider, Banks did not request a limiting instruction, and our situation is the same as in State v. Knowles, 209 Kan. 676, Syl. ¶ 3, 498 P.2d 40 (1972), where it was held: “Where proof of a previous conviction is an essential element of a crime charged, failure to give an instruction limiting the purpose for which such conviction may be considered is not reversible error in the absence of a request.” Here, no such request was made, and the rule of Knowles governs this issue. Banks’ argument is without merit.
Affirmed.
AllegrüCCI, J., concurs in the result.
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The opinion of the court was delivered by
McFarland, C.J.:
In these consolidated appeals, the State, on questions reserved, challenges the district court’s jurisdiction to modify sentences lawfully imposed under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 etseq., committing defendants to the custody of the Secretary of Corrections.
The two cases involve different procedural facts and will be considered separately. We shall first consider the appeal relative to Kenneth D. Douglas.
KENNETH D. DOUGLAS
On July 14,1995, Kenneth D. Douglas, whose crimes were committed on January 14, 1995, pled nolo contendere to two counts of aggravated indecent liberties, K.S.A. 21-3504(a)(3), a level 3 person felony. Having one prior misdemeanor, Douglas’ criminal history fell into category I. The presumptive sentence under the KSGA for his primary conviction was 46 to 51 months’ imprisonment. On August 9, 1995, Douglas filéd a motion for durational and dispositional departure from the presumptive sentence. On September 1, 1995, Douglas appeared for sentencing. After argument on the matter, the district court found no substantial and compelling reasons to depart from the presumptive sentence and sentenced Douglas to two concurrent terms of 46 months’ imprisonment.
On September 6, 1995, Douglas filed a motion for reconsideration. Douglas requested reconsideration of his sentence and offered the testimony of Dr. Howard Brodsky, Ph. D., who would assert that Douglas was not a pedophile.
On September 14, 1995, a hearing was held where the district court acknowledged that it had previously rejected Douglas’ motion for departure and sentenced him to imprisonment. Judge William Rustin then related the circumstances leading to Douglas’ motion to reconsider, stating that after Douglas’ sentencing, Douglas’ attorney had appeared in the judge’s office asking if there was “anything that [he] could have done or should have done to assist Mr. Douglas.” Judge Rustin told defense counsel that he “made a fine . . . thorough presentation,” and if he wanted to “come back the following week and talk to [him], he could.” Judge Rustin went on:
“I’ve thought about this over the holiday weekend, and I thought maybe under the circumstances I needed to review some things that I possibly had not reviewed totally, by — at the time of sentencing. I know Mr. Douglas told me that he’d had quite a problem with alcohol during the course of his life and had been dry for a certain period of time. Of course, we hear alcohol dependent problems up here quite a bit, just like drug dependent problems up here, and most of the time I’ll hear a person say Tve conquered that problem, I’ll be able to conquer it,’ and I think this is because they want to avoid any incarceration if they can, and a lot of them do that. But, I got into more of a question in my mind, and I went back over Dr. Brodsky’s reports. I think the largest question I had in my mind cropped up was .the wide range of people that Mr.. Douglas had confronted and had some problems with. Not only die children, but, I think, the fellow 24 years of age. I asked Bill if he wanted to pursue this, get ahold of the District Attorney’s Office and file a motion, and then get me something from Dr. Brodsky concerning whether or not his client, Mr. Douglas, would be classified as a pedophile.”
At the hearing, the State argued that, under the KSGA, the district court had no jurisdiction to change the sentence once it was imposed unless it had imposed an illegal sentence. The State also objected to any new post-sentencing information being considered by the court. Douglas argued that the district court retained jurisdiction until the defendant is actually “submitted to the custody of the .Secretary, of.Corrections.” Because that had not happened in this case, Douglas argued that the district court retained jurisdiction to reconsider the sentence imposed. The district court then granted defendant’s motion for reconsideration, and placed defendant on 5 years’ probation. The journal entry states that the court found “that a flexible reading of the Kansas Sentencing Guidelines Act would allow for reconsideration and allow the Court to reconsider and change its prior judgment.” The journal entry lists findings the court believed constituted the substantial and compelling reasons justifying the dispositional departure.
The district court found that it had jurisdiction to modify a lawful KSGA sentence of imprisonment. The propriety of that determination is the issue before us.
The State argues that KSGA has eliminated the whole sentence modification process available under the pre-KSGA sentencing scheme. Therefore, the State argues the district court was without jurisdiction to modify its lawful September Í, 1995, sentencing. Douglas does not contend that KSGA authorizes motions to modify. Rather, defendant. argues: (1) under the “unique circumstances” herein, the change in the sentence was not really a modification; (2) the district court has jurisdiction to reconsider departure issues so long as the defendant has not been physically delivered to the custody of the Secretary of Corrections; and (3) the court may reconsider its decision on departure issues so long as the journal entry of the hearing has not been filed prior to the filing of the motion for reconsideration.
This issue concerns the interpretation of the KSGA. Statutory interpretation is a question of law, and the appellate court’s scope of review is unlimited. State v. Riley, 259 Kan. 774, Syl. ¶ 1, 915 P.2d 774 (1996); State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996).
“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). See State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994).
However, if the statute is ambiguous, the fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs if that intent can be ascertained. Gonzales, 255 Kan. at 248-49. “ In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested.’ ” Gonzales, 255 Kan. at 249.
“ ‘Our criminal statutes are to be construed strictly against the State.’ ” State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993).
The statutory pre-KSGA sentence modification process has been continued as to dispositions for crimes committed prior to July 1, 1993, in K.S.A. 21-4603, which provides:
“(d)(1) Except when an appeal is taken and determined adversely to the defendant as provided in subsection (d)(2), at any time within 120 days after a sentence is imposed, after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment to a community correctional services program by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits and shall modify such sentence if recommended by the Topeka correctional facility unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification.
(2) If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals.
“(e) The court shall modify the sentence at any time before the expiration thereof when such modification is recommended by the secretary of corrections unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification. The court shall have the power to impose a less severe penalty upon the inmate, including the power to reduce the minimum below the statutory limit on the minimum term prescribed for the crime of which the inmate has been convicted. The recommendation of the secretary of corrections, the hearing on the recommendation and the order of modification shall be made in open court. Notice of the recommendation of modification of sentence and the time and place of the hearing thereon shall be given by the inmate, or by the inmate’s legal counsel, at least 21 days prior to the hearing to the county or district attorney of the county where the inmate was convicted. After receipt of such notice and at least 14 days prior to the hearing, the county or district attorney shall give notice of the recommendation of modification of sentence and the time and place of the hearing thereon to any victim of the inmate’s crime who is alive and whose address is known to the county or district attorney or, if the victim is deceased, to the victim’s next of kin if the next of kin’s address is known to the county or district attorney. Proof of service of each notice required to be given by this subsection shall be filed with the court.”
The comparablé statute for crimes committed on or after July 1, 1993, K.S.A. 21-4603d, makes no mention of and does not provide for sentence modification.
Departure from a presumptive KSGA sentence is provided for in K.S.A. 21-4701 et seq. The sentencing judge is required to impose the presumptive sentence, unless the judge finds substantial and compelling reasons to depart. K.S.A. 21-4716; K.S.A. 21-4717. Motions to depart may be filed by the State or the defendant. Once such a motion is filed, the district court shall hold a hearing to consider imposition of a departure sentence. K.S.A. 21-4718(a)(l). After the conclusion of the hearing, or within 20 days thereafter, the court shall issue findings of fact and conclusions of law regarding the issues submitted by the parties and shall enter an appropriate order. K.S.A. 21-4718(a)(2). The court may also decide to depart on its own volition by notifying the parties of such intent. K.S.A. 21-4718(b). Whenever the court imposes a sentence that deviates from the presumptive sentence, the court is required to make findings of fact as to the reasons for departure. K.S.A. 21-4718(c).
Although both the State and the defendant may appeal a departure sentence, no provisions are made for modifying a sentence that has already been imposed. That this elimination of the court’s authority to modify was intentional is supported by the Kansas Sentencing Guidelines Desk Reference Manual, p. 2 (1993) (“the court will no longer be asked to consider motions to modify sentences within 120 days of their imposition”); by the Legislative Interim Study of the Special Committee on the Judiciary, p. 102 (1993) (“[t]he bill eliminates a judge’s ability to sentence people to prison and then call them back after 120 days”); by the Legislative Interim Study of the Criminal Law Advisory Committee, p. 158 (1992) (“major recommendations by the Kansas Sentencing Commission include . . . the repeal of the 120-day call back provision”); and by the Kansas Sentencing Guidelines Act Implementation Manual, p. i-7 (1992) (“statute which allows sentences to be modified within 120 days is repealed”).
The Kansas Court of Appeals has determined a similar issue in State v. Bost, 21 Kan. App. 2d 560, 903 P.2d 160 (1995).
In Bost, the defendant pled nolo contendere to robbery charges. A subsequent PSI report indicated the appropriate criminal history and crime severity level. On March 28, 1994, the defendant was sentenced to the presumptive sentence. After the sentencing hearing, Bost filed a motion for modification of sentence and/or downward departure. Following a hearing, the motion was denied and, on July 28, 1994, Bost appealed his sentence.
In dismissing Bost’s appeal, the Court of Appeals stated:
“Effect on jurisdiction of a motion to modify/depart
“Neither party addressed in their briefs, although requested by this court, whether a motion for departure is timely after the court has rendered sentence or whether a district court has jurisdiction to consider a motion to modify for a crime committed after July 1, 1993. Because these issues are significant and jurisdictional, the court will raise and consider them on its own initiative.
“ ‘It is the duty of an appellate court to raise the question of jurisdiction on its own motion, and where the district court had no jurisdiction, the appellate court does not acquire jurisdiction over the subject matter on appeal.’ City of Overland Park v. Barron, 234 Kan. 522, Syl. ¶ 1, 672 P.2d 1100 (1983).
“ ‘ “This court has only such appellate jurisdiction as is provided by law. Jurisdiction to entertain an appeal is conferred by statute pursuant to article 3, § 3 of the Constitution of Kansas, and when the record discloses a lack of jurisdiction it is the duty of this court to dismiss the appeal.” [Citations omitted.]’ State v. Ortiz, 230 Kan. at 735.
“Motion to modify
“For crimes committed before July 1, 1993, the court’s authority to modify a defendant’s sentence came under K.S.A. 1992 Supp. 21-4603(4)(a). In conjunction with K.S.A. 21-4601, the Kansas courts allowed a defendant, under K.S.A. 1992 Supp. 21-4603(4), the opportunity to have his or her sentence modified when a motion was filed within the statutory 120-day period following the imposition of sentence. State v. Saft, 244 Kan. 517, 519, 769 P.2d 675 (1989).
“However, with the implementation of the sentencing guidelines, the legislature established a separate statute to cover authorized dispositions of crimes committed on or after July 1, 1993. K.S.A. 1994 Supp. 21-4603d. There are no provisions in K.S.A. 1994 Supp. 21-4603d which grant a defendant the right to file a motion requesting the court to modify his or her sentence. The legislature has revoked the ability to have one’s sentence modified after sentencing.
“A sentencing court has the ability to adjust, alter, or change guidelines-computed sentences prior to sentencing. Generally, once a defendant’s placement on the sentencing guidelines grid has been determined, the defendant can attempt to ‘modify’ the presumptive sentence by utilizing the nonexclusive fist of mitigating factors found in K.S.A. 1994 Supp. 21-4716(b)(l). The State, by the same reasoning, can attempt to ‘modify’ the presumptive sentence by utilizing the nonexclusive list of aggravating factors found in K.S.A. 1994 Supp. 21-4716(b)(2). The court has the final decision on whether the factors submitted by the defendant or the State are substantial and compelling reasons to impose a departure. K.S.A. 1994 Supp. 21-4716(a). The motion for a departure sentence is the method for sentence modification for crimes committed after July 1, 1993.
“The previous holdings concerning the timing for filing a notice of appeal under K.S.A. 1994 Supp. 22-3608 are consistent with the legislature’s elimination of allowing post-sentencing motions to modify. K.S.A. 1994 Supp. 22-3608(c) no longer provides that a motion to modify extends the time to file a notice of appeal, whereas earlier, a defendant had 10 days from the denial of a motion to modify in which to file a notice of appeal. K.S.A. 22-3608(1); see State v. Ji, 255 Kan. 101, 103, 872 P.2d 748 (1994). A defendant whose crime was committed on or after July 1, 1993, has only 10 days from sentencing in which to appeal, without any consideration or mention of a motion to modify. K.S.A. 1994 Supp. 22-3608(c).
“The district court was without the authority to entertain Bost’s motion to modify his sentence.
“Downward Departure
“The KSGA does not expressly state that a motion for departure must be filed prior to sentencing. However, provisions of the KSGA provide that the disposition of a departure sentence must be resolved prior to or at the sentencing hearing. K.S.A. 1994 Supp. 21-4718(a) provides that if a defendant or the State files a motion to depart, the court shall hold a hearing to consider a departure sentence. Additionally, the hearing shall be scheduled so that both parties have adequate time to prepare to argue for or against departure, and the court must issue findings of fact and conclusions of law concerning the departure within 20 days of the hearing. K.S.A. 1994 Supp. 21-4718(a)(l) and (2).
“K.S.A. 1994 Supp. 21-4716(a) expressly determines the timing of a motion for a departure sentence. It states in part: ‘If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.’ (Emphasis added.) There is no authority for a sentencing court to entertain a motion for departure from the presumptive sentence after sentence is imposed.
“The district court was without the authority to entertain Bost’s request for a downward departure." (Emphasis in original.) 21 Kan. App. 2d at 564-66.
Appeals of departure sentences and post-sentencing matters are addressed in K.S.A. 21-4721. A departure sentence is subject to appeal. K.S.A. 21-4721(a). An appellate court may not review a sentence that is within the presumptive sentence for the crime or any sentence resulting from an agreement between the State and the defendant which the sentencing court approves on the record. K.S.A. 21-4721(c). On appeal, the review of a departure sentence is limited to whether the sentencing court’s findings of fact and reasons justifying a departure are supported by the evidence in the record and whether these findings constitute substantial and compelling reasons for departure. K.S.A. 21-4721(d). Further, in any appeal, the appellate court may review a claim that the departure sentence resulted from partiality, prejudice, oppression, or corrupt motive, or that there was an error in computing criminal history or crime severity level. K.S.A. 21-4721(e). Finally, “[t]he sentencing court shall retain authority irrespective of any notice of appeal for 90 days after entry of judgment of conviction to modify its judgment and sentence to correct any arithmetic or clerical errors.” (Emphasis added.) K.S.A. 21-4721(i).
Douglas relies on several additional statutes to support his position. Douglas contends that K.S.A. 1995 Supp. 75-5218 and K.S.A. 21-4718 imply that the sentencing court has continuing jurisdiction between the time sentence is pronounced and the time the order on the departure motion is issued. Because the motion to reconsider was filed within- that' time, the Subsequent decision to depart was proper.
K.S.A. 21-4718(a)(2) states:- “At .the conclusion of the [departure] hearing or within 20 days .thereafter, , the court shall issue findings of fact and conclusions of .law regarding the issues submitted by the parties, and shall enter an appropriate order.” K.S.A. 1995 Supp. 75-5218(a) states: “When any person is sentenced to the custody of the secretary of corrections . ... ., the clerk of the court which imposed such sentence shall within three days following the order of the commitment to the secretary notify the secretary of corrections.” This statute has not been amended since the KSGA was enacted.
Despite defendant’s arguments to the contrary, nothing in these .statutes affords a district court continuing jurisdiction after a sentencing proceeding is concludéfi. Additionally, in a criminal case, the court’s judgment and sentence do nof derive their effectiveness from the journal entry or from any act of the clerk; they are effective when pronounced. State v. Royse, 252 Kan. 394, 397, 845 P.2d 44 (1993).
We agree with the Court of Appeals analysis in State v. Bost, 21 Kan. App. 2d 560. 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. 21-472l(i). Likewise, there is no jurisdiction for a sentencing court to consider or reconsider possible sentence departure from the presumptive sentence after the sentence has been imposed and the sentencing proceeding hás been concluded. Defendant’s contention that the sentencing court has jurisdiction to modify until the defendant is in" the actual physical custody of the Secretary of Corrections has ño statutory support and is inconsistent with the elimination of the court’s'statutory power of sentence modification. " •
We conclude the district court’s modified sentence of September' 14, 1995, and" findings relative to departure are void for lack of jurisdiction and must be reversed. The'case is remanded to the district court to reiñstate its original'sentence of September 1, 1995. .
TACQUELINE M. MILLER
Jacqueline M. Miller, whose crime was committed on November 13,1993, pled guilty to one count of forgery, K.S.A. 21-3710(a)(2), a level 8 nonperson felony. With a criminal history in category I, Miller s sentence was presumptive nonprison. On May 12, 1994, Miller was sentenced to 7 months’ imprisonment and placed on probation for 24 months, pursuant to the sentencing procedures in K.S.A. 21-4704(e)(3).
On May 10,1995, Miller, before the district court for a probation violation hearing, stipulated to the alleged violations. The court revoked Miller’s probation and immediately reinstated it under slightly modified conditions, moving her from one treatment facility to another.
On July 24,1995, a warrant was again filed by the State, alleging Miller violated the conditions of her probation. On August 3,1995, at a hearing on the matter, Miller stipulated to the probation violations and Judge Dan Brooks revoked her probation, committing Miller to the custody of the Secretary of Corrections for serving her 7-month term of imprisonment, and concluded the proceeding. The journal entry of Miller’s probation revocation was filed August 10, 1995. On August 9, 1995, Miller filed a motion for rehearing, seeking an order reinstating Miller’s probation.
On September 1, 1995, a hearing was held on this motion. The State objected to the hearing on jurisdictional grounds, arguing that the district court was, in effect, modifying Miller’s sentence and that there was no provision in the KSGA for modification. Rejecting the State’s arguments, the district court noted that it had received “new information in the form of mental health things” that it believed were “significant enough to have [Miller’s attorney] file a motion [for rehearing].” It was because of this new information that the district court canceled its August 3 order and reinstated Miller’s probation.
Miller’s probation was again revoked on February 22,1996, after the commencement of this appeal. She was sentenced to the custody of the Secretary of Corrections to serve the 7-month sentence. Based upon the amount of credit given on the sentence and state ments made at oral argument, it would appear Ms. Miller has served her time and has been discharged.
The State argues that when the court revoked Miller’s probation and sentenced her to the custody of the Secretary of Corrections, the court had no jurisdiction to modify the commitment under KSGA. The basis for the argument is the same asserted in the Douglas case.
Miller argues this was strictly a probation matter. She asserts that the KSGA has not changed the purpose and function of probation. Absent specific statutory changes to the statutes relative to probation, Miller argues that there is no indication that the legislature intended to remove the district court’s discretionary powers concerning probation. Therefore, Miller concludes, the district court continues to have jurisdiction over probation proceedings and may revoke, reinstate, or reconsider probation decisions.
She argues the State did not object when her probation was revoked in May 1995 and immediately reinstated and should not be permitted to complain when the same thing occurred in August 1995. This argument points out, however, the differences between the two proceedings. The journal entiy on the May proceeding reflects the following occurred:
“2.4 That on the 6th day of March, 1995, a warrant alleging the defendant violated the conditions of probation was filed.
“2.5 That the defendant stipulates to violating conditions of probation as follows: Explain: As charged in the warrant.
“2.6 That the Court does hereby revoke the defendant’s probation and reinstates the probation under the same conditions with the following modified conditions:
Remain in Women’s Recovery Services until placement at Miracle House halfway house is available, then reside there and follow all rules and regulations.
[2.7 omitted in the original.]
“2.8 Other: If Women’s Recovery Services can no longer keep defendant, she may five with stepmother.” (Emphasis supplied.)
The journal entry relative to the August 3, 1995, proceeding states the following occurred:
“2.4 That on the 24th day of July, 1995, a warrant alleging the defendant violated the conditions of probation was filed.
“2.5 That the defendant stipulates to violating conditions of probation as follows: Explain: Defendant admits violations as alleged in the warrant.
“2.6 That the Court does hereby revoke the defendant’s probation and orders that the defendant be committed to the Secretary of Corrections to begin serving the original sentence(s) imposed on the 12th day of May, 1994.
For purposes of computing time as provided in K.S.A. 21-4614, the sentence^) as imposed shall be considered to have begun on the 8th day of May, 1995, giving the defendant credit for 87 day(s) spent incarcerated.
“2.7 It is hereby the order of the Court that the Sheriff or a designee transport the defendant to the custody of the Secretary of Corrections.
“2.8 Other: The sentence imposed in this case shall run concurrendy with Case Nos. 93TR13664 and 95TR1359.” (Emphasis supplied.}
The May 1995 hearing was, throughout, a probation proceeding. Miller’s probation ended by revocation on August 3,1995, and she was committed to the custody of the Secretary of Corrections. The question then becomes, as in Douglas’ case, whether the sentencing court had jurisdiction to modify a lawful KSGA sentence committing Miller to the custody of the Secretary of Corrections.
The district court could, on August 3, 1995, have revoked and reinstated probation. The district court could, on August 3, 1995, have taken the matter under advisement if it felt additional information was needed. It did not choose to do so. It revoked probation, committed Miller to the custody of the Secretary of Corrections, and concluded the proceedings.
We have previously held in the Douglas appeal herein that where a sentencing court imposes a lawful KSGA sentence committing a defendant to the custody of the Secretary of Corrections, the court has no jurisdiction to modify the sentence. There is no statutory authority supporting the proposition that a different result should be reached if the defendant so committed had been revoked from probation prior to being committed. We find no merit in Miller’s arguments.
The district court lacked jurisdiction to reinstate Miller’s probation on September 1, 1995, after committing her to the custody of the Secretary of Corrections on August 3, 1995. Inasmuch as Miller has served her sentence by virtue of a subsequent revocation proceeding, there is no reason to remand the case.
CONCLUSION
STATE v. DOUGLAS
The State’s appeal is sustained, the district court’s modified sentence of September 14, 1995, is vacated, and the case is remanded for reinstatement of the original September 1, 1995, sentence.
STATE v. MILLER
The State’s appeal is sustained; the district court’s September 1, 1995, modification of sentence was erroneous, but the matter is now moot and no remand is necessary.
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The opinion of the court was delivered by
Larson, J.:
The Kansas Workers Compensation Fund (Fund) appeals a Workers Compensation Board (Board) ruling that a notice the Fund was being impleaded which was transmitted to the Commissioner of Insurance (Commissioner) by telefax 52 minutes prior to the first hearing in the case is sufficient to implead the Fund under K.S.A. 44-567(d).
The Administrative Law Judge (ALJ) and the Board both held the Fund was properly impleaded so as to subject it to liability.
Because the Fund contends an untimely and improper action in its impleading, and the respondent and insurance carrier contend this appeal is not timely filed, we will set forth in detail the chronological development of this case.
Thunna Jean Jones claimed workers compensation benefits for injuries to her left shoulder and arm resulting from repeated lifting in the course of her employment with Continental Can Company. The case was placed on the active docket in September 1993; a prehearing settlement conference was held in November 1993; and in January 1994, the ALJ ordered that Jones be examined by independent expert Lynn D. Ketchum, M.D., whose evaluation was submitted in March 1994. The evaluation noted Jones had a shoulder injury that had previously been rated and concluded her disability rating was 18% permanent partial impairment of the left upper extremity at the level of the wrist.
The first evidentiary hearing was set for April 5, 1994. Continental Can and its insurance carrier, Aetna Life & Casualty Company, impleaded the Commissioner as administrator of the Fund by serving the Commissioner with copies of its impleader petition by telefax sent at 2:08 p.m. on April 5,-1994. The first full hearing where evidence was introduced was conducted at 3 p.m. on that date, and testimony of Jones was taken. The Fund did not appear, nor was it represented, although counsel for respondent and insurance carrier told the court: “Just for purposes of clarification of the record, if the Fund lawyer needs to come back and take additional evidence in this case, Mrs. Jones’ depositions can be rescheduled at her convenience to do that.”
In response to an April 22, 1994, letter from Jones’ counsel, Dr. Ketchum stated for the first time in the record that a connection existed between the current wrist injury and the prior shoulder injury by opining, “It is my feeling that the current weakness that she has is significantly related to that first accident and that her second injury would probably not occur but for the pre-existing impairment which does not relate to the shoulder, but to the arm.”
On May 6, 1994, the Fund attempted to obtain its dismissal, arguing the notice of impleader was defective because it was untimely and that notice by fax was unauthorized. On May 10, 1994, the ALJ denied the Fund’s motion but continued the case to allow an appeal to the Board.
The Fund’s appeal to the Board resulted in a July 14, 1994, determination by the Board that it lacked jurisdiction to review the denial of the Fund’s motion to dismiss because the appeal was interlocutory.
At a July 8, 1994, hearing the ALJ approved a settlement negotiated between Jones and Continental Can. The respondent, its insurer, and the Fund stipulated the settlement was reasonable and reserved the apportionment of the award as an issue to be resolved.
Counsel for both Fund and respondent were present when the deposition of Dr. Ketchum was taken in November 1994. This resulted in a determination on February 17, 1995, by the ALJ that the Fund had been properly impleaded in conformity with governing law and was totally responsible for Jones’ award.
The Fund appealed to the Board. The Board, in an order dated, filed, and mailed to all interested parties on September 29, 1995, held the notice of impleader complied with the technical requirements of K.S.A. 44-567(d) but, because the Fund had not been given a reasonable opportunity to be heard and present evidence as K.S.A. 44-523 requires, the evidence presented at the April 5, 1994, hearing was deemed to be inadmissible as related to issues involving the Fund’s liability. Nevertheless, the Board affirmed the ALJ’s finding that the Fund was 100 percent liable based on the deposition of Dr. Ketchum, which had been taken long after the Fund was impleaded.
The Fund filed a notice of appeal from the Board’s September 29, 1995, order on November 1, 1995. The notice of appeal acknowledged the Board’s order was mailed to all parties on September 29, 1995, and stated: “With three days added for service by mail, the deadline for filing a notice of appeal is November 1,1995, and this notice of appeal is accordingly timely filed.”
The respondent and insurance carrier moved for involuntary dismissal of the appeal, contending it was untimely because it was not filed within 30 days of the date of the Board’s final order as required by K.S.A. Í995 Supp. 44-556(a).
The Fund responded bv-contending it was entitled to the benefit of the “three-day mailing rule” under Supreme Court Rules 1.05(c) (1995 Kan. Ct. R. Annot. 5) and 9.04(c) (1995 Kan. Ct. R. Annot. 56), and the application of K.S.A. 1995 Supp. 60-206(a) and (e).
We must first answer the difficult question of our jurisdiction to hear this appeal. It is our longstanding rule that “the right to appeal is entirely statutory' and not a right vested in the United States or Kansas Constitutions; Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by the applicable statutes.” Little Balkans Foundation, Inc., v. Kansas Racing Comm’n, 247 Kan. 180, 188, 795 P.2d 368 (1990); Tobin Constr. Co. v. Kemp, 239 Kan. 430, 437, 721 P.2d 278 (1986).
The resolution of this issue involves the interpretation of statutes, w'hich is a question of law' upon w'hich our appellate review is unlimited. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
The Board fully complied with its statutory obligation when it rendered its decision that was dated and mailed on September 29, 1995. The mailing to all interested parties was in compliance with K.S.A. 1995 Supp. 44-555c(k), which provides in part: “The board shall mail a copy of the final order of the board to all parties to the proceeding within three days following the issuance of the final order.”
Once the Board had acted, any party which wished to appeal its decision was then obligated to follow the provisions of K.S.A. 1995 Supp. 44-556(a), which provides in applicable part:
“Any action of the board pursuant to the workers compensation act, other than the disposition of appeals of preliminary orders or awards under K.S.A. 44-534a and amendments thereto, shall be subject to review in accordance with the act for judicial review and civil enforcement of agency actions by appeal directly to the court of appeals. Any part)' may appeal from a final order of the board by filing an appeal with the court of appeals within 30 days of the date of the final order. Such review shall be upon questions of law.”
As has been previously stated, the Fund obviously recognized that its appeal was not filed within 30 days from the date of the Board’s order and it attempted to invoke 3 additional days within which to file its appeal as a result of the Board’s mailing of its decision to all interested parties.
This jurisdictional issue was raised by the motion of respondent and insurance carrier to dismiss the appeal for failure of the notice to be filed within 30 days “of the date of the final order.” They claimed the 3 additional days arise only under Chapter 60 actions, particularly K.S.A. 60-2103(a), where the appeal is to be taken within “30 days from the entry of the judgment.” Respondent and insurance carrier pointed out there is an obvious difference between the entry of a judgment and the date of an order.
In addition, respondent and insurance carrier argued that even if K.S.A. 60-2103(a) is modified by K.S.A. 60-206(e), the modifying language applied only to Chapter 60 actions. K.S.A. 60-206(e) states:
“Additional time after service btj mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served upon such party by mail, three days shall be added to the prescribed period.”
Respondent and insurance carrier concluded that since there is no comparable section in Chapter 44 of the Kansas Statutes Anno tated, the 3 days should not be added to the appeal time, and the appeal should be dismissed.
The Fund responded with the contention that the 3-day mailing rule applies to all appeals because Supreme Court Rule 9.04(c), adopted July 28, 1995, which relates to workers compensation, states: “(c) All other procedures and matters not provided for in this order shall be governed by the Supreme Court rules relating to appellate practice and appellate statutes.” This, the Fund contended causes appellate procedure relating to workers compensation cases to be governed by our rules and requires us to consider Supreme Court Rule 1.05(c) (1995 Kan. Ct. R. Annot. 5), which provides: “The computation of time in the appellate courts shall follow K.S.A. 60-206(a) and (e).” Because K.S.A. 60-206(e) is referred to by the rule, the Fund contends that its provision which requires 3 days to be added to the prescribed period applies, and 3 additional days must be allowed in this instance.
The Fund further invokes Danes v. St. David’s Episcopal Church, 242 Kan. 822, 827, 752 P.2d 653 (1988), for the rule that the mailing of an entry of judgment extends the time for post-judgment motions and appeal by 3 days.
These contentions bring into focus the question of whether the specific language in the workers compensation statute requiring an appeal to be within 30 days of the date of the final order can be extended by the application of a Supreme Court rule. This is a question of first impression which will govern all subsequent appeals from the Board.
Although this is the first case to come before this court involving the timeliness of filing an appeal from the order of the Board since it was established July 1, 1993, we have a long history of appeals involving our Workers Compensation Act to which we must look in resolving this issue.
In the 1927 Workers Compensation Act, the legislature provided the right to appeal from the decisions of the commission to the district court by filing a notice of appeal with the commission within 20 days of the ruling appealed from. L. 1927, ch. 232, § 42. In Norman v. Consolidated Cement Co., 127 Kan. 643, 645, 274 Pac. 233 (1929), we held the Kansas Supreme Court lacked juris diction to hear an appeal from a district court decision under this statute. Our opinion explicitly rejected using the ordinary rules of civil procedure to determine when an appeal could be taken:
“We are not warranted in borrowing rules and methods from the civil code not included in the act itself, methods prescribed for ordinary civil actions which the legislature for obvious reasons was seeking to avoid, and for which it provides a substitute. . . . More than that, the legislature had under consideration the subject of review of the findings and awards of the commission, and it provided for a limited review in the district court. Having dealt with the subject of appeals, it is inferable that no different or other appeal was intended to be given by the legislature.” 127 Kan. at 649.
In response to Norman, in 1929, the legislature amended R. S. 1923 44-556 (1927 Supp.) to permit appeals to the Supreme Court by filing a notice of appeal with the clerk of the district court within 20 days of the district court’s order. L. 1929, ch. 206, § 1. Nevertheless, the rule of Norman persisted that the Workers Compensation Act stands alone and is not supplemented by the civil code. See Willis v. Skelly Oil Co., 135 Kan. 543, 545, 11 P.2d 980 (1932).
In Brower v. Sedgwick County Comm’rs, 142 Kan. 7, 45 P.2d 835 (1935), Justice Dawson granted a motion to dismiss relying on R.S. 1923 44-556 (1933 Supp.), which provided that in workers compensation cases, an appeal to the Supreme Court from the district court must be taken and perfected by the filing of a written notice of appeal with the clerk of the district court within 20 days of the final order. Justice Dawson stated: “Since the formal requirements of an appeal can be perfected in a workman’s compensation case in five minutes’ time, the giving of twenty days’ time is generous to the ultimate degree, and this court need have no hesitancy in enforcing it. Indeed we have no jurisdiction to entertain an appeal which is filed too late.” 142 Kan. at 8.
This rule was applied in numerous cases similar to the present one where the parties sought to extend the time for an appeal beyond the then 20 days allotted under 44-556 by applying rules applicable in civil cases generally. See Dunn v. Kuhlman Diecasting Co., 203 Kan. 670, 455 P.2d 536 (1969); Gray v. Hercules Powder Co., 160 Kan. 767, 165 P.2d 447 (1946); Ferguson v. Palmolive-Peet Co., 129 Kan. 516, 283 Pac. 508 (1930).
Although the wording of 44-556 relating to taking an appeal changed many times over the years, the provisions prescribing the 20-day limitation for filing a notice of appeal remained consistent until 1979. See L. 1955, ch. 250, §.10; L. 1961, ch. 243, § 5; L. 1967, ch. 281, § 1; L. 1970, ch. 190, § 9; L. 1974, ch. 203, § 42; L. 1976, ch. 145, § 197; L. 1977, ch. 109, § 29.
In 1979, the time prescribed by the legislature within which to take a workers compensation appeal changed significantly. The legislature mandated that:
“[a]ny party to the proceedings may appeal from any findings or order of the district courts to the appellate courts on questions of law. . . . Such appeal shall be taken and perfected by the filing of a written notice of appeal with the clerk of the district court within thirty (30) days after the filing of the entry of judgment as provided in K.S.A. 60-258 and amendments thereto. . . . Appeals pursuant to this subsection shall be prosecuted in like manner as other appeals in civil cases, and shall take precedence over other cases except cases of like character.” L. 1979, ch. 158, § 1; K.S.A. 1979 Supp. 44-556(c).
In Dieter v. Lawrence Paper Co., 237 Kan. 139, 697 P.2d 1300 (1985), we held that changing the appellate procedure in K.S.A. 1979 Supp. 44-556 to refer to K.S.A. 60-258 had the effect of reversing our longstanding doctrine that the Code of Civil Procedure could not be imported into workers compensation statutes.
Justice Prager, writing for a unanimous court, pointed out that prior to the 1979 amendments to 44-556(c), we held in numerous cases that the Workers Compensation Act is complete in itself and may not be supplemented by borrowing from the Code of Civil Procedure. 237 Kan. at 141. After referring to those portions of the 1979 amendments to 44-556(c), previously set forth herein, he opined that “the 1979 amendments to 44-556(c) had the effect of making the procedural provisions of the Kansas Code of Civil Procedure pertaining to entry of judgment, post-judgment motions, and appeals applicable to workers’ compensation appeals pending in the district court to the same extent as they are applied in other types of civil cases.” 237 Kan. at 143. Hensley v. Carl Graham Glass, 226 Kan. 256, 597 P.2d 641 (1979), was referred to as stating the purpose of the 1979 amendments to 44-556(c) was to conform the time of appeal in workers compensation cases to that in other civil actions under K.S.A. 60-258 and K.S.A. 60-2103. 237 Kan. at 142.
Had the development of the Workers Compensation Act stopped with the 1979 amendments, clearly under the Dieter decision, the Fund would have the benefit of the 3-day mailing rule of K.S.A. 60-206(e). However, in 1986 and again in 1993, the statute was amended in significant ways.
In 1986, all provisions dealing with appellate review were altered so that the review would be in accordance with the newly enacted Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 etseq. L. 1986, ch. 318, § 57. The specific provisions are set forth in K.S.A. 44-556(a) (Ensley 1986), which reads in applicable part as follows: “Any action of the director pursuant to the workmen’s compensation act shall be subject to review in accordance with the act for judicial review and civil enforcement of agency actions.”
The time requirement for filing a notice of appeal in the Workers Compensation Act was eliminated and the time requirement of the Act for Judicial Review and Enforcement of Agency Actions (K.S.A. 77-613) appears to have been substituted in its place. This also brings into focus the provision of K.S.A. 77-623 which states that “[djecisions on petitions for judicial review of agency action are reviewable by the appellate courts as in other civil cases.”
K.S.A. 1986 Supp. 77-613 stated that it is “[s]ubject to other requirements of this act or of another statute,” but set forth in (d) that “[wjhenever a party has the right or is required to do some act or take some proceedings within a prescribed period after service of an order, pleading or other matter and it is served by mail, three days shall be added to the prescribed period.” Thus, because at this point no other statute had another time requirement and the 3-day mailing period of 77-613(d) was identical to the one set forth in 60-206(e), the additional 3 days in which to file an appeal existed between 1986 and 1993.
In 1993, however, things changed again. The legislature added back into 44-556(a) a time requirement for the filing of a notice of appeal when it stated:
“Any action of the board pursuant to the workers compensation act . . . shall be subject to review in accordance with the act for judicial review and civil enforcement of agency actions by appeal directly to the court of appeals. Any party may appeal from a final order of the board by filing an appeal with the court of appeals within 30 days of the date of the final order. ” (Emphasis added.) L. 1993; ch. 286, § 58.
Although this provision in the Workers Compensation Act limits the. time of filing an appeal to 30 days from the final order of the Board, it also states that review shall be in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions. With the district courts of this state now no longer involved in workers compensation cases, the appeal from the Board is directly to the Court of Appeals.
It is at this point that the wording of K.S.A. 77-613 is critical, for it states that the time limits for filing therein are “[sjubject to other requirements of this act or of another statute.” It is clear that the appeal time set forth in K.S.A. 1995 Supp. 44-556 is “another statute.” The directive wording of K.S.A. 1995 Supp. 44-556 does not allow for the 3-day mailing rule of either K.S.A. 1995 Supp. 77-613(d) or K.S.A. 60-206(e).
It is our longstanding rule that a specific statute, such as one applying to appeals of workers compensation cases, prevails over a general statute unless it appears the legislature intended to make the general statute controlling. State v. Williams, 250 Kan. 730, Syl. ¶ 1, 829 P.2d 892 (1992).
Additionally, older statutes like K.S.A. 77-613 are subordinate to new enactments like K.S.A. 1995 Supp. 44-556, as the newer statute is the later expression of the legislative intent and so will control if there is a possible conflict between the two. State v. Sexton, 232 Kan 539, 543, 657 P.2d 43 (1983). Moreover, the legislature is presumed to have changed the operation of appellate procedure by revising the law in 1993. See Hughes v. Inland Container Corp. 247 Kan. 407, 414, 799 P.2d 1011 (1990). Such a change would be accomplished only if the 30-day time limit to appeal provided for in K.S.A. 44-556(a) was intended to substitute for the period provided for in K.S.A. 77-613 and render it inapplicable.
It is therefore apparent that we are back to the same position we were prior to 1979. The Workers Compensation Act provides its own time limit for appeal without reference to Chapter 60 and in preemption of K.S.A. 1995 Supp. 77-613. The statutory basis for applying the provisions of the Code of Civil Procedure to workers compensation appeals was removed by the legislature. This leads us to a strict application of the wording of K.S.A. 1995 Supp. 44-556(a) and the dismissal of this appeal as untimely.
Having gone the full circle in the wake of the many legislative changes, we are back to the clear statement and rule of Bushman Construction Co. v. Schumacher, 187 Kan. 359, 362, 356 P.2d 869 (1960), which states:
“Our decisions are replete that the Workmen’s Compensation Act undertook to cover every phase of the right to compensation and of the procedure for obtaining it, which is substantial, complete and exclusive, and we must look to the procedure of the act for the methods of its administration. Rules and methods provided by the code of civil procedure not included in the act itself are not available in determining rights thereunder.”
Such a result is consistent with the rule that where a statute provides for an appeal, the appeal is governed by that statute rather than general statutes concerning the right to an appeal. Clay Township v. Pebley, 207 Kan. 59, 64, 483 P.2d 1101 (1971).
We are unable to expand our jurisdiction by applying Supreme Court Rule 9.04(c), dealing with workers compensation cases, which states broadly: “All other procedures and matters not provided for in this order shall be governed by the Supreme Court rules relating to appellate practice and applicable statutes.” Although this might logically lead us to Supreme Court Rule 1.05(c), which states: “The computation of time in the appellate courts shall follow K.S.A. 60-206(a) and (e),” it is improper for us to expand a clearly stated statutory period within which an appeal must be filed by the use of our procedural rules.
Jurisdictional considerations prohibit using Supreme Court Rule 1.05(c) to apply the 3-day mailing rule of K.S.A. 60-206(e) here. Rule 1.05 applies to petitions and papers required and regulated by other Supreme Court Rules, not to those required and regulated by statute. The time limits imposed by Supreme Court Rules are not jurisdictional and can be waived. See In re Lakeview Gardens, Inc., 227 Kan. 161, 167, 605 P.2d 576 (1980) (failure to timely pay docket fee and timely designate record not jurisdictional where no prejudice exists); Crumpacker v. Crumpacker, 239 Kan. 183, 184, 718 P.2d 295 (1986) (time limits for serving and filing briefs not jurisdictional).
This is not true of the time limits for filing a notice of appeal imposed by statute. Giles v. Russell, 222 Kan. 629, 632, 567 P.2d 845 (1977), clearly held that absent compliance with the statutory rule, we have the duty to dismiss the appeal. The effect of allowing a court rule to expand the time within which to file a notice of appeal by applying K.S.A. 60-206(e) in a workers compensation case would be to expand our jurisdiction. Yet, it is fundamental that jurisdiction is controlled by statute and an appeal can only be perfected if taken within the time limitations and in the manner provided by the applicable statutes. Resolution Trust Corp. v. Bopp, 251 Kan. 539, 541, 836 P.2d 1142 (1992).
We would violate the separation of powers doctrine if we were to use a court rule to expand our own jurisdiction by allowing more time in workers compensation cases to file a notice of appeal than the legislature has provided by statute in Chapter 44. See Brinson v. School District, 223 Kan. 465, Syl. ¶ 1, 576 P.2d 602 (1978) (scope of appellate right lies within legislative domain); Materi v. Spurrier, 192 Kan. 291, 292, 387 P.2d 221 (1963) (under Kan. Const, art. 3, § 3 appellate jurisdiction only that conferred by statute). Further, National Bank of Topeka v. State, 146 Kan. 97, 99-100, 68 P.2d 1076, (1937), sets forth a longstanding rule that an appellate court cannot'expand or assume jurisdiction where a statute does not provide for it. The Supreme Court’s power to promulgate rules is limited to rales necessary to implement the court’s constitutional and statutory authority and does not include the power to expand that authority. See Kan. Const, art. 3, §§ 1, 3; K.S.A. 20-321.
We cannot utilize court rules to expand our jurisdiction. We will apply the specific limitation of the time in which to file an appeal set forth in K.S.A. 1995 Supp. 44-556(a), which at this time in Kansas history requires appeals from decisions of the Board to be filed within 30 days from the date of the final order. This was not done in this case.
The appeal is dismissed.
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the defendant, Brian K. Little-john, from the denial of his motion to determine status, nunc pro tunc. In 1981, Littlejohn participated in a robbery. The robbery victim was killed during the course of the robbery. Littlejohn was convicted of attempted aggravated robbery and first-degree felony murder. These convictions were affirmed by this court in an unpublished opinion filed in 1982. Littlejohn also filed a motion for a new trial, which was denied, and the denial was affirmed in State v. Littlejohn, 236 Kan. 497, 694 P.2d 403 (1984).
In this case, Littlejohn requested that the journal entry of his convictions be altered to indicate, in accordance with K.S.A. 21-4620(a)(2)(C), that he had only been convicted as an aider or abettor, not as a principal, in the 1981 case. The trial court denied this motion based on State v. Thomas, 239 Kan. 457, 720 P.2d 1059 (1986).
Littlejohn concedes that for him to be successful on appeal, this court must overrule or modify State v. Thomas. Interestingly enough, Thomas’ convictions and appeal arose out of the same attempted robbery and murder as Littlejohn’s convictions. It ap pears to be without question that Thomas is the one who fired the fatal shots during the attempted robbery.
In Thomas, Justice Lockett, writing for the court, held: “In a felony-murder case, evidence of who die triggerman [was] is irrelevant and all participants are principals.” 239 Kan. at 462 (citing State v. Myrick & Nelms, 228 Kan. 406, 416, 616 P.2d 1066 [1980]). He went on to say that even though Thomas may have fired the fatal shots, “a participant in a felony murder cannot be an aider [or] abettor.” 239 Kan. at 462.
In summary, this court held in the Thomas case that a participant in a felony murder cannot be an aider or abettor and should not be identified as a aider or abettor on a judgment form.
We decline to reverse or modify our holding in State v. Thomas.
Affirmed.
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The opinion of the court was delivered by
Abbott, J.:
The plaintiffs, Jeffrey W. and Jason K. Shirley, brought this action to recover damages for sexual abuse allegedly perpetrated on them while they were minors by Robert J. Reif, who was a Roman Catholic priest at the time. Also named as a defendant is the Bishop of the Roman Catholic Diocese of Salina. The suit against the Bishop is based on a claim of vicarious liability for Reif’s improper conduct and a claim that the Bishop negligently retained and supervised Reif as an employee/priest with knowledge of Reif’s sexual proclivities. This action was filed on February 17, 1995.
Relying on Swartz v. Swartz, 20 Kan. App. 2d 704, 894 P.2d 209 (1995), the trial court granted summary judgment to the defendants, finding that plaintiffs’ claims were barred by K.S.A. 60-515(a) and could not be revived by K-S-A. 60-523. The plaintiffs appealed this ruling to the Court of Appeals, and the case was transferred to this court.
Jeffrey and Jason Shirley are brothers who are 26 and 24 years old, respectively. Jeffrey was bom November 15, 1969, and Jason was bom March 25, 1972.
Robert J. Reif is a former Roman Catholic priest who was a spiritual advisor to the Shirley family from the early 1970s to 1986. The Shirley brothers allege that from 1975 to 1986, Reif subjected them to sexual abuse and molestation. Based on this conduct, the Shirley brothers brought five causes of action against Reif: childhood sexual abuse, assault, battery, intentional infliction of emotional distress, and invasion of privacy.
George K. Fitzsimons is the Bishop of the Roman Catholic Diocese of Salina and is named in the suit ás a representative party for the defendant class comprised of certain employees, members, agencies, instrumentalities, and related corporations of the Roman Catholic Diocese of Salina, an unincorporated religious association. In their petition, the plaintiffs allege that the Bishop supervised and had the right to control the assignments of priests. The plaintiffs contend that the Bishop and Diocese of Salma were aware of Reif’s sexual proclivities and failed to adequately supervise Reif or warn the Shirley family of Reif’s proclivities. Thus, the Shirley brothers brought a claim against the Bishop, as a representative party of the Diocese of Salina, based on vicarious liability for all of Reif’s alleged improper conduct and based on the Bishop’s own acts of alleged negligent retention and supervision of an employee/ priest.
This case centers on three statutes — K.S.A. 60-513, 60-515 and 60-523.
K.S.A. 60-513 provides in pertinent part:
"(a) The following actions shall be brought within two 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), the causes of action listed 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.”
K.S.A. 60-515 provides in pertinent part:
“(a) Effect. Except as provided in K.S.A. 60-523, if any person entitled to bring an action, other than for the recovery of real property or a penalty or a forfeiture, at the time the cause of action accrued or at any time during the period the statute of limitations is running, is less than 18 years of age, an incapacitated person or imprisoned for a term less than such person’s natural life, such person shall be entitled to bring such action within one year after the person’s disability is removed, except that no such action shall be commenced by or on behalf of any person under the disability more than eight years after the time of the act giving rise to the cause of action." (Emphasis added.)
K.S.A. 60-523 provides:
“(a) No action for recovery of damages suffered as a result of childhood sexual abuse shall be commenced more than three years after the date the person attains 18 years of age or more than three years from the date the person discovers or reasonably should have discovered that the injury or illness was caused by childhood sexual abuse, whichever occurs later.
“(b) As used in this section:
(1) ‘Injury or illness’ includes psychological injury or illness, whether or not accompanied by physical injury or illness.
(2) ‘Childhood sexual abuse’ includes any act committed against the person which act occurred when the person was under the age of 18 years and which act would have been a violation of any of the following:
(A) Indecent liberties with a child as defined in K.S.A. 21-3503 and amendments thereto; (B) aggravated indecent liberties with a child as .defined in K.S.A. 21-3504 and amendments thereto; (C) aggravated criminal sodomy as defined in K.S.A. 21-3506 and amendments thereto; (D) enticement of a child as defined in K.S.A. 21-3509 and amendments thereto; (E) indecent solicitation of a child as defined in K.S.A. 21-3510 and amendments thereto; (F) aggravated indecent solicitation of a child as defined in K.S.A. 21-3511 and amendments thereto; (G) sexual exploitation of a child as defined in-K.S.A. 21-3516 and amendments thereto; or (H) aggravated incest as defined in K.S.A. 21-3603 and amendments thereto; or any prior laws of this state of similar effect at the time the act was committed.
“(c) Discovery that the injury or illness was caused by childhood sexual abuse shall not be deemed to have occurred solely by virtue of the person’s awareness, knowledge or memory of the acts of abuse. The person need not establish which act in a series of continuing sexual abuse incidents caused the injury or illness complained of, but may compute the date of discovery from the date of discovery of the last act by the same perpetrator which is a part of a common scheme or plan of sexual abuse.
“(d) This section shall be applicable to:
(1) Any action commenced on or after July 1,1992, including any action which would be barred by application of the period of limitation applicable prior to July 1, 1992.’’ (Emphasis added.)
In order to understand the issue in this case, an understanding of the distinction between statutes of limitations and statutes of repose is necessary.
“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.” Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992).
The plaintiffs allege that the Diocese became aware of Reif’s alleged sexual proclivities in 1980. Both parties agree that the last act of alleged sexual abuse would have occurred in 1986. In late 1987, the plaintiffs’ parents contacted the Bishop and informed him of their allegations that Reif had sexually abused their .sons. On April 9, 1988, the plaintiffs’ father made a settlement offer to the Diocese. On May 4, 1988, the plaintiffs’ parents entered into a nonbinding monetary settlement with the Diocese. The plaintiffs began receiving treatment and therapy at approximately this time. The plaintiffs claim that they, as opposed to their parents, did not reasonably ascertain their injuries or the cause of their injuries until late 1993 for Jeffrey and 1994 for Jason. Thus, the plaintiffs contend that their causes of action did not accrue until 1993 and 1994. As such, the plaintiffs assert that they timely filed their claims for childhood sexual abuse, assault, battery, outrage, invasion of privacy, and negligent retention and supervision on February 17, 1995.
Typically, under current statutory law, a childhood sexual abuse claim is based on K.S.A. 60-523, which allows a plaintiff to recover damages suffered as a result of childhood sexual abuse if the action is commenced within 3 years after the date the plaintiff discovers or reasonably should have discovered that the injury or illness was caused by childhood.sexual abuse. K.S.A. 60-523 does not have a statute of repose, and the statute provides an extremely broad definition of discovery. Thus, the plaintiffs contend that they discovered their injuries were caused by childhood sexual abuse in late 1993 (for Jeffrey) and 1994 (for Jason). If this statute applies, then the plaintiffs timely filed their actions within 3 years of “discovery.”
On the other hand, the Bishop contends that all of the alleged conduct which is the subject of these actions occurred while the plaintiffs were subject to the legal disability of minority. As the Bishop points out, the last possible act giving rise to these causes of action occurred in 1986 while the plaintiffs were still minors. The Bishop also asserts that the plaintiffs should have reasonably ascertained their injuries while they were minors. Thus, the Bishop contends that all of the plaintiffs’ causes of action accrued while the plaintiffs were still minors. As such, the Bishop asserts that K.S.A. 60-515 governs all of the plaintiffs’ causes of action. K.S.A. 60-515(a) tolls a time bar for causes of actions which accrue while a plaintiff is a minor until 1 year after the plaintiff’s disability of minority is removed and the plaintiff turns 18. The statute also provides an 8-year limitation period from the date of a defendant’s act in which a plaintiff must file suit.
If K.S.A. 60-515(a) applied to the plaintiffs’ claims, its 8-year time limitation would have begun to run on the date of the defendant’s act. Since the last act giving rise to any cause of action occurred in 1986, the 8-year time limitation under K.S.A. 60-515(a) would have begun to run at this time. The 8-year time limitation under K.S.A. 60-515(a) would have expired in 1994. Further, if 60-515(a) applies to the plaintiffs’ claims, its 1-year time limitation would have begun to run when the plaintiffs turned 18. This time limitation would have expired in 1988 for Jeffrey and in 1991 for Jason. Despite the expiration of the 8-year and 1-year time limitations under 60-515(a), the plaintiffs did not file their claims until 1995. Based on this late filing date, the Bishop filed a motion for summary judgment contending that plaintiffs’ claims were “barred by the statute of limitations and the [Constitutions of the State of Kansas and the United States.” At the summary judgment hearing, the plaintiffs argued that 60-515(a) did not apply to them because their claims did not accrue until they were no longer minors. The plaintiffs also argued that if 60-515(a) applied to and barred their claims, then their dead claims had been revived by K.S.A. 60-523. The Bishop argued that the plaintiffs’ claims were already barred by K.S.A. 60-515(a) before 60-523 was enacted in 1992. Thus, the Bishop contended that the plaintiffs’ claims could'not be revived by K.S.A. 60-523 without violating the constitution. Defendant Reif also filed a motion for summary judgment, raising the same arguments.
The trial court granted the defendants’ motions for summary judgment.
“The burden on the party seeking summary judgment is a strict one. 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. Summary judgment is appropriate when the pleadings, depositions, answers to inter rogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
“Summary judgment is proper where the only question or questions presented are questions of law.' [Citation omitted.] Fletcher v. Nelson, 20 Kan. App. 2d 602, 890 P.2d 1228 (1993); Bradley v. Board of Butler County Commrs, 20 Kan. App. 2d 602, 890 P.2d 1228 (1995).”
The plaintiffs concede that their parents may have reasonably ascertained the plaintiffs’ injuries in late 1987, while the plaintiffs were both minors,. The plaintiffs point out, though, that 60-515(a) only applies to a plaintiff’s claim .if the plaintiff hi ms elf reasonably ascertains the injury and the action accrues while the plaintiff is a minor. The plaintiffs argue that they, as opposed to their parents, did not reasonably ascertain their injuries or the cause of their, injuries while they were minors. According to the plaintiffs, they did not reasonably ascertain their injuries or the cause of their injuries until late 1993 for Jeffrey, when he was 24, and 1994 for Jason, when he was 21 years old. Thus, the plaintiffs contend that their causes of action did not accrue until after they were no longer minors. As such, .the plaintiffs contend that- 60-515(a) does not apply to. their claims. Instead, the plaintiffs assert that 60-513, with its 10-year .statute of repose and 2-year statute of limitations, applies to their claims." Under this statute, the plaintiffs’ claims would be timely filed. ..
The plaintiffs .point out that the .issues of whether an injury is. reasonably ascertainable and when a cause of action has accrued are fact questions for the jury to determine. Gilger v. Lee Constr., Inc., 249 Kan. 307, 820 P.2d 390 (1991). The plaintiffs assert that this material question of fact, the date their injuries were reasonably ascertainable, is in. dispute. As such, the plaintiffs argue that this fact should have been resolved in their favor. See Mitzner v. State Dept. of SRS, 257 Kan. at 260-61. (“The trial court is required to resolve all. facts and inferences which may be reasonably drawn from the evidence in favor-of the party against whom [a summary judgment] ruling is sought.”) The trial court did not resolve this fact in favor of the plaintiffs. Instead, the trial court found the causes of action accrued while they were minors and applied 60-515(a) to the plaintiffs’ claims. Based on the trial court’s improper assumption of fact, the plaintiffs contend that summary judgment was improperly granted against them.
Plaintiffs further contend that even if the trial court properly found as a matter of law that their injuries were reasonably ascertainable and that their actions accrued while they were minors, the trial court still improperly granted summary judgment because it misapplied and misinterpreted Swartz, 20 Kan. App. 2d 704.
In Swartz, the plaintiff, an adult daughter, sued her mother and adoptive father for damages arising out of childhood sexual abuse perpetrated by the plaintiff’s adoptive father. The plaintiff was bom on November 18, 1968. According to the plaintiff, her adoptive father sexually abused her between November 8, 1979, and September 27, 1982, when she was between 11 and 14 years of age. The plaintiff also alleged that her mother failed to properly supervise her during this time period. The plaintiff filed her petition on November 9, 1993, when she was 24. The petition alleged that the defendants were liable for negligence regarding the sexual abuse, for negligent infliction of emotional distress, and for civil conspiracy to commit sexual abuse. 20 Kan. App. 2d at 705.
The trial court found and the Court of Appeals agreed that the plaintiff reasonably ascertained her injuries and the cause of her injuries while she was under 18. Thus, the plaintiff’s causes of action accrued while the plaintiff was a minor. As such, K.S.A. 60-515(a) applied to all of the plaintiff’s claims. K.S.A. 60-515(a) tolled the statute of limitations while the plaintiff was a minor, but required the plaintiff to file her claims within 1 year after reaching tiie age of 18. The plaintiff turned 18 in 1986. Thus, the plaintiff’s causes of action were barred in 1987 by the 1-year time limitation in K.S.A. 60-515(a). K.S.A. 60-515(a) also bars all claims which are commenced 8 years after the time of the act giving rise to the cause of action. According to the trial court, the last act of the defendants giving rise to the plaintiff’s cause of action occurred in 1982. Thus, the plaintiff’s causes of action were barred in 1990 under the 8-year time limitation in K.S.A. 60-515(a). 20 Kan. App. 2d at 705-06.
The plaintiff in Swartz did not file her action until 1993. According to the plaintiff, her causes of action, which were barred under 60-515(a), became revived in 1992 when K.S.A. 60-523 was enacted. The plaintiff asserted that K.S.A. 60-523 gave her 3 years from the revival of her claims in 1992 to file her suit. Thus, the plaintiff contended that she timely filed her case in 1993. In response, the defendant in Swartz alleged that K.S.A. 60-523 improperly attempted to revive the plaintiff’s causes of action which were barred by 60-515(a).
Quoting this court, the Court of Appeals stated in Swartz:
“ ‘The legislature has the power to revive actions barred by a statute of limitations if it specifically expresses its intent to do so through retroactive application of a new law. The legislature cannot revive a cause of action barred by a statute of repose, as such action would constitute the taking of property without due process.’ ” 20 Kan. App. 2d at 708 (quoting Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 831 P.2d 958 [1992]).
Based on this rule, the Swartz court attempted to determine whether 60-515(a) is a statute of limitations which may be validly revived or a statute of repose which may not be properly revived. In analyzing this issue, the Court of Appeals found that K.S.A. 60-515(a) “abolishes the cause of action after the eight-year period even though the action may not have yet accrued.” 20 Kan. App. 2d at 708. Thus, the Court of Appeals found that K.S.A. 60-515(a) is a statute of repose. As such, die Swartz court found that K.S.A. 60-515(a), a substantive statute of repose, barred the plaintiff’s claim prior to the effective date of K.S.A. 60-523. Hence, K.S.A. 60-523 could not properly revive the plaintiff’s dead claims without disturbing the defendant’s vested rights in the time bar defense, thereby taking the defendant’s property without prior notice and violating the defendant’s due process rights.
In the present action, the trial court found that the plaintiffs’ causes of action accrued while the plaintiffs were minors. Thus, the trial court ruled that 60-515(a) applied to all of the plaintiffs’ causes of action. Under 60-515(a), the plaintiffs in this case had until 1 year after their 18th birthdays to file their claims. Thus, Jeffrey’s claims were barred in 1988 by the 1-year time limitation in 60-515(a), and Jason’s claims were barred in 1991 by the 1-year time limitation in 60-515(a). K.S.A. 60-515(a) also required that the plaintiffs’ causes of action be filed within 8 years of the act giving rise to the cause of action. According to both parties, the last act of alleged sexual abuse giving rise to the cause of action occurred in 1986. Thus, both plaintiffs’ claims were barred in 1994 by the 8-year limitation period in K.S.A. 60-515(a). Relying on Swartz, the trial court found the plaintiffs’ claims were barred prior to the 1992 enactment of 60-523 by 60-515(a), a substantive statute of repose. Thus, the trial court found that the plaintiff’s barred claims could not be validly revived by 60-523.
We hold the trial court read Swartz too broadly. When the Swartz court used the “statute of repose” language, it was merely referring to the 8-year limitation period in 60-515(a). The Swartz court was not referring to the 1-year limitation period found in 60-515(a), which requires minors to file all claims which accrue during minority within 1 year after turning 18, when it ruled that 60-515(a) was a statute of repose. The 1-year time period in K.S.A. 60-515(a) is a statute of limitations, while the 8-year time period in K.S.A. 60-515(a) is a statute of repose.
This conclusion is consistent with the definitions provided for statutes of limitations and statutes of repose in Swartz and Harding. For instance, the requirement in 60-515(a) that a minor must file a claim which accrued during minority within 1 year after turning 18 “extinguishes the right to prosecute an accrued cause of action after a period of time.” Harding, 250 Kan. 655, Syl. ¶ 5. This limitation cuts off a remedy. Thus, the 1-year time limitation is a procedural statute of limitations. On the other hand, the 8-year time limitation found in 60-515(a), which bars a suit commenced 8 years after the act giving rise to the cause of action, “runs from an act of [the] defendant” and “abolishes the cause of action after the passage of time [8 years] even though a cause of action may not yet have accrued.” Harding, 250 Kan. 655, Syl. ¶ 6. Thus, the 8-year requirement in 60-515(a) is a substantive statute of repose.
Our conclusion that the 1-year time period in 60-515(a) is a statute of limitations and the 8-year time period in 60-515(a) is a statute of repose is not only supported by the definitions in Harding but is also supported by the holding of Harding. Harding found that the 2-year time limitation in 60-513(a), which is analogous to the 1-year limit in 60-515(a), is a statute of limitation. Harding also held that the 10-year time limit in 60-513(b), which is analogous to the 8-year time limit found in is 60-515(a), is a statute of repose. 250 Kan. at 669. There is only one real difference between the time limitations in this case and the time limitations in Harding. In Harding, the 2-year statute of limitations is provided in one subsection of the statute, 60-513(a), while the 10-year statute of repose is provided in a different subsection of the statute, 60-513(b), whereas in this case, the 1-year time limitation and the 8-year time limitation are provided in the same subsection of the statute, 60- 515(a). This technical difference between 60-515 and 60-513 is not enough to justify interpreting the statutes differently. This court is not precluded from recognizing the 1-year time limitation as a statute of limitations and the 8-year time limitation as a statute of repose simply because the two time limitations occur in the same subsection of 60-515.
Next, Swartz needs to be clarified as to when a claim must be barred by a statute of repose so as to preclude its later revival by 60-523. The issue is not whether the plaintiffs’ actions were barred by a statute of repose in 1995 when they filed the suit, but if the plaintiffs’ actions were barred by a statute of repose in 1992 when 60-523 was enacted. The revival of any dead claim would occur upon the enactment of K.S.A. 60-523 in 1992, not upon the filing of a 60-523 suit in 1995. If a claim is barred by a statute of repose in 1992, then a defendant has substantive rights in this defense. This defense cannot be removed and the claim cannot be revived by 60-523 in 1992 without taking the defendant’s property and without violating the defendant’s due process rights. On the other hand, if the claim is alive in 1992 or merely barred by a procedural statute of limitations in 1992, then a defendant does not have any vested, substantive rights in the time bar defense. As such, K.S.A. 60-523 can retroactively apply upon its enactment and revive the claim in 1992, even though the claim is barred by a statute of limitations, without violating due process.
Further, the statute of repose that may have applied to a claim in 1992, which was running but not yet expired, could be removed altogether by a revival statute without violating due process. This is because in 1992, the defendant would not have any vested right in the nonexpired statute of repose- under 60-515(a). Thus; if a plaintiff’s claim is merely barred by a statute of limitations in 1992, then the claim can be properly revived in 1992'. Once the dead claim under 60-515(a) is revived by 60-523, the plaintiff has a brand new statute under which to bring the suit — K.S.A. 60-523. K.S.A. 60-523 allows a defendant to file a sexual abuse'claim-within 3 years after the plaintiff reasonably discovers (defined broadly) his or her injury was caused by childhood sexual abuse. If the plaintiff files the revived claim within the time allowed by 60-523, then the claim is timely filed.
The next question concerns the status of the plaintiffs’ claims in 1992: Were the claims barred by a statute of limitations or a statute of repose or both in 1992? Jeffrey turned 18' on November 15, 1987, and Jason turned 18 on March 25, 1990. In late 1987 (apparently when both plaintiffs were minors), the plaintiffs’'parents contacted the Bishop and informed him of their allegations that Reif had sexually abused their sons. On April 9,1988 (when Jeffrey was 18 and Jason was under 18), the plaintiffs’ father made a settlement offer to the Bishop. On May 4, 1988 (when Jeffrey was-18 and Jason was under 18), the plaintiffs’ parents entered'into a nonbinding monetary settlement with the Diocese'. • The "plaintiffs started therapy at this time. The trial court held that the cause of action accrued while the plaintiffs were minors and that 60-515(a) applied to all of the plaintiffs’ claims. Under the 60-515(a) statute of limitations, the plaintiffs were required to file their claims within 1 year after turning -18. Thus, Jeffrey’s statute of limitations under 60-515(a) expired on November 15, 1988, arid Jason’s statute of limitations under 60-515(a) expired on March 25, 1991.
The Bishop apparently became aware of Reif’s sexual proclivities in 1980, but did not fire Reif.- According to the Bishop, this act in 1980 is the last' act for which it can be sued. The plaintiffs disagree. The plaintiffs contend that they are suing the Bishop for negligent supervision and retention of Reif. Thus, according to the plaintiffs, each time Reif sexually abused the boys, the Bishop was also committing an act of negligence by failing to properly super vise Reif and prevent the acts of abuse when the Bishop was aware of Reif’s sexual proclivities. Moreover, the plaintiffs are also suing the Bishop based on vicarious liability for Reif’s act. The conduct giving rise to this liability is Reif’s sexual abuse of the boys as an employee of the Diocese. Both parties agree that Reif’s last act of alleged sexual abuse occurred in 1986. As such, the plaintiffs argue that the Bishop’s last act of alleged negligence would have also occurred in 1986. Thus, for purposes of this review, we assume that the Bishop’s last act of negligence, if any, occurred in 1986, and the statute of repose began to run on this date. Under the 8-year statute of repose in 60-515(a), the plaintiffs’ causes of action against the Bishop would have expired in 1994.
Based on these facts, what was the status of the plaintiffs’ claims in 1992 under K.S.A. 60-515(a)? In 1992, both the claims were barred by the procedural 1-year statute of limitations in 60-515(a). Importantly though, the plaintiffs’ actions against the Bishop were not barred in 1992 by the substantive statute of repose in K.S.A. 60-515(a). In 1992, when K.S.A. 60-523 was enacted, the plaintiffs had 2 years left before the statute of repose under 60-515(a) was to expire.
When 60-523 was enacted in 1992, it properly revived the plaintiffs’ claims. This is because the plaintiffs’ claims were only barred by a procedural statute of limitations which may be amended at any time by the legislature. See Harding, 250 Kan. at 669. The actions were not barred by a substantive statute of repose in 1992. Thus, the defendants did not have a vested right in a time bar defense in 1992. As such, the statute of repose applicable to the plaintiffs’ claims under 60-515(a) could be removed in 1992 without violating the defendants’ due process rights. From the point of revival in 1992, the plaintiffs could bring their once-dead claim under the new statute, 60-523, as long as they filed their claims within the time allowed by 60-523.
K.S.A. 60-523 gave the plaintiffs 3 years to file their actions from the date the plaintiffs reasonably discovered that their injuries were caused by childhood sexual abuse. K.S.A. 60-523 defines “discovery” broadly to mean not just awareness of the abuse, but an understanding that the sexual abuse caused the plaintiffs’ injuries. According to the plaintiffs’ expert, the plaintiffs did not “discover” their injuries were actually caused by childhood sexual abuse until 1993 and 1994, even though the plaintiffs or their parents were aware of their injuries and of the sexual abuse in 1987 and 1988. Thus, a question of fact needs to be determined. If a juiy determines that the plaintiffs did not discover their injuries were caused by childhood sexual abuse until 1993 and 1994, then the plaintiffs filed their action within 3 years of this discovery by filing their claim in 1995. Thus, the plaintiffs timely filed their actions and the trial court improperly granted summary judgment.
The plaintiffs also argue that K.S.A. 60-515(a) is unconstitutional. According to the plaintiffs, 60-515(a) violates due process and equal protection because it has a shorter statute of repose for a plaintiff whose claim accrues while the plaintiff is a minor than a plaintiff whose claim accrues when the plaintiff is an adult. This issue is not addressed because it is unnecessary due to our reversal of the trial court’s grant of summary judgment.
The Bishop further contends that even if we hold that the reasons given by the trial court for granting summary judgment were invalid, this court can still affirm the summary judgment because it could be properly based on other reasons not relied on by the trial court. The Bishop argues that there are two other proper reasons which justify the grant of a summary judgment in his favor. First, the Bishop asserts that K.S.A. 60-523 does not apply to a claim against an employer for negligent supervision or retention of an employee. Second, the Bishop contends that the plaintiffs’ claims are barred by the provisions of the Kansas and United States Constitutions which guarantee freedom of religion. These issues were not addressed by the trial court and were not appealed by the Bishop; thus, they will not be addressed here.
Reversed and remanded.
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The opinion of the court was delivered by
Six, J.:
This is a reasonable suspicion traffic stop case arising from an early hour New Year’s Day arrest. Defendant Joseph L. Hopper was charged with driving left of center, driving with a suspended license, driving under the influence of alcohol, and transporting an open container. Hopper filed a motion to suppress, alleging that the arresting officer lacked reasonable suspicion to make the traffic stop, based on road and weather conditions at the time. The district court granted the motion. The State appealed under K.S.A. 22-3603. In an unpublished opinion filed December 15,1995, Royse, J., dissenting, the Court of Appeals affirmed, reasoning that die facts were disputed and that State v. Garcia, 250 Kan. 310, 827 P.2d 727 (1992) did not permit an appellate court to reweigh the evidence. We granted the State’s petition for review7. Our jurisdiction is under K.S.A. 20-3018(b).
We find reasonable suspicion for the stop and reverse the Court of Appeals and the district court.
FACTS
On January 1, 1995, at approximately 1 a.m., Officer John Shaw7 was driving behind defendant Hopper. As the two vehicles entered a highway curve north of the city of Wellington, Shaw7 observed Hopper’s vehicle: (1) cross the center line by “about a quarter” of the vehicle width, (2) Cross the center line again, (3) weave within his own lane, (4) fluctuate his speed between 40 and 52 or 53 miles per hour, and (5) cross the center line a third time. Shaw7 stopped Hopper.
Hopper challenged whether Shaw had reasonable suspicion to make die traffic stop. Hopper testified that on the night of his arrest, the road was “kind of messy” and there were “patches of ice” on it. He admitted that he had been drinking that evening. The passenger in his vehicle, who had also been drinking, testified that the roads were slick, with lots of sleet and “black ice.”
Officer Shaw testified that on the night of Hopper’s arrest, “[i]t was cold and I believe it had rained prior.” Shaw7 did not remember there being “snow or scruffy snow or slush on the highway.” Shaw also said that he did not recall any weather-related road hazards. He did not have any problem wáth the roads.
The district judge discussed the road conditions in his memorandum decision:
“The weather conditions, and the effect of the weather conditions on the highway, are material facts iñ issue on this motion to suppress. The court teas not on the highways on the night in question, but recalls the conditions on the city streets earlier that night as extremely icy from sleet. While the court would like to assume that there was a reasonable explanation for Shaw’s testimony on the weather conditions, none was offered at the hearing, and the court cannot assume facts not in evidence. As it is, Shaw’s testimony leaves the impression that he either did not recall the actual weather conditions, or worse, was deliberately minimizing the weather conditions to the point of dishonesty with the court and counsel. In either event, Shaw’s testimony on the weather conditions is discredited. Testimony discredited as to a material fact is necessarily suspect as to other material facts. Therefore, the court will not make a finding of reasonable suspicion based upon die Deputy’s version of the events. The defendant’s motion to suppress is sustained.” (Emphasis added.)
DISCUSSION
The determination of the proper standard for review is the first step in our discussion. The Court of Appeals cited both State v. Vandiver, 257 Kan. 53, Syl. ¶ 6, 891 P.2d 350 (1995) and State v. Garcia, 250 Kan. 310. In Vandiver, we affirmed the Court of Appeals’ reversal of Vandiver’s conviction for possession of marijuana. The State and Vandiver agreed on the facts. We determined that under the Vandiver facts, there was no substantial competent evidence that exigent circumstances existed to authorize the search of Vandiver. 257 Kan. at 64.
In Garcia, the motion to suppress related to evidence obtained from a search of Garcia’s vehicle and statements made by Garcia after he was stopped because he failed to signal a lane change. The district court granted a motion to suppress, determining that Garcia’s consent to the search was not voluntary and the search was illegal. We reversed the Court of Appeals and affirmed the trial court. We believed “the Court of Appeals majority reweighed the evidence in concluding there was insufficient evidence to support the trial court’s finding that the consent was involuntary.” 250 Kan. at 318.
The standards of review set forth in Vandiver and Garcia are not inconsistent. The initial question remains whether the district court’s findings are supported by substantial evidence. If so, the appellate court should not reweigh the evidence. However, the ultimate determination of the suppression of evidence is a legal question requiring independent appellate determination. Vandiver, 257 Kan. at 58.
Law Applicable to Vehicle Stops
K.S.A. 22-2402(1) provides:
“Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand . . . the name [and] address of such suspect and an explanation of such suspect’s actions.”
K.S.A. 22-2402(1), the Kansas stop and frisk statute, is a codification of the Fourth Amendment search and seizure principles expressed in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). See State v. Vistuba, 251 Kan. 821, 822-23, 840 P.2d 511 (1992) (vehicle stop upheld after officer observed driver go toward ditch, turn back, go toward ditch again, and jerk vehicle back, leaving and returning to roadway, but never crossing center line). A traffic stop always constitutes a seizure. 251 Kan. at 823.
In State v. Field, 252 Kan. 657, 847 P.2d 1280 (1993), Field’s vehicle was stopped after the officer observed the vehicle weaving within its lane over several blocks on a city street at approximately 2 a.m. Field was arrested for driving while under the influence of alcohol. The officer making the stop said that given the hour of the day and the weaving, he thought the driver “may be impaired to some degree.” 252 Kan. at 658. The district court granted Field’s motion to dismiss on the grounds that the officer lacked reasonable suspicion to stop the vehicle. We reversed and remanded, stating: “There is no requirement that the officer actually observe a traffic violation being committed. . . . [T]he repeated weaving of a vehicle within its own lane may constitute sufficient reasonable suspicion for an officer to stop and investigate the driver of the vehicle.” 252 Kan. at 664.
K.S.A. 8-1514
K.S.A. 8-1514(a) requires that all vehicles be driven on the right half of the roadw'ay, subject to four exceptions:
“(1) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement;
“(2). When an obstruction exists making it necessary to drive to the left of the center of the highway, except that any person so doing shall yield the right-of-way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard;
“(3) Upon a roadway divided into three (3) marked lanes for traffic under the rules applicable thereon; or
“(4) Upon a roadway restricted to one-way traffic.”
None of the exceptions include hazardous weather conditions. Violation of 8-1514(a) is a traffic infraction subject to a fine. See K.S.A. 8-2116(a); K.S.A. 1995 Supp. 8-2118(c).
K.S.A. 21-3204 provides:
“A person may be guilty of an offense without having criminal intent if the crime is a misdemeanor or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.”
The State argues that the four K.S.A. 8-1514(a) exceptions indicate legislative intent that no other exceptions should exist. We agree.
An absolute liability offense, unlike most other crimes, does not require any criminal intent. The only proof required to convict an individual of an absolute liability offense is that the individual engaged in the prohibited conduct. See City of Wichita v. Hull, 11 Kan. App. 2d 441, 445, 724 P.2d 699 (1986) (driving while under the influence, K.S.A. 1984 Supp. 8-1567); see also City of Overland Park v. Estell, 8 Kan. App. 2d 182, 187, 653 P.2d 819 (1982), rev. denied 232 Kan. 875 (1983) (leaving the scene of an accident, K.S.A. 8-1602); State v. Baker, 1 Kan. App. 2d 568, Syl. ¶ 1, 571 P.2d 65 (1977) (speeding, K.S.A. 1976 Supp. 8-1336[a][3]).
In State v. Merrifield, 180 Kan. 267, 303 P.2d 155 (1956), we considered G.S. 1949, 8-262, which made it unlawful for any person to drive with a canceled, suspended, or revoked driver’s license, and observed:
“It is clear that the statute makes it unlawful to drive a vehicle on the highways when the license to so drive has been suspended. The legislature made no exceptions, and the question of intent is not involved, and the motive or the circumstances under which the driving took place are immaterial.” 180 Kan. at 269.
K;S.A. 8-1514(a) contains no intent element.
Hopper argues that the State improperly attempted to raise the absolute liability issue for the first time on appeal. Generally, an issue not presented to the trial court may not be raised for the first time on appeal. State v. Boyd, 257 Kan. 82, Syl. ¶ 3, 891 P.2d 358 (1995). In his closing remarks at the hearing on the motion to suppress, Hopper’s attorney argued that although 8-1514(a) does not address the weather phenomenon, it does provide an obstruction exception, and Hopper’s driving left of center on an icy curve should be considered “within the spirit of the statute.” The county attorney disagreed, responding:
“We can’t have defendant operating within the scope of the law on one law, the speeding, and just the spirit on the other — the spirit of the law. The law is the law. If he crossed the center line he crossed the center line. . . . The officer testified that he crossed the center fine. That in and of itself I believe is — gives us probable cause to stop, if for no other reason than you don’t need a civil or a criminal infraction to justify a vehicle stop. You only — The only thing you need, is a safety reason, and — and, Your Honor, that’s in State v. Field, the case counsel cited in his motion.”
Although the State did not mention K.S.A. 21-3204 at the district court level, the absolute liability argument can fairly be implied from the remarks of the county attoméy.
Interpretation of K.S.A. 8-1514(a) will include determination of the necessary elements to establish the infraction of driving left of center. The absolute liability issue arises inherently from our responsibility to interpret K.S.A. 8-1514(a). See Thompson v. Founders Group Int’l, Inc., 20 Kan. App. 2d 261, 263, 886 P.2d 904 (1994) (“[T]he issue of whether the forum-selection clause applies to [defendant] arises inherently when this court is asked to construe the agreement.”,) Thompson was a contract construction case, but the principle applies as well in the statutory construction context of this case.
Hopper contends that because there are four statutory exceptions to 8-1514(a), driving left of center cannot be an'absolute liability offense. According to Hopper, proof of the offense should require proof that none of the four exceptions apply, which will necessarily involve a factual, not a legal determination. However, no evidence was presented to support the application of any of the four 8-1514(a) exceptions to Hopper s facts.
Hopper argues that the weather and road conditions present at the time of his stop should be considered as an “obstruction” within the meaning of K.S.A. 8-1514(a)(2). Hopper also contends that the district court
“found the Defendant was operating his .vehicle prudently under the conditions of the roadway and the prevailing weather phenomenon; that visual impairment and/or the operation of a vehicle to avoid ice sheets and hazardous road spots are obstacles, obstructions or circumstances that would explain a prudent driver avoiding danger or seeking the center of the roadway.”
Although weather and road conditions could conceivably create a K.S.A. 8-1514(a)(2) obstruction, there was no evidence in this case of any “obstruction” making it necessary to drive on the left side of the highway.
We find no basis for judicially adding a “road, or weather conditions” exception to the four, statutory exceptions for violation of K.S.A. 8-1514(a). Were we to do so, a driver would be justified in driving on the wrong side of the road any time the road conditions are icy or weather has obscured the center line.
Disputed Versus Undisputed Evidence
Before the hearing on the motion ended, the district judge expressed doubts concerning the arresting officer’s testimony:
“Well, the reasonable suspicion standard isn’t great. On the other hand, it’s certainly necessary that the officer’s testimony be accepted as what happened to meet that burden. Officer was extremely vague with regard to what he characterized as weaving within a lane. It’s — Also, he says there was no weather problems this night. I was in Sumner County that night. I remember it as extremely icy. Now, I didn’t get out on a highway, but it was extremely icy that night. How he can say that as no weather problem is. — I’m going to take this under advisement, give it some consideration.”
The memorandum decision granting the motion noted: “Shaw’s testimony with regard to the defendant’s fluctuation in speed and crossing the center line would, under ordinary circumstances, constitute reasonable suspicion based upon specific and articulable facts to justify stopping a driver for DUI investigation.”
Evidence at the hearing on the motion to suppress as to the road and weather conditions was disputed. However, evidence that Hopper drove left of center was not.
The memorandum decision stated: “The defendant testified that the center fine of the road was not obscured. His passenger testified that the highways had been sanded, and that the center line markings were never clear.” The district court found: “The weather conditions, and the effect of the weather conditions on the highway, are material facts in issue on this motion to suppress.” The district court’s conclusion that the weather and road conditions were material facts, absent any evidence that they created a road obstruction within the meaning of K.S.A. 8-1514(a)(2), is erroneous.
Was There Substantial Supporting Evidence?
In considering the motion to suppress, the district court had to address the legal question of whether the officer had reasonable suspicion based on articulable facts that anyone in Hopper’s vehicle had committed, was committing, or was about to commit a crime, or that there were valid public safety concerns present justifying the stop. Driving left of center was the basis for the stop. Under K.S.A. 8-1514(a), the first question is, was there evidence that Hopper drove left of center? The answer is “yes,” based on the officer’s testimony and Hopper’s failure to deny it. The second question is, was there evidence that any of the four exceptions to 8-1514(a) apply? The answer is “no.” Hopper produced evidence of the weather and road conditions. However, neither would qualify as road obstructions within the meaning of 8-1514(a)(2). Without evidence that any of the exceptions apply, Hopper committed a traffic infraction by driving left of center.
There was no substantial evidence to support the district court’s findings of no reasonable suspicion.
Court of Appeals Decision
In affirming the district court, the Court of Appeals apparently felt its hands were tied by the district court’s determination that the officer was not a credible witness.
The dissenting judge disagreed that the district court’s personal observations of the weather conditions could constitute substantial evidence to support the district court’s findings. The dissent was troubled by the assumption that weather conditions were a material fact, concluding: “By focusing on weather conditions, the district court lost sight of the issue it was to decide: whether the officer had a reasonable suspicion sufficient to stop Hopper to investigate further.” We agree.
The judgment of the Court of Appeals affirming the district court is reversed. The judgment of the district court is reversed. The case is remanded for trial.
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The opinion of the court was delivered by
LOCKETT, J.:
Defendant was convicted by a jury of one count of first-degree premeditated murder and one count of second-degree murder. He was acquitted of alternate charges of first-degree felony murder and of additional charges of aggravated robbery and aggravated burglary. Defendant appeals his convictions and sentences, claiming the trial court erred in: (1) permitting the State to amend the complaint’s charge of first-degree premeditated murder during trial, (2) failing to suppress portions of the defendant’s statement to police, (3) refusing to permit the defendant to introduce into evidence the prior inconsistent statements of a witness, (4) admitting into evidence gruesome photographs, (5) failing to conduct an evidentiary hearing on the defendant’s second motion for a new trial, and (6) denying the defendant’s post-trial motion for an independent examination of the tape recordings of his statements to police. Additionally, the defendant raises the following issues pro se: (1) error in failing to instruct the jury on the defense of compulsion and (2) abuse of discretion in sentencing.
Defendant Mike C. Matson was charged with various crimes relating to the shooting deaths of Dale Pavey, who was described by Matson as a cocaine addict and a seller of drugs connected with a group of Jamaican drug dealers,-and Pavey’s girlfriend Julie Voyles. Matson was arrested in Illinois and returned to Kansas to stand trial for the murders. Matson.admitted to the police that he shot and killed Pavey and Voyles.. Matson met Pavey through Pavey’s daughter. Pavey eventually began selling cocaine to Matson. Shortly before he was killed, Pavey told his son that Matson owed him money for drugs Matson had purchased.
Matson related the following version to the police. Matson claimed Pavey had threatened to have him killed if Matson did not pay $500 or $600 by a certain date for cocaine he had purchased. The night before the debt was due, Matson, who had approximately $300, was unable to sleep. The next morning, because he had been threatened, Matson armed himself with a gun and drove to Pavey’s. Matson knocked on the door. Voyles admitted him. Matson talked to Pavey. When Pavey informed Matson that he had better,have the money, Matson said he. had the money. As Pavey turned, Mat-son shot Pavey in the back of the head or neck. Pavey fell face down and then rolled over. Matson stated that after he shot Pavey, Voyles began firing at him with an SKS rifle. Matson shot at'Voyles until his gun was out of bullets. He took the SKS rifle from Voyles and shot her. The shot nearly decapitated her. Matson again shot Pavey “to make sure” and so Pavey would not suffer. Matson said that he took Pavey’s billfold, but did not take, drugs.
The defendant gave a similar version of the shooting at trial but for the first time claimed to the jury he had shot Pavey in self-defense. Matson testified that there was a pistol on the floor and Pavey’s hands were by or on the pistol. To defend himself, Matson shot Pavey. Matson testified that after he shot Pavey, he heard a gun blast and thought that he had been shot. Matson turned and fired in the direction of the blast. Voyles, who had shot at him, was wounded by his shots. He took the SKS rifle from Voyles ¡ stepped back, and shot Voyles. Matson stated that he then .turned and again shot Pavey.
The jury convicted Matson of first-degree premeditated murder in the death of Pavey and of second-degree murder in the death of Voyles. The jury acquitted the defendant of first-degree felony murder in the deaths of Pavey and Voyles and of aggravated rob beiy and aggravated burglary. Matson was sentenced to consecutive terms of life with parole eligibility in 15 years and 15 years to life. Matson’s trial counsel timely appealed the convictions. In addition to the brief filed by Matson’s appellate counsel, Matson was allowed to file a pro se brief raising additional issues.
FAILURE TO DISMISS COMPLAINT
The original complaint charged the defendant with the crimes of first-degree premeditated murder and, in the alternative, first-degree felony murder in the deaths of Dale Pavey and Julie Voyles.
At the time of these offenses, December 1992, first-degree premeditated murder was defined as “the killing of a human being committed maliciously, willfully, deliberately and with premeditation.” K.S.A. 1992 Supp. 21-3401(b). Effective July 1, 1993, the statute was amended to define first-degree premeditated murder as “the killing of a human being committed . . . [i]ntentionally and with premeditation.” K.S.A. 1993 Supp. 21-3401(a). Thus, in the 1993 version the elements of “maliciously” and “deliberately” were deleted.
Although the crimes charged occurred in December 1992, the State charged the defendant according to the statute which took effect July 1,1993. The complaint originally charged the defendant with first-degree premeditáted murder, stating: The defendant “did then and there unlawfully, willfully, kill a human being . . . intentionally and with premeditation by shooting . . . .” The complaint listed “Section 18(a), chapter 291, 1993 Session Laws of Kansas” as the statutory basis for the crime and specified that the crime was first-degree murder, an “Off-Grid, Person Felony.” By using the 1993 version of the statute, the State omitted the requisite elements of “maliciously” and “deliberately” from the complaint.
The defendant did not challenge the first-degree premeditated murder charges for the failure to allege all the statutory elements of the crime until the instructions conference — after the close of the evidence but before the case was submitted to the jury. At that time the defendant moved for dismissal of the first-degree premeditated murder charges, arguing that the complaint was defec five for failing to allege the statutory elements of “maliciously” and “deliberately.” The State moved to amend the complaint to include the missing elements. The State argued that the amendment to the complaint was proper because the defendant had adequate notice of the charges and that amending the charge to include the missing elements would not materially affect the crime charged. The defendant objected, contending that it was too late to amend the charges and that the trial court was without jurisdiction to amend an invalid complaint. The judge granted the State’s motion to amend the complaint to include “maliciously” and “deliberately.” An amended complaint was filed.
The State’s right to amend a complaint or information is statutory. K.S.A. 22-3201(e) states: “The court may permit a complaint or information to. be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” A two-part analysis determines whether an amendment prior to submission of the case to the jury may be permitted: (1) Does the amendment charge an additional or different crime? (2) Are the substantial rights of the defendant prejudiced by the amendment? See State v. Starr, 259 Kan. 713, Syl. ¶ 1, 915 P.2d 72 (1996); State v. Barncord, 240 Kan. 35, 38, 726 P.2d 1322 (1986).
Additional or Different Crime
The defendant asserts that the amended complaint charged a new and different crime. He reasons that the complaint filed was jurisdictionally defective because the count charging first-degree premeditated murder failed to charge a crime; thus, the court had no jurisdiction to allow an amendment to the charging document. In support of this assertion, the defendant cites State v. Wilson, 240 Kan. 606, 731 P.2d 306 (1987).
Wilson involved a single-count information which charged that the defendant “did then and there unlawfully, wilfully kill and murder one Polly A. Stone.” 240 Kan. at 606-07. The information failed to charge any degree of homicide or that the killing was done “maliciously, deliberately, and with premeditation.” During trial, the prosecutor moved to amend the information to charge first-degree premeditated murder. The trial court granted the motion to amend but the prosecutor failed to file an amended information or amend the original information by interlineation. The defendant was convicted of the lesser included offense of murder in the second degree. The defendant appealed, claiming the trial court had no jurisdiction to convict her because the information failed to charge a crime. On appeal, the Wilson court first observed that the information had never been amended as requested. The court noted that because the information failed to charge a crime, an amendment was necessary and if the information had been amended it would have charged an “additional or different crime.” The Wilson court concluded that an information which does not charge any offense cannot be amended over defense objection to first charge any offense during trial. 240 Kan. at 608.
The defendant’s reliance on Wilson is misplaced because the complaint here was not wholly defective. The complaint charged Matson with both first-degree premeditated murder and first-degree felony murder. Although the language in the complaint purporting to charge first-degree premeditated murder was not statutorily sufficient to charge that offense, the alternative charge of first-degree felony murder was not defective.
The State argues that because the charge of first-degree felony murder was statutorily sufficient, the trial court had jurisdiction under K.S.A. 22-3201(e) to allow an amendment to the charge of first-degree premeditated murder. The State points out that first-degree premeditated murder and first-degree felony murder are not separate and distinct crimes but are alternative theories of proving the same crime.
In the recent case of State v. Starr, 259 Kan. 713, this court addressed the issue Matson now raises. In Starr, the defendant was originally charged with first-degree premeditated murder and first-degree felony murder and other related offenses. Prior to trial, the State dismissed the charge of first-degree premeditated murder and proceeded to trial on the charge of first-degree felony murder. However, at the close of the State’s case in chief, the judge, in overruling the defendant’s objection, permitted the State to amend the complaint to reinstate the charge of first-degree premeditated murder. Starr was corivicted of first-degree-premeditated murder and other crimes. Starr appealed the first-degree murder conviction, claiming the district court did not have jurisdiction to try him for first-degree premeditated murder because that charge had been dismissed prior to commencement of the trial. The Starr court' first obseiyed that premeditated murder and felony murder are not separaté ánd distinct crimes but rather are two different theories under'which the crime of first-degree murder may be committed.'' The Starr court concluded that amending a charge of first-degree felony murder to include a charge of first-degree premédi'tátéd murder during trial is not charging an additional or different crime. .
The rationale of Starr controls. The judge had statutory authority to allow the amendment to the complaint. The amended complaint did not chargé a new or additional crime or'substantially prejudice the rights'of the defendant by the amendment.
As an additional argument, the defendant asserts that under the particular .facts of this case the charge of first-degree premeditated murder must be a separate and distinct crime from first-degree felony murder.becausé prior to trial the State had'sought to impose the hard'40 sentence if thé déféndarit was convicted of first-degree premeditated hiufder. Matson reásóñs that because the hard 40 sentence is not availáble for first-degree felony murder convictions, the hard 40 sentence sought for the crime of first-degree premeditated murder makes it a separate and distinct crime from first-degree. felony murder. ■ • • ■
This reasoning is flawed. The availability of the hard 40 sentence for first-degree premeditated murder does not make that crime separate and distinct from first-degree feloiiy murder for several reasons. First, the jury declined to impose the hard 40 sentence for the first-degree premeditated murder of Dale Pavey. Second, ás tó'the múrder- of Julie Voyles, the jury did not consider the hard 40 sentence becajise the defendánt was convicted of second-degree murder'of Voyles, not ;first-.degrqe murder. Finally, and most importantly, the hard 40 sentence is just that, a sentence — not a separate crime. . .
FAILURE TO SUPPRESS
The defendant next claims that the trial court erred in failing to suppress a portion of his statement made to law enforcement officers during an interrogation in Illinois.
Twenty-three separate rights are noted in the first 8 Amendments to the United States Constitution, 12 of which concern criminal procedure. Violations of the Fourth, Fifth, and Sixth Amendment rights can result in suppression of evidence seized by law enforcement officers. The Fourth Amendment guarantees the right to be secure against unreasonable searches and seizures and prohibits the issuance of arrest warrants without probable cause. The Fifth Amendment prohibits placing a person in jeopardy by compelling the witness to be a witness against himself or herself. The Sixth Amendment lists several rights applicable to criminal prosecutions such as the right to counsel, the right to a speedy and fair trial, and the right to confront opposing witnesses. Fifth and Sixth Amendment rights are most frequently an issue in determining whether statements made by a defendant to law enforcement officers are admissible at the defendant’s trial.
The rules concerning custodial interrogation and the exercise of a constitutional right are well established. A suspect in custody must be advised that he or she has the right to remain silent and the right to the presence of counsel before the suspect may be interrogated. Miranda v. Arizona, 384 U.S. 436, 479, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). If the accused asks for counsel, the interrogation must cease until counsel is present. Miranda, 384 U.S. at 474; see Edwards v. Arizona, 451 U.S. 477, 481-82, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981).
“[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. . . . [A]n accused . . . having expressed his desire to deal with police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at 484-85.
The same rules apply where the right to remain silent is exercised. In determining whether events subsequent .to the exercise of a constitutional right constitute a waiver of the previously asserted right, the court must first determine whether the accused actually invoked the right and, if so, the court must then determine whether the accused (a) initiated further discussions with the police and (b) knowingly and intelligently waived the previously asserted right. Smith v. Illinois, 469 U.S. 91, 95, 83 L. Ed. 2d 488, 105 S. Ct. 490 (1984). Waiver of the right must be knowing, voluntary, and intelligent under the totality of the circumstances. See Oregon v. Bradshaw, 462 U.S. 1039, 1046, 77 L. Ed. 2d 405, 103 S. Ct. 2830 (1982).
After his arrest in Illinois for these offenses and receiving the warning required under Miranda, Matson waived his Fifth and Sixth Amendment rights and agreed to talk with Sedgwick County law officers. The defendant admitted going to Pavey s residence and the circumstances of the shooting of Pavey and Voyles. Matson was asked what he did after leaving Pavey s residence, and he stated that he ran into a friend, Ty Gerberding. When asked if he had told Gerberding what happened, Matson stated, “I won’t answer no more questions at all as far as that goes from there on out, as far as what happened after that, I’ve admitted to what happened and there will be no more answering on that part.” Questioning continued concerning what Matson did with the pistol he used and other matters. The defendant answered those questions. A short time later, there was a break in questioning for a cigarette or water. After the tape-recorded interview resumed, Matson related that during the break he informed the officers that he had told Gerberding he had killed Pavey and Voyles. The defendant also admitted that he had told others that he had killed Pavey and Voyles.
Prior to trial, the defendant sought to suppress his statement to law enforcement officers. Sedgwick County Sheriff’s Deputy Kravitz testified that the defendant waived his Miranda rights, agreed to give a statement, and did not appear to be under the influence of alcohol or other drugs. Kravitz admitted that the defendant indicated he did not want to talk about Ty Gerberding but that after a discussion with Detective Hodge the defendant decided to talk about what he told Gerberding. Detective Hodge testified that the defendant indicated he did not want to talk about Gerberding. Hodge stated that the defendant agreed to continue answering questions, but not about Gerberding. Hodge described what happened during the break when the defendant agreed to talk about what he told Gerberding.
The defendant’s attorney argued that coercion occurred during the break after the defendant said he did not want to answer any more questions “as far as what happened after that.” Defense counsel asked that the entire interview be suppressed because the defendant was intoxicated when he was arrested and that “any points after when he asked not to speak any more that those points be suppressed.” The trial judge found that (1) defendant knowingly and voluntarily waived his rights and (2) the defendant’s statements that he would not answer questions were not indicative of a desire to terminate the interview by the officers. On appeal, the defendant argues that the trial judge should have suppressed the portion of his statement regarding his discussion of the shooting incident with Ty Gerberding.
In Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975), the United States Supreme Court interpreted Miranda to require cessation of interrogation once an accused has invoked a Miranda right. The Mosley court stated that an interrogator must “scrupulously honor” the exercise of those rights once asserted. 423 U.S. at 104.
In evaluating the voluntariness of a confession, an appellate court must decide whether the State has adequately proved (1) that the accused knowingly and intelligently waived his or her constitutional right; (2) that interrogation ceased for an appreciable period when the accused exercised a constitutional right; and (3) that the statements made by the police after the exercise of the right did not amount to questioning, its functional equivalent, or statements known to be likely to produce an incriminating response. State v. Newfield, 229 Kan. 347, 355, 623 P.2d 1349 (1981).
In reviewing admission into evidence of custodial statements, the first question for an appellate court to determine is whether there is substantial evidence to support the district judge’s finding that the confession was voluntary. In determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible is on the prosecution, and the required proof is by a preponderance of the evidence. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. State v. Price, 247 Kan. 100, Syl. ¶ 1, 795 P.2d 57 (1990). When a trial court conducts a full hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at trial, an appellate court accepts that determination if it is supported by substantial competent evidence. State v. Morris, 255 Kan. 964, 971, 880 P.2d 1244 (1994); see also State v. Garcia, 250 Kan. 310, Syl. ¶ 2, 827 P.2d 727 (1992) (“If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court.”).
Here, the defendant did not invoke his right to remain silent. He indicated that he would not answer questions about Ty Gerberding, but did not express a desire to terminate questioning altogether. In addition, when Hodge understood that the defendant would not talk about Gerberding, Hodge moved back to the original line of questioning. The defendant did not decline to answer questions as to what happened but only refused to answer questions that would involve his friends. During the break Hodge did not threaten the defendant or make promises to him to induce him to answer questions as to Gerberding. Hodge only asked the defendant to be honest and may have informed the defendant that he had already spoken with Gerberding. Hodge’s actions did not amount to questioning or its functional equivalent.
There was substantial competent evidence upon which thé'trial court could find that the defendant’s willingness to relate what he told Gerberding was based on the defendant’s- own free will and not on coercion. The defendant voluntarily answered questions about Gerberding. His Fifth Amendment rights'were not violated.
PRIOR INCONSISTENT STATEMENTS .
The defendant next claims that the judge erred in refusing to admit evidence of prior inconsistent statements made by Melva* Lee Bishop, the ex-wife of Dale Pavey, a defense witness. The defense called Bishop believing she would testify that Pavey had previously threatened to do violénce to other people. When asked Pavey’s reputation for threatening or being violent, Bishop testified that she was never afraid of Pavey and had never observed Pávey threatening anyone. In an effort to lay a foundation for the admis^ sion of the witnesses’ prior statements, the defendants counsel proffered to the court that the police officer would testify that Bishop stated that on two separate occasions she heard Pavey say that he would kill certain people. The trial'judge denied the defendant’s request to impeach Bishop through the police officer because that testimony would violate the limitation for admitting' specific incidents of conduct.
K.S.A. 60-446 states that “[w]hen a person’s character or a trait' of his or her character is in issue, it may be proved by testimony in the form of opinion, evidence of reputation, or evidence of'specific instances of the person’s conduct, subject, however, to the limitations of K.S.A. 60-447 and 60-448.” The limitation in K.S.A. 60-447 states that “when á trait of a person’s character is relevant as tending to prove conduct on a specifiéd occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446, except that . . . evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible.” The defendant contends he should' have been permitted to question Bishop about her prior inconsistent statements to impeach her pursuant to K.S.A. 60-420, even though the impeaching testimony would refer to specific instances of conduct of the victim and would generally be prohibited by K.S.A. 60-447.
We disagree with the trial judge’s analysis and conclusion that the statutory prohibition precluded the admission of the witness’ prior statement. Bishop’s responses were contrary to prior statements she made to a police officer that Pavey had threatened to kill certain people. K.S.A. 60-420 states that “for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.”
In State v. Macomber, 241 Kan. 154, 158-59, 734 P.2d 1148 (1987), this court held that evidence the witness had used marijuana before testifying at the preliminary hearing that he was not under the influence of drugs was admissible to impeach the witness’ testimony at trial that he had never lied on the witness stand, even though the evidence related to specific instances of conduct which would be otherwise inadmissible. In State v. Nixon, 223 Kan. 788, 790-94, 576 P.2d 691 (1978), evidence that the witness had sold drugs was admissible to impeach her testimony that she had never sold drugs. In State v. Beans, 247 Kan. 343, 346-48, 800 P.2d 145 (1990), evidence concerning the complainant’s prior conviction and probation for prostitution was admissible to impeach her testimony concerning that probation.
The defendant also cites State v. Barber, 13 Kan. App. 2d 224, 766 P.2d 1288, rev. denied 244 Kan. 739 (1989). There, the court found that the trial court properly excluded evidence that the victim of an alleged crime of indecent liberties with a child had previously made allegedly false accusations of sexual abuse. The court stated: “[Ujnder certain circumstances, the limitation of 60-422 [prohibiting the admissibility of specific instances of conduct to impeach a witness’ credibility] must bend to a defendant’s right of cross-examination.” 13 Kan. App. 2d at 226. However, the court found that an exception to the limitation of K.S.A. 60-422 was applicable in that case only upon the threshold determination that the prior allegations of abuse were false. 13 Kan. App. 2d at 227. Because the trial court found there was no indication the com plaining witness’ prior allegations of abuse were false, the trial court did not abuse its discretion in excluding the evidence.
Even though the judge erred in excluding the prior inconsistent statements, here, there was ample evidence before the jury concerning Dale Pavey’s tendency for violence. His son testified that Pavey had a reputation for being a tough guy and that he got aggressive and angry at times. Another witness testified about Pavey’s reputation for violence. She stated that if somebody owed Pavey money, he would send certain people after them to collect money and that he could be persuasive at times when he wanted to get a point across. The witness also testified that although she had never seen Pavey have anyone killed, Pavey had stated that if anyone ever needed anyone “done in” to call him. In light of this other evidence, the exclusion of evidence concerning statements Bishop made to the police did not affirmatively cause prejudice to the substantial rights of the defendant and does not require reversal. See State v. Johnson, 255 Kan. 140, 148, 871 P.2d 1246 (1994). Even though the trial court’s exclusion of the evidence was error, it was harmless error.
REPETITIOUS GRUESOME PHOTOGRAPHS AND VIDEOTAPE
The defendant also argues that the trial court erred in admitting into evidence gruesome photographs and photographs and a videotape of the scene. The admission of photographs in a homicide case is a matter that lies within the discretion of the trial court, and the trial court’s ruling will not be disturbed on appeal absent an abuse of that discretion. Photographs which are unduly repetitious, gruesome, and without probative value should not be admitted into evidence. However, demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue. State v. Stone, 253 Kan. 105, 111, 853 P.2d 662 (1993); State v. Mayberry, 248 Kan. 369, Syl. ¶ 12, 807 P.2d 86 (1991).
We have reviewed the photographs and the videotapes of the crime scene and autopsy. They are gruesome and shocking because they are true-reproductions of relevant physical facts. However, we do not find that the admissions of the photographs and the videotapes in this case rise to a level of an abuse of discretion.
EVIDENTIARY HEARING
In his second motion for a new trial the defendant raised two claims of newly discovered evidence: (1) Some witnesses were under the influence of alcohol and/or drugs at the time of their testimony, and (2) witnesses were intimidated by the prosecutor. The trial court held-a nonevidentiary hearing on the motion and denied the defendant a new trial. The defendant claims the trial court erred in failing to conduct an evidentiary hearing.
■ Determining whether a new trial is warranted based on newly discovered evidence involves a two-part test: (1) The defendant bears the burden of proving that the evidence is in fact “new” and could .not .with reasonable diligence have been produced at trial, and (2) the evidence must be of such materiality that there is a reasonable probability it would produce a different result upon retrial. State v. Thomas, 257 Kan. 228, 231, 891 P.2d 417 (1995).
Witness’ Drug Use
. This court has stated that “[f]or purposes of discrediting a witness, drug-use evidence is admissible to the extent it shows the witness was under the influence of drugs at the time of the occurrence as to which the witness testifies or at the time of trial. It is also admissible to the extent that it shows the witness’ mind, memory, or powers of observation were affected by the habit.” State v. Osby, 246 Kan. 621, Syl. ¶ 2, 793 P.2d 243 (1990). Thus, evidence that Gerberding was under the influence of drugs at the time of his testimony could be relevant at trial.
¡.-As to the claim that one of the witnesses was under the influence of drugs when testifying, counsel argued that Gerberding’s testimony was crucial and that if he was on drugs it would affect his .credibility. The defendant’s counsel stated to the judge that the defendant .
“indicated to me that some of the witnesses and friends of his that testified in this trial have communicated with him while he’s been incarcerated after his sentenc ing; and they’ve indicated to him that some of the witnesses or one may have.been under the influence of drugs when they testified . . . .”
“. . . What he indicated to me is this: That Jay Hancock, who was a witness in this case, indicated that Jay talked to Ty Gerberding after he testified. . . . Mr. Hancock indicated Ty Gerberding said to him that Kim Parker, quote, bitched him out right before he testified because she thought he was stoned or under the influence of some drug. She put him on the stand anyway. Now, I talked to Jay Hancock; and Jay Hancock indicated, Yes, Ty Gerberding did tell me that.”
First, we note that Gerberding did not say he was “stoned” when he testified, he repeated what the prosecutor said to him. In addition, the prosecutor stated that Gerberding appeared to have a very red face on the morning before he testified when she inquired if he was under the influence of alcohol or drugs. Gerberding insisted to the prosecutor that he was not under the influence of drugs or alcohol. The prosecutor informed the court that she was satisfied there was nothing in Gerberding’s speech or behavior to suggest intoxication. Gerberding testified that afternoon. The court ruled that the prosecutor’s questions were to insure that the witness was competent to testify. In addition, the defendant and his counsel had observed Gerberding at trial. Gerberding’s mannerisms at trial did not indicate that he was under the influence of alcohol or drugs. The defendant’s counsel made no proffer that Gerberding would state that he was in fact under the influence of alcohol or drugs when testifying.
The claim raised by the defendant is speculative. There was no need for an evidentiary hearing to determine whether Gerberding had been under the influence of drugs. The trial court did not err in refusing to conduct an evidentiary hearing on this issue. See State v. Dunn, 243 Kan. 414, 436, 758 P.2d 718 (1988) (court conducted initial hearing on motion for new trial to determine whether the claims asserted in the motion were substantial before granting a full evidentiary hearing and requiring the defendant’s presence); State v. Bryant, 227 Kan. 385, 391, 607 P.2d 66 (1980) (no abuse of discretion in failing to hold an evidentiary hearing on a motion for a new trial because the court conducted a preliminary inquiry to determine whether the claims asserted in the motion were substantial);
Prosecutor Threatening Witnesses
The defendant’s counsel informed the court that the defendant stated that some of the witnesses and friends had indicated to him that they had felt threatened by the prosecution attorneys to testify in a certain manner. Counsel stated:
“Shane Armour has communicated with Mike, and I’ve not talked to Shane, that he felt threatened by Kim Parker and . . . she said that she had taped conversations of he and Mr. Matson, and if he testified any differently from what his statements were previously, she'd file some kind of conspiracy charges against him. Also, after trial Shane indicated that he had some notice that some pending charges against him had been dropped after he testified.
“Nate Wiens, another witness, indicated that Kim Parker threatened him that if he testified for the defendant, whatever that meant, she would bring charges against him.
“Mike indicates to me by letter that Shane and Nate were both intimidated, but after seeing what Mike got for his sentence, they were . . . prepared to come forward at this time . . . .”
In response, the prosecutor stated that she had conversations with Amour and Wiens a week or two prior to trial and had informed Amour she was aware that he had been visiting the defendant in jail. She stated that there was no taped conversation between Wiens and the defendant and she was unaware where that idea originated. The prosecutor did inform the witness that she had a taped conversation of what he had said to the officers earlier and that deviations from that taped statement could be harmful to his credibility. As to Wiens, the prosecutor also asked him if there were any material deviations from his taped statement but did not discuss his testimony. She informed him that material deviations from that taped statement could affect his credibility. The prosecutor denied threatening the witness with prosecution. The court found the prosecutor was doing her job and was doing nothing inappropriate.
The prosecutor adequately explained her conversations with both prospective witnesses. Neither Amour or Wiens testified at trial. Further, if the possibility that the prosecutor threatened Amour and Wiens is considered to be newly discovered evidence, that evidence must be of such materiality that there is a reasonable probability it would produce a different result upon retrial. See State v. Thomas, 257 Kan. at 231. The flaw in the defendant’s presentation of this issue is that he has not proffered what portion of Amour’s and Wiens’ testimony would have been different or how they had been threatened by the prosecutor. Without such a proffer, this court cannot say that there is a reasonable probability of a different result at trial. There was no need for an evidentiary hearing to determine whether the prosecutor had threatened Amour and Wiens.
EXAMINATION OF TAPE
At the initial hearing for a new trial, the defendant’s trial counsel asserted that an independent examination of the tape recordings of the defendant’s statements to law enforcement officers was necessary because the defendant, upon reflection, believed that the tapes had been altered. The judge denied the motion.
On appeal the defendant argues that the trial judge abused his discretion in disallowing the tape analysis. For authority, the defendant cites Mebane v. State, 21 Kan. App. 2d 533, 902 P.2d 494 (1995). In Mebane, the defendant sought post-trial DNA testing of a rape kit. The Mebane court treated the request as a motion for a new trial based on newly discovered evidence. According to Mat-son, the underlying premise of Mebane is that post-trial testing of evidence may be appropriate if the evidence is highly exculpatory. Matson asserts that his taped statements were the most significant aspect of the State’s case in terms of establishing premeditation and intent. He asserts that if the tapes were altered to eliminate statements that supported his claim of self-defense, the analysis would be exculpatory.
The defendant does not take his analysis of Mebane far enough. The Mebane court concluded that a defendant is not entitled to post-conviction DNA testing of evidence as a matter of absolute right and the motion “should not be granted unless the trial court determines, after a hearing, that the result of the testing would be potentially exculpatory.” 21 Kan. App. 2d 533, Syl. ¶¶ 2, 3.
At the hearing on the defendant’s request for a tape analysis, defense counsel was unable to articulate what had been altered on the tapes. Although counsel indicated the defendant’s father believed the tapes had changed between the preliminary hearing and the trial, the trial judge, who had presided at both, noted no changes nor discrepancy between the tapes and the transcript of the tapes. It is not clear whether the defendant contends the tapes were altered prior to the preliminary hearing or sometime between the preliminaiy hearing and trial. Further, although the defendant’s trial counsel did not represent the defendant at the preliminary examination, the defendant was present at both hearings and when his statement was recorded, would have been aware of any discrepancies in the tapes.
The defendant has not shown the tapes were altered, what was removed would have been exculpatory, or that there was a likelihood that the evidence would change the result of the trial. The trial court did not abuse its discretion in refusing to permit the post-trial tape analysis.
PRO SE ISSUES
INSTRUCTION RE COMPULSION
In his pro se brief, the defendant claims the trial judge should have instructed the jury on the defense of compulsion because of threats against his family. The trial judge refused to give the instruction because there was no evidence to support the defense and found from the evidence the defense was one of self-defense rather than compulsion. The jury was instructed on self-defense.
K.S.A. 21-3209 sets forth the defense of compulsion:
“(1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.
“(2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.”
A trial judge is required to instruct the jury on the law applicable to the defendant’s theories of defense if there is evidence supporting the theories, even if the evidence is slight and supported only by the defendant’s own testimony. State v. Shortey, 256 Kan. 166, 172, 884 P.2d 426 (1994). An appellate court’s review of thé trial judge’s refusal to give a specific instruction must consider the evidence in the light most favorable to the party requesting the instruction. State v. Scott, 250 Kan. 350, Syl. ¶ 4, 827 P.2d 733 (1992).
This court has recognized that to constitute , the defense of compulsion, coercion or duress must.be present, imminent, impending, and continuous. It must be of such a. nature as to induce a well-grounded apprehension of death or serious bodily injury to oneself or one’s family if the act is not done. The doctrine of compulsion cannot be invoked as an excuse by one who had a-reasonable opportunity to escape .the compulsion or avoid doing the act without undue exposure to death or serious bodily barm. A threat of future injury is not enough. See State v. Davis, 256 Kan. 1, Syl. ¶ 3, 883 P.2d 735 (1994); State v. Crawford, 253 Kan. 629, 635, 641, 861 P.2d 791 (1993); State v. Hunter, 241 Kan. 629, Syl. ¶ 10, 740 P.2d 559 (1987). Under the facts, the defendant was not entitled to an instruction on the defense of compulsion because he was acquitted of all crimes except first-degree premeditated murder and second-degree murder.. Compulsion is not an available, statutory defense to the crimes. See K.S.A, 21-3209.
ABUSE OF DISCRETION IN SENTENCING
The defendant also claims in his pró'se brief that the trial court abused its discretion in imposing the maximum sentence for,the second-degree murder conviction and in making that sentence consecutive to the first-degree murder sentence. • ■ • ■
The defendant contends that the trial judge 'failed to:táke into consideration any of the circumstances "'surrounding , the únfortünate deaths of Pavey and Voyles, including the death threats .made .to the defendant by Pavey. A review of the record,shows that the judge carefully detailed his analysis of the requisite factors in-imposing the sentences. The sentences were not an abuse-of discretion. .....
Affirmed.
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The opinion of the court was delivered by
Davis, J.:
This is a direct criminal appeal from convictions of felony murder, first-degree murder, aggravated robbery, and aggravated kidnapping. The defendant, Alan Keith Copridge, claims that the trial court erred (1) in failing to grant his motion to suppress evidence, (2) in failing to grant his motion to suppress his pretrial statements, and (3) in failing to grant a mistrial. The defendant also appeals from the imposition of a hard 40 sentence, claiming that the State failed to comply with the statutory notice requirements.
On Monday, October 15, 1993, Damen Fuller, an employee of Victor’s Auto Sound, found the owner and his employer, Harold Victor Williams, dead at Williams’ duplex. The next day, John Stevens, a friend of the defendant, reported to the Wichita Police Department that the defendant had called him several times over the weekend, asking him to join him in a plan to steal stereo equipment. Stevens stated that the defendant told him he wanted to steal the equipment from the victim’s truck and that the victim owned a stereo shop. Stevens also told the police that the defendant mentioned that the victim was someone he knew. When Stevens asked the defendant how he was going to rob someone he knew, who could be expected to identify him, the defendant stated that he had not figured out that part of the plan yet.
Earlier that same morning, the defendant had been arrested on an unrelated charge. After receiving Stevens’ information, Detective Chisolm of the Wichita Police Department went to the jail and examined the defendant’s personal effects which had been moved to the property room. Inside the defendant’s wallet, Chisolm found a business card from Victor’s Auto Sound. The defendant was still in the booking area while the search was being conducted. After the defendant was issued an orange jumpsuit, Chisolm examined the clothing the defendant had been wearing. He noticed what appeared to be bloodstains on the defendant’s shoes.
On October 27, Chisolm obtained and executed a search warrant to collect blood and hair samples from the defendant. Chisolm testified that he knew he could not interview the defendant at the time because the defendant was represented by an attorney. As a result, he simply explained to the defendant that he needed blood and tissue samples in connection with a murder investigation. The defendant asked who the murder victim was and Chisolm gave him the name of the victim.
According to Chisolm, the defendant then told him he wanted to talk about the murder. Chisolm informed the defendant that he could not talk about the murder because the defendant was represented by counsel. The defendant insisted that he had only requested an attorney to represent him on the prior unrelated charge, not the murder charge, and that he wanted to talk. Finally, Chisolm and Officer Kenneth Landwehr took the defendant into an examination room and advised him of his Miranda rights. Chisolm stated that the defendant did not appear intoxicated or under the influence of medication.
The defendant told Chisolm and Landwehr that he was a friend of the deceased, Williams, and that he and Williams were homosexual lovers. The defendant said that on the night of the murder, he and his friend Stacy Speed were at Williams’ house watching television. When he came out of the bathroom he saw Speed stabbing Williams with a knife. The defendant tried to take the knife away from Speed and finally got Speed to stop stabbing Williams.
According to the defendant, Speed began to gather stereo equipment from the residence. Speed told the defendant to help him load the stereo equipment into the Pontiac that they had driven to the residence and also told the defendant to follow him in Williams’ BMW. After leaving Williams’ house, he and Speed went to Victor’s Auto Sound, but Speed was unable to get into the shop. They then went to Speed’s girlfriend’s house.
After more questioning by the officers, the defendant admitted that he and Speed had planned to go to Williams’ house with the intention of robbing him, but stated that he then told Speed he did not want to rob Williams. The defendant also told the officers that when he tried to stop Speed from stabbing Williams, his gun fell out of the waistband of his pants, and that Speed grabbed the gun and forced him to tape Williams’ hands and feet together and to steal the stereo equipment.
The defendant was charged with felony murder, or in the alternative, first-degree murder, aggravated robbery, aggravated kidnapping, and criminal possession of a firearm, which was the unrelated charge on which the defendant had originally been arrested. The defendant pled guilty to criminal possession of a firearm and went to trial on the other charges.
Prior to trial, the defendant filed motions to suppress both the evidence obtained from a search of his personal items and his statements to the officers. Both motions were denied by the trial court. Also prior to trial, the defendant made a motion in limine to prohibit witnesses from talking about the defendant’s previous incarceration. The trial court granted the motion and noted that the witnesses were not to talk about the defendant being in the penitentiary for prior wrongs, or the circumstances surrounding the defendant’s stop on the unrelated charge, although the officer mak ing the stop could testify as to why the defendant had been stopped.
In its opening statement, the State mentioned that at the time the search of the defendant’s personal effects was made he was “in jail on an unrelated arrest.” The' defendant objected and moved for a mistrial on the grounds that the State had violated the motion in limine. The trial court denied the motion.
The defendant was convicted on all counts. He was sentenced to the hard 40 on his first-degree murder conviction, which was made consecutive to concurrent terms totalling 178 months.
(1) Suppression of Physical Evidence
The defendant argues that the district court erred in failing to suppress the evidence collected from a search of his personal effects and clothes which was conducted while he was being booked into jail on an unrelated charge. He contends that the search was unconstitutional in that Chisolm did not have probable cause to search or a search warrant. ■ '
We have held that where a defendant is taken into custody and his or her personal effects are lawfully seized and retained for safekeeping, the defendant has no expectation of privacy and officers may thereafter take a “second look” at the inventoried personal effects without a search warrant and remove any evidence. State v. William, 248 Kan. 389, 426, 807 P.2d 1292, cert. denied 502 U.S. 837 (1991); State v. Costello, 231 Kan. 337, 342, 644 P.2d 447 (1982). The test in such a situation is not whether the items are in plain view or whether the police had probable cause to search but whether the items were lawfully in their custody in the first place. State v. William, 248 Kan. at 425-26.
William is based upon United States v. Edwards, 415 U.S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234 (1974). See 248 Kan. at 422. In Edwards, the accused was booked into jail, and the following mom-, ing his clothing was taken from him and held as evidence. The United States Supreme Court stated that at the time the accused was booked into jail, “[w]ith or without probable cause, the authorities were entitled at that point not only to search Edwards’ clothing but also to take it from him and keep it in official custody.” 415 U.S. at 804. The Court also stated: “[I]t is difficult to perceive what is unreasonable about the police examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest.” 415 U.S. at 806. Edwards concluded:
“ “While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence.’ ” 415 U.S. at 808-09 (quoting United States v. DeLeo, 422 F.2d 487, 493 [1970]).
The defendant recognizes our prior decisions. However, he argues that the Supreme Court stated in Edwards that “[i]n upholding this search and seizure, we do not conclude that the Warrant Clause of the Fourth Amendment is never applicable to post-arrest seizures of the effects of the arrestee.” 415 U.S. at 808. He contends that in seizing his clothing, the State must first obtain a warrant. In support of this contention, he cites Brett v. United States, 412 F.2d 401, 406 (5th Cir. 1969), and People v. Hayes, 154 Misc. 2d 429, 584 N.Y.S.2d 1001 (1992).
The defendant’s reliance is misplaced, for neither of these cases support his argument. Brett is a pre-Edwards case and would have been decided differently under Edwards. Hayes stands only for the proposition that police must have a search warrant to search an accused’s clothing if the clothing is not in the accused's possession when he is arrested. In Hayes, the accused was in a hospital at the time of the arrest and police seized his clothing from the hospital storage room. The court found that Hayes retained a privacy interest in some aspects of his clothing precisely because it was not in his possession at the time of the arrest and, thus, the situation differed from the usual situation in which the police could conduct a warrantless search. See 154 Misc. 2d at 433-34.
As we stated in William, the test for whether police can search articles of clothing and personal effects taken from an accused at the time of arrest is not whether there is probable cause to search but simply whether the items were lawfully seized in the first place. 248 Kan. at 426. In the case before us, there is no dispute that the defendant’s effects were lawfully seized. Therefore, the police were allowed to search the effects without a warrant or probable cause, and the district court did not err in denying the defendant’s motion to suppress.
(2) Suppression of the Defendant’s Pretrial Statements
The defendant contends that the district court erred in failing to suppress his confession to the police regarding his role in the crime. He argues that the police should have refrained from interrogating him because he was represented by an attorney.
The United States Supreme Court has held that the accused, once having expressed his or her desire to be represented by counsel, is not subject to further interrogation until counsel has been made available, unless the accused initiates further communications. Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). This prohibition extends even to interrogations about a separate crime. Arizona v. Roberson, 486 U.S. 675, 687, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988); see State v. Morris, 255 Kan. 964, 977-78, 880 P.2d 1244 (1994).
As noted in Edwards, further communications that are initiated by the suspect are valid. See Edwards v. Arizona, 451 U.S. at 484-85. Moreover, police are free to inform the suspect of the facts of the second investigation as long as the communication does not constitute interrogation. Arizona v. Roberson, 486 U.S. at 687.
The defendant in this case was represented by an attorney on the unrelated charge. The officers knew this and did not question the defendant. The officers obtained a valid search warrant, and while executing the warrant to obtain the defendant’s hair and blood samples, informed him that they needed the samples as part of a separate murder investigation. After being informed that Williams was the victim, the defendant stated that he wanted to talk to the officers about the murder investigation. The officers declined, stating that they could not talk to him because he was represented by an attorney. The defendant insisted that he talk with the officers about the murder investigation.
The defendant argues that the officers should actually be charged with having initiated the conversation because their attempt to gather, evidence under the search warrant was merely a pretext to have contact with the defendant and to encourage him to talk about the murder. He contends that the search warrant was merely a pretext because no laboratory comparisons were done with the evidence collected in the search and the search warrant was without probable cause.
The record establishes that the affidavit for search warrant for the defendant’s hair and blood samples was supported by probable cause. The standard is whether a reasonably prudent person would believe that the evidence would be obtained by the search at a specific location. See State v. Longbine, 257 Kan. 713, 716, 896 P.2d 367 (1994). The affidavit presented by the officers in their attempt to obtain a search warrant recited the information given to them by Stevens, the informant, relating to the defendant’s plans to rob a stereo store owner. The defendant argues that these were merely statements from a previously unknown confidential informant. However, this argument ignores the corroborating evidence also found in the affidavit regarding the presence of blood stains on the defendant’s shoes and the presence of the victim’s business card in the defendant’s wallet. Based on this information, a detached magistrate could certainly have found probable cause for the issuance of a search warrant to collect blood and hair samples from the defendant.
(3) Mistrial
The defendant claims that the trial court erred in failing to declare a mistrial after the prosecution in its opening statement made reference to the defendant being in jail on a previous charge when his clothing was searched. The defendant argues that this reference was a clear violation of the motion in limine prohibiting the introduction of the defendant’s prior criminal record.
K.S.A. 22-3423(l)(c) authorizes the district court to declare a mistrial when prejudicial conduct makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution. The declaration of a mistrial is within the discretion of the district court, and the court’s decision will not be disturbed absent abuse of that discretion. State v. Rinck, 256 Kan. 848, 853, 888 P.2d 845 (1995).
Alleged violations of an order in limine are evaluated through the use of a two-part test. State v. Warden, 257 Kan. 94, 125, 891 P.2d 1074 (1994). First, there must be a determination of whether there was a violation of the order in limine. 257 Kan. at 125. Second, if the order was violated, there must be a determination of whether the testimony elicited in violation of the order substantially prejudiced the defendant. 257 Kan. at 125. The burden is on the defendant to show that he or she was substantially prejudiced. State v. Massey, 242 Kan. 252, 264, 747 P.2d 802 (1987).
Here, the order in limine was that officers were not to mention that the defendant had been previously incarcerated for prior wrongdoing, and further, that nothing was to be said about the circumstances surrounding the defendant’s illegal possession of a gun which led to his arrest in this case. However, the court said that Officer Tuzicka could testify to the circumstances surrounding the stop and identify the gun that was obtained by the defendant.
The objection leading to the motion for mistrial arose when the State, in its opening argument, stated that at the time the search of the defendant’s personal effects was made, “Mr. Copridge [was] in jail on an unrelated arrest.” The defendant immediately made a motion for mistrial which the district court denied. At the close of the State’s evidence, the defendant once again made a motion for mistrial. Once again, the district court denied the motion, stating that in light of the evidence the statement did not violate the order and its introduction did not prejudice the defendant. We agree with the trial court in its conclusions.
The first question that must be answered is whether the statement that the defendant was in jail on an unrelated offense violated the motion in limine. See State v. Warden, 257 Kan. at 125. The defendant argues that it was a violation of the motion in limine because it was irrelevant and prejudicial and allowed the jury to infer that the defendant had a propensity to commit bad acts.
In order to answer this question, the purpose of a motion in limine becomes important. We have held that a motion in limine should be granted only when the trial court finds two factors are present: (1) The material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer of evidence or statements made during trial concerning the material will tend to prejudice the jury. State v. Massey, 242 Kan. at 265.
In this case, evidence surrounding the defendant’s prior incarceration was certainly irrelevant and inadmissible. Further, evidence and details surrounding his prior arrest for possession of a gun were also inadmissible, at least until the State put on evidence tending to show that the gun was somehow related to the crime. However, the evidence concerning the defendant being in jail was relevant. The fact that the defendant was in jail explains his location when his clothing was searched by the police and when the police talked to him about the crime. As a result, this information is of the type that is generally not affected by a motion in limine. No mention of the reason for the defendant’s arrest was made by the State, and there was no mention of any prior offenses by the defendant. Under these circumstances, the motion in limine was not violated.
Further, assuming arguendo that the motion was violated, the defendant suffered no prejudice. Defense counsel mentioned the fact that the interview took place in the jail as part of his cross-examination of Chisolm. The State made no mention of the facts surrounding the arrest or any of the defendant’s prior crimes. Under these circumstances, it is difficult to conceive how the statement made by the State during its opening argument caused prejudice to the defendant.
(4) Notice Requirements Under the Hard 40 Sentence
The defendant contends the record does not show the State complied with the notice requirements of K.S.A. 1993 Supp. 21-4624(1) and, therefore, the district court erred in imposing the hard 40 sentence. More specifically, the defendant argues that the notice was defective for two reasons: (1) The State’s hard 40 notice was not filed until December 2,1993, 1 day after arraignment and (2) the transcript of arraignment does not indicate that the State tendered the original and a copy of the notice to the court with the intent that they be filed pursuant to K.S.A. 60-205(e).
In order for the State to seek imposition of the hard 40 sentence, the prosecution must file written notice of such intent with the court and serve a copy on the defendant “at the time of arraignment.” K.S.A. 1993 Supp. 21-4624(1). This notice requirement “is mandatory and where the State fails to follow the requirement, the hard 40 sentence cannot be imposed.” State v. Peckham, 255 Kan. 310, 315, 875 P.2d 257 (1994). The hard 40 notice may not be filed with the court after arraignment. See Peckham, 255 Kan. at 317.
In Peckham, 255 Kan. 310, the hard 40 notice carried a date stamp of 1 day after arraignment. At or shortly before arraignment, the State served a copy of the notice on the defendant and placed a copy on the judge’s bench. The record of arraignment was silent as to those events, but the transcript of a subsequent hearing contained the judge’s recollection of the copy having been placed on his bench at arraignment. However, the record contained no indication as to whether the copy was placed on the bench for the purpose of filing or as a courtesy to the court.
To resolve this issue, the Supreme Court defined the criteria for filing a document by personal delivery to the judge at arraignment. K.S.A. 60-205(e) provides that a judge may permit pleadings to be filed with him or her, “in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk.” This civil statute applies, as there is no provision in criminal procedures to the contrary. Peckham, 255 Kan. at 316. If papers are filed with the judge, “filing is complete when the judge personally accepts custody of the papers.” Peckham, 255 Kan. at 316-17 (citing Tobin Constr. Co. v. Kemp, 239 Kan. 430, Syl. ¶ 1, 721 P.2d 278 [1986]).
The court found the filing requirement of K.S.A. 1993 Supp. 21-4624(1) had not been met. The court noted several factors in reaching its conclusion: (1) The record contained no showing that the judge had permitted the notice to be filed with him or that he personally accepted custody of the notice, (2) the transcript of arraignment did not indicate the State had given a copy to the court, (3) according to the judge, a copy, not the original, had been placed on the bench, (4) the State did not indicate on the record that the copy was being placed on the bench for the purpose of satisfying the requirement of K.S.A. 1993 Supp. 21-4624, rather than as a courtesy to the judge, and (5) the trial judge made no finding or comment on the record to indicate he intended or contemplated that the copy of the notice had been placed on his bench for filing pursuant to K.S.A. 60-205(e).
Unlike Peckhdm, the record in this case reveals that during arraignment the prosecutor handed the district judge the original and 1 copy of the notice of intent to seek the hard 40 sentence on the defendant, handed defense counsel and the defendant a copy of the notice, and stated, “[T]hat has to be done, I think, pursuant to statute at arraignment. So, I think we’ve at least satisfied that statutory —.” At this point the court interrupted, saying, “I note that the actual notice that you just handed me . . . does not have the date of the arraignment filled in. Did you want to do that now?” The prosecution responded that he had been unsure whether formal arraignment would take place that day, to which the court replied, “I think we’re just doing it right now.” The State responded, “That’d be great.”
The notice of intent to seek imposition of the hard 40 sentence bears a file stamp .date of the following day, December 2, 1993, with no other indication of a different filing date.
This case is similar to our recent decisions in State v. Harris, 259 Kan. 689, 915 P.2d 758 (1996), and State v. Williams, 259 Kan. 432, 913 P.2d 587 (1996). In Williams, the hard 40 notice carried a date stamp of 4 days after arraignment. The record showed that, at arraignment, the State handed the court the original notice, stating, “The State files with the Court the original document,” to which the court replied, “Thank you, Ms. Foulston. It will be filed in the court clerk’s office.” 259 Kan. at 443. The judge did not write the date and time he received it on the notice as required by K.S.A. 60-205(e). The journal entry of arraignment stated that the court accepted custody of the hard 40 notice. The Williams court found the district court had accepted custody of the original notice for purposes of the filing requirement of K.S.A. 1993 Supp. 21-4624 and that filing was complete upon such acceptance. Williams, 259 Kan. at 444. “Failure to forward the notice forthwith or to enter a necessary date does not prejudice the State.” Williams, 259 Kan. at 444 (citing Peckham, 255 Kan. at 316-17).
In State v. Harris, the transcript of arraignment contained the following statement by the State: “For the record, Your Honor, I would file with the Court notice of the State’s intent to proceed under K.S.A. 21-4622 [sic]. A copy has been provided to counsel and also to the defendant.” Harris, 259 Kan. at 708. When the matter was raised at the sentencing hearing, the judge remembered that the State had given copies of the notice to the defendant and also handed the notice to the judge to be filed and that these actions were “all simultaneous.” Harris, 259 Kan. at 707. On appeal, this court found the record in Harris clearly showed the State intended to file the hard 40 notice with the trial court and actually did so. Harris, 259 Kan. at 710.
However, the trial judge in Harris apparently did not write the date and time of receipt on the notice and did not transmit the notice to the clerk until later that afternoon. The defense argued these omissions violated the statutory requirements for judges to accept filing pursuant to K.S.A. 60-205(e) and, therefore, invalidated the hard 40 sentence. We rejected this argument, holding that the State’s filing of the notice with the judge was all that was required to satisfy K.S.A. 1992 Supp. 21-4624, and the judge’s subsequent failure to date the papers or file them until later that afternoon did not prevent the State from seeking the hard 40 sentence. Harris, 259 Kan. at 710.
Consistent with Williams and Harris, the State in this case der livered the original of the notice to the judge. The record in this case discloses that the State handed an original and copy to the trial judge. The judge acknowledged receipt of “the actual notice,” and the record contains a hard 40 notice bearing an original signature with the proper arraignment date.
Although the record in this case does not contain an express statement from the judge that he was accepting custody of the notice, the record demonstrates that the trial judge acknowledged receipt of the “actual notice” and inquired of the State regarding the omitted date of arraignment so that the date could be filled in at that time. The original of the notice appears in the record with the arraignment date, December 1, 1993, filled in. The judge’s reference to the “actual notice” and his clarification of the date of arraignment on the notice support the conclusion that the trial judge in this case intended to accept custody of the notice for filing. We conclude that the filing of the notice did occur at arraignment by personal delivery to the trial court.
Affirmed.
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The opinion of the court was delivered by
Lockett, J.:
J.C., a juvenile, was charged with a felony. Due to the juvenile’s prior adjudication, he was prosecuted as an adult pursuant to K.S.A. 1994 Supp. 38-1602. J.C. appeals the denial of his motion to set aside the prior adjudication, claiming K.S.A. 38-1633(b)(1) required the judge to advise him that (1) the charge to which he stipulated was classified as a felony for adult sentencing purposes and (2) stipulation to a felony charge would affect his status as a juvenile offender should he be charged with future felonies.
A juvenile is a person 10 or more years of age but less than 18 years of age. A juvenile offender is generally defined as a person who does an act while a juvenile which if done by an adult would constitute the commission of a felony or misdemeanor. K.S.A. 38-1602.
When J.C. pled to the first felony, aggravated assault of a law enforcement officer, as a juvenile in 1993, K.S.A. 38-1602(b)(3) provided that the term “juvenile offender” did not include a person 16 years or older who had two prior juvenile felony adjudications. One and one-half years later, J.C. was charged with aggravated arson, a felony. Due to J.C.’s plea and adjudication in 1993, he was prosecuted as an adult pursuant to K.S.A. 1994 Supp. 38-1602. At the time J.C. was charged with the second felony, the statute had been amended to provide that only one prior felony adjudication would result in loss of juvenile offender status for a juvenile 16 years of age or older. K.S.A. 1994 Supp. 38-1602(b)(3).
In an effort to keep from being prosecuted as an adult and to remain under the Juvenile Offenders Code, J.C. filed a motion to set aside the prior 1993 adjudication. J.C. asserted that the prior 1993 adjudication must be set aside because the judge who accepted his stipulation and the plea advisory statement he had signed failed to advise him that (1) he was stipulating to a charge which would be classified as a felony if he were an adult and (2) his stipulation to a felony adjudication would affect his classification as a juvenile offender for subsequent offenses.
At the hearing to set aside the 1993 adjudication, J.C. testified that, at the time of the stipulation, he had not been informed of the difference between a felony and a misdemeanor or of the effect a stipulation to a felony would have on his status as a juvenile offender for a subsequent felony charge. The judge reviewed the record and concluded that J.C. had been adequately informed of the nature and consequences of the charges against him as required by K.S.A. 38-1633(b). The judge determined that the statute in effect at the time did not require that a juvenile be informed of the possible future consequences of stipulation to a felony charge and denied the motion. J.C. appealed.
1993 Adjudication Record
On May 10, 1993, J.C. was charged with four counts of aggravated assault of a law enforcement officer. In the complaint, the charges were stated to be violations of K.S.A. 21-3411, class C felonies. The law required that if a juvenile is being detained, a detention hearing must be held within 24 hours after the juvenile is taken into custody. K.S.A. 38-1632(a)(2). At his detention hearing, J.C. waived reading of the complaint and stipulated to the factual basis for detention. A juvenile caseworker then testified that she was aware that J.C. had been charged with class C felonies. J.C. was held for further proceedings.
At a subsequent plea hearing, J.C. stipulated to one felony charge in exchange for the State’s dismissal of the other three felony charges. J.C. signed a plea advisory form. The plea advisory form J.C. signed indicated that J.C. understood that he was charged with aggravated assault of a law enforcement officer, in violation of K.S.A. 21-3411. The form stated the requirements of K.S.A. 38-1633 and set forth the constitutional rights J.C. was waiving by his stipulation and the immediate potential consequences of his stipulation and adjudication, i.e., possible probation, house arrest, placement in a community corrections facility, or outside placement.
After consultation with his attorney, J.C. signed the form and initialed the section of the plea advisory listing the charge and also indicated that he understood the nature of the charge. J.C. informed the judge that he had reviewed the plea agreement with his attorney and understood it. The judge then reviewed the elements of the charge and asked whether J.C. wanted to admit to the elements of the charge. J.C. stated that he did.
The judge requested J.C. to describe in detail the events that gave rise to the charge. J.C. testified he had threatened a police officer with a knife with an 8-ineh blade. J.C. admitted it was reasonable for the officer to fear he might be hurt. At the conclusion of the hearing, the judge found that J.C.’s admission was knowledgeable and voluntary and that there was a factual basis for the stipulation. The judge then found that J.C. was a juvenile offender, “having committed an act that would be a class C felony, aggravated assault on a law enforcement officer.”
The judge filed a journal entry of adjudication. The journal entry indicated that J.C. had stipulated to Count II of the complaint, aggravated assault of a law enforcement officer, an offense that would be a class C felony if he were an adult; that the stipulation was knowledgeable and voluntary; and that “the Respondent [was] a juvenile offender, having committed an act that would be a Class C felony, if Respondent were an adult.”
Neither the judge nor the journal entry informed J.C. of the effect that J.C.’s plea would have upon his status as a juvenile offender under K.S.A. 38-1602 if he were charged with a subsequent felony while under 18 years of age.
DUTY TO INFORM
In 1993, K.S.A. 38-1633 of the Juvenile Offenders Code provided in part:
“(b) When the respondent appears with an attorney in response to a complaint, the court shall require the respondent to admit or deny the allegations stated in the complaint or plead nolo contendere, unless there is an application for and approval of a diversion program. Prior to making this requirement, the court shall inform the respondent of the following:
(1) the nature of the charges in the complaint;
(2) the right of the respondent to be presumed innocent of each charge;
(3) the right to trial without unnecessary delay and to confront and cross-examine witnesses appearing in support of the allegations of the complaint;
(4) the right to subpoena witnesses;
(5) the right of the respondent to testify or to decline to testify; and
(6) the dispositional alternatives the court may select as the result of an adjudication.”
J.C. asserts that this court should interpret the phrase “nature of the charges” in K.S.A. 38-1633(b) to require “an explanation of whether an offense would be misdemeanor or a felony for adult sentencing purposes.” J.C. argues that the judge’s failure to explain that the charge to which he stipulated would be a felony if he were an adult requires that the prior 1993 adjudication be set aside.
J.C.’s argument, raised IVz years later and only after he had been charged with another felony, is unpersuasive. The record supports the State’s position that J.C. was fully informed of the nature of the charge and the possible dispositions for a juvenile and that the charge would have been a felony for an adult. There is no merit to this claim.
Consequences of a Plea
J. C. next contends that K.S.A. 38-1633(b) required the judge to inform him that his plea to the aggravated assault charge could affect his status as a juvenile offender should he be charged with subsequent felonies while a juvenile. Since this issue involves a question of statutory interpretation, our scope of review is unlimited. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
The issue we actually address is whether the Due Process Clause of the Fourteenth Amendment to the United States Constitution required the judge to inform J.C. that by pleading to a felony offense, he could lose his status as a juvenile offender should he be charged with subsequent felonies while a juvenile. This is an issue of first impression. However, this court has dealt with a similar question with respect to K.S.A. 22-3210, which is the counterpart of K.S.A. 38-1633(b) in the adult criminal code.
K. S.A. 22-3210 also establishes requirements which must be met before the court may accept a guilty plea to a felony charge from an adult offender. One of those requirements is that the trial court inform the defendant of the “consequences of the plea . . . and of the maximum penalty.” K.S.A. 22-3210(a)(2).
In Trotter v. State, 218 Kan. 266, 268, 543 P.2d 1023 (1975), this court noted that K.S.A. 22-3210 was drafted to embody the requirements of due process as they relate to the acceptance of guilty pleas and as established by the United States Supreme Court in Boykin v. Alabama. 395 U.S. 238, 243, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969).
The Supreme Court held in Boykin:
“Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. [Citation omitted.] Second, is the right to trial by jury. [Citation omitted.] Third, is the right to confront one’s accusers. [Citation omitted.] We cannot presume a waiver of these important federal rights from a silent record.” 395 U.S. at 243.
With respect to the due process requirements relating to guilty pleas, this court stated as to 22-3210 in State v. Dillon, 242 Kan. 410, 413, 748 P.2d 856 (1988):
“This procedure basically follows Rule 11 of the Federal Rules of Criminal Procedure, compliance with which is held to be mandatory upon the federal courts in McCarthy v. United States, 394 U.S. 459, 22 L. Ed. 2d 418, 89 S. Ct 1166 (1969), and which procedure is fastened upon the state courts as a requirement of due process. Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969); White v. State, 222 Kan. 709, 713, 568 P.2d 112 (1977). K.S.A. 22-3210 was enacted following the Boykin decision. See Widener v. State, 210 Kan. 234, 237-38, 499 P.2d 1123 (1972).”
Similarly, K.S.A. 38-1633(b) of the Kansas Juvenile Offenders Code was drafted to conform with Boykin’s due process requirements. As previously noted, K.S.A. 2243210(a)(2) of the Kansas Code of Criminal Procedure requires that the court inform the defendant of the “consequences of the plea . . . and of the maximum penalty.” K.S.A. 38-1633(b)(l) and (6) are the equivalent sections in the Juvenile Offenders Code and require the court to inform a juvenile offender of the “nature of the charges in the complaint” and the “dispositional alternatives the court may select as the result of an adjudication.”
The State argues that the court is not required to inform a juvenile offender of the effect of a stipulation to a felony offense upon his or her future status as a juvenile offender because this information is a collateral and remote consequence of the stipulation. As authority for its argument, the State relies on Cox v. State, 16 Kan. App. 2d 128, 130, 819 P.2d 1241 (1991), rev. denied 250 Kan. 804 (1992), which determined that a judge is required to inform a defendant of the direct penal consequences of a guilty plea before accepting the guilty plea. However, the judge is not required to inform a defendant of the collateral consequences of a guilty plea.
The State’s point is well taken. In Gox, the defendant filed a motion pursuant to K.S.A. 60-1507 alleging that the trial court should not have accepted his guilty plea because he was not advised of the full consequences of his plea. Specifically, Cox argued that the judge had failed to advise him of his loss of voting rights, jury eligibility, or the right to hold office and the future possibility that should he receive parole, restrictions would be imposed upon him.
The Cox court held that a judge is not required to inform a defendant of every possible collateral consequence of his plea, but only direct consequences. 16 Kan. App. 2d at 130-31. The Cox court relied upon the Ninth Circuit decision in United States v. King, 618 F.2d 550 (9th Cir. 1980), which held that a sentencing judge is only required to inform the defendant of direct immediate consequences of his plea and not possible collateral consequences. The Ninth Circuit court reviewed other consequences held by courts to be collateral and not direct consequences of a guilty plea, including the possibility of revocation of parole, Sanchez v. United States, 572 F.2d 210 (9th Cir. 1977); the possibility that a federal sentence might be ordered to run consecutive to a state sentence, Faulisi v. Daggett, 527 F.2d 305 (7th Cir. 1976); potential deportation, Fruchtman v. Kenton, 531 F.2d 946 (9th Cir.), cert. denied 429 U.S. 895 (1976); and the likelihood of an undesirable militaiy discharge, Redwine v. Zuckert, 317 F.2d 336 (D. C. Cir. 1963). The Cox court then concluded that a trial court was not required to inform a defendant of collateral consequences which are not included in the mandates of K.S.A. 22-3210. 16 Kan. App. 2d at 130-31; see also Hicks v. State, 220 Kan. 279, 552 P.2d 889 (1976) (court accepting guilty plea not required to advise defendant as to future parole eligibility); Ruebke v. State, 11 Kan. App. 2d 353, 720 P.2d 1141, rev. denied 240 Kan. 805 (1986) (no abuse of discretion in court’s failure to advise defendant of future availability of expungement).
City of Ottawa v. Lester, 16 Kan. App. 2d 244, 822 P.2d 72 (1991), is also relevant. In Lester, the defendant sought to withdraw his guilty plea in municipal court to driving under the influence. Lester contended that his plea was involuntary since the municipal judge had not informed him that his driving privileges could be suspended. Lester cited numerous federal and state decisions holding that the sentencing judge is not required to inform a defendant of the collateral consequences of a guilty plea. 16 Kan. App. 2d at 246-47, and cases cited therein.
Then, quoting from United States v. Lott, 630 F. Supp. 611, 612 (E.D. Va.), aff’d 795 F.2d 82 (1986), the Lester court stated that the test of whether consequences are collateral has been defined as “whether the consequences imposed are a definite, immediate, and largely automatic result of the guilty plea.” 16 Kan. App. 2d at 248. Applying this test, the court held that suspension of Lester’s driving privileges was a collateral consequence of his guilty plea and that the judge was not required to advise Lester of these consequences.
Due process does not require a judge to inform a juvenile that a stipulation to a felony offense may be used subsequently to determine his or her later status as a juvenile offender. Stated another way, one of the collateral consequences of which a defendant need not be informed at a plea hearing is the possibility that the plea may be used to enhance the sentence for a later crime. Such a consequence is not definite, immediate, or automatic but rather only speculative. As the district judge stated in her memorandum opinion:
“The court need not speculate as to whether or not respondent will face future felonies before he is eighteen, nor need the court speculate that the legislature may amend the statute changing the definition of a juvenile offender prior to a respondent’s eighteenth birthday. Even if the court had informed Respondent of the definition of juvenile offender at K.S.A. 38-1602(b)(3) in 1993, that definition changed in 1994, so the collateral consequences of his plea changed by legislative action in 1994.”
Affirmed.
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The opinion of the court was delivered by
Six, J.:
This is a contract case, rich in issues, arising from an attempt to sell stock in a closely held corporation. The appeal involves a written agreement (Agreement) in which T.S.I. Holdings, Inc. (TSI), a holding company, its subsidiaries and shareholders, as sellers, agreed to sell a controlling portion of TSI voting common stock to Lawrence S. Jenkins and Roger W. Hood, M.D., as buyers. The March 22,1993, closing date passed, and the sale never closed.
The primary question is whether sellers, in defending against buyers’ breach of contract claim, may rely on their performance being excused as impossible, impracticable, and commercially frustrated. Additional questions are: (1) When did the Agreement terminate; (2) was time of the essence; (3) is the clean hands doctrine applicable; (4) is there a jury issue as to whether sellers breached the Agreement by failing to use best efforts and violating a nondisclosure provision; (5) are the claims of fraudulent misrepresentation and fraud by silence valid; (6) does the claim of tortious interference survive summary judgment; and (7) was the award of costs and attorney fees proper under the Agreement?
The Litigation
A brief litigation prologue will be helpful in linking the issues with their resolution. TSI began this suit against buyers by seeking a declaratory judgment that, among other things, the Agreement had expired by its terms on March 22, 1993. TSI also alleged that buyers tortiously interfered with a business expectancy by chilling negotiations between TSI and Citicorp Venture Capital, Limited (CVC). Buyers filed a counterclaim against TSl and added the other sellers as additional counterdefendants. The counterclaim sought specific performance and a declaration that the Agreement was still in effect.
Buyers amended their coimterclaim to assert, among other things, a claim for breach of contract against sellers and added a claim for tortious interference against CVC and Citibank, N.A. (Citibank). In their amended counterclaim, buyers abandoned their allegation that the Agreement was still in effect and could be specifically performed. TSI later amended its petition to add fraudulent misrepresentation and fraud by silence claims against buyers. TSI withdrew its claims against buyers for tortious interference.
The district court granted CVC and Citibank’s motion to sever. The respective claims of TSI and buyers went to trial. At the close of TSI’s case, the district court ruled as a matter of law on TSI’s declaratory judgment claim that: (1) the closing date of the Agreement could only be extended by mutual consent, (2) there was no mutual consent to extend the closing beyond March 22, 1993, and (3) the Agreement expired by its own terms on March 22, 1993. The district court also granted buyers’ motion for a directed verdict against TSI’s fraudulent misrepresentation and fraud by silence claims. After the fifth day of trial, the district court granted sellers’ motion for a directed verdict against buyers’ counterclaim for breach of contract on the basis of impossibility or impracticability of performance and commercial frustration.
Later, the district court granted CVC and Citibank’s motion for summary judgment on buyers’ tortious .interference claim, based on its prior holding that the Agreement could not be performed. However, the district court suggested that were it not for the application of the doctrines of impracticability and commercial frustration, buyers would have been entitled to a trial on their tortious interference claims against CVC and Citibank.
The district court denied buyers’ motion for a new trial and granted TSI’s motion for attorney fees and costs.
ISSUES
The issues in buyers’ appeal are whether the district court erred in ruling that: (1) sellers’ performance was excused under the doctrines of impossibility, impracticability, or commercial frustration, (2) the Agreement expired on March 22, 1993, (3) CVC and Citibank are entitled to summary judgment, and (4) TSI is entitled to attorney fees and costs.
The issues in the TSI cross-appeal are whether the district court erred in entering a directed verdict against TSI on its claims against buyers for: (1) fraudulent misrepresentation and (2) fraud through silence.
Jurisdiction is based on our transfer of the case from the Court of Appeals. K.S.A. 20-3018(c).
We affirm the declaratory judgment in favor of TSI. The Agreement expired on March 22, 1993. We reverse and remand on the other three issues in buyers’ appeal. The facts when reviewed under the language of the Agreement do not establish impracticability of performance or commercial frustration. We affirm on the two issues in TSI’s cross-appeal.
FACTS
TSI is a Kansas City, Kansas, company principally involved in the manufacture and installation of tanks on trucks used for delivery of diesel fuel, liquid propane, and gasoline. Melvyn Paul is the chief executive officer of TSI and the owner of 75% of its issued and outstanding stock. Phillip Hodes owned the remaining 25% of TSI’s stock. TSI is considered to be in a small, or “niche,” industry in which it enjoys a dominant position.
Buyers are local investors who contracted under the Agreement with sellers (TSI and its subsidiaries, Ameritank, Inc.; Garsite/TSR, Inc.; T.S.I. Refuelers, Inc.; Hewitt Hose, Inc. USA; National Refueler Leasing Corp.; New Progress, Inc.; Tri-State Tank Corporation; Tri-State West, Inc.; and shareholders Melvyn Paul, Marcia Paiil, Phillip Hodes, and Barbara Hodes) to purchase 51% of the issued and outstanding stock of TSI.
By mid-1992, Paul recognized that without an infusion of cash and new management, TSI would not grow. He began to consider securing an investor for his company. Paul discussed TSI’s needs with Fehmi Zeko, Jr., the son of a local long-time family friend. Zeko was then employed with Citibank in New York. TSI needed more capital, was heavily leveraged, and could not borrow additional funds from its bank.
Aware that CVC (a wholly owned subsidiary of Citibank) made such investments, Zeko contacted James Luikart, an employee of CVC, regarding TSPs need for investment capital. In October 1992, Zeko and Luikart met with Paul in Kansas City and toured the TSI facilities for a few hours. However, no decisions were made.
Paul first met with buyers in August 1992, regarding a possible sale to them of a controlling interest in TSI. On November 20, 1992, Paul and Hodes entered into a letter of intent with buyers to sell 51% of the outstanding common stock of TSI. The agreed closing date was not to be later than December 31, 1992, unless mutually extended by the parties. The parties discussed that Hood would provide the money for the investment in TSI and Jenkins would provide the management skills that Paul needed to manage and expand TSI. Paul revealed to buyers in the August 1992 meeting that his TSI common stock was pledged at the College Boulevard National Bank (Bank) as collateral for a $1.6 million personal loan. Paul owned stock in the Bank and had served on its board of directors.
The letter of intent anticipated that the Bank would release its lien on Paul’s TSI common stock. TSI then could cancel the common stock and issue new preferred stock to Paul and Hodes and issue new common stock to Jenkins and Hood. Accordingly, Paul asked Jon Grams, president of the Bank, to sign a letter dated January 14, 1993 from Paul’s counsel. The January 14 letter explained that Paul was negotiating a transaction that would “convert a certain portion of his existing common stock into preferred stock in the face amount of $2,500,000.00 and subject the remainder of his common stock to a purchase option.” The letter further requested that the Bank “release the TSI Holdings, Inc. common stock which you currently hold as collateral and allow it to be replaced by the $2,500,000.00 in preferred stock.” On January 29, 1993, Grams approved and accepted the proposal by signing the letter.
On February 4, 1993, Jenkins, Hood, Paul, and TSI and its subsidiaries, and other shareholders reached the Agreement providing for buyers to purchase 51% of the common stock of TSI. The closing date was stated as February 26, 1993, or such later date as the parties mutually agreed. The Agreement was the product of extensive negotiations between the parties and their attorneys.
Following the terms of the letter of intent, the Agreement provided that TSI would issue new common stock, 51% of which was to be transferred to buyers in exchange for $2.5 million to be paid to TSI ($1 million in cash at closing and $1.5 million as a promissory note). The remaining 49% of the new common stock was to be held by Paul and Hodes, subject to a purchase option that Jenkins and Hood could exercise.
Regarding the common stock then held by the Bank as collateral for Paul’s loan, the Agreement provided:
“[Section 7.1] (o) Release of Midland [Midland National Bank, also known as College Boulevard National Bank] Pledge. Mel Paul shall have furnished docu mentation satisfactory to Buyer evidencing release of the Midland Pledge on terms and conditions as set forth in that certain letter, dated January 14, 1993, from Charles Christian Kirley [Paul’s lawyer] to Midland National Bank, acopyofwhich is included in the Disclosure Schedule.”
The letter referred to in 7.1(o) was the letter Grams had signed agreeing in principle to the broad outline of the transaction.
The Agreement further provided at Section 4.1(a) that Paul (and the other sellers) “will use their respective best efforts” to fulfill their obligations, including obtaining any consents or approvals of any third party required by the Agreement.- However, the Agreement also provided:
“For purposes of this Section 4.1(a), the use of'best efforts shall not include any expenditure of funds, except to the extent provided by any express provision of this Agreement or unless Buyers agree to cause reimbursement, by Buyers, TSI, or the Subsidiaries, of any such expenditures.” (Emphasis added.)
Shortly after the Agreement was signed, two events occurred involving the Bank. First, Grams concluded that he had been under a misimpression about the nature of the TSI 'transaction when he signed the January 14,1993, letter. Grams testified that he did not understand that Paul would be receiving both preferred stock plus some common stock. Grams reversed his position. He decided that the transaction could not be approved unless the Bank received all of the stock that was going to be issued to Paul. Accordingly, Grams would not allow the Bank to sign off on a February 17,1993, letter from Paul’s counsel to the Bank asking for a release of the Bank’s lien on Paul’s common stock so that new preferred stock could be substituted as collateral.
Regarding the second event, Grams testified that in mid-February 1993, bank regulators began putting “a lot of pressure on all the executives at the bank ... on a daily basis.” By mid-March, the Federal Deposit Insurance Corporation (FDIC) had sent a team of approximately 15 people from its liquidation division to assess the assets of the Bank. By mid-March, Bruce Bonner, vice president of commercial lending at the Bank, concluded that the regulators would close the Bank.
Grams was concerned that he would be second-guessed by the bank regulators if he released Paul’s stock in TSI. Grams reasoned such action could be construed as giving favorable treatment to Paul, who Grams considered was an “insider” by virtue of Paul’s position as a shareholder and former Bank director. Grams and Bonner were both concerned about their personal liability if the Bank released Paul’s stock without specific approval from the regulators.
In mid-February, Paul’s $1.6 million loan from the Bank was renewed for a 6-month term. The loan was on the Bank’s “criticized assert report.” The Bank lent Paul $312,500 so he could pay the interest on the loan. On February 24, 1993, the executive loan committee for the Bank gave preliminary approval of release of Paul’s TSI stock in exchange for the new stock. On March 18,1993, the Bank’s executive loan committee again gave preliminary approval for the release of TSI stock.
Although the Bank discussed a possible release of Paul’s stock with the regulators, the regulators did not comment on the proposal. When contacted about releasing Paul’s stock, Grams said that “the regulators were crawling all over his back” and that he would not do anything without their approval because “he didn’t want his. business decision today to be an indictment down the road.”
Sometime before March 10,1993, Bonner expressed concern to Paul about releasing the common stock. Bonner testified that he never told Paul that the Bank would not release the stock and that the Bank never made a decision not to release the stock. Bonner also testified that on March 22, 1993, the day of the scheduled closing, the Bank was still considering its position concerning the stock. The Bank believed that the parties were continuing to complete and document the sale.
As of February 26, 1993, the closing date in the Agreement, much of the documentation required to be provided by the sellers had not yet been completed. The parties signed two written extensions of the closing date. (Section 10.9 of the Agreement required amendments to be in writing.) The first one extended the date from February 26, 1993, to March 15, 1993, and the second extended the date from March 15, 1993, to March 22, 1993.
During February and part of March 1993, Jenkins was at TSI almost on a daily basis. He was put on the payroll, covered by health insurance, and treated as a management employee. He was given office space to learn the business. According to Paul, Jenkins was to be paid a salary for his time if the deal closed. On March 12, 1993, Paul informed Jenkins that he was concerned about the problems the Bank had encountered with federal regulators. He suggested there might be a problem with the procedure set forth in the January 14, 1993, letter. Michael Kahn, buyers’ attorney, testified that after March 15, 1993, passed without a closing, he attempted to negotiate an open-ended extension of the closing date. Paul was unwilling to sign such an open-ended extension. Kahn testified that Paul’s counsel suggested that the parties create an escrow, under which the buyers would contribute their consideration and the sellers w'ould deposit the stock and other documents until the conditions precedent could be satisfied. The buyers agreed to this arrangement. According to Kahn, after Paul learned of the buyers’ agreement, he decided not to proceed with the escrow', and instead the parties' agreed to extend the closing again, to March 22, 1993. Paul testified that it w'as important to him that the deal close quickly because the Agreement restricted his ability to manage TSI and created uncertainties about who owned TSI.
Paul agreed to a proposal set forth in a March 16, 1993, letter to the Bank from buyers’ counsel that would have given the Bank a security interest in both Paul’s new' preferred and common stock. How'ever, Grams was unwalling to release the stock without first receiving the regulators’ approval.
Counsel for the parties unsuccessfully attempted in telephone conversations to convince the Bank to release Paul’s common stock. Kahn testified that “in order to accomplish the transfer as delineated in the Agreement, it was necessary that [the Bank] allow' the release of [Paul’s common] stock for the purpose of allowing it to be exchanged.”
Grams testified that there w'as nothing that Paul could have done to get his stock freed up other than paying off the $1.6 million balance on the loan at the Bank. As of March 22, 1993, the Bank had not decided to release Paul’s stock. Bonner, in responding to the sellers’ attorney’s March inquiry, said that the Bank was “still working on it.” Bonner could not give a time when the Bank would make a decision.
On March 22,1993, buyers’ counsel notified sellers’ counsel that the buyers were ready to close. By letter dated March 24, 1993, sellers’ counsel notified buyers’ counsel that there would be no further extensions of the closing date and that the Agreement had lapsed.
On April 2, 1993, federal regulators took over the Bank, and Paul’s common stock in TSI came under the control of the FDIC.
TSI’s Contacts With CVC and Citibank
Section 4.1(c) of the Agreement provided that until closing or termination, none of the sellers would
“discuss, negotiate, or deal with any other corporation, firm, or other person, or entertain, solicit, accept, or consider any inquiries, offers, or proposals relating to the sale of any common stock or assets of TSI or any of the Subsidiaries.”
In early March 1993, Paul invited Zeko and Luikart to return to Kansas City. Buyers assert that Zeko actually requested the meeting. A meeting between Zeko, Luikart, and Paul was scheduled for March 10, 1993, to discuss TSI. Zeko testified that he set up the meeting and that Luikart wanted him to attend. They were in Kansas City to follow up on the October conversations concerning CVC’s interest in making an investment in TSI. A mutual acquaintance related to Hood that Paul had told him Paul was talking to CVC. When Jenkins asked about discussions with CVC, Paul said that representatives of CVC might be in town and might stop by to see him. Paul told Jenkins he thought continued contact with Citibank and CVC would be advantageous. Jenkins inquired if Paul was negotiating to sell TSI to Citibank and CVC. Paul denied sale negotiations. Paul testified that he did not feel it would be “appropriate” for Jenkins to attend the meeting with Luikart and Zeko. Jenkins did not request to attend the meeting. Sometime after March 10, 1993, Jenkins asked Paul about the meeting and, according to Jenkins, Paul told him that there was no meeting because the CVC and Citibank people did not have time to see him while they were in Kansas City. Paul claims to have told Jenkins about the meeting.
The testimony of what was said at the March 10, 1993, meeting concerning the status of the Agreement was contradictory. Paul testified that he told Luikart and Zeko that he had a contract to sell a percentage of the business to Hood and Jenkins. The general terms of the Agreement were outlined. Paul expressed concerns about his difficulties in closing with Jenkins and Hood. He was unsure that he could complete the transaction. According to Luikart and Zeko, Paul told them the transaction could not close. Paul denied telling Luikart and Zeko that the transaction was no longer viable.
The length of the March 10 meeting was described by Zeko: “[T]hey were there all day.” Zeko had discussed with the president of CVC his interest in going to Kansas City and pursuing a new career with TSI. Luikart testified, “Well, we had gone out there, because [Zeko] was possibly interested in joining [TSI], and I think I made it clear to him that we would be — Citicorp Venture Capital would be interested in investing only if someone like himself were to join the company.”
Upon returning to New York, Luikart completed an internal memorandum dated March 12, 1993, to present to CVC’s investment committee at its weekly meeting on March 15,1993, Luikart proposed that CVC invest in TSI on essentially the same terms as the Agreement with Jenkins and Hood, subject to performance of due diligence. On March 15, 1993, CVC’s investment committee gave preliminary' approval to Luikart’s recommendation. CVC claims this preliminary approval was not expressed to Paul or any other TSI representative before March 23, 1993. However, telephone records of TSI; Citibank, and CVC show 12 telephone calls between TSI and CVC or Citibank from March 10 through 22, 1993. On March 23 and 24, there were at least nine calls between TSI and CVC or Citibank. Citibank was billed for time spent by its attorneys on the CVC-TSI matter as early as March 23, 1993, before buyers were informed by sellers of the Agreement termination. Paul notified CVC on March 24,1993, that the TSI/Jenkins and Hood deal was dead.
On March 24, 1993, at 9:20 a.m., David Chaffin, chief financial officer of TSI, faxed to Luikart 5-year forecasts of the TSI companies prepared for CVC’s review. The fax was sent minutes after Paul’s attorney had faxed a letter to buyers’ attorney terminating the Agreement. On March 25, 1993, to reduce the cost of redrafting a new agreement, Paul’s attorney forwarded to counsel for CVC, by overnight mail, a copy of the Agreement and a copy of the financial disclosures made by TSI to buyers. Paul told Zeko that the Bank held his TSI common stock and that he could not get it released. Zeko told him that it was “nothing to worry about. We can handle that.” On March 29,1993, Luikart sent Paul a letter confirming that Paul and Luikart had agreed that CVC would invest “up to” $2.5 million in TSI. Luikart expressed delight that CVC was to become Paul’s “partner” in TSI. Luikart would not characterize his letter as a commitment.
On or about April 2, 1993, Zeko was advised by a telephone call from counsel for buyers that they still had a binding Agreement to purchase TSI. Zeko later"received a letter to that effect.
On April 8, 1993, counsel for CVC advised counsel for buyers that CVC was under the impression that the Agreement had been terminated and asked for an explanation. Counsel reiterated buyers’ claim.
By a May 4, 1993, letter, counsel for CVC advised all interested parties that CVC was canceling discussions with TSI because of the ongoing dispute.
DISCUSSION
Directed Verdict Against Buyers’ Breach of Contract Claims
In ruling on a motion for a directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. A similar analysis must be applied by an appellate court when reviewing the grant or denial of a motion for directed verdict. See Simon v. National Farmers Organization, Inc., 250 Kan. 676, Syl. ¶ 4, 829 P.2d 884 (1992).
Buyers argue that the district court erred in determining that sellers’ performance under the Agreement was excused as impossible, impracticable, or commercially frustrated. These terms have been used interchangeably in the past. See, e.g., State Highway Construction Contract Cases, 161 Kan. 8, 66-67, 166 P.2d 728 (1946). Modem authorities have used the term “impracticability” rather than “impossibility.” See, e.g., Sunflower Electric Coop., Inc. v. Tomlinson Oil Co., 7 Kan. App. 131, 138, 638 P.2d 963 (1981), rev. denied 231 Kan. 802 (1982). We will use “impracticability of performance” in this opinion, rather than repeating the three terms. (For a discussion of the differences between impracticability [impossibility] of performance and commercial frustration, see Columbian Nat. Title Ins. v. Township Title Serv., 659 F. Supp. 796, 802-04 [D. Kan. 1987].)
Buyers assert that the risk of inability to obtain the pledged TSI stock from the Bank was foreseeable and assumed by sellers under Section 7.1(o) of the Agreement. They contend that Section 7.1(o) contemplated the possibility that the Bank might not release the pledged TSI stock. Under 7.1(o), release of the Bank pledge was made a condition precedent to the buyers’ obligations, not the sellers’.
The sellers, Citibank, and CVC respond that the Bank’s change of position and failure to release the stock was not foreseeable at the time the Agreement was executed on February 4,1993. Grams signed the letter indicating the Bank’s agreement to release the stock less than a week before. There were no FDIC auditors in the Bank then. After the Agreement was signed, Grams changed his position and insisted that the Bank would need to receive both Paul’s reissued preferred and common stock as collateral, instead of only the preferred. Grams also insisted that FDIC officials would have to approve the release of the collateral. Sellers and CVC/ Citibank point to Section 4.1(a) of the Agreement, in which sellers agreed to use their best efforts to obtain the release of the collateral, but were not required to expend funds to do so. According to sellers, release of the stock was neither an unconditional promise nor a guarantee. We agree.
In our view, the Agreement covered the possibility that the Bank might not perform. Buyers controlled their risk by negotiating the inclusion of Section 7.1(o). Sellers were afforded-similar protection by Section 4.1(a). We need riot decide whether-the difficulties surrounding the release were foreseeable on February 4, 1993. We hold that the doctrine of impracticability of performance is not applicable under the facts of this case. We now turn to a discussion of the rationale for our conclusion. • ' ■
Impracticability of Performance .
The district court’s finding of impracticability of performance also controlled the ruling on the summary judgment motion in favor of CVC/Citibank on the tortious interference claim of Jenkins and Hood. .
Whether a party should be excused from its obligations under a written agreement because of impracticability of performance is a question of law. Sunflower Electric Coop, Inc., 7 Kan. App. 2d 131, Syl. ¶ 1; Restatement (Second) of Contracts, Ch. 11, Introductory Note, p. 310 (1979). Our review of questions of law. is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). The applicability of the doctrine depends upon the circumstances and conditions of each case. See Berline v. Waldschmidt, 159 Kan. 585, 588, 156 P.2d 865 (1945).
State Highway, 161 Kan. at 67, recognized the important distinction between subjective (“I cannot do it”) and objective (“the thing cannot be done”) impracticability.
Only objective impracticability may serve to relieve a party of a contractual obligation. Sunflower Electric Coop., Inc., 7 Kan. App. 2d at 139. The impracticability that may excuse performance must exist: (1) in the nature of the thing to be done, White Lakes Shopping Center, Inc. v. Jefferson Standard Life Ins. Co., 208 Kan. 121, 124, 490 P.2d 609 (1971); and (2) when the “thing to be done” cannot be done by anyone, State Highway, 161 Kan. at 67. As to subjective impracticability, the general rule is stated in -White Lakes, 208 Kan. 121, Syl. ¶ 2:
“When one agrees to perform an act possible in itself He will be liable for a breach thereof although contingencies not foreseen by him arise which make it difficult, or even beyond his power, to perform and which might have been foreseen and provided against in the contract.”
For a review of our early cases, see Ashland Oil and Refining Co. v. Cities Service Gas Co., 462 F.2d 204, 211 (10th Cir. 1972) (impracticability of one mode of performance does not relieve a promisor from an obligation to render alternative performance).
Our past review of the impracticability doctrine has been infrequent. Although we have recognized and discussed the doctrine, we have never applied it. A discussion of the cases arising in Kansas is illustrative of why this case is not the exemplar for our initial application.
The single application of the impracticability doctrine in Kansas occurred in a premises liability wrongful death action. See Rogers v. Omega Concrete Systems, Inc., 20 Kan. App. 2d 1, 883 P.2d 1204 (1994). The application of the impracticability doctrine was not necessary to grant Omega’s motion for summary judgment. Omega did not contribute to the proximate cause of the accident. 20 Kan. App. 2d at 9-10.
The doctrine has been discussed but not applied in the following cases:
In Columbian Nat. Title Ins., 659 F. Supp. 796, plaintiff title insurer (Columbian) sued defendant title insurance agency (Township), alleging breach of a 10-year agreement designating Township as the exclusive agent of Columbian for purposes of soliciting title insurance business. Township claimed the defenses of commercial frustration and impracticability. The court determined that the fact Columbian’s policies had become unmarketable only made Township’s performance unprofitable, so subjective impossibility was all that was shown. The court also noted Township’s superior knowledge of the market and the possibility that Columbian’s policies might become unmarketable was foreseeable to Township. Township had assumed the risk and could have inserted appropriate protective language in the agreement, but did not. 659 F. Supp. at 803. The court found that Township had presented sufficient evidence to establish commercial frustration, but determined that the doctrine was inapplicable because the risk of unmarketability was foreseeable. 659 F. Supp. at 804.
In White Lakes, the shopping center sued defendant insurance company to recover a $77,000 fee paid to the insurance company concerning a $3.85 million loan commitment to provide financing. The shopping center claimed impracticability of performance from its inability to complete construction at a cost within the original loan commitment. We refused to recognize cost increase as an impossibility relieving the shopping center from its contractual obligations. 208 Kan. at 124.
In State Highway, a consolidation of 13 cases in which construction firms sought to have contracts canceled on the grounds of impracticability of performance because of the impact of World War II, we said:
“One who voluntarily executed with the State Highway Commission a binding contract which contained no provision excusing performance to construct a highway project, at a time when he knew a continental war was raging in Europe and another in Asia, and when there were many indications that our nation would become a belligerent party in such war, or knowing it had become such a party, and realizing that the performance of the contract might be delayed or become more expensive or burdensome by reason thereof, is not entitled to have his contract canceled because of conditions resulting from the participation of our nation in such wars.” 161 Kan. 8; Syl. ¶ 5.
In Berline, 159 Kan. at 590-91, the possibility of war and ensuing drilling restrictions were reasonably foreseeable to the parties and could have been covered with a contingency in the contract.
Sunflower Electric Coop, Inc., 7 Kan. App. 2d 131, involved a breach of contract action by Sunflower against Tomlinson, a gas producer, under a natural gas supply contract. Sunflower claimed damages for the difference between the contract price and Sunflower’s cost to obtain gas from an alternate source after the breach. The contract provided that Tomlinson would obtain the gas from a specific field. Tomlinson was never able to provide the contracted amount of gas from the field, because the field was exhausted. Tomlinson’s research seemed to suggest adequate reserves. Tomlinson claimed impossibility in defense. The district court agreed. The Court of Appeals reversed. The Sunflower court reasoned that the impossibility was objective, in that the evidence showed no one could have obtained adequate gas from the field to supply the contracted amounts. However, the possibility that the field was inadequate was foreseeable to Tomlinson, and Tomlinson assumed the risk that the reserves would be insufficient. 7 Kan. App. 2d at 143.
In Wichita Properties v. Lanterman, 6 Kan. App. 2d 656, 633 P.2d 1154 (1981), a tenant of a 5-year commercial lease unsuccessfully relied on impracticability of performance resulting from his inability to obtain a liquor license. The Court of Appeals determined that the possibility of not obtaining a liquor license was a foreseeable contingency that could have been provided for in the lease. 6 Kan. App. 2d at 664.
In this case, the Bank’s agreement to release, as shown by Grams’ signature on January 29* 1993, was crucial in allowing the sale to go forward. Buyers and sellers attempted to protect themselves under the Agreement in the event the Bank did not release the pledged stock. The buyers’ obligation to make the down payment of $1 million was contingent on Paul obtaining release of the pledged stock (Section 7.1[o]).
Section 4.1(a) obligated sellers to use their best efforts to obtain release of the stock from the Bank, as specified under Section 7.1(o). Sellers would have an implied contractual obligation to make a good faith effort to obtain release of the collateral from the Bank, with or without Section 4.1(a). Section 4.1(a) also provided that best efforts would not include expenditure of funds (unless buyers agreed to reimburse for such expenditures). Section 4.1(a) defined die boundaries for the sellers’ best efforts. If sellers exercised their best efforts and the pledged stock was not released, then the sale simply would not close. The sellers neither assumed the risk nor guaranteed the Bank’s release of Paul’s TSI stock. This is not an impracticability of performance case because under Section 4.1(a), sellers were required only to exert their best efforts to secure release of the stock.
Best Efforts
Buyers argue that the question of whether sellers met their best efforts obligation was for the jury to decide. We agree. The best efforts provision was not only a protection for sellers, but also a protection for buyers. Section 4.1(a) created a standard of conduct for sellers’ performance under the Agreement above and beyond the implied obligation of good faith. See 2 Farnsworth on Contracts § 7.17, p. 314 and § 7.17b, pp. 335-36 (1990), which state:
“Another term that courts often supply is one imposing a duty of ‘best’ or ‘reasonable’ efforts. Such a duty requires a party to make such efforts as are reasonable in the light of that party’s ability and the means at its disposal and of the other party’s justifiable expectations. Although the scope of this duty is no better defined than is the scope of the duty of good faith, it is clear that the duty of best efforts is more onerous than that of good faith.”
“Because courts sometimes confuse the standard of best efforts with that of good faith, it will be well at the outset to make plain the distinction between the two standards. Good faith is a standard that has honesty and fairness at its core and that is imposed on every party to a contract. Best efforts is a standard that has diligence as its essence and is imposed on those contracting parties that have undertaken such performance. The two standards are distinct and that of best efforts is the more exacting,, though it presumably falls short of the standard required of a fiduciary, one required ‘to act primarily for the benefit of another in matters connected with his undertaking.’ ” (quoting Restatement (Second) of Agency § 13, comment a [1957]).
Unclean Hands
Buyers claim that TSI should be barred from seeking declaratory relief under the equitable doctrine of clean hands. We do not agree.
The clean hands doctrine is based upon a maxim of equity that one who seeks equity must do so with clean hands. It provides in substance that no person can obtain affirmative relief in equity with respect to a transaction in which the person has been guilty of inequitable conduct. Fuqua v. Hanson, 222 Kan. 653, Syl. ¶ 3, 567 P.2d 862 (1977). The clean hands maxim is not a binding rule, but is to be applied in the sound discretion of the court. 222 Kan. 653, Syl. ¶ 4.
Section 7.1 of the Agreement lists several conditions that must occur before the buyers are required to perform any of their obligations. Under 7.1(o), Paul was required to furnish documentation to show that the Bank had released the pledged stock. At Section 4.1(a) of the Agreement, the sellers promised to use their best efforts (not including “any expenditure of funds”) to fulfill the conditions described at Section 7.1 before closing. At 4.1(c), sellers promised not to disclose the terms of the Agreement with any others before closing or termination.
Buyers seek damages for the sellers’ alleged breaches of Sections 4.1(a) and (c) of the Agreement. If buyers were seeking specific performance, as opposed to damages for breach, the sellers’ alleged breaches might be used as grounds for excusing certain conditions of the contract (such as extending the closing date to some “reasonable time” after March 22, 1993). See 2 Farnsworth on Contracts § 8.6, p. 379 (1990) (“An obligor may excuse a condition of its duty by committing a breach that causes the nonoccurrence of the condition. When the condition is excused, the obligor’s duty becomes absolute.”). However, without any claim for specific performance, it is not necessary to consider whether the March 22, 1993, closing date should be “excused.” Neither the doctrine of clean hands nor any breaches by sellers affect interpretation of the Agreement, including determination of the date in the declaratory judgment action.
The Agreement terminated on March 22, 1993. On remand, a disputed question will be whether sellers breached the Agreement by violating Sections 4.1(a) (best efforts) and 4.1(c) (nondisclosure). Buyers’ allegations supporting their unclean hands defense, including their assertions concerning Paul’s discussions with Zeko and Luikart between February 4 and March 22, 1993, will be relevant to the claim that sellers breached the Agreement in failing to use best efforts.
Declaratory Judgment for TSI
Buyers argue that TSI’.s declaratory judgment claim that the Agreement expired on March 22, 1993, was moot, because at the time of trial: (1) buyers had withdrawn their claim for specific performance, (2) sellers had withdrawn their claim that buyers were interfering with the sellers’ efforts to negotiate a transaction with CVC after March 22, 1993, and (3) the declaratory relief sought did not concern TSI’s fraud claims. We do not agree.
The standard of review on whether a declaratory judgment action rises to the level of an actual controversy is abuse of discretion. See Wichita Computer & Supply, Inc. v. Mulvane State Bank, 15 Kan. App. 2d 258, 260-61, 805 P.2d 1255, rev. denied 248 Kan. 999 (1991).
Buyers also contend that declaratory judgment is not a proper mode of determining the sufficiency of legal defenses, citing 22A Am. Jur. 2d, Declaratory Judgments § 43. However, that authority says that “declaratoiy judgment is not a proper mode of determining the sufficiency of legal defenses to a pending action.” (Emphasis added). Here, TSI’s declaratory judgment claim was asserted in the petition initiating this lawsuit.
The pretrial order provided in part:
“5. Theory of Defendants Jenkins’ and Hood's Defenses
“Plaintiff TSI seeks a declaratory judgment that the contract between it and Jenkins and Hood was no longer in existence on March 25, 1993. Defendants Jenkins and Hood contend that the contract remained in force after TSI Holdings’ purported termination of it on March 24,1993, that TSI Holdings cannot force a termination of the contract by failing to fulfill its obligations under the contract and that TSI Holdings breached its contract with Jenkins and Hood.” (Emphasis added.)
While the parties dispute over the Agreement’s expiration date remained unresolved, TSI’s declaratory judgment claim was not moot. The trial court did not abuse its discretion in ruling on the declaratory judgment claim.'
Time of Essence
The buyers reason that because the Agreement did not provide that time was of the essence, the closing was continued beyond March 22,1993. They rely on Russell v. Ferrell, 181 Kan. 259, Syl. ¶ 1, 311 P.2d 347 (1957) (“Time is not ordinarily regarded as of the essence of a contract unless it is so stipulated by express terms, or is necessarily implied from the character of the obligations assumed.”). According to btiyers, neither Russell Condition is present in this case. They also contend that a reasonable time for performance of a contract is a question for the jury, citing Rymph v. Derby Oil Co., 211 Kan. 414, 418, 507 P.2d 308 (1973).
The buyers marshal primarily real estate contract cases as support for their position. In Russell, a specific performance case, the real estate contract did not expressly make time of the essence, and neither did the circumstances surrounding the sale. 181 Kan. at 266-67. See Hochard v. Deiter, 219 Kan. 738, 742, 549 P.2d 970 (1976) (The real estate contract did not specify a time limit within which sellers were to furnish merchantable title. In buyers’ action for specific performance, we held a reasonable time was intended.); Rymph, 211 Kan. at 418 (After the well was completed, plaintiffs sought to repudiate an agreement to drill because of delays. We held the well was drilled in a reasonable time and said: ‘When time of performance is not fixed in an executory contract the usual rules of construction should be employed to ascertain the intention of the parties, and if the nature of the subject matter and the surrounding circumstances so indicate a reasonable time for performance shall apply.”); Federal Deposit Ins. Corp. v. Slinger, 913 F.2d 7, 12-13 (1st Cir. 1990) (The vendor, who retained a $40,000 down payment, waived the “time is of the essence” clause in the contract by granting the purchaser’s request for an open extension of time.); Poggioli v. Liebegott, 77 Misc. 2d 449, 453, 354 N.Y.S.2d 57 (1974) (The vendor, who had requested an extension prior to closing, was entitled to a reasonable extension of time for the closing of real estate contract after neither party appeared at closing.).
Jenkins and Hood point out that they tendered performance on the closing date, March 22, 1993. However, they knew that the Bank had not agreed to release the pledged TSI stock. There was no indication when the Bank might release the stock.
TSI responds that the Agreement expired on March 22, 1993, because Section 2.1 required that the parties mutually agree to extend the closing date, and no mutual agreement took place. TSI relies on Morton v. Sutcliffe, 175 Kan. 699, 266 P.2d 734 (1954). Morton involved cancellation of an oil and gas lease. The lease expressly provided that it would “cease to be of any force or effect” if the annual payment was not made before the year in question. The payment was made 6 days late. Judgment, affirmed on appeal, was entered for the lessor, canceling the lease. The Agreement in this case does not contain an automatic termination provision as explicit as the one in Morton. However, the parties did mutually agree to extend the closing date twice, first from Februaiy 26 to March 15, 1993; and second from March 15tO'.March-22/T993, but never beyond March 22, 1993.
Buyers next argue that Part IX(e) of the Agreement shows that only the buyers had a right to unilaterally terminate the Agreement after the closing date, if’sellers were ünáble to perform as of the clósing date. Bart IX provides:
“This Agreement may be terminated at any time prior to the Closing Date:
(e) by Buyers at any time following FebYuarji 26’, 1993 in the event that Buyers are ready, willing, and able to fulfill Buyers’ obligations hereunder and TSI, the Subsidiaries, Shareholders, ¡Paul, or Hodes, have'not fulfilled all of their obligations hereunder.”:
Buyers argue that if tíre Agreémént expired oh the closing date (March 22, 1993), Párt IX(e) is rendered a nullity, contrary to the basic principles of. contract coñstrüctioii. However, Bart IX provided the buyers with the right to terminate before closing. Once the closing daté was extended past February 26, 1993, the buyers’ right to terminate uridér Part IX (e) wotild extend only up tó the new closing datel'Paft IX (e) does'pot address the contingency that the February 26, Í993, closing date wquld .be extended. If the words “clósing dáte”'had been inserted 'instead of “February 26, 1993,” in Part IX(e), theñ that coptingency would have been covered. ......' • “•
' The rule that time is riot ordinarily régárded as of the éssence, absent an éxpress stipulation or unless the nature or subject matter of the contract or circumstances indicáte otherwise, is said to arise in equity. See 17A Ain. Jur. 2d,. Contracts § 483. This rule is especially true in a real estate cóntract case involving a purchaser seeking specific performance, after having made a dówn payment. See Russell, 181 Kan. 259, Syl. ¶ 1.
This case concems'the sále of a controlling interest in an operating business, nót real' estate/- TSI was highly leveraged and needed an infusion of capital and' new management. Buyers made no down payment and have withdrawn 'their claim for specific performance. The Agreement specified a .closing date that could be changed only by mutual agreement. The parties negotiated two brief extensions of the closing'date,' but. did;.not negotiate any ex tensions beyond March 22, 1993. The circumstances suggest that time was of the essence.
Buyers’ Claims Against CVC and Citibank
The district court granted CVC and Citibank’s motion for summary judgment solely on the basis that sellers’ performance under the Agreement was impracticable and commercially frustrated. Therefore, buyers argue, if the district court’s rationale was erroneous, then summary judgment should not have been granted. We agree.
CVC and Citibank respond that the district court’s determination was not erroneous, endorsing essentially the same arguments as sellers. In addition, they argue that summary judgment would have been proper on the alternative ground that CVC’s and Citibank’s conduct was not the proximate cause of the failure of the Agreement to close. Having resolved summary judgment based on impracticability of. performance and commercial frustration, the district court did not address the proximate cause contention. Buyers acknowledge that to make a case of tortious interference with contract, they must prove that the acts of either CVC or Citicorp caused the breach. See V.C. Video, Inc. v. National Video, Inc., 755 F. Supp. 962, 970-71 (D. Kan. 1990).
On summary judgment, the district court is required to resolve all facts and inferences which might reasonably be drawn from the evidence in favor of buyers. See Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993) (rules relating to summary judgment reviewed).
At the hearing on CVC and Citibank’s motion for summary judgment, the district judge, after finding that the Agreement as a matter of law could not be performed, said, in part:
“But for that finding [of impracticability of performance and commercial frustration], Jenkins and Hood would be entitled to a trial on the issue of the alleged tortious interference as between CitiBank and CitiCorp with TSI Holdings during the term of the agreement between TSI and Jenkins and Hood. So that the ruling is narrow, it’s based upon the same finding in the trial court. If I’m in error as to that ruling, then I’m in error as to this ruling. But if I am correct — and I intend to be — if I’m consistent in anything, I want to be consistent in my error just as much as I want to be consistent in my findings as I’ve made them.”
The district court granted the buyers’ motion under K.S.A. 60-3703 to assert a claim against CVC and Citibank for punitive damages, applying the standard of Fusaro v. First Family Mtg. Corp., 17 Kan. App. 2d 730, Syl. ¶ 3, 843 P.2d 737 (1992). Buyers argue that with this ruling, the district court implicitly held that a jury could reasonably find in their favor on the tortious interference claim.
The district judge’s September 1994 ruling on the K.S.A. 60-3703 motion to assert punitive damages was based on the record developed before trial. We have recently reviewed K.S.A. 60-3703 punitive damages amendment issues. See Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 802, 897 P.2d 123 (1995).
If sellers breached the Agreement, CVC and Citibank may have induced the breach. Buyers claim they did not find out about the problem with the release of the pledged TSI stock until March 12, 1993, 2 days after the meeting with Zeko and Luikart at TSI. Paul may have preferred to deal with CVC, as opposed to buyers, because of CVC’s and Citibank’s greater financing resources and business connections.
The tortious interference issue is before us on summary judgment. The March 10, 1993, meeting of Luikart, Zeko, Paul, and other TSI personnel, and records of telephone calls between TSI and CVC or Citibank between March 10 and March 22, 1993, raise material issues of fact about whether CVC and Citibank tortiously interfered with sellers’ performance of the Agreement.
TSI Cross-Appeal Issues
The district court entered a directed verdict against TSI on its claims of fraudulent misrepresentation and fraud by silence against Jenkins and Hood. We affirm.
TSI bases its misrepresentation claims on the fact that during the 1992 negotiations, Hood represented that he had the financial capacity to make the required payments for the purchase — $1 million at closing and $1.5 million one year later. However, as of January 11,1993, Hood was turned down for financing by three banks, and the fourth bank, Boatmen’s Bank, would provide financing for the $1 million initial payment only if Hood obtained a guarantor. Neither Hood nor Jenkins disclosed this to TSI. Paul claims that he and TSI would not have signed the Agreement had he known that Hood needed a guarantor to obtain financing.
Section 3.3(e) of the Agreement gave the sellers the right to request Hood’s financial information; however, no request was made. Paul never attempted to examine Hood’s financial condition.
Section 7.2(c) of the Agreement made satisfactory review of the financial capabilities of the buyers a condition precedent to TSI’s obligations. TSI’s chief financial officer testified that although Jenkins gave him a copy of Hood’s financial statement, the TSI officer never looked at it.
The burden of proving fraud is by a preponderance of the evidence, which must be clear, convincing, and satisfactory. Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, Syl. ¶ 7, 596 P.2d 816 (1979). (See PIK Civ. 2d 14.40 and PIK Civ. 2d 14.42 [1995 Supp.], cited by the parties, for the elements of the fraudulent misrepresentation and fraud by silence claims.)
TSI bases its fraud by silence claims on buyers’ failure to inform TSI and Paul that Hood did not have the financial strength to complete the transaction without a guarantor. Buyers respond that neither TSI nor Paul asked Hood whether Hood had the financial capability to make the investment on his own. Hood obtained a commitment from Boatmen’s Bank to lend the $1 million needed for the closing. Hood was ready, willing, and able to perform as of the closing date.
The evidence did not establish sufficient proof of any of the elements of either a fraudulent misrepresentation or a fraud by silence claim. Most telling is TSI’s failure to request any financial information from Hood. The district court properly directed a verdict for Jenkins and Hood on TSI’s fraud claims.
Attorney Fees
The district court, interpreting the Agreement, awarded attorney fees and costs to TSI. The prevailing parties in a lawsuit are not entitled to recover attorney fees unless such fees are specifically authorized by statute or agreement. Oak Park Investment Co. v. Lundy’s Inc., 6 Kan. App. 2d 133, Syl. ¶ 1, 626 P.2d 1236 (1981).
Section 8.4 of the Agreement provides:
“Section 8.4. Costs. If any legal action or other proceeding is brought by any party to this Agreement against any other party to this Agreement for the enforcement or interpretation of any of the rights or provisions of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorneys’ fees and all other costs and expenses incurred in that action or proceeding, in addition to any other relief to which it may be entitled.”
Our reversal based on buyers’ breach of the Agreement claims also reverses the attorney fees and costs award.
Section 8.4 will be revisited by counsel and the district court after a final resolution of the substantive issues. We do address one aspect of the award to signal our reading of Section 8.4. TSI argues that its fraud claims on which buyers prevailed were not covered under Section 8.4 because they did not involve “the rights or provisions of this Agreement.” TSI characterizes its fraud claims as involving acts or omissions by buyers occurring before the signing of the Agreement. However, Section 8.4 also covers actions or proceedings brought “because of an alleged dispute ... or misrepresentation in connection with any of the provisions of this Agreement.” Buyers successfully defended against the fraud claims, in part, by pointing to provisions in the Agreement that gave the sellers the right to request financial information. Thus, TSI’s fraud claims against buyers are covered under Section 8.4 of the Agreement.
CONCLUSION
We affirm the district court on:
(1) the directed verdict in favor of buyers on TSI’s fraud claims; and
(2) the declaratory judgment ruling in favor of TSI that the Agreement terminated on March 22, 1993.
We reverse the district court on:
(1) the directed verdict against buyers on their breach of contract claims;
(2) the summary judgment in favor of GVC and Citibank on buyers’ tortious interference with contract claim based on impracticability of performance; and
(3) the award of attorney fees and costs in favor of sellers.
Affirmed in part, reversed in part, and remanded.
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The opinion of the court was delivered by
Larson, J.:
This appeal is before this court for review of the unpublished opinion of the Court of Appeals in Simon v. Simon, No. 72,438, filed January 5, 1996.
Debra Simon sued her father-in-law, Gerald Simon, in a premises liability case for personal injuries resulting from her use of a motorized meat grinder while on Gerald’s property. After receiving an unfavorable jury verdict, Debra appealed the trial court’s rulings on evidentiary matters and motions in limine. Gerald cross-appealed the court’s designation of Debra as an invitee and its holding of the duty of care owed her.
The Court of Appeals affirmed the trial court’s judgment in part, but reversed the court’s ruling that it was not necessary to allow a liability expert to testify and ordered the case remanded for a new trial. We granted Gerald’s petition for review.
Factual Statement
The tragic facts in this case are not in dispute. In December 1991, Debra and her family went to Gerald’s farm to help with the annual butchering of hogs. Family members and neighbors participated.
Debra had been involved in the butchering process approximately eight previous times. In the last several years, she had helped her brother-in-law, Ken Simon, grind meat for sausage, though Ken claimed that he preferred to work alone. Debra had not received instructions concerning the motorized grinder or been warned of the dangers of the device.
The grinder has a small bell area where meat is deposited, with an auger at the bottom of the bell that draws the meat toward the grinder blades. The grinder had been motorized some 35 years prior to the accident by the addition of a pulley attached by a belt to an electric motor. The grinder did not have an on-and-off swatch and was stopped by pulling the plug from the electrical outlet.
Most of the equipment used in the butchering process was owned by Gerald. Neighbors Charles Vierthaler and Sylvester Adelhardt had used Gerald’s grinder until their recent purchase of commercial grinders. Their grinders were equipped with much larger and deeper bells, guards, food trays, and an on-and-off switch, making an injury such as the one Debra suffered preventable.
Debra’s injury occurred when she was putting scraps into the grinder and glanced away to check on her children. When she looked back, her right hand was inside the grinder, resulting in the loss of four fingers. Debra cannot utilize a functional prosthesis and wears only a cosmetic device.
Debra’s suit against Gerald alleged negligence in providing a dangerous grinder, failing to provide warnings and instructions about the grinder, and failing to maintain his premises in a safe condition. Before trial, Gerald filed a motion in limine to exclude the expert testimony of Denzell Ekey, a safety engineer, and Dr. Richard Gibson, a vocational analyst and counselor and, at trial, moved to preclude Debra from exhibiting to the jury Vierthaler’s and Adelhardt’s grinders.
Ekey was expected to testify concerning the dangerous nature of Gerald’s grinder, that this dangerousness would not be immediately apparent, and that an operator could easily become distracted while using the grinder. He also would have reported on the availability of safer grinders with safety features, as well as on the safety standards in the industry. Gerald objected to the necessity for the expert testimony and claimed that the dangerous propensities of the grinder were obvious and easily apparent to jurors. Gerald also argued this was a premises liability and not a products liability case. The trial court granted Gerald’s motion on the grounds that the dangerousness of the grinder was readily apparent and that Ekey’s testimony was unnecessary. Debra properly preserved the issue for appeal.
Debra desired to have Dr. Gibson testify about damages relating to lost income and the value of lost household services. Gerald objected to the lost income testimony because Dr. Gibson only relied on national statistics without accounting for any of Debra’s specific characteristics such as education, training, experience, residential locality, or the nature of her disability. Additionally, Gerald objected to Dr. Gibson’s testimony on the grounds that he failed to qualify as an expert in economics. The trial court eventually sustained both objections, finding the lost income testimony to be too speculative and disconnected from reality and ruling that Dr. Gibson did not meet foundational qualifications to testify as an expert on the value of household services.
During the trial, Gerald moved to preclude the exhibition of Vierthaler’s and Adelhardt’s grinders in order to keep the focus on Gerald’s grinder, rather than comparing it to other grinders. Testimony had been presented by both men concerning the properties of their grinders. The court excluded admission and exhibition of the grinders, ruling this evidence was cumulative and more prejudicial than probative.
At the close of the evidence, the parties disagreed as to Debra’s status on the property. The trial court concluded that Debra was an invitee rather than a licensee and so instructed the jury.
The jury found Debra 75% at fault and Gerald 25% at fault. The question of damages was not reached. Judgment for Gerald was entered. Debra appealed, raising as issues the exclusion of her expert witnesses and the right to admit and exhibit the two grinders. Gerald cross-appealed the court’s decision to designate Debra as an invitee and the corresponding duty of care that was submitted to the jury.
Did the trial court abuse its discretion in excluding the testimony of Debra’s liability expert?
The admission of expert testimony is governed by the provisions of K.S.A. 60-456(b) and (d), w'hich read as follows:
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
“(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.”
It is a well-established rule in Kansas that the qualification of an expert witness and the admissibility of expert testimony are matters within the broad discretion of the trial court. Sterba v. Jay, 249 Kan. 270, 282, 816 P.2d 379 (1991); Taylor v. Maxwell, 197 Kan. 509, 511, 419 P.2d 822 (1966). A party claiming an abuse of the trial court’s discretion bears the burden of showing such an abuse. Marshall v. Mayflower Transit, Inc., 249 Kan. 620, Syl. ¶ 8, 822 P.2d 591 (1991).
The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision. Hoffmann v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988); see Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 804, 897 P.2d 123 (1995).
In McKissick v. Frye, 255 Kan. 566, 577, 876 P.2d 1371 (1994), we stated:
“The trial court is vested with vast amounts of discretion in the admission of evidence during the trial. Judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts and situations which occur prior to and during the trial. Hurlbut v. Conoco, Inc., 253 Kan. 515, 529, 856 P.2d 1313 (1993).”
In Marshall v. Mayflower Transit, Inc., 249 Kan. at 626, a case dealing with the admissibility of expert testimony of an accident reconstructionist, Justice Abbott summarized the basic reason for allowing an expert to testily when he stated:
“ ‘Expert opinion testimony is admissible if it will be of special help to the jury on technical subjects [with] which the jury is not familiar or if such testimony [will] assist the jury in arriving at a reasonable factual conclusion from the evidence.’ Sterba v. Jay, 249 Kan. 270, 282, 816 P.2d 379 (1991); Falls v. Scott, 249 Kan. 54, 63, 815 P.2d 1104 (1991). ‘The basis for the admission of expert testimony is necessity, arising out of the particular circumstances of the case.’ Falls, 249 Kan. 63. (Emphasis added). ‘[If] the normal experience and qualifications of jurors permit them to draw proper conclusions from [the] given facts and circumstances, expert conclusions or opinions are not necessary.’ Sterba, 249 Kan. at 282-83; Falls, 249 Kan. at 63. Obviously, the trial court has considerable discretion in determining whether to permit expert testimony.”
In applying these standards to the present situation, Debra bears a difficult burden in showing an abuse of the trial court’s discretion. The trial court held a full and comprehensive hearing on the issue, fully understood the factual situation, and properly exercised its discretion when it made the following comments and rulings:
“Falls v. Scott really does pretty closely compare to our factual situation in many respects .... [Ljooking at that case and comparing it to this case, I have to conclude that Mr. Ekey’s testimony, judged on the standard of necessity only, whether it would clarify or aid or assist the jury in some respect, probably his testimony is not necessary to allow them to understand what went on in this case and the nature and extent of any danger that the Plaintiff was allegedly exposed to. I say that for a couple of three reasons. If you read his report, number one, he indicates the grinder and motor lacked belt and pulling [sic] guarding. That’s not anything that other witnesses present on the date that this occurred could not testify to. . . .
“. . . The fact that the grinder lacked any warnings would be able to be testified to by the people that were present that day. And likewise that will be obvious from visible and visual examination at trial. Same goes for the on/off switch. . . .
“And to be honest as I can about it, in this case it’s not. much different than the brush hog case. The brush hog case, Falls v. Scott case, that — the question was . . . did the operator know that that could throw things out at a dangerous rate of velocity and was likely to injur[e] somebody. And that wasn’t too hard to figure out. And likewise Mr. Simon — To be as honest as I can about it, everybody knows that a meat grinder can grind things other than meat if you’re not careful. . . .
“. . . I think any ultimate conclusions about it being‘unreasonably dangerous’ or being negligence would be totally improper and I don’t find that any of the three things that he refers to other than that are things that are of necessity because it will be clear that the grinder and motor lacked belt and pulling [sic] guarding and that it lacked any warnings and ' that there wasn’t an on/off switch. . . . For all of those reasons, I think that his testimony would not be necessary or helpful in this case. I’ll grant the Motion in Limine.
“Now he certainly can be present here. And I suppose ... if Mr. Simon or someone would disagree that there was this guarding or disagree that there were warnings or disagree that there was some other way to start or stop this besides pulling it in and out, then we might have some factual problem. I don’t anticipate that happening. . . . And I wouldn’t allow him to get to the ultimate issue in using the terminology he — he’s used and contributing negligence and not allowing him to see. Certainly the ANSI standards and all of that I don’t think were applicable to this factual situation.”
The trial court relied on our recent case of Falls v. Scott, 249 Kan. 54, 815 P.2d 1104 (1991), which was a personal injury neg ligence action where the plaintiff was injured when a “brush, hog” being operated on adjacent property threw a piece of wire -into Falls’ face and eyes. A brush-hog is a-large mowing machine designed to cut brush, small trees, or high weeds and grass and is pulled and powered by a tractor. 249 Kan. át 56,.'
Scott moved to prevént plaintiff’s expert from testifying. The trial court determined the witness could not testify as to:
“(1) whether the activity in question, was .negligence or .not negligence or (2) whether the operation of.the brush hog was inherently dangerous or that the.brush hog was a dangerous instrumentality. The,-trial court [in. Scott] stated the plaintiff ,’s expert could testify as to the constractipn,..operation, and other matters pertaining to the brush hog, without using any legal words of art in his characterizations or descriptions.” 249 Kan. at 62.
At trial, the plaintiff’s expert,witness did not testify.
Falls argued that the workings ’of a brush hog are not within the common knowledge of jurors, so expert testimony was necessary to help the jury in arriving at a reasonable factual conclusion from the evidence. He asserted that technical facts required expert testimony, to, explain .the responsibility qf using a .brush hog \yithin city limits. ; : - • -i ' » , -,
In upholding the trial "court’s decision- denying admissibility of the expert’s testimony and finding that such was not an abuse of discretion, Justicé Lockett stated:'. - '
“The basis for the admission of e-xpert'testifñony is-'necessity; arising out of the particular circumstances of the-case. Where the-normal experience and qualifications of jurors permit them’ to draw proper conclusions from given facts and circumstances, expert conclusions or opinions-are riot necessary. There is nothing complicated or complex about the mechanical operation of a brush hog nor is a brush hog such a complicated rnachine that expert testimony is required to assist the jury in arriving at a reasonable factual conclusion from the evidence. The trial court did not abuse its discretion by excluding the-éxpert testimony.” 249 Kan. at 63. • '
■ Our factual situation is much like Falls v. Scott. There is nothing complicated about the operation or construction of 'Gerald’s meat grinder. The grinder was admitted into evidence, and the jurors could see for themselves that it.did.not possess guards, warnings, or an on-and-off switch. During cross-exámination, Debra admit ted it was apparent that if one stuck one’s hand into the auger of the grinder, one could be injured.
The availability of other, safer meat grinders on the day of the accident was undisputed. Witnesses adequately described those grinders and depicted their safety devices. Gerald agreed that Debra would not have been injured on the other grinders. Thus, it is clear that expert testimony was not necessary to describe the dangerousness of Gerald’s grinder or the availability of safer grinders.
Debra contends the trial court misapplied Falls v. Scott because the trial court there did not completely exclude the expert testimony. Contrary to this contention, the trial court here specifically said that Ekey could be present and testify if any factual inconsistencies concerning the equipment came into being. Regardless, this claimed distinction is without a difference of significant nature in light of the trial court’s broad' discretion in governing the admission of expert testimony. It is difficult to find fault with the trial court’s reasoning that the operation of the grinder was readily apparent and fully understood by the jury without the necessity of the expert’s opinion.
Debra also contends that she should have been able to elicit testimony from Ekey regarding industry standards. Those standards, however, are not applicable in this case. Some of the standards were not adopted until a number of years after Gerald made changes to his grinder. Although Debra contends industry safety standards are applicable to everyone, the sources she proffered do not support this contention. The purpose and scope of these publications are geared heavily toward regulating the manufacture of equipment designed for industrial uses. The standards do not appear to mandate the modification of preexisting equipment, and we hold the trial court did not abuse its discretion in refusing to allow Ekey to testify as to such standards.
Debra’s reliance on Wheeler v. John Deere Co., 935 F.2d 1090, 1099 (10th Cir. 1991), is misplaced. Wheeler involved a case against the John Deere Co. as the manufacturer of combines. The holding in Wheeler relates to a manufacturer’s duty of care for products sold in the marketplace. Gerald does not fit under the K.S.A. 60-3302(b) definition of a manufacturer because he is not a “product seller who designs, produces, makes, fabricates, constructs or re-manufactures the relevant product or component part of a product before its sale to a user or consumer.”
Although the Court of Appeals cites Pape v. Kansas Power & Light Co., 231 Kan. 441, 647 P.2d 320 (1982), as being supportive of applying industry standards to our case, Pape does not support the issue before us. Applying safety standards set forth in the National Electric Safety Code to KP&L, which was charged with knowledge of the code and compliance with it, differs from applying industry standards to a motorized homemade meat grinder.
Our view that industry standards do not apply in this case is not changed by Debra’s citation of 57A Am. Jur. 2d, Negligence § 186, p. 237, which states: “Safety standards promulgated by government and other safety organizations . . . may constitute relevant evidence in regard to the standard of care in a particular case.” This section must be read in conjunction with the surrounding sections, all under the heading: Evidence Relating to Trade or Business Practice or Custom. Section 188 provides:
“An individual should not be held to a specific standard of conduct as indicated by an industry custom of which he has no knowledge and for which awareness cannot be reasonably charged. It is not reasonable to charge a person with knowledge of practices which were not in effect at the time of the conduct in question, or to charge a layman with knowledge of the practices of industry.” 57A Am. Jur. 2d, Negligence § 188, pp. 239-40.
The next section goes on to explain: “Expert testimony concerning custom or industry practices, however, is not relevant, or at least unnecessary, where the jury is competent from its own experience to determine and apply the reasonable care standard.” 57A Am. Jur. 2d, Negligence § 189, p. 240.
We hold the trial court did not abuse its discretion or commit reversible error in not allowing Ekey to testify as to industry standards.
Finally, Debra cites no specific authority for Ekey being allowed to testify concerning human factors and how distractions occur in the operation of machinery. Also, she presented no authority to support the conclusion that the exclusion of such testimony was reversible error. Further, 31A Am. Jur. 2d, Expert and Opinion Evidence § 390, p. 387, states the “testimony of a human factors expert is not admissible where it simply evaluates commonplace situations and occurrences which are within the comprehension and understanding of the average juror.”
This is certainly the situation in this case. The trial court made a proper analysis and reached a conclusion which it was entitled to make. We will not on appeal substitute our judgment for that of the trial court. We hold the trial court did not abuse its discretion in refusing to allow the expert testimony fot all of the reasons above set forth.
Did the trial court abuse its discretion in refusing to admit and allow to be exhibited the Vierthaler and Adelhardt meat grinders?
Debra claims the meat grinders owned by Vierthaler and Adelhardt should have been admitted into evidence and exhibited to the jury to prove Gerald knew that safer models were available and to help the jury evaluate the reasonableness of his conduct. Debra suggests the grinders were not adequately described and the jury was unable to decide upon the feasibility of borrowing other grinders.
Gerald contends the exclusion of the grinders owned by Adelhardt and Vierthaler was proper because they had no tendency to prove any material fact. Gerald, by his own testimony, clearly admitted that these other grinders were available for him to use, that they were safer, and that Debra would not have been injured had she used one of them. He described the grinders and their safety features. Vierthaler and Adelhardt also depicted their respective grinders, while counsel drew sketches for demonstrative purposes from their testimony. The dimensions and weights of the grinders were provided, as well as their size in relation to Gerald’s grinder, which was already on display.
Quite simply, the facts which Debra claims the grinders would have proven were not in dispute. It is reasonable to conclude that viewing the grinders would not have provided the jurors with any additional information to assess the reasonableness of Gerald’s conduct.
Rulings on relevance rest in the sound discretion of the trial court. Noel v. Pizza Management, Inc., 258 Kan. 3, 9, 899 P.2d 1013 (1995). “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, not a matter of law.” McGuire v. Sifers, 235 Kan. 368, 371, 681 P.2d 1025 (1984).
While testimony concerning the neighbors’ grinders was certainly relevant, the trial court had discretion to exclude the grinders as cumulative and prejudicial. Betts v. General Motors Corp., 236 Kan. 108, 114-15, 689 P.2d 795 (1984), teaches us that “a trial court has a right to reject relevant testimony where the evidence is cumulative of facts established or where the probative value of the relevant evidence is outweighed by the'risk of placing undue emphasis on some phase of the lawsuit with possible prejudice resulting.”
In Betts, we found it was not error to exclude certain exhibits of alternative fuel tank designs. There, the defendant admitted the existence of alternative designs, and evidence of alternative designs was introduced at trial. We held there was no error in excluding evidence which the trial court found cumulative and potentially prejudicial as to the location of fuel tanks on later model cars. 236 Kan. at 114-15.
More than sufficient evidence supports the trial court’s finding that presentation of the grinders would have been cumulative of other evidence. It is reasonable to believe, as the trial court did, that introducing the grinders would have been prejudicial and would have focused the jury’s attention onto these other grinders and away from Gerald’s grinder and the reasonableness of his conduct.
The Court of Appeals held the admission and exhibition of the meat grinders was not required. As to this issue, we agree with its opinion.
Because of the result we reach, the trial court must be affirmed. It is therefore not necessary for us to consider or comment on the refusal of the trial court to admit Debra’s damages expert because the issue of damages was properly never reached. Additionally, we need not comment on Gerald’s cross-appeal as to Debra’s status on the property or the manner in which the trial court so instructed.
The judgment of the Court of Appeals requiring admission of the testimony of the liability expert and ordering a new trial is reversed. The judgment of the Court of Appeals upholding the trial court’s refusal to admit the grinders in evidence is affirmed. The judgment of the trial court is affirmed.
Abbott, J., not participating.
Ron Rogg, District Judge Retired, assigned.
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It Is Therefore Ordered that Michael D. Wilson be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Michael D. Wilson from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1995 Kan. Ct. R. Annot. 222).
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The opinion of the court was delivered by
Lockett, J.:
Scholastic Book Clubs, Inc. (Scholastic), an out-of-state based business, sells books at discount prices to elementary school teachers and students throughout the United States. The Kansas Department of Revenue (KDR) assessed a use tax on the gross receipts of Scholastic’s sales in Kansas under the Kansas Compensating Tax Act (KCTA), K.S.A. 79-3701 et seq. The tax was upheld by the Director of Taxation (Director). Scholastic appealed to the Board of Tax Appeals (BOTA), claiming it is not subject to the compensating tax because it is not a retailer doing business in this state and does not have a nexus with this state. BOTA affirmed the order of the Director, affirming the assessment. Scholastic ap pealed. The appeal was transferred to this court on the KDR’s motion.
The parties stipulated to the relevant facts. Scholastic is a Missouri corporation with its principal offices and distribution center in Missouri. Scholastic sells books, videotapes, and audio tapes to primary and secondary school students throughout the United States, including Kansas. Scholastic maintains no offices, warehouses, or other facilities in Kansas. Scholastic has neither bank accounts in Kansas nor a contractual relationship with any banks or financial institutions in Kansas. No Scholastic employees conduct Scholastic’s business in Kansas. Scholastic markets its books by mailing catalogs to schools and teachers in Kansas. The catalogs are sent through the United States mail from locations outside Kansas. Several hundred Kansas schools, and many Kansas teachers and other school representatives, participate yearly in the purchases of books and tapes by students from Scholastic. The written material given to the teachers specifically informs the teachers they are not Scholastic’s expressed or implied agents. Scholastic included the language denying a delegation of authority only after a California court held it was responsible for collecting and remitting use tax in California. See Scholastic Book Clubs, Inc. v. State Bd. of Equalization, 207 Cal. App. 3d 734, 255 Cal. Rptr. 77 (1989).
Scholastic’s catalogs describe the various books and tapes which Scholastic offers for sale and lists the price for each item. The catalogs contain order forms, which teachers and other school personnel distribute to students. A message to parents is provided on each student order form directing the parent to “[c]heck the titles your child wants. Put this order form and payment in an envelope for your child’s teacher.” When teachers receive the student order forms, they consolidate the orders onto a classroom order form. Tables are provided with the classroom order form to assist the teachers in the computation of the total paid items and the total amount due. The books and tapes ordered by the teachers for their students are shipped by common carrier and other providers of interstate commerce from Scholastic’s facilities in Missouri to the Kansas schools and teachers. Teachers or other school personnel receive the materials ordered and distribute the books and tapes to the proper students.
As part of its marketing plan, Scholastic offers “Free Classroom Bonuses” through a “Classroom Bonus Plan.” Bonus points are provided based upon the amount of the classroom order and, as specified in the classroom, order form, are redeemed for books in the catalog or bonus items set forth in the order material, or in Scholastic’s “Bonus Catalog for the Classroom.” The classroom order form advises the teacher or- school personnel placing the student orders of the bonus points that are credited as a result of the order. The bonus catalog.is sent to the teachers or other school personnel in conjunction with the books and tapes catalog. Although the bonus catalog states that the bonus points are awarded to the class, Scholastic makes no effort to insure compliance, but instead relies upon the good faith of the teachers or school personnel to use the bonus points properly.
The KDR examined the books and records of Scholastic for the period June Í, 1987, through Jánuary 31, 1991. On June 21, 1991, the KDR issued a use tax assessment in the amount of $276,006, including interest and penalties, against Scholastic. Scholastic requested a hearing before the Director of Taxation. The Director appointed a “designee” to hear the matter. For simplicity, the designee is referred to as “Director.”
Scholastic’s argument to the Director was twofold. First, Scholastic contended that the. teachers act on behalf of the students rather than on behalf of Scholastic. Scholastic argued no agency or representative relationship is created with the teachers because the elements of an expressed or-implied contractual agreement, including a meeting of the minds and consideration, are not satisfied. Second, Scholastic argued-that the teachers do not act under its authority because it specifically denied it was entering into an agency relationship with the teachers.
The KDR, on the other hand, argued that the teachers are part of Scholastic’s Kansas sales -force, acting as agents or representatives under the authority of Scholastic. The KDR pointed out that Scholastic gives the teachers authority to “hand out copies” of the materials, to “recommend” appropriate books, to “collect the stu dents’ orders and tally each order,” to “mail your order and payment,” and to “distribute books.” It argued that Scholastic not only directs the teachers to act, it accepts the benefits of their sales and issues bonus points as consideration for their services.
The KDR asserted that having an agent or a representative in the state within the meaning of K.S.A. 1995 Supp. 79-3702(h) does not require a formalistic contract establishing an agency relationship. In addition, the KDR argued that a factual analysis was unnecessary since Scholastic is estopped under Kansas law from denying the agency relationship. This argument was based upon the rationale that a principal cannot receive and retain the benefits of a transaction and, at the same time, deny the authority of the agent to enter into the transaction.
The Director first observed that in Kansas, taxation is the rule and exemption is the exception. Assembly of God v. Sangster, 178 Kan. 678, Syl. ¶ 3, 290 P.2d 1057 (1955). Statutory exemption provisions are strictly construed against the one requesting exemption. Farmers Co-op v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 635, 694 P.2d 462 (1985). All doubts concerning exemption are to be resolved against the exemption and in favor of taxation. Trustees of The United Methodist Church v. Cogswell, 205 Kan. 847, Syl. ¶ 2, 473 P.2d 1 (1970). The Director then noted that in assessing the compensating tax, the KDR relied upon three statutory provisions. Although the Director cited the 1992 version of each relevant statute, the language of the 1992 statutes is substantially the same as in the 1995 version. The rate of the tax may fluctuate each year. K.S.A. 1995 Supp. 79-3702(g) defines “retailer” as
“every person engaged in the business of selling tangible personal property for use within the meaning of this act, except that, when in the opinion of the director it is necessary for the efficient administration of this act to regard any salesperson, representatives, truckers, peddlers or canvassers as the agents of the dealers, distributors, supervisors, employers or persons under whom they operate or from whom they obtain the tangible personal property sold by them, irrespective of whether they are making sales on their own behalf or on behalf of such dealers, distributors, supervisors, employers, or persons, the director may so regard them and may regard the dealers, distributors, supervisors, employers, or persons as retailers for the purposes of this act.”
K.S.A. 1995 Supp. 79-3702(h) defines “retailer doing business in this state” and any similar term as any retailer
“(1) Having or maintaining within this state, directly or by a subsidiary, an office, distribution house, sales house, warehouse or other place of business, or any agent or other representative operating within this state under the authority of the retailer or its subsidiary, irrespective of whether such place of business or agent is located here permanently or temporarily, or whether such retailer or subsidiary is admitted to do business within the state.”
K.S.A. 1995 Supp. 79-3703 levies the rate of compensating tax:
“There is hereby levied and there shall be collected from every person in this state a tax or excise for the privilege of using, storing, or consuming within this state any article of tangible personal property. Such tax shall be levied and collected in an amount equal to the consideration paid by the taxpayer multiplied by the rate of 4.9%. All property purchased or leased within or without this state and subsequently used, stored or consumed in this state shall be subject to the compensating tax if the same property or transaction would have been subject to the Kansas retailers’ sales tax had the transaction been wholly within this state.”
After referring to the three statutes, the Director noted that for Kansas to levy a compensating use tax, Scholastic must be a retailer doing business in Kansas. The resolution of that question depended upon whether Scholastic had “any agent or other representative operating within this state” with authority sufficient to create a nexus that satisfied the requirements of the Commercé Clause. The Director concluded this was a question of law.
The Director pointed out that while an express contract may create an agency relationship, conduct implying an agency relationship serves just as well. Express agency exists when the principal expressly authorizes the agent to do delegable acts, and implied agency may exist if it appears from the parties’ words, conduct, or other circumstances that the principal intended to give the agent authority to act. Turner and Boisseau v. Marshall Adjusting, 775 F. Supp. 372, 378 (D. Kan. 1991).
The Director noted that if it is easy to find agency in Kansas, it is correspondingly difficult to disclaim it. Under Kansas law, an agency relationship may exist notwithstanding either a denial of the agency by the alleged principal or a lack of mutual understanding of agency between the parties. Moore v. Adkins, 2 Kan. App. 2d 139, Syl. ¶ 7, 576 P.2d 245 (1978); Turner and Boisseau, 775 F. Supp. 372, 378. The Director pointed out that Scholastic’s mere claim that teachers are not its agents does not make it so.
The Director observed that whether Kansas schoolteachers constitute an in-state sales force for Scholastic depends upon whether the teachers acted as Scholastic’s agents or representatives and under its authority. The Director pointed out that Black’s Law Dictionary 85 (Rev. 4th Ed., 1968) defines “agent” as “[a] person authorized by another to act for him, or intrusted with another’s business,” and defined “representative” as “One who represents or stands in the place of another.” Black’s Law Dictionary 1466. The Director then noted that in general, agency must rest on some kind of contract, express or implied, between principal and agent. See Lord v. Jackman, 206 Kan. 22, 26, 476 P.2d 596 (1970). General contract rules apply to agency, and as to the essential matters there must be consideration, mutuality, and a meeting of the minds. Lindsley v. Forum Restaurants, Inc., 3 Kan. App. 2d 489, 491, 596 P.2d 1250, rev. denied 226 Kan. 792 (1979).
The Director found that Kansas schoolteachers acted on Scholastic’s behalf as its agents or representatives under Scholastic’s authority. This conclusion was based upon the fact that Scholastic operated through Kansas schoolteachers who used part of their school day to promote Scholastic’s products and participated in sales transactions which benefitted Scholastic. Scholastic instructs the Kansas teachers to pass out order forms to their students, recommend appropriate books, collect the orders and payments, forward orders to Scholastic, and eventually distribute ordered material. The Director stated that Kansas teachers are Scholastic’s solicitors and observed that “but for” the Kansas teachers it is questionable whether Scholastic would make sales or derive revenue from Kansas customers. The Director found that the Kansas teachers constituted an in-state sales force of Scholastic.
The Director determined that under these circumstances the teachers’ actions and presence satisfied the statutory requirements of K.S.A. 1995 Supp. 79-3702(g) and (h). Therefore, Scholastic was a “retailer” doing business in Kansas. The Director then concluded that the Kansas teachers’ actions and presence in the state on be half of Scholastic created the physical presence required for a “substantial nexus” within Kansas. The Director affirmed the assessment of the tax, then abated the penalty because it was not clear Scholastic should have known the tax was due. Because the Director was without authority to adjust interest, he upheld the assessment for interest at the statutory rate. Scholastic’s request for reconsideration by the Director was denied. Scholastic appealed to BOTA.
BOTA found that the Director erroneously determined that there was an implied agency between Scholastic and the teachers. BOTA pointed out that Scholastic had denied an intent to create an agency. BOTA reached this conclusion because the principal, Scholastic, had specifically stated to the teachers in its written information that they were not acting as its agents. Therefore, neither an actual nor an implied agency existed.
BOTA then observed that in Kansas, there are two forms of agency — actual, which includes express or implied agency, and apparent agency. See Mohr v. State Bank of Stanley, 241 Kan. 42, 45, 734 P.2d 1071 (1987). In express agency, the principal has delegated authority to the agent by words which expressly authorize the agent to do a delegable act. Gardner v. Rensmeyer, 221 Kan. 23, 27, 557 P.2d 1258 (1976) (quoting Greep v. Bruns, 160 Kan. 48, Syl. ¶ 4, 159 P.2d 803 [1945]). BOTA pointed out that a category of express agency, known as implied agency, exists where the principal and agent intend to create a relationship whereby when the agent acts on this authority, others will believe in and rely on the agent’s acts. Gardner v. Rensmeyer, 221 Kan. at 26-27. See Rodgers v. Arapahoe Pipe Line Co., 185 Kan. 424, Syl. ¶ 3, 345 P.2d 702 (1989).
BOTA then noted that there is another type of agency, apparent agency, which is created when the principal allows a third party to conclude that the purported agent is, in fact, an agent of the principal despite the lack of authority granted to the purported agent. BOTA observed that although Scholastic denied that the Kansas teachers represent it, they perform many duties on behalf of Scholastic: The teachers pass out Scholastic’s order forms. They compile the orders under Scholastic’s direction. They collect money for remitting to Scholastic. They remit the money and orders to Scholastic and distribute the books they receive from Scholastic. The teachers also handle disputes between the student and retailer and receive bonus points as consideration. BOTA then concluded that the Kansas teachers act as the apparent agents of Scholastic.
BOTA found Scholastic (1) was a retailer doing business in the state of Kansas under K.S.A. 1995 Supp. 79-3702(h) and (2) had a sufficient nexus with the state of Kansas to satisfy the Commerce Clause of the United States Constitution. Scholastic’s subsequent motion for reconsideration was denied. BOTA affirmed the assessment of tax against Scholastic. Scholastic appealed.
Standard of Review
BOTA orders are subject to judicial review under the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. K.S.A. 74-2426(c). The party challenging BOTA’s action has the burden to prove that the action taken by BOTA was erroneous. See K.S.A. 77-621(a). Here, Scholastic argues that BOTA, in concluding that the teachers acted as its agents, “erroneously interpreted or applied the law.” See K.S.A. 77-621(c)(4).
The interpretation of a statute by an administrative agency charged with the responsibility of enforcing the statute is entitled to judicial deference. This is called the doctrine of operative construction. State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991). Deference to an agency’s interpretation is particularly appropriate when the agency is one of special competence and experience. See Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 246, 834 P.2d 368 (1992). Whether an agency has erroneously interpreted or applied the law in an unconstitutional manner is a question of law over which an appellate court’s review is unlimited. K.S.A. 77-621(c)(1); see Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
RETAILER DOING BUSINESS IN KANSAS
Article I, § 8 of the United States Constitution states that Congress has the power to “regulate Commerce with foreign Nations, and among the several States.” The United States Supreme Court has recognized that the Commerce Clause does more than make an affirmative grant of power; it also prohibits certain State actions that interfere with interstate commerce. Quill Corp. v. North Dakota, 504 U.S. 298, 309, 119 L. Ed. 2d 91, 112 S. Ct. 1904 (1992). Quill restated the four-part test used in evaluating the validity of state taxes under the Commerce Clause:
“[W]e will sustain a tax against a Commerce Clause challenge so long as the ‘tax [1] is applied to an activity with a substantial nexus with the taxing State, [2] is fairly apportioned, [3] does not discriminate against interstate commerce, and [4] is fairly related to the services provided by the State.’ [Citation omitted.]” 504 U.S. at 311.
In determining whether the Kansas compensating tax violates the Commerce Clause, the parties here argue only the substantial nexus requirement of the test.
The parties agree that Scholastic is a retailer but disagree as to whether Scholastic is a retailer doing business in Kansas. Scholastic is a retailer doing business in Kansas if it has or maintains “any agent or other representative operating within this state under the authority of the retailer.” K.S.A. 1995 Supp. 79-3702(h)(l). Scholastic asserts that it has no agents in Kansas; therefore, there is no substantial nexus to Kansas. It argues that because it has no agents in Kansas there is no substantial nexus to Kansas requiring it to collect and remit the Kansas compensating tax.
In finding that Scholastic was required to collect and remit the tax, BOTA addressed the question of agency and found that under the written agreement no express or implied agency relationship existed between Scholastic and the Kansas teachers. After rejecting the KDR’s claim that an expressed or implied agency existed, BOTA determined that under the facts an apparent agency existed between Scholastic and the teachers, citing Kunz v. Lowden, 124 F.2d 911 (10th Cir. 1942). On appeal, the parties present different arguments with respect to this finding.
Scholastic argues that the doctrine of apparent agency applies only to a third party who is induced by the parties to believe an agency exists and cannot be used as a pretext for finding that Scholastic is a retailer doing business in this state. As authority for this argument, Scholastic relies on Theis v. duPont, Glore Forgan Inc., 212 Kan. 301, 510 P.2d 1212 (1973), which discussed the doctrines of apparent agency and agency and set out the legal distinction between the two doctrines and the separate duties imposed by law. In that case the plaintiff, Theis, retained the defendant, duPont, a brokerage firm, for the purpose of trading in the commodities market. The duPont employee who handled Theis’ account, Craig Benjamin, engaged in unauthorized transactions on Theis’ account. Theis repeatedly told Benjamin not to do so, and after one such unauthorized transaction; Theis closed his account with duPont. Theis sued duPont for damages from the unauthorized transaction. duPont argued that Benjamin, its employee, had Theis’ implied or apparent authority to engage in the transactions on Theis’ account. 212 Kan. at 306. The Theis court first discussed the types of agency, observing:
“The law recognizes two distinct types of agencies, one actual and the other ostensible or apparent. The authority of an actual agent may be either express or implied. The distinctions between express, implied and apparent authority are explained in Greep v. Bruns, 160 Kan. 48, 159 P.2d 803 [(1945)], as follows:
‘The authority of an actual agent may be either express or implied. It is express if the one sought to be charged has delegated authority to the agent by words which expressly and directly authorize him to do a delegable act. It is implied if from statements of the parties, their conduct and other relevant circumstances it appears the intent of the parties was to create a relationship permitting the assumption of authority by an agent which when exercised by him would normally and naturally lead others to believe in and rely on his acts as those of the principal.
‘An ostensible or apparent agent is one whom the principal has intentionally or by want of ordinary care induced and permitted third persons to believe to be his agent even though no authority, either express or implied, has been conferred upon him.’ (Syl. ¶¶ 4 and 5).” 212 Kan. at 306.
The Theis court then found the doctrine of apparent agency inapplicable under the facts, observing: “The Greep case makes it clear the apparent authority doctrine has relevance only when a third party has dealt with an ostensible agent and then seeks to bind the principal to a transaction despite the fact that the agent had no actual authority to bind him.” 212 Kan. at 306. It noted that Theis’ contract was with duPont, though acting through Ben jamin as the account executive, and duPont, as Benjamin’s employer, did not occupy the position of stranger or third parly to the agency contract. The court concluded that because there was no third party involved, there was no apparent agency.
Similar principles of agency were stated in Mohr v. State Bank of Stanley, 241 Kan. 42. Loyd, the co-owner of two companies (TriCounty and Mohr-Loyd Leasing) deposited checks made out to the two companies into the bank account of a third company (Earthbom Energy) owned, solely by Loyd. Tri-County and the other co-owner, Mohr, sought to recover the proceeds of the checks from the bank in which the checks were deposited. The bank contended that, as a matter of law, Loyd had implied or apparent authority to endorse and negotiate the checks. The Mohr court cited the principles of agency stated in Greep as well as other authorities discussing express and implied agency. In rejecting the claim that an apparent agency existed, the Mohr court stated:
“Apparent agency is based on intentional actions or words of the principal toward third parties which reasonably induce or permit third parties to believe that an agency relationship exists. In the case before us, there were no actions by Tri-County and no words expressed on its behalf to the State Bank of Stanley to induce or permit it to believe that Loyd was the agent of Tri-County and authorized to deposit corporate checks in his own personal business account. . . . We find no basis in the evidence for the existence of any apparent agency.” 241 Kan. at 46.
Both Mohr and Theis are instructive. Each points out that under the doctrine of apparent agency, the principal has conferred no authority, either express or implied, on the agent. Mohr, 241 Kan. 42, Syl. ¶ 4; Theis, 212 Kan. 301, Syl. ¶ 6. Further, both Mohr and Theis conclude that apparent agency rests on some action by the alleged agent toward a third party. Theis clearly states that the doctrine of apparent agency applies only when a third party has dealt with an apparent agent and that third party seeks to bind the principal to the transaction entered into by its apparent agent.
Although an appellate court gives deference to the agency’s interpretation of a statute, BOTA’s determination of a question of law is not binding on an appellate court. Whether an apparent agency exists and if that agency relationship is sufficient for the KDR to assess a use tax on the gross receipts of Scholastic’s sales in Kansas under the Kansas Compensating Tax Act are questions of law over which an appellate court’s review is unlimited.
K.S.A. 1995 Supp. 79-3702(h) states that a retailer is a “[r]etailer doing business in this state” if it has “any agent or other representative operating within this state under the authority of the retailer.” (Emphasis added.) Because the third party to die apparent agency relationship, the students, are not seeking to enforce the agency relationship, the doctrine of apparent agency has no application and is insufficient as a matter of law to bring a retailer within the scope of K.S.A. 1995 Supp. 79-3702(h).
The KDR argues that Scholastic’s statement in its written material that teachers are not its .agents is ineffective because Scholastic receives and retains the benefits of the teachers who conduct the transactions on Scholastic’s behalf. The KDR asserts that agency by ratification is established. See Scholastic Book Clubs, Inc. v. State Bd. of Equalization, 207 Cal. App. 3d 734, 738, 255 Cal. Rptr. 77 (1989).
Agency is a comprehensive term embracing an almost limitless number of relations between two or more persons or entities by which one party, usually called the “agent” or “attorney,” is authorized to do certain acts for, or in relation to rights or property of, the other, who is denominated the “principal,” “constituent,” or “employer.” The relationship of agency maybe expressly created or arise by inference from the relation of the parties without proof of any express agreement, or may be created by law. Whether one is the agent of another for a specific purpose depends upon whether he or she has power to act with reference to the subject matter. To establish an agency relationship, there need be no evidence of authority to act if die party performs duties or creates benefits of which the other person avails himself or herself. Kunz, 124 F.2d at 913.
While an express contract may create an agency relationship, conduct implying an agency relationship serves just as well. An implied agency may exist if it appears from the parties’ words, conduct, or other circumstances that the principal intended to give the agent authority to act. Turner and Boisseau v. Marshall Adjusting, 775 F. Supp. 372, 378 (D. Kan. 1991). An implied agency relationship may exist notwithstanding either a denial of the agency by the alleged principal or a lack of mutual understanding of agency between the parties. 775 F. Supp. at 378; Moore v. Adkins, 2 Kan. App. 2d 139, Syl. ¶ 7, 576 P.2d 245 (1978).
First, we note that an implied agency may exist if it appears from a party’s words, conduct, or other circumstances that the principal intended to give the agent authority to act. Second, that agency relationship may exist notwithstanding a denial by the alleged principal or whether the parties understood it to be an agency. We conclude that Kansas teachers are acting under Scholastic’s authority once they undertake to sell the books to the students. By Scholastic’s accepting orders and payments and shipping merchandise to teachers for distribution to the student purchasers, the Kansas teachers are the implied agents of Scholastic.
Sufficient Nexus
Because an agency exists we must determine if there is a substantial nexus to this state requiring the retailer (Scholastic) to collect the tax. In Quill, 504 U.S. at 311, the Supreme Court followed the substantial nexus rule set out in Nat. Bellas Hess v. Dept. of Revenue, 386 U. S. 753, 18 L. Ed. 2d 505, 87 S. Ct. 1389 (1967): “[A] vendor whose only contacts with the taxing State are by mail or common carrier lacks the ‘substantial nexus’ required by the Commerce Clause.” The Court recognized that “[w]hether or not a State may compel a vendor to collect a sales or use tax may turn on the presence in the taxing State of a small sales force, plant, or office.” 504 U.S. at 315.
In determining whether there is substantial nexus providing Kansas the authority to collect the compensating tax from an out-of-state corporation, we will review and analyze three cases from other jurisdictions. In Scholastic Book Clubs, Inc. v. State Bd. of Equalization, 207 Cal. App. 3d 734, Scholastic brought a similar action for refund of use taxes assessed by California. In that case, the retailer (Scholastic) was also a foreign corporation. Similarly, California teachers received a catalog and order forms from Scholastic. The sale of books to students through teachers was accom plished in the identical manner as in our case. After being assessed for compensating taxes due, Scholastic appealed and made an argument similar to their argument before this court. In reaching its decision, the California court reviewed several cases. It observed that the case upon which Scholastic most strongly relied was Nat. Bellas Hess v. Dept. of Revenue, 386 U.S. 753, in which the Illinois Supreme Court invalidated an Illinois tax on an out-of-state merchandiser whose only contact with Illinois was through the mail or by common carrier. In that case, the Missouri retailer mailed catalogs to active or recent customers throughout the country twice a year. All Illinois customers mailed orders directly to the Missouri plant, from which the goods were sent directly to the customer through the mail or by common carrier. The California court noted that the Missouri retailer had no agents in Illinois, but sold directly by catalogs sent through the mail. The California court observed that the basis of the Illinois court’s determination that the Illinois use tax could not be assessed against the Missouri retailer was that the United States Supreme Court had never allowed a state to impose the duty of use tax collection and payment upon a retailer whose only connection with customers in the state is by common carrier or through the United States mail.
The California court then reviewed the case relied upon by the State, Scripto v. Carson, 362 U.S. 207, 4 L. Ed. 2d 660, 80 S. Ct. 619. In that case, the Georgia retailer had written contracts with Florida jobbers, who solicited orders in Florida, forwarded the resulting orders to Georgia for shipment, but collected no payment for the order from the customer. The jobbers were described in their contract with the Georgia retailers as “independent contractors,” were not required to work exclusively for the Georgia retailer, and were paid solely on commission. The fact that the representatives were not regular and exclusive employees of the Georgia retailer was characterized as “a fine distinction . . . without constitutional significance.” 362 U.S. at 211. The United States Supreme Court concluded that the requisite nexus was sufficient for Florida to impose the use tax on the Georgia retailer insofar as the sales were made in Florida by local representatives who conducted business in the taxing state.
The California court found that the Scholastic case was more similar to Scripto than to Nat. Bellas Hess. It concluded that although the teachers did not have written agency agreements with the retailer, they served the same function as did the Florida jobbers in Scripto — obtaining sales in California from local customers for a foreign corporation. It observed that unlike the Florida jobbers, the California teachers also collected payment from the purchasers, and received and distributed the merchandise. The Court pointed out that Scholastic not only relied, but in fact depended, upon the teachers to act as its conduit to the California students. It found there was an implied contract between Scholastic and the teachers — Scholastic rewarded the teachers with bonus points for merchandise if they obtained and processed the orders. It found the bonus points were similar to the Florida jobbers’ commission. The California court concluded that the teachers who took students’ catalog orders for books sold by a foreign corporation were, for tax purposes, operating “under the authority of” the corporation. Furthermore, by accepting orders and payment and by shipping merchandise, the corporation ratified the acts of the teachers, confirming their authority as its agents or representatives. It determined that under these circumstances, Scholastic was responsible to collect the California use tax.
In Quill Corp. v. North Dakota, 504 U.S. 298, a mail-order house incorporated in Delaware made annual sales to about 3,000 customers in North Dakota. The mail-order house had no offices or warehouses in North Dakota or employees that worked or resided in North Dakota. Orders were solicited through catalogs and flyers sent into North Dakota by mail. All merchandise delivered to. North Dakota customers was by mail or common carrier from out-of-state locations. When the mail-order house refused to collect the use tax from its North Dakota customers, North Dakota filed an action to require the mail-order house to pay taxes, as well as interest and penalties. The mail-order house alleged that the North Dakota use tax statute as applied violated the federal Constitution’s Commerce Clause and the Due Process Clause of the Fourteenth Amendment. The district court ruled in favor of the mail-order house, finding that North Dakota had failed to establish a sufficient nexus between the mail-order house and the state. The Supreme Court of North Dakota reversed.
On certiorari, the United States Supreme Court noted that the Due Process Clause did not bar enforcement of the state’s use tax if (a) the mail-order house had purposely directed its activities at North Dakota residents, (b) the magnitude of such contacts was sufficient for due process purposes, and (c) the use tax was related to the benefits that the mail-order house received from access to the state. After reviewing the facts, it reversed the North Dakota Supreme Court. The United States Supreme Court observed that a vendor who solicits sales by catalogs and whose only connection with customers in the taxing state is by common carrier or through the United States mail is free from state-imposed duties to collect sales and use tax because such vendor lacks the substantial nexus with the taxing state required by the Commerce Clause.
In Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994), a New Jersey corporation’s order forms listing current book selections for a particular grade were mailed , to Arkansas teachers. The catalogs instructed the Arkansas teachers how to collect the students’ orders, how to consolidate the orders, and how to collect the money for the orders. The teacher then filled out a master list and sent the money to the out-of-state retailer. The books were then sent to the Arkansas teacher by the bookseller. When the books arrived, the teacher distributed the books to the students. The teachers received cash or merchandise “bonuses,” depending upon the amount of the order. Troll, the New Jersey bookseller, was assessed a vendor’s use tax. The bookseller brought an action under the Arkansas Tax Procedure Act. The chancellor ruled that Troll’s sales of books in Arkansas was not subject to the state’s use tax. The State appealed to the Arkansas Supreme Court.
The Arkansas Supreme Court noted that the Arkansas statute provided for imposition of a tax upon a vendor located outside the state if the vendor makes sales of personal property within the state. It pointed out that the Commerce Clause of the United States Constitution limits a state’s ability to tax out-of-state entities when such taxation burdens interstate commerce. It observed that for such a tax to be upheld under the Commerce Clause, the entity to be taxed must maintain a physical presence in the taxing state.
The Arkansas Supreme Court observed that unless the State could prove a formal agency relationship between the teachers and the retailer, Troll lacked the “substantial nexus” required by the federal Constitution in order to be taxed in Arkansas. 316 Ark. at 198. The court noted that the State, in its argument that the chancery court should have found an agency relationship, relied upon a case that involved the same defendant under identical arrangements for selling books, Scholastic Book Clubs, Inc. v. State Bd. of Equalization, 207 Cal. App. 3d 734.
The Arkansas Supreme Court observed that although the California case was factually on point, it was distinguishable from the Arkansas case for two reasons. First, the California case was decided prior to the United States Supreme Court decision in Quill Corp. v. North Dakota, 504 U.S. 298, which mandated the bright-line physical presence test for interstate mail order sales. Second, California agency law, unlike Arkansas agency law, allowed a relationship of agency to be implied retroactively by ratification. Unlike California law, in Arkansas the agency relationship must be shown to exist by proof of both authorization and control, and the doctrine of ratification cannot be implied retroactively by ratification. See E. P. Dobson, Inc. v. Richard, 17 Ark. App. 155, 158, 705 S.W.2d 893 (1986) (citing Runyan v. Community Fund of Little Rock, 182 Ark. 441, 31 S.W.2d 743 [1930]).
Quill and Pledger each determined there was an insufficient nexus for the state to require the foreign corporation to collect the state’s compensating tax for the foreign corporation’s sales to the state’s residents. In Quill, all sales were made through catalogs. The seller mailed the catalog to the buyer, the buyer returned the order and payment to the seller, and the seller sent the books to the purchaser. Here, the sales are made by Kansas teachers to their students; obviously, Quill is factually different and does not apply.
In Pledger, the out-of-state seller sold its products through Arkansas teachers. All contacts, sales, and deliveries of the books sold to the students were conducted through the teachers. In rejecting the State’s claim that the teachers were acting as agents for the out-of-state seller, the Arkansas Supreme Court noted that for an agency to exist in that state, the essential elements are authorization and control. It noted that Arkansas agency law places the burden upon the party asserting the agency relationship. In the absence of these elements, the doctrine of ratification was inapplicable. The Arkansas court found that an agency relationship was not clearly proven in Pledger. In Kansas, the test to determine if an alleged agent possessed implied powers is whether, from the facts and circumstances of the particular case, it appears there was an implied intention to create an agency. The relation may exist, notwithstanding a denial by the alleged principal or whether the parties understood it to be an agency. Moore v. Adkins, 2 Kan. App. 2d 139, Syl. ¶ 7, 576 P.2d 245 (1978). Clearly, the Arkansas standard for proving the existence of an agency relationship is stricter than that required by Kansas law. Under the circumstances, Pledger does not apply.
We find the California case persuasive, The facts are similar to the case at bar. Although Scholastic has in its written material attempted to deny an agency relationship with the Kansas teachers, that denial is not permissible under Kansas law. Scholastic clearly has more of a connection with Kansas than catalog sales through the mail or by common carrier. Applying the test stated in Nat. Bellas Hess and Quill, Scholastic’s use of the Kansas teachers to sell its product to Kansas students provides a substantial nexus with the state of Kansas. Scholastic is a retailer doing business in Kansas. Application of the KCTA does not violate the Commerce Clause.
Affirmed.
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The opinion of the court was delivered by
Davis, J.:
The issues in this case arise within the context of a personal injury action based upon negligence and negligent entrustment. The district court granted all defendants summary judgment based upon its interpretation of K.S.A. 8-222 and its further conclusion that negligent entrustment, if it existed at all, was not the proximate cause of the plaintiff’s injuries.
Richard and Jennifer Hedden reside in Wichita with their two sons, Jeff and Jon. At the time of the accident, Jeff and Jon were high school freshmen, age 14. A married daughter, Natalie Hedden Long, age 22, lived away from the family residence. Plaintiff Jason Davey, age 15, was a high school friend of Jeff and Jon. Catherine Farnsworth, age 15, also a friend, was the driver of the car involved in the accident that injured Davey.
A week prior to the accident, Richard and Jennifer went to Hawaii on vacation. While they had previously taken vacations without their two sons, they had never before taken a trip while their sons were driving automobiles under restricted drivers’ licenses. Natalie stayed in the Hedden home while Richard and Jennifer were in Hawaii. However, Natalie was employed from 3 to 11 p.m., 4 days a week, and when she was not at the residence there was no adult supervision.
The Heddens left two vehicles at the residence, a minivan and a yellow 1973 Mercedes convertible. Both Jeff and Jon had restricted drivers’ licenses and both were allowed by their parents to drive the vehicles to and from school and to school-related activities even though driving to school activities exceeded the restrictions imposed by their licenses. See K.S.A. 8-237.
There is a controversy over whether Richard and Jennifer talked to Jon and Jeff about not letting other friends drive their cars. Neither could recall a specific instance when they did so immediately prior to the trip to Hawaii. While such an instruction may have been given, it was not given in conjunction with their departure for Hawaii.
Several friends of Jeff and Jon drove the Mercedes while Richard and Jennifer were in Hawaii. Whether this occurred with the permission of the Hedden boys is disputed. However, on the evening the accident occurred, while at another friend’s residence, plaintiff Jason Davey asked Jon Hedden for permission to drive the Mercedes so that he could put gas in the car. The plaintiff then left the residence with Catherine Farnsworth as a passenger. The plaintiff and Farnsworth were under the age of 16 and both possessed restricted drivers’ licenses.
After leaving the house, the plaintiff pulled over and let Farnsworth drive the Mercedes. After obtaining gas, Farnsworth drove down Hidden Valley Road, a route with which she was not familiar. According to the plaintiff, Farnsworth let the right wheels fall off the side of the road, over corrected, and lost control, and the Mercedes hit a tree. The plaintiff went through the windshield and suffered severe injuries.
The plaintiff filed suit against Farnsworth, as well as against Jennifer and Richard Hedden; C.K.W., Inc., a joint corporate owner of the Mercedes; and Farmers Alliance Mutual Insurance Company (Farmers Alliance). He alleged that Farnsworth’s negligence caused his injuries. He also alleged that Richard and Jennifer Hedden, as well as C.K.W., Inc., negligently entrusted the Mercedes to the Heddens’ minor sons and that as a proximate result, he was injured. He further alleged that Jennifer and Richard Hedden were liable under K.S.A. 8-263 and K.S.A. 8-264 for permitting an unauthorized minor to drive their car. He also alleged that the Heddens and C.K.W., Inc., were liable under the provisions of K.S.A. 8-222 for permitting Farnsworth to drive the car. Finally, he claimed coverage under the uninsured motorist coverage provision of the Hedden auto policy with Farmers Alliance. He alleged that Farnsworth was uninsured and negligent in her operation of the Mercedes, that her negligence caused him damages, and that those damages were covered under the policy.
The plaintiff settled his claim against Farnsworth. As part of the settlement agreement, judgment in the amount of $277,137.43 was entered in favor of the plaintiff and against Farnsworth. However, the plaintiff agreed not to execute on assets of Farnsworth or garnish on the judgment but instead to proceed against Farmers Alliance under the uninsured motorist provision. Farmers Alliance had earlier denied coverage.
One of the main issues in this action is the application of K.S.A. 8-222, which provides:
“Every owner of a motor vehicle causing or knowingly permitting a minor under the age of sixteen years to drive such vehicle upon a highway, and any person who gives orjumishes a motor vehicle to such minor, shall be jointly and severally liable with such minor for any damages caused by the negligence of such minor in driving such vehicle." (Emphasis added.)
The defendants filed a motioh ásking for-a resolution of the following issue of law: Whether K.S.A. 8-222 operated to-maké the plaintiff jointly and severally háble for damages cáused by Farnsworth because he furnished the car to a minor. The defendants followed this motion with a motion for-partial summary judgment. The court granted the defendants’ motion for partiál summary judgment, concluding: ' ' '< ■ • ■
“4. The words ‘any person’ as used within K.S.A. 8-222 includes minors.
“5. As a matter of law, K.S.A. 8-222 is'applicable to the plaintiff herein, Jason A. Davey. ' ’
“6. K.S.A. 8-222, applies in this casé to the extent that any negligence found on the part of Catherine Farnsworth will .also be the negligence of-Jason A. Davey.”
The defendants then filed a motion for, summary judgment, which the court granted. The court, without deciding whether there had been a negligent,entrustment, concluded on the undisputed facts: ,. ,
“[I]f there-was any negligent entrustment. on:the-part of the owners of the automobile, it was not an efficient causo of any-negligence in. this case.
“b. The negligence of the plaintiff [Jason A. Davey] and Catherine Farnsworth in and of themselves constitutes 100% of the efficient intervening cause and if is an independent intervening cause.’’’ ■ ■' •
The plaintiff raises two issues by his. appeal. The first issue is one of first impression and'involves the interpretation of K.S.A. 8-222 under the facts of this case. The thrust of the plaintiff’s claim under his first issue is that K.S.A. 8-222 operates in favor of third parties claiming damages for injury at the hands of a minor driving a motor vehicle. The plaintiff acknowledges that K.S.A. 8-222 makes, the one who furnishes the vehicle to a minor, jointly and severally liable for damages done to a third party.- Howéver, the plaintiff claims that the statute does not operate to protect the minor from his or her negligence when the' person furnishing the vehicle is suing the minor for his or her own negligence. The- second issue raised by .the plaintiff involves the district court’s deter mination that the negligent entrustment, if it existed at all, was not the proximate cause of the plaintiff’s injuries.
I. K.S.A. 8-222
The district court, in ruling upon the defendants’ partial motion for summary judgment, concluded that K.S.A. 8-222 made the plaintiff jointly and severally liable for any damages caused by Farnsworth and, thus, the plaintiff was also jointly and severally liable for his own damages. Because the plaintiff was jointly and severally liable for his own damages, he was not legally entitled to recover damages from Farnsworth and, thus, did not come under the following provisions of the Heddens’ uninsured motorist coverage, which provided:
“We will pay all sums the ‘insured’ is legally entitled to recover as damages from the owner or driver of an ‘uninsured motor vehicle.’ The damages must result from ‘bodily injury’ sustained by the ‘insured’ caused by an ‘accident.’ The owner’s or driver’s liability for these damages must result from the ownership, maintenance or use of the ‘uninsured motor vehicle.’ ” (Emphasis added.)
In response, the plaintiff argues: (1) Farnsworth owed him a duty of care, and she (and the insurance company obligated to pay under uninsured motorist coverage) cannot use K.S.A. 8-222 as a shield against liability; (2) when K.S.A. 8-222 speaks of imposing “joint and several liability” upon the provider of an automobile, the statute necessarily refers to damages inflicted upon a third person because any other interpretation reaches an absurd result; and (3) negligence cannot be imputed to a minor under K.S.A. 8-222.
K.S.A. 8-222 was enacted in 1931. Two Kansas cases cited by both parties touch upon the subject of K.S.A. 8-222 in automobile liability cases involving minor drivers. In Gatz v. Church, 180 Kan. 15, 299 P.2d 81 (1956), a 15-year-old boy was driving a car with his father as a passenger when they hit another car. The question in Gatz was whether the contributory negligence of the son could be imputed to the father under K.S.A. 8-222 and whether that imputed contributory negligence would bar the father’s recovery against the other motorist. Because the case ended in a hung jury, the court remanded for determination of the factual issues involving negligence and contributory negligence. It, therefore, did not address the application of K.S.A. 8-222. In any event, Gatz would not have resolved the question of whether K.S.A. 8-222 bars recovery between a minor passenger furnishing a vehicle to another minor who by reason of negligence injures the passenger.
In Smithson, Executor v. Dunham, 201 Kan. 455, 441 P.2d 823 (1968), the question again was whether an owner, who was an occupant of the car he permitted to be used by a minor, was barred under K.S.A. 8-222 from recovering damages from a negligent third party under the theory that the minor s negligence could be imputed to the owner. This court stated:
“We hold that where a parent occupies a seat beside an under age driver, under the undisputed facts and circumstances as established in this case, the negligence of such under age driver, if it contributes to or proximately causes an accident, bars recovery from a third party for injuries or death of such parent.” 201 Kan. at 462.
All parties agree that the provisions of K.S.A. 8-222 provide a benefit and protection for third parties suing or being sued by the minor and the person furnishing the vehicle. The plaintiff does not dispute that he would be liable along with Farnsworth if they had caused injuries to another person. Further, had such an accident occurred under Kansas law relating to contributory negligence as it existed at the time of Smithson, the resulting imputed negligence would have barred the plaintiff from recovering from the third party for his own injuries. However, Smithson does not answer the question whether K.S.A. 8-222 operates in an action by the passenger furnishing the vehicle to a minor driver and the minor driver.
The interpretation of a statute is a question of law and, therefore, this court’s review is unlimited. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). When interpreting a statute, the fundamental rule is 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). When a statute is plain and unambiguous, the court must give effect to the intent 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). When interpreting a statute, there is a presump tion that the legislature does not intend to enact useless or meaningless legislation. Todd, 251 Kan. at 515.
The plain reading of K.S.A. 8-222 indicates that the plaintiff is jointly and severally liable along with Farnsworth for “any damages caused by the negligence” of Farnsworth in driving the Mercedes. The question is whether this phrase includes damages suffered by the plaintiff himself.
The plaintiff contends that the district court’s finding that he may not recover from Farnsworth under K.S.A. 8-222 is an interpretation that reaches an absurd result. In support of this contention. he cites Dombeck v. Chicago, M., St. P. and P. R. Co., 24 Wis. 2d 420, 129 N.W.2d 185 (1964).
In Dombeck, Richard Dombeck, a minor, was driving a car that was struck by a train. Two of his minor sisters, who were passengers in the car, were injured, one of them fatally. The circuit court found that Richard was 50% at fault and the railroad was also 50% at fault. The circuit court also found that Richard’s father could not recover against Richard for damages on behalf of the two minor sisters under a statute-providing that “ ‘[a]ny negligence or wilful misconduct of a person under the age of 18 years when operating a motor vehicle upon the highways is imputed to the person who signed the application for such person’s license.’ ” 24 Wis. 2d at 436. The circuit court ruled that because Richard’s negligence would be imputed to his father, the father could not recover against the son.
The Wisconsin Supreme Court reversed the circuit court, finding that its interpretation of the statute led to an absurd result. In reaching this conclusion, the court stated that the relationship created by the statute is similar to that which exists in agency law under a principal-agent or joint venture relationship. The court noted that the negligence of an agent is imputed to the principal in an action by the principal against a third person, or in an action by a third person against the principal, but not in an action by the principal against-the agent. The court similarly noted that in a joint venture relationship, the negligence of one of two, joint venturers is imputed to the other in actions against third persons but there is no such imputation where the action is between the joint venturers themselves. 24 Wis. 2d at 436-38. The court stated:
“[A] majority of this court considers it would work an unreasonable and absurd result if the statute were to be construed to abrogate, as between sponsoring parent, guardian, or employer and sponsored child, the rule that the negligence of an agent or joint venturer is not to be imputed to his principal or other joint venturer in an action between the parties. Thus we invoke the rule of statutory interpretation that a statute should not be construed to work an absurd result, even when the language seems clear and unambiguous. [Citations omitted].” 24 Wis. 2d at 438.
The defendants argue that Domheck is distinguishable in that the Wisconsin statute concerns negligence which is imputed to a sponsoring parent. According to the defendants, the Kansas statute does not “impute” negligence but instead imposes joint and several liability.
While K.S.A. 8-222 does not expressly say that it imputes the negligence of the minor driver-to the person who provided the car, the statute’s effect is to do just that. See Gatz, 180 Kan. at 17 (holding that “under the statute [the] liability of the owner arises from the negligence of the minor who is permitted to drive”). Smithson, 201 Kan. at 462, with its finding that the negligence of the underage driver bars the owmer from recovery, also makes this clear. Under K.S.A. 8-222, any person who furnishes a motor vehicle to a minor shall be jointly and severally liable with the minor for any damages caused by the negligence of the minor in driving the vehicle. The effect of the statute is imputation of the negligence of the minor driver to the one furnishing the vehicle.
The defendants acknowledge that under common-law7 rules of master-servant or principal-agent, the negligence of the servant is not imputed to the master- in an action against the servant by the master. See 53 Am. Jur. 2d, Master and Servant § 108. However, as noted by the defendants, we are concerned with a statutory liability that may or may not be analogous to the common-law rule. This was recognized by the Wisconsin Supreme Court in a case following Dombeck. See Swanigan v. State Farm Ins. Co., 99 Wis. 2d 179, 188, 299 N.W.2d 234 (1980).
In Swanigan, the Wisconsin Supreme Court ruled that Dombeck does not stand for the proposition that the sponsor-parent is a master-servant relationship but only that rules applicable to a master-servant relationship comport with the purpose of the statute. 99 Wis. 2d at 188. The court stated that “[although the liability of the sponsor for the negligence of the minor driver may have some similarity with that of the master for the negligent driving of a servant, the relationship between sponsor and minor should not be viewed as one of master and servant.” 99 Wis. 2d at 192. Instead, the court ruled that the statutory rule of liability is sui generis and not restricted by the common-law rules applicable to master and servant. 99 Wis. 2d at 193.
The statutory liability created by K.S.A. 8-222 is unique. It is not premised upon any common-law rules of liability such as master-servant or principal-agent and is not bound by interpretations of those rules except insofar as they further the purpose of the statute. Thus, this court is free to apply master-servant law if it finds that such an application would comport with the purpose of the statute but is not bound to do so in the absence of any such direction in the statute. Therefore, although the plaintiff cites many cases dealing with agency, these cases are applicable to the issue at hand only if they fit within the purpose of the statute.
The Dombeck decision was directly contrary to the decision of the Seventh Circuit Court of Appeals, which interpreted the very same Wisconsin statute in Gilbertson v. De Long, 301 F.2d 284 (7th Cir. 1962). In Gilbertson, the court determined that the statute precluded a sponsoring parent from recovering from the sponsored child for injuries sustained by the parent as a passenger in the car. 301 F.2d at 285. In reaching this conclusion, the Gilbertson court quoted the federal district court:
“ ‘The language of the statute is clear and unambiguous. It attaches liability to the parent sponsor for any negligence in the operation of an automobile by his or her child, and under its provisions a parent who signed an application for an instruction permit of a child under eighteen years of age is made hable for the negligent or unlawful conduct of such minor in operating a motor vehicle upon the highways. [Citation omitted.]
“ ‘The statute contains no exception. It makes no provision for any exemption for injuries or damages sustained by the sponsor parent.’ ” 301 F.2d at 285.
The court in Gilbertson also noted that .the legislature had not prescribed that the imputed negligence under the statute be applied in the same manner as in a principal-agency relationship. 301 F.2d at 285.
K.S.A. 8-222 provides that the person who furnishes a vehicle to a minor is jointly and severally liable for “any damages” caused by the negligence of the minor. Under a plain reading of the statute, this would apply not only to suits against a third party but also to actions between the person furnishing the vehicle and the minor. The question, therefore, is whether such a literal interpretation of the statute would create an absurd result or whether it would further the policy of the statue.
In answering this question, it is instructive to look at the holdings of the courts in Dombeck and Gilbertson. The Dombeck court determined that the purpose of the statute was to protect the public from damage caused by the negligent operation of vehicles by youthful drivers and that the statute accomplished that purpose by imputing negligence to the sponsoring parent. 24 Wis. 2d at 437. However, the Dombeck court also found that to apply the statute to a sponsoring parent’s suit against the minor driver would lead to an absurd result. 24 Wis. 2d at 438. In Gilbertson, on the other hand, the court stated that “barring claims of a sponsor against a negligent minor might encourage a greater degree of supervision over the operation of a vehicle in which the sponsor was a passenger.” 301 F.2d at 285.
Not unlike the policy argument expressed in Gilbertson, this court in an early case stated the legislative policy of K.S.A. 8-222 was that
“liability should attach to any person who placed as dangerous an agency as an automobile within the control of a minor who was not more than sixteen years old. The idea of the legislature was to discourage the practice of endangering the safety of the public by permitting people of the classes named to drive a motor car on the streets.” Shrout v. Rinker, 148 Kan. 820, 824, 84 P.2d 974 (1938).
In the case at hand, imposing liability on a person who gives a car to a minor or who permits an unlicensed driver to drive a car would accomplish the same purpose. Parents and others should think carefully before putting an automobile in the hands of one who is not licensed to drive it, in the interest of public safety. In refusing to allow recovery under the facts of this case, we, like the Gilbertson court, conclude that such an interpretation does not lead to an absurd result.
Finally, the plaintiff argues that even if we find that K.S.A. 8-222 applies to an injured adult who provides a car to a minor, it should not apply to an injured minor providing the car to another minor. However, K.S.A. 8-222 applies to “any person who gives or furnishes a motor vehicle to such minor.” A plain reading of the statute includes minors.
The only support that the plaintiff cites for his statement that K.S.A. 8-222 should not apply to impute liability to minors is 42 Am. Jur. 2d, Infants § 140. This section concerns the doctrine of respondeat superior and states that a minor is not liable for torts committed by his or her agent or servant because the appointment of an agent or servant by a minor is not binding on the minor. The plaintiff argues that this section supports his contention that negligence cannot normally be imputed to a minor. This argument, however, is somewhat overbroad. Rather than standing for the proposition that negligence cannot normally be imputed to a minor, the quoted authority stands for the proposition that a minor is not liable under the doctrine of respondeat superior because the minor cannot legally appoint an agent.
This point is illustrated in the case of Hodge v. Feiner, 338 Mo. 268, 272, 90 S.W.2d 90 (1935), wherein the Missouri Supreme Court held that a minor was not liable for injuries caused by a friend to whom he loaned a car. Hodge, however, is distinguishable from this case in that there was no statute similar to K.S.A. 8-222. The only basis for liability in Hodge was to establish that the one to whom the vehicle was loaned was an agent. See 338 Mo. at 269. The court ruled that because a minor cannot appoint an agent, the minor could not be held liable. 338 Mo. at 272.
Unlike Hodge, liability under K.S.A. 8-222 does not depend upon a contractual or agency relationship between the parties and does not involve the common-law doctrine of respondeat superior. Instead, K.S.A. 8-222 makes any person jointly and severally liable for giving a car to a minor. Thus, the plaintiff’s argument based on the theory of respondeat superior is not convincing.
The legislative policy of K.S.A. 8-222 is that “liability should attach to any person who placed as dangerous an agency as an automobile within the control of a minor who was not more than sixteen years old.” Shrout, 148 Kan. at 824. The statute contains the phrase “any person” and does not differentiate between adults and minors. It is a rule of statutory construction that the legislature is presumed to use words in their ordinary and common meaning. See Bank of Kansas v. Davison, 253 Kan. 780, 788, 861 P.2d 806 (1993). Had the legislature intended K.S.A. 8-222 to apply only to adults, it could easily have said so. Under these circumstances, the plaintiff’s argument that K.S.A. 8-222 does not apply to minors must fail.
We conclude that neither logic nor absurdity suggests that the provisions of K.S.A. 8-222 should not apply between persons occupying the same automobile. We also conclude that under a plain reading of the statute, “any person” includes a minor.
II. Proximate Cause
In their motion for summary judgment, the defendants urged dismissal on the grounds that the negligence of the plaintiff and/ or Farnsworth constituted a superseding intervening cause of the plaintiff’s injuries which broke the chain of causation of any alleged negligence on the part of the moving defendants. In their motion, the defendants acknowledged that the plaintiff asserted negligence on the part of the Heddens in allowing their sons to be at home without supervision and allowing their sons unsupervised access to the automobile. They further acknowledged that this was a disputed question of fact. For purposes of their motion, the defendants based their request for summary judgment on their argument that “the accident which occurred on October 26, 1990 was an intervening cause, superseding the prior alleged negligence of Jennifer and Richard Hedden.” The district court discussed negligent entrustment but concluded that it did “not need to reach resolution of that question because it is clear from the uncontroverted facts that if there was any negligent entrustment on the part of the own ers of the automobile, it was not an efficient cause of any negligence in this case.” The court concluded that “[t]he negligence of die plaintiff and Catherine Farnsworth in and of themselves constitute 100% of the efficient intervening cause and it is an independent intervening cause.”
The plaintiff contends that the district court erred in determining that, as a matter of law, his negligence and that of Farnsworth constituted an intervening cause such that any negligent entrustment on the part of the Heddens was not the proximate cause of his injuries. He argues that there is a question of fact as to whether his injuries were foreseeable and that, as a result, the district court erred in awarding summary judgment.
In order to establish negligence, a plaintiff must prove the existence of a duty, a breach of that duty, an injuiy, and proximate cause, that is, a causal connection between the duty breached and the injury suffered. See Nero v. Kansas State University, 253 Kan. 567, 571, 861 P.2d 768 (1993). The breach of duty must be the actual and proximate cause of the injury. Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278 (1987). Proximate cause is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injuiy and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act. 240 Kan. at 557.
Whether conduct in a given case is the proximate cause of a plaintiff’s injuries is normally a question of fact for a jury. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983). 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 by the court when the plaintiff has failed to establish the necessary burden of proof. Baker, 240 Kan. at 557.
Without much explanation, the district court simply concluded that Farnsworth’s negligence was the proximate cause of plaintiff’s injuries. The court engaged in no analysis of whether, assuming a negligent entrustment to Jon Hedden, that negligence would continue through Davey, who had permission from Jon Hedden to drive the Mercedes, and then to Farnsworth. Before the district court, and in their oral argument before this court, the defendants asserted that liability is limited and generally does not cover a second permittee. While it is true that the general rule is that a second permittee using the car solely for his or her own purposes is not entitled to protection under the omnibus clause of an automobile insurance policy where the named insured has expressly prohibited the first permittee from allowing other persons to use or operate the car, Gangel v. Benson, 215 Kan. 118, Syl. ¶ 3, 523 P.2d 330 (1974), this general rule has no application to this case. Gangel involves a question interpreting the provisions of an insurance policy, while we deal in this case with a question of causation and foreseeability.
The question of whether an intervening act proximately causes injury, thereby relieving the initial tortfeasor from liability, was discussed at length in the case of Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982). In Schmeck, we cited from an earlier decision of George v. Breising, 206 Kan. 221, 477 P.2d 983 (1970), a case involving the theft of a vehicle left with a private garage for repairs. The owner of the garage parked the vehicle unattended with the keys in the ignition. The vehicle was stolen and the driver injured a third party, who sued the garage owner for damages. In George, we said:
“Whether the negligent conduct of the original wrongdoer is to be insulated as a matter of law by the intervening negligent act of another is determined by the test of foreseeability. If the original actor should have reasonably foreseen and anticipated the intervening act causing injury in the light of the attendant circumstances, his act of negligence would be a proximate cause of the injury. Foreseeability of some injury from an act or omission is a prerequisite to its being a proximate cause of the injury for which recovery is sought. When negligence appears merely to have brought about a condition of affairs or a situation in which another and entirely independent and efficient agency intervenes to cause the injury, the latter is to be deemed the direct and proximate cause and the former only the indirect or remote cause.” 206 Kan. at 227.
In George, we concluded as a matter of law that the act of leaving the keys in the ignition, while negligent, was a remote cause and the intervening act of negligence of the car thief was the direct and proximate cause of the injury sustained by the plaintiff. 206 Kan. at 227. In Schmeck, the question of proximate cause was left to the jury because in most instances “negligence, contributory negligence and proximate cause are all issues to be determined by the jury.” 232 Kan. at 27.
In this case, the district court decided the causation issue by summary judgment, concluding as a matter of law that the negligence of the plaintiff and/or Farnsworth was an intervening proximate cause of the plaintiff’s injuries. Our review must necessarily determine whether reasonable minds could differ on this conclusion, and if we find that reasonable minds could differ, summary judgment is not proper. See Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995). We are 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. 257 Kan. at 260.
For the purposes of resolving this issue, we, like the district court, assume that the act of Richard and Jennifer Hedden in leaving their 14-year-old sons with access to the Mercedes, which in fact involved the operation of the Mercedes beyond the restrictions of their restricted licenses, was a negligent entrustment. The ultimate question deals with the question of causation for the injuries sustained by the plaintiff.
The record contains no evidence that Richard and Jennifer Hedden knew of any propensity on the part of their sons to allow third parties to drive the family vehicles. Thus, there is no evidence to support even an inference of foreseeability with reference to the accident and injury that actually occurred in this case. Absent such evidence, we conclude that the trial court was correct when it determined that “[t]he negligence of the plaintiff [Jason A. Davey] and Catherine Farnsworth in and of themselves constitutes 100% of the efficient intervening cause and it is an independent intervening cause.” In these circumstances, the trial court was correct in ruling as a matter of law that any negligent entrustment on the part of the owners of the automobile was not the efficient cause of any injuries in this case.
Affirmed.
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The opinion of the court was delivered by
Larson, J.:
In this declaratory judgment action, proponents of the Will C. Taliaferro Trust appeal from a trial court decision that the trust was invalid because the setdor had not transferred title to property he owned to himself as trustee. We reverse and hold that where the settlor of a trust executes a declaration of trust, no transfer of legal tide to the trust property is required to fund the trust.
On March 29, 1990, while in the hospital, Will C. Taliaferro executed two revocable trust indentures, a will, and various odier documents. The trust documents had been prepared by his nephew, an attorney, who had little estate planning experience. The first trust was called the Taliaferro & Browne Trust. It covered the ownership of Will C. Taliaferro’s business venture, the Taliaferro & Browne, Inc., engineering firm, and the proceeds of a life insurance policy on his life. This Taliaferro & Browne Trust was the subject of our decision in Taliaferro v. Taliaferro, 252 Kan. 192, 843 P.2d 240 (1992).
The second trust was a personal revocable inter vivos trust, the Will C. Taliaferro Trust, and is the subject of this action. Section One of the Will C. Taliaferro Trust provides in part:
“I, Will Cedric Taliaferro,, as Grantor, hereby declare the establishment of the Will C. Taliaferro Trust (hereinafter sometimes referred to as ‘the trust’). I hereby declare that I have appointed myself as Trustee of the Trust (hereinafter sometimes referred to as ‘The Trustee’) and declare, further, that as the Trustee, I accept and hold in trust all of the property described in Schedule A, which is attached hereto and incorporated herein by reference. Such property, together with any other property that may later become subject to this trust, shall constitute the trust estate, and shall be held, administered and distributed by the Trustee as herein provided.”
The trust property was described in Schedule A to the trust indenture:
“The following described property of Will. C. Taliaferro is held in trust and made subject to the terms and provisions of the foregoing Declaration of Trust for the Will C. Taliaferro Trust:
“1. All Douglass Bank stock that is solely or separately owned by Grantor.
“2. Grantor’s entire interest in Equitable Insurance Company Policy number 34-590-634 MSC/KSM, a policy of insurance on the life of Carl Buckner.
“3. All of Grantor’s household goods, the contents of Grantor’s safe deposit box, and all other tangible personal property owned by Grantor at the time of execution of this agreement, subject to disposition at the Trustee’s discretion from this date forward, and all such property hereinafter acquired by Grantor and delivered to Trustee as of the date of death of Grantor.”
Will C. Taliaferro was the income beneficiary of this trust during his life. After his death, the successor trustee was to distribute the accrued income and corpus among a number of named beneficiaries, with the remainder to go to Betty Taliaferro, who was Will C. Taliaferro’s wife, his sole heir, the executor named in his will, the designated successor trustee of the Will C. Taliaferro Trust, and the opponent of the trust herein.
Will C. Taliaferro died September 1, 1990. The present case is a declaratory judgment action brought by Betty Taliaferro to determine the validity of the Will C. Taliaferro Trust. In her petition, Betty Taliaferro contended that Will C. Taliaferro never transferred any of the property allegedly subject to the trust into the trust because none of the property in Schedule A had been assigned to the trust or to Will C. Taliaferro as trustee. She further alleged that Will C. Taliaferro did not treat the properly as trust property during his lifetime but rather as if he owned it individually. Mrs. Taliaferro purported to bring the action to establish the ramifications if she were required to elect against her husband’s estate plan.
After, hearing cross-motions for summary judgment, the trial court determined that a material question of fact existed as to whether Will C. Taliaferro had the requisite intent to create a valid trust and ordered an evidentiary hearing. The court reasoned: “The intent of Mr. Taliaferro (as expressed in the trust document) to create a pour-over trust is clear enough, but the fact that he did no overt acts transferring property to die trust leaves his intent in question.”
After the evidentiary hearing, the trial court found the Will C. Taliaferro trust to be invalid. It held the evidence did not show that Will C. Taliaferro had intended to transfer property to the corpus of the trust. The trial court held that Pizel v. Pizel, 7 Kan. App. 2d 388, Syl. ¶ 3, 643 P.2d 1094, rev. denied 231 Kan. 801 (1982) laid down three requirements the trust had to meet to be a valid inter vivos trust: “(1) an explicit declaration and intention to create a trust; (2) definite property or subject matter of the trust; and (3) the acceptance and handling of the subject matter by the trustee as a trust.”
The trial court found there was a sufficient declaration of trust and intent to create a trust to meet the first Pizel requirement— an explicit declaration and intention to create a trust — and that the second requirement — that there be definite property or subject matter of the trust — was satisfied by the Douglass Bancorp stock owned by Will C. Taliaferro, the life insurance policy on Carl Buckner, and Will C. Taliaferro’s personal jewelry and clothing.
However, the trial court found that the evidence failed to establish the third requirement of a valid trust it attributed to Pizel. The court found the evidence did not establish that the trustee, Will C. Taliaferro, had accepted and handled the subject matter of the trust as trust property, nor had Will C. Taliaferro, as settlor, effected the transfer of the property to the trust. The trial court reasoned at length, but concluded in relevant part: “Under Pizel he was required by words or acts to immediately divest himself of title, and to vest title in himself as trustee. Nothing in Mr. Taliaferro’s words or actions indicates that he did in fact intend to divest himself of title to his property.”
The court also based its decision on its conclusion that whatever Will C. Taliaferro’s original intentions were when executing the trust document, he changed his mind about creating a trust in the months following. This holding was drawn primarily from the fact that Will C. Taliaferro had transferred the stock subject to the Taliaferro & Browne Trust to himself as trustee but took no similar action with respect to property subject to the Will C. Taliaferro Trust.
On appeal, the appellant proponents of the trust argue the trial court erred in finding the trust to be invalid. They argue that regardless of whether the Douglass Bancorp stock and life insurance proceeds were transferred into the trust, Will C. Taliaferro’s per sonal property was; that the trust instrument itself reflects an intent to transfer title to the trust property from Will C. Taliaferro as settlor to Will C. Taliaferro as trustee; that, properly viewed, the evidence does not show that the settlor changed his mind about funding the trust; that any change of mind after the declaration of trust would be immaterial because the trust was created at the execution of the declaration; that Will C. Taliaferro’s intent to create a trust was undisputed; that Will C. Taliaferro did not revoke the trust in accordance with the provisions of the declaration; and that the trial court failed to consider whether the Will C. Taliaferro Trust was brought into being by incorporation by reference in the Taliaferro & Browne Trust, which directed at least $327,000 into the Will C. Taliaferro Trust. Hence, appellants attack the trial court’s factual findings, its legal conclusions, and its failure to make factual findings or legal conclusions.
Appellee argues the trial court correctly determined the Will C. Taliaferro Trust was invalid. Although she has not cross-appealed, she argues that none of the requirements for establishing a valid trust were satisfied and that the issue of whether the trust was created by incorporation was not presented to the trial court and would be ineffective in any case.
Did Will C. Taliaferro transfer definite property sufficient to create a trust?
As a preliminary matter, it is important to note that the Will C. Taliaferro Trust is purported to be created by a declaration of trust, rather than by the transfer of the trust property to a separate trustee. Restatement (Second) of Trusts § 17 (1957) teaches us that “[a] trust may be created by (a) a declaration by the owner of property that he holds it as trustee for another person; or (b) a transfer inter vivos by the owner of property to another person as trustee for the transferor or for a third person.”
Further, we have held:
“An express trust has three requisite features; namely: (1) An explicit declaration and intention to create a trust; (2) the transfer of lawful and definite property made by a person capable of making transfer thereof; and (3) a requirement to hold [the property] as trustee for the benefit of a cestui que trust with directions as to the manner in which the trust funds are to be applied. ” Jennings v. Jennings, 211 Kan. 515, Syl. ¶ 4, 507 P.2d 241 (1973).
The trial court explicitly based its final judgment that the Will C. Taliaferro Trust was invalid on its finding that Will C. Taliaferro made “no present and irrevocable transfer of title of any of the property mentioned in Schedule A of the Trust Declaration.” Appellants attack both the factual basis for the trial court’s conclusion and argue the court made erroneous conclusions of law.
“Where the trial court has made findings of fact and conclusions of law, the function of an appellate court 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.” Tucker v. Hugoton Energy Corp., 253 Kan. 373, Syl. ¶ 1, 855 P.2d 929, (1993), In reviewing the trial court’s factual findings, we may not reweigh the testimony or pass on the credibility of witnesses. McKissick v. Frye, 255 Kan. 566, Syl. ¶ 8, 876 P.2d 1371 (1994). “[T]his court must accept as true the evidence and all inferences to be drawn therefrom to support the findings of the trial court, and must disregard any conflicting evidence or other inferences that might be drawn therefrom.” Tucker v. Hugoton Energy Corp., 253 Kan. at 377.
However, our review of conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). If the trial court has relied on an incorrect legal standard, such that the disputed findings of fact are immaterial to the proper resolution of the case, there is no reason for the appellate court to consider the sufficiency of the evidence to establish those facts, as that issue is rendered moot.
The trial court’s legal conclusion is erroneous because there is no requirement that a settlor who also serves as trustee of a trust established by declaration.must transfer legal title to the trust property.
Although the present transfer of property to the trustee is crucial when the settlor is not also the trustee, or when the settlor attempts to establish the trust solely by transfer, this requirement has not been included in the requirement for establishment of a trust because it is not necessary in every trust.
“A trust is a fiduciary relationship with respect to property subjecting the person by whom the property is held to equitable duties to deal with property for the benefit of another person, and arising as a result of an intention to create the relationship.” In re Estate of Sheets, 175 Kan. 741, Syl. ¶ 3, 267 P.2d 962 (1954). See Restatement (Second) of Trusts § 2 (1957).
Where the present transfer of legal title to property is required, it is because common sense and logic dictate that the requirements of a valid trust cannot be fulfilled without it. Before property can be said to be held in trust by a trustee, the trustee must have legal title. Without legal title the trustee holds nothing in trust. Furthermore, the backbone of trust law is the concept of separate ownership of equitable and legal interests. See I Scott on Trusts § 1, p. 4 (4th ed. 1987); see also Mathews, Administrator v. Savage, 195 Kan. 501, Syl. ¶ 1, 407 P.2d 559 (1965) (fundamental essential of any trust is separation of legal and equitable estate); Fry v. McCormick, 170 Kan. 741, 743, 228 P.2d 727 (1951) (separation of legal and equitable estate is fundamental to the existence of any trust); Restatement (Second) of Trusts § 2, Comment f (in trusts there is a separation of legal and equitable interests in the subject matter). Ordinarily, transfer of legal title to the trust property to a trustee accomplishes the separation of legal and equitable interests.
However, a trust can exist where the settlor is both trustee and life beneficiary. See In re Estate of Ingram, 212 Kan. 218, 510 P.2d 597 (1973). Where, as here, the settlor and the trustee are the same person, no transfer of legal title is required, since the trustee already holds legal title. The important question in such cases is whether an equitable interest has been divested to a cestui que trust by the settlor. If such a transfer of an equitable interest is made, the separation of equitable and legal interests required to support a trust is present, and the settlor-trustee holds legal title to the trust property subject to the trust.
In the present case, the settlor declared the property to be held in trust. “The declaration is a conveyance of an equitable interest.” Bogert, Trusts & Trustees § 147, p. 62 (2d ed. rev. 1979). A declaration of trust is considered in a court of equity as equivalent to an actual transfer of legal interest in a court of law. Milholland v. Whalen, 89 Md. 212, 214, 43 A. 43 (1899).
Bogert, Trusts & Trustees § 141 (2d ed. rev. 1979) states:
“It is sometimes stated that the transfer by the settlor of legal title to the trustee is essential to the creation of an express trust. This statement is inaccurate in one respect. Obviously, if the trust is to be created by declaration there is no real transfer of any property interest to a trustee. The settlor holds a property interest before the trust declaration, and after the declaration he holds bare legal interest in the same property with the equitable or beneficial interest in the beneficiary. No new property interest has passed to the trustee. The settlor has merely remained owner of part of what he formerly owned.”
The Comment on Clause (a) of Restatement (Second) of Trusts § 17 states directly: “If the owner of property declares himself trustee of the property, a trust may be created without a transfer of title to the property.” If the settlor chooses to execute a conveyance of the property to himself or herself as trustee, it has no additional legal effect beyond the declaration.
“So also, the owner of property can create a trust by executing an instrument conveying the property to'himself as trustee. In such a case there is not in fact a transfer of legal title to the property, since he already has legal title to it, but the instrument is as effective as if he had declared himself trustee.” Restatement (Second) of Trusts § 17, Comment on Clause (a).
I Scott on Trusts § 17.1 (4th ed. 1987) expresses the same idea:
“A trust can be created without a transfer of the property. The owner of property can, by a declaration of trust, make himself trustee of property for others. ... No transfer of the property is necessary for the creation of such a trust, since the purpose is that the settlor himself shall continue to hold the property, no longer, it is true, for his own benefit, but for the benefit of others. . . .
“Where the owner of property wishes to make himself trustee of the property for another, the simplest method of accomplishing his purpose is to execute an instrument declaring that he holds the property in trust. He can, however, accomplish the same purpose by executing an instrument conveying the property to himself as trustee. This is perhaps not so artistic a method of creating the trust, since in fact the legal title is in him both before and after the conveyance. In substance he is simply declaring himself trustee of the property.”
Thus, the mere declaration that real estate is held in trust, without the transfer of a deed, is sufficient. Estate of Heggstad, 16 Cal. App. 4th 943, 950, 20 Cal. Rptr. 2d 433 (1993). The same is true as to a policy of life insurance, without reference to whether the named beneficiary of the policy itself is changed: “Where a policy of life insurance is payable to the insured or his estate, he can effectively declare himself trustee of his rights under the policy.” IA Scott on Trusts § 82.1, p. 461 (4th ed. 1987).
Pizel v. Pizel, 7 Kan. App. 2d 388, on which the trial court relied, is distinguishable, as it involved a trust the settlor attempted to create by a failed deed rather than by declaration. In Pizel, the purported settlor executed a document entitled “Charles Pizel Revocable Trust.” Although the settlor was named as one of several trustees, the document was not a declaration of trust but was accompanied by a separate deed purporting to convey the subject matter of the trust, 1,760 acres of land, from Charles Pizel, settlor, to the trustees of the Charles Pizel Revocable Trust. Both the deed and the trust were held by Pizel’s attorneys until his death. Several years after executing the original trust document, Pizel, by amendment of the trust document, replaced himself as trustee with Herbert Pizel and executed a second deed purporting to convey the same 1,760 acres of land from himself as settlor to the reconstituted group of trustees. Again, these documents remained with Pizel’s attorneys. The trial court and the Court of Appeals found that Pizel never had the requisite intent to establish a trust, he never transferred the trust property to the trustees, and no named trustee had accepted the property as trustee. Those facts are materially different from those we face herein.
Pizel illustrates the rule set forth by Bogert, Trusts & Trustees § 202, p. 12 (2d ed. rev. 1992):
“If a voluntaiy settlor intends to create a trust by way of transfer to a trustee but his conduct in order to accomplish his purpose is wholly ineffective to transfer any legal interest to the trustee or any equitable interest to the beneficiary, equity will not treat such conduct as amounting to a declaration of trust with the settlor as trustee, even though such a declaration could have been accomplished without formality. Thus if settlor never delivers the deed of transfer, and so it is a nullity as an instrument of transfer, equity will not treat the undelivered instrument as a declaration of trust by the settlor.”
Thus, Pizel is consistent with Johnson v. Capitol Federal Savings & Loan Assoc., 215 Kan. 286, 524 P.2d 1127 (1974), in which we found an express trust was created by declaration even though there was no record of any transfer of legal title to trust property from the settlor as full owner to the settlor as trustee.
We hold that Will C. Taliaferro clearly declared himself as trustee of the property described in schedule A, which was attached to and made a part of the trust document. No further document transferring title to the property.was required.
Did Will C. Taliaferro manifest a present intent to transfer an equitable interest in his property and thereby create a trust through his declaration of trust?
In a case where a trust is purported to have been created by declaration, to determine whether the trust is valid the factfinder must ascertain whether, at the time the declaration was executed, there was a present intent to transfer an equifable interest to the cestui que trust and thereby create a trust. See Bank v. McKenna, 168 Mo. App. 254, 153 S.W. 521 (1913) (issue in a declaration case is whether declaration shows unequivocal intent to pass an equitable interest presently).
The trial court put great weight on Will C. Taliaferro’s conduct after executing the declaration of trust in determining no trust had been created. However, subsequent behavior inconsistent with the creation of a trust is of no importance to the question of whether a trust came into being if there was a present intent to create a trust and transfer an equitable interest contemporaneous with the declaration.
“The declaration of trust immediately creates an equitable interest in the beneficiaries, although the enjoyment of die interest is postponed until the death of the setdor, and although the interest may be divested by the exercise of the power of revocation.” IA Scott on Trusts § 57.6, pp. 189-90 (4th ed. 1987). Once the trust is established, the settlor’s declarations thereafter in derogation are immaterial unless they rise to the level of a revocation. See Elliott v. Gordon, 70 F.2d 9, 13 (10th Cir. 1934).
The fact that a trustee exceeded his or her power and violated his or her trust would not terminate the trust, but merely would “provide justification for the removal of the trustee and appointment of a successor.” In re Estate of Yetter, 183 Kan. 340, 349, 328 P.2d 738 (1958). Therefore, the subsequent mindset of the settlor-trustee, unless it is accompanied by a revocation of the trust, is immaterial where the conveyance and establishment of an equitable interest were made in the first instance.
Although the settlor-trustee’s subsequent treatment of trust property without regard to the duties imposed by the trust might be consistent with the absence of an intent to create a trust ab initio, it is equally consistent with the conclusion that a trust which was created was subsequently breached. Thus, it is the commended practice to execute documents of transfer. Such documents may help prove the settlor intended a declaration to be operative to create a trust, help prevent a challenge to the trust as a testamentary disposition, and avoid the necessity of probating the property, but they are not required by the law of trusts. See IIA Scott on Trusts § 179.3, p. 509 (4th ed. 1987) (failure to register stocks “as trustee” rather than individually does not invalidate trust but may subject trustee personally to liability for losses sustained thereby).
The intent to create a trust can be manifested through a plain affirmative declaration by a person that he or she holds property for the benefit or use of another person. Johnson v. Capitol Federal Savings & Loan Assoc., 215 Kan. 286, Syl. ¶ 6. Contrary to the appellee’s argument, where the trust is purportedly created by declaration, a settlor’s intent may be established from the face of the instrument. In re Estate of Morton, 241 Kan. 698, 703, 769 P.2d 616 (1987). The statement in Pizel to the contrary applies only where the trust instrument contemplates a separate transfer of property to the trustee which is never made.
A determination of whether the trust instrument before us is sufficiently plain and unambiguous to establish the requisite intent requires the construction of a written instrument — a process over which our review is unlimited. See Galindo v. City of Coffeyville, 256 Kan. 455, Syl. ¶ 2, 885 P.2d 1246 (1994). Whether a written instrument is ambiguous is a question of law. Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988). Ambiguity in a written instrument does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which of two or more meanings is the proper meaning. Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741 (1987). The subsequent actions of the parties to a written instrument can be considered only to resolve ambiguity that appears on the instrument’s face. See Heyen v. Hartnett, 235 Kan. 117, 122-23, 679 P.2d 1152 (1984); Brown v. Lang, 234 Kan. 610, Syl. ¶¶ 1, 2, 675 P.2d 842 (1984).
The trust instrument purporting to create the Will C. Taliaferro Trust on its face unequivocally and unambiguously evidences Will C. Taliaferro’s intent to create a present trust at the time it was executed and to assume the duties of a trustee. Under the parol evidence rule, the trial court erred in considering extrinsic evidence to rebut the clear language of the trust declaration:
“If the owner of property by a written instrument declares that he holds the property upon a particular trust, extrinsic evidence, in the absence of fraud, duress, mistake or other ground for reformation or rescission, is not admissible to show that he intended to hold the property upon a different trust or to hold it free of trust.” Restatement (Second) of Trusts § 38(4) (1957).
Even if the instrument had not clearly established trust intent and was sufficiently ambiguous to permit the court to look to the settlor’s subsequent conduct, the factors relied on by the trial court in this case were erroneous as a matter of law.
The trial court noted that Will C. Taliaferro
“did not change the name of the owner of the Equitable Insurance Company life insurance policy to himself as trustee. He did not obtain a tax It) number for the trust. He did not vote the stock he owned as trustee. He opened no bank accounts in the name of the trust. Premiums on the life insurance policy were paid from his personal account. Most importantly, he did not change his stock certificates from his name to himself as trustee.”
Will C. Taliaferro never acquired a tax identification number for the trust; however, since 1981, tax identification numbers have not been available for self-declared trusts. See Treas. Reg. § 1.671-4(b) (as amended in 1995); Treas. Reg. § 301.6109-l(a)(2) (as amended in 1995); Bogert, Trusts & Trustees § 233, p. 20 n.15 (2d ed. rev. 1992).
The fact that Will C. Taliaferro on one occasion voted the Douglass Bancorp shares held in trust individually without specifying he was acting as trustee is not inconsistent with his role as trustee. The law of trusts does not require that securities be transferred to the settlor “as trustee.” See Bogert, Trusts & Trustees § 142(b) (2d ed. rev. 1979) (“The owner of shares of stock in a corporation may make himself trustee of the shares for another by oral or written declaration of the trust, without delivery of any document to the beneficiary or change on the corporation stock records.”). Moreover, the trust declaration itself grants the trustee the power “[t]o cause to be registered in its name, individually or as Trustee . . . any securities . . . from time to time held by it.”
In addition, the fact that the proceeds of a life insurance policy are declared to be equitably conveyed is independent of who pays the premiums and it is immaterial that the insured, or in this case the settlor individually, continued to pay the premiums. See IA Scott on Trusts § 57.3, pp. 152-54 (4th ed. 1987). The trial court’s conclusion to the contrary is erroneous.
Finally, although no bank account was opened in the trust’s name, the record reveals no exigency for the creation of one.
In finding the trust invalid, the trial court also relied on its conclusion that after conferring with a second attorney, Will C. Taliaferro reissued the stock in Taliaferro & Browne, Inc., but failed to do so as to the Douglass Bancorp stock described in Schedule A of the Will C. Taliaferro Trust. The only direct evidence on this issue is the specific wording of the trust declaration. Evidence of inconsistent actions or a different action in dealing with one trust than another does nothing to invalidate a transfer which was completed upon execution of the trust instrument. Under the provisions of the trust document, revocation of the trust could be accomplished only by a “duly executed instrument.” There is no evidence Will C. Taliaferro ever executed any instrument revoking the trust. In addition, the trial court’s conclusion that Will C. Taliaferro changed his mind is not supported by any substantial competent evidence.
Did Will C. Taliaferro agree to act as trustee?
Did Will C. Taliaferro do what is required to meet the third element of a trust and accept, as trustee, the subject matter as trust property? We find that the undisputed facts in the record establish as a matter of law that he did. The focus of this element is on the acceptance by the trustee of the property as trust property, not the subsequent treatment of the property. In this case, Will C. Taliaferro clearly accepted the trust property and agreed to act as trustee of the trust he created.
Where the trustee and fife beneficiary are separate, the determination of whether the putative trustee agreed to accept the property as trust property is relatively easy. If the trustee fails to assume any relationship with the subject matter of the trust, there is no acceptance; if the trustee treats trust property as his or her own inconsistent with the duties imposed by the trust instrument, the property, although accepted, is not accepted as trust property.
However, where, as here, the trustee is also the life beneficiary, it may often be difficult to establish acceptance of the property as trust property because the actions of a trustee/life beneficiary may be indistinguishable from the actions of an owner of all interests in the property. Nevertheless, the proponent of the trust must prove this element.
In this case, Will C. Taliaferro’s acceptance of the property as trust property and his willingness to act as trustee is proved by the unambiguous signed trust instrument in which he swore he was holding the property as trustee of trust property: “I hereby declare that I have appointed myself as Trustee of the Trust (hereinafter sometimes referred to as ‘The Trustee’) and declare, further, that as the Trustee, I accept and hold in trust all of the property described in Schedule A.” Again, not only does the parol evidence rule restrict the extrinsic evidence that may impeach this sworn declaration, but also, even if Will C. Taliaferro’s subsequent actions were considered, they were not inconsistent with having conveyed a present revocable equitable interest, the enjoyment of which was delayed, and accepting the responsibilities of trustee of that property at that time.
Because we have concluded, as a matter of law, that Will C. Taliaferro succeeded in creating an inter vivos revocable trust which he never revoked, we need not reach the issues of whether the trial court erred in failing to consider whether the Will C. Taliaferro Trust came into being because it was incorporated by reference into the Taliaferro & Browne Trust, which placed money into it.
The decision of the trial court is reversed.
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The opinion of the court was delivered by
Abbott, J.;
The State of Kansas appeals from the trial court’s dismissal of blackmail charges against State Representative Melvin Neufeld. Neufeld cross-appeals. The case was dismissed.by the trial court after both parties presented evidence at the preliminary hearing.
On the last night of the veto session of the 1994 legislative session, the bell which officially calls the Kansas House of Representatives to order for a vote was ringing. At that time, in the lobby of the House chamber, Representative Neufeld engaged Representative Richard Aldritt in a conversation.
The conversation took place in the lobby within 10 feet of the door to the House chambers. The lobby area of the House is sometimes used by legislators for the purpose of discussing and conducting “legislative business.” The only business before the House was the omnibus appropriations bill that had to be passed before the legislature could adjourn. The defendant, Neufeld, is a Republican. Alldritt is a Democrat. Neufeld had been voting “Yes” on the omnibus bill and Aldritt had been voting “No” on the bill. According to Aldritt, Neufeld told him, “You’re voting with us this time.” Aldritt replied, “Excuse me?” Neufeld again stated, “You’re voting with us this time. We know you were caught up in the [fifth floor] lounge in a compromising position with two [female] lobbyists earlier this evening. You’re voting green or we’ll call your wife.” A green vote indicates a legislator is voting “Yes” on a bill. Aldritt testified that he considered Neufeld’s statements a threat.
Aldritt testified that he did not respond to the defendant’s threat. Instead, Alldritt walked into the House chamber and called his wife to advise her of the threat. A short time later, a vote was taken on the appropriations bill and Aldritt voted “No.” Alldritt testified he had no intention of changing his vote as a result of Neufeld’s statement and he did not do so at any time. His intention at all times was to vote “No.”
After Alldritt voted “No” on the omnibus appropriations bill, a call of the House was taken. The bill had not passed and efforts were being made to salvage it. A call of the House means that no member can come into the chamber or leave the chamber unless he or she has permission of the Speaker or whoever is in the Speaker’s chair. At this time, Aldritt was seated at his desk on the House floor, and he received a phone call from Neufeld, who was seated at his desk on the House floor. According to Alldritt, the defendant stated, “This is Melvin. What’s going on? Don’t you — you’re not voting right?” Alldritt replied that he was voting red and that he was not going to change his vote. Neufeld then stated, “Well, you know what this means.” Alldritt replied, “Yeah, I know what this means,” and hung up.
During the call of the House, Representative Ed McKechnie also received a telephone call from Neufeld. Neufeld told Mc-Kechnie that Alldritt had been caught in the fifth floor lounge in a very compromising situation. Neufeld advised McKechnie that they were going to pass the appropriations bill that night and that Alldritt needed to change his vote to green or “[w]e are going to call his wife and let her know he’d been caught in this compromising situation.” Neufeld told McKechnie, “You need to make sure that Alldritt knows we’re serious.” McKechnie testified that it was his belief the purpose of the call was to have McKechnie communicate to Alldritt that if he did not change his vote from “No” to “Yes,” a phone call would be made to Alldritt’s wife telling her that Alldritt had been caught in a compromising position.
A short time later, McKechnie received another telephone call from Neufeld, asking him if he had delivered the message to All-dritt. When McKechnie told him he had not, Neufeld replied, “Well, he needs to know that we’re serious. He needs to know we’re serious.” After talking to Neufeld, McKechnie called Alldritt and asked him how he was doing. McKechnie told Alldritt that he understood what was going on and that Alldritt had to do what he had to do. McKechnie made no effort to change Alldritt’s vote.
Alldritt’s wife, Carmen Alldritt, testified that she received a call from Neufeld shortly before midnight near the end of the legislative session. Neufeld told her that he was sorry to have to call and tell her that her husband’s conduct was unbecoming of a member of the House of Representatives. He advised her that he was concerned about her marriage and her husband’s conduct. Neufeld advised her that her husband had been seen in a lounge with two women employees who stood to benefit from the passage of the bill on which they were voting. Mrs. Alldritt responded, ‘What do you want me to do now, call my husband up to get him to change his vote?” Neufeld replied, “Well, yes.” Alldritt then received a phone call at his desk on the House floor from his wife, who was very upset. She advised Alldritt that Neufeld had called and told her that there were problems in her marriage and that her husband was behaving in a way unfit for a legislator.
Alldritt testified that during the time of all these phone calls, the call of the House was still on, which would have allowed him to change his vote at anytime until the final tally was taken. However, Alldritt did not change his “No” vote on the bill, and he had no intention of doing so. Ultimately, the bill failed to pass that evening. The bill passed the next day. Soon thereafter, Alldritt contacted the Speaker of the House, the House Majority Leader, and the Attorney General’s office to report the defendant’s conduct.
Alldritt did not speak with Neufeld again until after the legislative session had adjourned. At his home in Harper, Alldritt received a telephone call from Neufeld, who stated, "I’m calling to apologize. I did a really stupid thing. I’m a jerk and I hope you can forgive me.”
Alldritt’s wife also received a telephone call from Neufeld at her office in Anthony. Neufeld stated, “I’m calling to apologize for my actions the other evening. I was a jerk. I was out of line. My friends know I can be kind of off-the-wall at times.” Mrs. Alldritt advised him that it was not the time or the place for the conversation, and if Neufeld wanted to talk with her any further, he could call her at home and she would tape-record the conversation. Neufeld did not make a follow-up call.
Alldritt testified that he felt the allegations made against him by the defendant caused him to be exposed to public ridicule, contempt, and degradation. Alldritt described meetings he had in his district in which constituents would avoid him or leave the room. He testified that his reputation was affected, and he believed the people in his district were also affected by the allegations. He and Neufeld were both subsequently reelected.
The language of the blackmail charge filed against Neufeld is important as it is involved in some of the issues raised on appeal, including an attempt to amend the complaint. The complaint alleged that Representative Neufeld blackmailed Representative Alldritt by “attempting to compel Richard Alldritt to act against his will, to-wit: to vote ‘Yes’ on an appropriations bill by threatening to communicate accusations or statements, . . . that Richard Alldritt was in a ‘compromising position’ with two women, that would subject Richard Alldritt to public ridicule, contempt or degradation . . . .”
Neufeld filed a motion to dismiss. He alleged that his actions were privileged under Article 2, § 22 of the Kansas Constitution (Speech or Debate Clause) and under the common-law doctrine of legislative immunity. Further, Neufeld alleged that the blackmail statute (K.S.A. 21-3428) was unconstitutionally vague and over-broad and violated the First Amendment to the United States Constitution and § 11 of the Kansas Constitution Bill of Rights. On a pretrial ruling, the trial court ruled that Neufeld.would not be allowed to present evidence of truth as a defense at the preliminary hearing in regards to the information which Neufeld used to allegedly blackmail Alldritt. The trial court also held that a legislator who makes a felonious threat for the purpose of influencing the official conduct of another legislator is not acting within a legitimate legislative sphere and that the Speech or Debate Clause of the Kansas Constitution does not immunize the legislator from criminal prosecution. Finally, the trial court ruled that the blackmail statute, K.S.A. 21-3428, is not unconstitutionally vague.
Next, the trial court held a preliminary hearing. Prior to the presentation of evidence, the defendant orally moved for a motion in limine prohibiting introduction of evidence which referred to comments made on the House floor regarding a bill being considered and voted on. The trial court denied the motion, stating that speech which amounts to a felonious act is outside the legitimate legislative function and not entitled to immunity. According to the trial court, the case which the defendant relied on in his immunity motion, United States v. Johnson, 383 U.S. 169, 15 L. Ed. 2d 618, 86 S. Ct. 749 (1966), has been criticized and modified in Gravel v. United States, 408 U.S. 606, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972). In interpreting Gravel, the trial court found that there are some parameters beyond which a legislator cannot go and still be protected by immunity. As an example, the trial court reasoned that if a legislator stated with the proper intent, “If you vote for [this bill], I am going to kill you,” then die legislator’s actions would go beyond those legislative acts protected by immunity. The trial court then found that it would be too difficult to draw a line between his hypothetical felony which would not be protected by immunity and other crimes which would be protected. Thus, the trial judge decided to draw the line between felony and misdemeanors. According to the trial court, if a legislator engages in speech which amounts to a misdemeanor, it may be protected by immunity, but if the speech amounts to a felonious act, then it is outside the legislative sphere and is not protected. Thus, the trial court found that the defendant’s speech might amount to a felonious action and denied the defendant’s motion in limine to exclude comments made on the House floor and in the House lobby.
At the preliminary hearing, the court allowed Neufeld’s counsel to cross-examine Alldritt regarding what had transpired in the lounge on the evening in question. According to the court, this examination was only allowed to probe the credibility of the threat, not the truth of the allegations. On cross-examination, Alldritt testified that he had gone to the fifth floor lounge to rest around 7 or 8 p.m. Two female secretaries, who may have been associated with a lobbyist organization that had an interest in the appropriations bill, were also present in the lounge. The secretaries had brought hamburgers to the lounge for dinner. Alldritt testified that during the time he was in the lounge the doors were not locked and the lights were occasionally turned off because his eyes hurt. Alldritt testified that while the lights were off, the two secretaries were eating or talking on the phone.
Following presentation of the evidence at the preliminary hearing, Neufeld orally moved the court to dismiss the charge because the State had failed to present evidence to support all of the essential elements of the crime of blackmail. The blackmail statute at issue (K.S.A. 21-3428), a severity level 7 nonperson felony, states:
“Blackmail is gaining or attempting to gain anything of value or compelling another to act against such person’s will, by threatening to communicate accusations or statements about any person that would subject such person or any other person to public ridicule, contempt or degradation.”
In requesting dismissal of the charge, Neufeld alleged that the blackmail statute allows for two different strands of blackmail. The first strand requires the defendant to gain or attempt to gain anything of value by threatening another. The second strand requires the defendant to actually compel another to act against his or her will. According to Neufeld, the “attempting” language only applies to the “gain value” strand and does not apply to the “compel” strand. Thus, Neufeld argued that the blackmail statute only punishes those who actually compel another to act against his or her will, not just attempt to compel one to act against his or her will. Neufeld then pointed out that the complaint only charged him with attempting to compel Alldritt to act against his will. Neufeld contended that the State presented no evidence that Alldritt had actually been compelled to do anything against his will. According to the evidence presented, Alldritt intended to vote “No” on the bill at all times and in fact voted “No” even after Neufeld allegedly threatened him.
On the other hand, the State argued that the blackmail statute prohibits one from compelling or attempting to compel another to act against his or her will. According to the State, blackmail occurs even if the result of the compulsion is not actually accomplished. Further, the State argued that if the blackmail statute required actual compulsion, then the court could and should bind the defendant over on the lesser offense of attempted blackmail. Finally, the State moved to amend the complaint so it could charge the defendant under the first strand of the blackmail statute which punishes a person for “gaining or attempting to gain anything of value” by a threat. The State argued that Neufeld threatened Alldritt in an attempt to gain a legislative vote, which is a thing of value.
Following these arguments, the trial court granted the defendant’s motion to dismiss. The court found that an essential element of blackmail under the second strand is that the victim must have been actually compelled to act against his or her will. According to the trial court, if the threat was not successful in compelling the other person to act against his or her will, then the crime of blackmail has not been committed. The trial court ruled that the State had not presented any evidence to establish that Alldritt had actually been compelled to act against his will. The trial court also ruled that the general attempt statute is not applicable to the black mail statute. Finally, the trial court ruled that it would not allow the State to amend its complaint and allege the first strand of blackmail. In denying the motion to amend, the trial court found that a legislative vote is not a thing of value as contemplated by the legislature. In essence, the trial court held the legislature intended that a “thing of value” be tangible property, not intangible property. Thus, die trial court held that even if it allowed the State to amend its complaint and allege the alternative “value” strand, the evidence would still be insufficient to meet the State’s burden and prove all of the essential elements of the crime.
The State then appealed, raising four issues. The State contends the trial court erred (1) in holding the alleged victim must be compelled to commit an act against his or her will in order to sustain the crime of blackmail; (2) in holding “attempted” blackmail is not a proper charge when the State alleges that the defendant attempted to compel the alleged victim to act against his or her will; (3) in holding a legislative vote is not a thing of value as contemplated in the blackmail statute; and (4) in not allowing the State to amend its complaint.
The defendant filed a cross-appeal, alleging his actions were privileged under Article 2, § 22, of the Kansas Constitution (Speech or Debate Clause) and the common-law doctrine of legislative immunity. The defendant also contends K.S.A. 21-3428 is unconstitutionally vague, ambiguous, and overbroad and/or is violative of the First Amendment to the United States Constitution and § 11 of the Kansas Constitution Bill of Rights.
I. PRIVILEGE
Article 2, § 22 of the Kansas Constitution provides:
“Legislative immunity. For any speech, written document or debate in either house, the members shall not be questioned elsewhere. [Speech or Debate Clause] No member of the legislature shall be subject to arrest — except for treason, felony or breach of peace — in going to, or returning from, the place of meeting, or during the continuance of the session; neither shall he be subject to the service of any civil process during the session, nor for fifteen days previous to its commencement. [Arrest Clause]”
Similarly, Article I, § 6, of the United States Constitution provides in pertinent part:
“The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony, and Breach of Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same [Arrest Clause]; and for any Speech or Debate in either House, they shall not be questioned in any other Place [Speech or Debate Clause].”
There are two different protections provided by these Constitutional provisions. The Arrest Clause provides temporary protection from arrest for civil proceedings which may prohibit a legislator from attending a legislative session. Such protection does not apply to arrest for any criminal proceedings or to subpoenas for civil proceedings. See Williamson v. United States, 207 U.S. 425, 52 L. Ed. 278, 28 S. Ct. 163 (1908); Gravel, 408 U.S. 606. The privilege created by the Speech or Debate Clause prohibits the admission into trial of evidence which is protected by the clause. A legislator can be prosecuted for a crime occurring anywhere, but acts protected by die Speech or Debate Clause cannot be introduced as evidence against the legislator. The privilege at issue here is that provided by the Speech or Debate Clause.
The state common-law doctrine of legislative immunity and Article 2, § 22 of the Kansas Constitution provide protection to Kansas legislators equivalent to the protection provided to federal legislators under Article I, § 6 of the United States Constitution because they are based on the same origin and rationale. State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 54, 687 P.2d 622 (1984). The cases analyzing the federal constitution are not binding on questions of state constitutional law, but they do provide guidance.
Two issues are immediately before us on the Speech or Debate Clause issue. They are whether words spoken immediately outside the chamber doors under the circumstances of this case are protected by the Speech or Debate Clause and whether the words spoken from wiüiin the chambers but over the telephone to a third person who is neither a legislator nor a staff member of the legislature are protected by the Speech or Debate Clause.
All of the cases we have found hold that the Speech or Debate Clause applies to words spoken within chambers and also to com mittee reports, resolutions, voting, and all things generally done in a legislative session in relation to the business at hand. Hutchinson v. Proxmire, 443 U.S. 111, 61 L. Ed. 2d 411, 99 S. Ct. 2675 (1979); United States v. Helstoski, 442 U.S. 477, 61 L. Ed. 2d 12, 99 S. Ct. 2432 (1979); Davis v. Passman, 442 U.S. 228, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979); Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 44 L. Ed. 2d 324, 95 S. Ct. 1813 (1975); Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Doe v. McMillan, 412 U.S. 306, 36 L. Ed. 2d 912, 93 S. Ct. 2018, motion for clarification denied 419 U.S. 1043 (1973); Gravel, 408 U.S. 606; United States v. Brewster, 408 U.S. 501, 33 L. Ed. 2d 507, 92 S. Ct. 2531 (1972); Powell v. McCormack, 395 U.S. 486, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969); Dombrowski v. Eastland, 387 U.S. 82, 18 L. Ed. 2d 577, 87 S. Ct. 1425 (1967); Johnson, 383 U.S. 169; Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377 (1880).
Here, the first exchange between Neufeld and Alldritt occurred within 10 feet of the door to the House chambers. The two were entering the House chambers in response to a bell calling the House to order for a vote on the only pending legislation remaining before the House. The second exchange between Neufeld and Alldritt occurred on the House floor between two legislators over their desk phones, again regarding the only pending legislation before the House. Under the facts, we are satisfied the exchanges between Neufeld and Alldritt are subject to the Speech or Debate Clause. Based on this same rationale, the Speech or Debate Clause also applies to the exchange between Neufeld and Representative McKechnie which occurred on the House floor.
The exchange between Neufeld and Mrs. Alldritt is a different matter. Mrs. Alldritt is not a representative or legislative staff member. She was not appearing before the legislature or a legislative body. She had no stake in the outcome of the vote different than other citizens of this state. We are unable to say that Neufeld’s phone call to Mrs. Alldritt, who is not a legislator or a member of the legislator’s staff, constitutes a legislative act so as to be protected by the Speech or Debate Clause. As such, the exchange between Neufeld and Mrs. Alldritt would be admissible evidence in a blackmail prosecution against Neufeld. The apology phone calls made to the Alldritts after the legislative session had adjourned would also be admissible evidence in a blackmail prosecution against Neufeld.
However, as we view the testimony regarding the threatening phone call to Mrs. Alldritt and the apology phone calls, this testimony is insufficient to provide probable cause to believe Neufeld committed the crime charged. Since the exchanges between Neufeld, Alldritt, and McKechnie are inadmissible evidence, there is no evidence to bind Neufeld over for trial, and the trial court did not err in dismissing the case, even though we might not agree with the trial .judge’s reasons for doing so.
An expanded rationale, discussing why the, conversations between Neufeld, Alldritt, and McKechnie are covered by the Speech or Debate Clause of the Kansas Constitution so as to exclude those communications from being introduced into evidence against Neufeld, is discussed below. A review of applicable cases is helpful in deciding this issue.
State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. at 54, is the only case decided by this court dealing with the Kansas Constitution’s Speech or Debate Clause. Stephan was an action in quo warranto and mandamus brought by the State against the Kansas House of Representatives, the Kansas Senate, and the Kansas governor, seeking a determination of the constitutionality of K.S.A. 1983 Supp. 77-426(c) and (d). This statute provided that the legislature may adopt, modify, or revoke administrative rules and regulations by concurrent resolutions passed by the legislature without presentment to the governor. The legislature filed a motion to dismiss the action, alleging that all state legislators are protected from liability based on the performance of legitimate legislative functions under the common-law doctrine of legislative immunity which is embodied in the Speech or Debate Clause of the Kansas Constitution. Since Kansas had never interpreted the Speech or Debate Clause before, this court relied on several United States Supreme Court cases which have addressed the issue.
This court found that the purpose of the Speech or Debate Clause is to insure that legislators may perform legislative functions independently, free from outside interference or fear of such in terference. To preserve legislative independence, legislators “ ‘should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.’ ” 236 Kan. at 55 (quoting Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 731-32, 64 L. Ed. 2d 641, 100 S. Ct. 1967 [1980]). “ ‘[T]he “central role” of the Clause is to “prevent intimidation of legislators by the Executive and accountability before a possible hostile judiciary.” [As such,] the Clause provides protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch.’ ” 236 Kan. at 56 (quoting Eastland, 421 U.S. at 502-03). Legislative immunity was not written into the Kansas Constitution for the purpose of protecting the private or personal benefits of legislators. Rather, immunity was provided to “ ‘ “protect the integrity of the' legislative process by insuring the independence of individual legislators.” ’ ” 236 Kan. at 55 (quoting Eastland, 421 U.S. at 502-03, Quoting Brewster, 408 U.S. at 507). Further, legislative immunity was developed to reinforce the carefully established separation of powers doctrine. The Speech or Debate Clause is to be read broadly to carry out these purposes. 236 Kan. at 56 (citing Eastland, 421 U.S. at 501, and Johnson, 383 U.S. at 180).
The first case in which the United States Supreme Court addressed the Speech or Debate Clause was in Kilbourn v. Thompson, 103 U.S. 168. In Kilboum, the plaintiff sued, among others, some members of the United States House of Representatives for false imprisonment. The suit was based on the passage of a resolution which allowed the plaintiff to be taken into custody for being in contempt of the House. The representatives being sued, who voted to pass the resolution, claimed that they were immune from the suit because it was based on conduct which occurred while they were acting in their legislative capacity. The Court found that if the representatives had committed these actions under ordinary circumstances, then they would be liable for false imprisonment. However, the Court pointed out that a representative who carries out his or her duties in the House of Representatives is not acting under ordinary circumstances. Thus, the Court held the representatives were protected from liability by the Speech or Debate Clause. Notwithstanding this holding, the Court cautioned that conduct by Representatives would not always be protected. The Court stated:
“It is not necessary to decide here that there may not be things done, in the one House or the other, of an extraordinary character, for which the members who take part in the act may be held legally responsible. If we could suppose the members of these bodies [go] so far to forget their high functions and the noble instrument under which they act as to imitate the Long Parliament in the execution of the Chief Magistrate of the nation, or to follow the example of the French Assembly in assuming the function of a court for capital punishment, we are not prepared to say that such an utter perversion of their powers to a criminal purpose would be screened from punishment by the constitutional provision for freedom of debate.” 103 U.S. at 204-05.
The Kilboum case ruled that protection under the Speech or Debate Clause applies to “things generally done in a session of the House by one of its members in relation to the business before it.” 103 U.S. at 204. Similarly, this court has stated that legislators are absolutely protected from the burden of defending lawsuits if the conduct upon which the suit is based falls within “the sphere of legitimate legislative activity.” Stephan, 236 Kan. at 57.
“ ‘In determining whether particular activities other than literal speech or debate fall within the “legitimate legislative sphere” we look to see whether the activities took place “in a session of the House by one of its members in relation to the business before it.” Kilbourn v. Thompson, 103 U.S. at 204. More specifically, we must determine whether the activities are
“an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Gravel v. United States, 408 U.S. at 625.’ ” Stephan, 236 Kan. at 56 (quoting Eastland, 421 U.S. at 503-04). (Emphasis added.)
This rule defining what conduct is or is not protected by the Speech or Debate Clause is simple enough. The difficulty arises in attempting to apply the rule.
Neufeld points out that the blackmail acts which he allegedly committed were done (1) while he was serving in his capacity as a duly elected Kansas state representative, (2) in the course of performing his legislative duties, and (3) on the floor of the House of Representatives during the debate and vote on a specific bill. Thus, Neufeld contends that any statements made by him were done during a session of the Kansas House of Representatives and were made in relation to business before the House at that time. Neufeld points out that legislators are frequently asked, under a great deal of pressure, to put aside their personal will and vote in a certain way on a bill. Further, Neufeld contends that these vote requests are often accompanied by threats that the wrong vote will result in a harsh editorial, letters to the editor, negative campaigning, loss of campaign support (financial or otherwise), or loss of a coveted chairmanship or committee assignment. Thus, Neufeld contends that his alleged threatening contacts to secure a vote were immune from liability because, as is often done, he contacted Alldritt and McKechnie as a voting representative in relation to business pending before the House of Representatives.
The State agrees with Neufeld that legislators are protected from liability if they act within the sphere of legitimate legislative activity, but the State points out that this privilege does not extend to instances where conduct is unrelated to the functioning of the legislative process. See Johnson, 383 U.S. at 172; Tenney v. Brandhove, 341 U.S. 367, 376, 95 L. Ed. 2d 1019, 71 S. Ct. 783 (1951). The State disagrees with Neufeld’s analysis of what type of conduct falls into the sphere of legitimate legislative activity. According to the State, even if acts are done in a legislator’s official capacity, they are not necessarily “legislative” in nature. See McMillan, 412 U.S. at 313; Gravel, 408 U.S. at 625.
Accordingly, the State contends that blackmail does not relate to a legitimate legislative function. It argues that the crime of blackmail is not an integral or essential part of the legislative process. Rather, the act is only peripherally related to the legislative office and should not be protected from prosecution. Brewster, 408 U.S. at 520. The State points out that the discussions between Neufeld, Alldritt, and McKechnie were not open to the House of Representatives. Instead, the threats were communicated in a secretive manner. Further, the contacts did not constitute a debate. Thus, the State contends Neufeld’s contacts with Alldritt and McKechnie were not for the purpose of legitimate debate of the issues sur rounding the legislation then pending in the House. Rather, the contact made was to compel Alldritt to vote contrary to his intentions, to cause marital discord, and to encourage Alldritt’s wife to ask her husband to change his vote. The State contends that the Kansas Constitution was not meant to protect such conduct.
In fact, the State contends that allowing the defendant’s conversations with Alldritt and McKechnie to be inadmissible evidence at the defendant’s blackmail prosecution is contrary to the purpose of the Speech or Debate Clause. The clause is meant to preserve legislative integrity. Stephan, 236 Kan. at 55. However, according to the State, granting protection to the defendant from prosecution for criminal blackmail poses a threat to legislative integrity. The State reasons that blackmail is contrary to democratic ideals and principles. It cheats the public of its right to honest representation by the victim of the blackmail. The State contends that forcing a duly elected representative to change his or her vote under criminal threat constituting blackmail is repugnant to our system of government, and that the defendant’s illegal act is not in furtherance of a free and open legislative debate, but is in degradation of it. Further, the State reasons, protection from criminal blackmail would indicate that politicians are free to breach the law.
Finally, the State takes issue with the defendant’s argument that his alleged conduct was similar to asking a legislator to put aside his or her personal will for the good of passing a bill. The State concedes that legitimate political debate results in pressure on legislators, such as editorials, negative campaigning, and loss of campaign support to vote in a particular manner. However, the State contends that blackmail is not the same type of pressure as a harsh editorial and cannot be compared to it. Thus, the State argues that Neufeld was not addressing Alldritt as a voting representative in relation to business pending before the House, but was addressing Alldritt as a victim in relation to threats constituting blackmail.
The United States Supreme. Court has decided four cases addressing how the Speech or Debate Clause applies to the criminal prosecution of a Congressman. Johnson, 383 U.S. 169; Brewster, 408 U.S. 501; Gravel, 408 U.S. 606; Helstoski, 442 U.S. 477.
In Johnson, 383 U.S. 169, a former Congressman was convicted in federal district court for, inter alia, one count of conspiring to defraud the United States in violation of a general criminal statute, 18 U.S.C. § 371. The conspiracy involved an agreement between the Congressman and a savings and loan institution. In exchange for money from the savings and loan, the Congressman agreed to exert his influence over the Department of Justice and convince it to dismiss a mail fraud indictment against the savings and loan’s officers. The important act, as far as the issue before us is concerned, is that as a part of the agreement, the Congressman read a speech favorable to independent savings and loan associations in the House. The savings and loan officers apparently wrote the speech for the Congressman, and they distributed copies of the speech to allay fears of potential depositors.
The Court found that the improper influence over the Department of Justice, occurring outside of the House floor, did not involve the legislative process and did not implicate the Speech and Debate Clause. The Court only addressed whether the Congressman could be prosecuted under the broad conspiracy statute for his improperly motivated speech given on the House floor. The Court pointed out that the theory of the State’s criminal prosecution depended upon certain sentences in the speech, the reasons for their inclusion, the Congressman’s personal knowledge of the facts in the speech, and the Congressman’s motive for giving the speech. The Court stated:
“The attention given to the speech’s substance and motivation was not an incidental part of the Government’s case, which might have been avoided by omitting certain lines of questioning or excluding certain evidence. The conspiracy theoiy depended upon a showing that the speech was made solely or primarily to serve private interests, and that [the Congressman] in making it was not acting in good faith, that is, that he did not prepare or deliver the speech in the way an ordinary Congressman prepares or delivers an ordinary speech.” 383 U.S. at 176-77.
The Government argued that it was prosecuting the Congressman for the conspiracy which resulted in the speech, not for the speech itself. The Government’s argument failed. Finding that the indictment focused on the motives underlying the making of the speech and upon its contents, the Court held “that a prosecution under a general criminal statute dependent on such inquiries necessarily contravenes the Speech or Debate Clause.” 383 U.S. at 184-85. However, the Court made it clear that the Clause did not apply to criminal prosecution of a legislator if the prosecution did “not draw in question the legislative acts of the defendant member of Congress or his motives for performing them.” 383 U.S. at 185.
The Court did not dismiss the conspiracy charge against the defendant in its entirety. Instead, the Court sent the case back for a new trial, requiring that all references to the speech be eliminated. All other evidence of conspiracy which did not' occur on the House floor was admissible at the new trial.
The State attempts to distinguish Johnson. According to the State, the criminal prosecution for blackmail against Neufeld does not rely on legislative acts performed by Neufeld or his motivation behind such acts. Instead, the State argues that it is prosecuting the defendant for a threat, not for vote negotiation techniques. We disagree.
It is not the alleged criminal act that is examined to determine whether it falls within the sphere of legislative action and whether the legislator’s conduct qualifies as a legislative act. If this court looked only at the specific act in question and determined that the act constituted a crime and was not entitled to protection as a legitimate legislative act, then the constitutional protection afforded by the Speech or Debate Clause would not serve its intended purpose. Rather, this court should look at the context in which the conduct occurred to determine whether it falls within a legitimate legislative sphere.
Here, the omnibus appropriations bill was the only issue before the legislature and was currently being acted on when the words at issue were spoken by the defendant. While Neufeld’s threat was not delivered in the course of a regular speech or while addressing the chair, the statements were made on the House .floor during a session and related to the appropriations bill, which was the only matter under discussion on the House floor. Trying-to persuade a representative to change his or her vote is an integral part of the communicative processes by which members participate in House proceedings with respect to the passage or rejection, of proposed legislation. Gravel, 408 U.S. at 625. “It has been held that the passing of acts and resolutions is the very essence of the legislative process.” Stephan, 236 Kan. at 56. (citing Eslinger v. Thomas, 476 F.2d 225, 228 [4th Cir. 1973]). This prosecution focuses on the content and motive of words spoken by a legislator on the House floor while he was trying to convince another legislator to vote a certain way on a bill. Thus, under Johnson, the Speech or Debate Clause precludes introduction of evidence relating to words spoken on the House floor, because the words related to a legislative act which falls within a legitimate legislative sphere.
It is true that the techniques used by the defendant in an effort to persuade Alldritt to change his vote were, if not criminal, at least unethical. However, if a legislator s conduct falls within a legitimate legislative sphere, legality of the conduct is not a primary concern. See McMillan, 412 U.S. at 312-13 (“Congressmen . . . are immune from liability for their actions within the ‘legislative sphere/ [citation omitted] even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.”); Tenney, 341 U.S. at 377 (“The claim of an unworthy purpose does not destroy the privilege.”); Kilbourn, 103 U.S. at 202 (finding that the act would constitute false imprisonment if it did not occur in the House, but it did occur in the Hotrse so it is protected).
Five years after Johnson, the Supreme Court revisited the Speech or Debate Clause in United States v. Brewster, 408 U.S. 501, 33 L. Ed. 2d 507, 92 S. Ct. 2531 (1972). In Brewster, a former United States Senator was charged, under 18 U.S.C. § 201(c)(1), (g), with accepting bribes in exchange for his promise to perform certain official acts as a member of Congress. The indictment alleged that the Senator, while a member of the Senate Committee on Post Office and Civil Service, received money in return for his promise that he would vote a certain way in the future on postage rate legislation which might be pending before him in his official capacity. The defendant moved to dismiss the indictment, alleging that he was immune from prosecution for bribery under the Speech or Debate Clause.
The Brewster Court then addressed its decision in Johnson. It pointed out that while Johnson dealt with a general criminal statute prohibiting conspiracy, in Brewster, the statute at issue was a narrowly drawn statute passed by Congress in the exercise of its power to prohibit its own members from participating in bribery. Further, the Brewster Court pointed out that the Johnson case only affected criminal prosecutions which drew into question the legislative acts or motivations for such acts.
In Brewster, the Court ruled that a legislator may be prosecuted for criminal conduct which is not itself a legislative act but is related to a legislative act. 408 U.S. at 521. The Court concluded that the Executive Branch could prosecute the legislator for his promise, not made, on the chamber floor, to do a legislative act in the future in return for a bribe. The Court ruled that the particular proser cution at issue was proper because it was not necessary to inquire into how the Senator spoke, debated, voted, or anything he did in the chamber or committee in order to make out a violation of the statute. In allowing the Senator to be prosecuted for his conduct, the Court stated:
“Taking a bribe is, obviously, not part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part or even incidental to the role of a legislator. It is not an ‘act resulting from the nature, and in the execution, of the office.’ Nor is it a ‘thing said or done by him, as a representative, in the exercise of the functions of that office,’ [citation omitted]. Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment.” 408 U.S. at 526.
In conclusion, the Court reiterated that, under Johnson, legislative acts or acts falling into a legitimate legislative sphere are protected by the Speech or Debate Clause and evidence of such conduct is inadmissible at a criminal trial. In Brewster, the Court simply refined this rule and held that the Speech or Debate Clause does “not prohibit inquiiy into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself.” 408 U.S. at 528.
It could be argued, under Brewster, that Neufeld’s threat was merely a political act related to the legislative act of voting and was not a legislative act itself, thus prosecution of the conduct should be allowed. A majority of this court believes Brewster is distinguishable from the case at hand. Neufeld’s conduct occurred on the House floor and was an attempt to persuade a vote change on a bill which was before the House. In Brewster, the punishable act was the taking of money for a promise to do something in the future. In order to prove the criminal act, it was not necessary to inquire into whether the promise to perform the legislative act of voting a certain way on future legislation came to pass. Here, the punishable conduct before the House was an attempt to get All-dritt’s “Yes” vote on the only legislative bill before the House. Inquiry into how the defendant spoke and what he said in the House to fellow Representatives Alldritt and McKechnie is necessary to make out a violation of this statue. See Brewster, 408 U.S. at 526 (“The question is whether it is necessary to inquire into how appellee spoke ... or anything he did in the chamber or in committee in order to make out a violation of this statute.”).
Further, Brewster is distinguishable because it involved a narrow statute specifically aimed at punishing legislators for taking bribes. If the legislator’s conduct was found to be a legislative act and immune from prosecution, then the bribery statute’s effect would have been greatly minimized. Here, Neufeld was charged under a general blackmail statute. We do not believe that the legislature contemplated application of the statute to conduct occurring on the House floor at the time the statute was promulgated.
Neufeld’s conduct was within the legitimate legislative sphere because it took place in a session of the House on the House floor and was in relation to the appropriations bill which was the business before the House. See Kilboum, 103 U.S. at 204. The attempt to persuade another legislator to change his or her vote on the House floor while the bill is being voted on is “an integral part of the deliberative and communicative processes by which Members participate in . . . House proceedings with respect to the . . . passage or rejection of proposed legislation . . . .” Gravel, 408 U.S. at 625.
Any comments made by Neufeld to another member of the House on the House floor concerning how to vote on the only bill under consideration should not be introduced as evidence at a criminal blackmail trial. Neufeld’s conduct was possibly criminal and clearly unethical. That, however, does not override the constitutional protection necessary to afford an open exchange between legislators. The public is not without a remedy. The legislature is free to sanction Neufeld as it chooses, and the voters have a remedy if they desire to exercise it.
Gravel, decided the same day as Brewster, is the case which the trial court in this case relied on when it denied the defendant’s motion in limine based on the Speech or Debate Clause. Gravel centered on a Senator, the Chairman of the Subcommittee on Buildings and Grounds of the Senate Public Works Committee, who convened a meeting of the subcommittee. At this subcommittee meeting, the Senator read extensively from a copy of the study entitled History of the United States Decision-Making Process on Viet Nam Policy (Pentagon Papers), which bore a Defense security classification of Top Secret-Sensitive. The Senator then placed the entire 47 volumes of the study into the public record. Sometime later, the press reported that die Senator had arranged for the study to be published by Beacon Press and that his staff had talked to the editor of M.I.T. Press.
As a result of this conduct, a federal grand jury was convened to investigate possible criminal conduct with respect to the release and publication of the Pentagon Papers. The crimes being investigated included the retention of public property or records witb intent to convert (18 U.S.C. § 641), the gathering and transmitting of national defense information (18 U.S.C. § 793), the concealment or removal of public records or documents (18 U.S.C. § 2071), and conspiracy to commit such offenses and to defraud the United States (18 U.S.C. § 371). Two of the witnesses subpoenaed were an assistant to the Senator, who had been added to the Senator’s staff the day of the subcommittee meeting, and the editor of M.I.T. Press. The Senator intervened and filed motions to quash the subpoenas. He alleged that requiring these witnesses to appear and testify would violate his privilege under the federal Speech or Debate Clause.
The Senator claimed that his staff shared his constitutional legislative immunity privilege under the Speech or Debate Clause. Thus, the Court first considered whether the Senator himself would be immune, under the Speech or Debate Clause, from an inquiry by a grand jury investigating the commission of a crime. In considering this issue, the Court stated: “We have no doubt that Senator Gravel may not be made to answer — either in terms of questions or in terms of defending himself from prosecution — -for the events that occurred at the subcommittee meeting.” 408 U.S. at 616. (Emphasis added.) In so holding, the Court cited the typical rule that the Speech or Debate Clause and the definition of a legislative act should be read broadly.
“The Clause . . . speaks only of ‘Speech or Debate,’ but the Court’s consistent approach has been that to confine the protection of the Speech or Debate Clause to words spoken in debate would be an unacceptably narrow view. Committee reports, resolutions, and the act of voting are equally covered; ‘[i]n short, . . . things generally done in a session of the House by one of its members in relation to the business before it.’ Kilbourn v. Thompson, 103 U.S. 168, 204 (1881), quoted with approval in United States v. Johnson, 383 U.S. at 179. Rather than giving the Clause a cramped construction, the Court has sought to implement its fundamental purpose of freeing the legislator from executive and judicial oversight that realistically threaten to control his conduct as a legislator.” 408 U.S. at 617-18.
According to the Gravel Court, the Clause does not “privilege illegal or unconstitutional conduct beyond that essential to foreclose executive control of legislative speech or debate and associated matters such as voting and committee reports and proceedings.” 408 U.S. at 620. Thus, protection does not attach if punishment can be imposed without the need to prove a legislative act or the motive underlying a legislative act. Based on these rules, the Court held that neither the Senator nor his aide could be questioned elsewhere for the conduct which occurred at the committee meeting.
However, the Court found that the Senator’s alleged arrangement with Beacon Press to publish the Pentagon Papers was not protected by the Speech or Debate Clause and that he or his staff could be questioned elsewhere regarding this conduct. In so holding, the Court summarized the evolution of legislative immunity:
“[Vjoting by Members and committee reports are protected; and we recognize today — as the Court has recognized before [citations omitted], that a Member’s conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself, may not be made the basis for a civil or criminal judgment against a Member because that conduct is within the ‘sphere of legitimate legislative activity.’ [Citation omitted.]
“[T]he Clause has not been extended beyond the legislative sphere. That Senators generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature. Members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies — they may cajole, and exhort with respect to the administration of a federal statute — but such conduct, though generally done, is not protected legislative activity. . . .
“Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but ‘only when necessary to prevent indirect impairment of such deliberations.’ United States v. Doe, 455 F.2d at 760.
“. . . While the Speech or Debate Clause recognizes speech, voting and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts.” 408 U.S. at 624-26. (Emphasis added.)
Legislators attempting to influence other legislators’ votes is an integral part of the deliberative and communicative processes by which members participate in House proceedings with respect to passage or rejection of proposed legislation. See Gravel, 408 U.S. at 624-26. A majority of this court find that exposing legislators to liability if their vote negotiation tactics should cross the line of legality will chill legislators from vigorously negotiating votes and will indirectly impair bill deliberations.
United States v. Helstoski, 442 U.S. 477, 61 L. Ed. 2d 12, 99 S. Ct. 2432 (1979), is the last case in which the Supreme Court has addressed how the Speech or Debate Clause applies to criminal conduct. In Helstoski, the defendant was a former member of the United States House of Representatives. While he was a Repre sentative, the Justice Department began investigating allegations that aliens paid the Representative money so he would introduce private bills that would suspend the application of immigration laws so as to allow the aliens to remain in this country. The grand jury returned an indictment, charging the Representative with various criminals acts. The Representative moved to dismiss the indictment, contending that tire indictment violated the Speech or Debate Clause.
The Court distinguished this Representative’s past legislative acts from Brewster’s promises to do a legislative act in the future, finding that any reference to past legislative acts was not admissible at the criminal trial. 442 U.S. at 488-89. In so holding, the Court stated:
“As to what restrictions the Clause places on the admission of evidence . . . our concern is whether there is mention of a legislative act. To effectuate the intent of the Clause, the Court has construed it to protect other ‘legislative acts’ such as utterances in committee hearings and reports. E.g., Doe v. McMillan, 412 U.S. 306 (1973). But it is clear from the language of the Clause that protection extends only to an act that has already been performed. A promise to deliver a speech, to vote, or to solicit other votes at some future date is not “speech or debate.” Likewise, a promise to introduce a bill is not a legislative act.” 442 U.S. at 490. (Emphasis added.)
Again, under Helstoski, it could be argued that Neufeld’s conduct should be construed as simply a promise to carry out a threat if Alldritt did not vote “Yes” on the appropriations bill. Looked at in this light, Neufeld’s conduct is not a legislative act and is not entitled to immunity. However, the United States Supreme Court found that “utterances in committee hearings” are legislative acts, without even looking at the content of the utterance. In this case, surely an utterance on the House floor, relating to a vote on a bill currently being voted on, is also a legislative act regardless of its content.
In summary, we are of the opinion that the conversations among Neufeld, Alldritt, and McKechnie are protected by the Speech or Debate Clause and cannot be introduced as evidence in a criminal blackmail prosecution against Neufeld. As we view the record absent this evidence, the State has no evidence to prove the alleged crime, and thus the trial court did not err in dismissing the case. Having so concluded, there is no reason to review the remaining issues.
Finally, we will comment on the dissent’s discussion of an attempt to amend Article 2, § 22 at the Wyandotte Constitutional Convention. We do not know why the proposed amendment was rejected. Perhaps it was rejected as redundant, since the clause already provided that protection. What is clear is that if the dissent is correct, a legislator may be sued civilly or charged criminally for a word or words spoken in the House or Senate. The dissent’s interpretation that by rejecting the amendment, the legislature intended that any word or words spoken in either house of the legislature can be the foundation of any action, complaint, or prosecution effectively eliminates the Speech or Debate Clause by removing all immunity of any kind for any word or words spoken in the House or Senate by a legislator.
Article 2, § 22 demonstrates that the reporting of the Wyandotte Constitutional Convention is not always full and complete concerning the history of the Kansas Constitution. We note that the Speech or Debate Clause of Article 2, § 22, as adopted, also applies to a “written document.” How those words found their way into the Kansas Constitution is not revealed or at least not indexed sufficiently that we can find it.
Affirmed.
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The opinion of the court was delivered by
Lockett, J.:
An inmate confined in administrative segregation at a state correctional facility filed a petition for a writ of habeas corpus claiming his placement in administrative segregation violated due process and equal protection. The district court found that an inmate has no liberty interest in the administrative regulations, dismissed the petition, and assessed a $25 fee against the inmate for the filing of the action. The Court óf Appeals affirmed the dismissal and assessment of costs in an unpublished decision filed January 12, 1996. This court granted the inmate’s petition for review.
Plaintiff Vernon J. Amos is currently incarcerated at El Dorado Correctional Facility (EDCF). He has been placed in administrative segregation at EDCF since his transfer to that facility on April 7, 1994. Amos claims his placement in administrative segregation violates his rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution.
Prior to entering the Kansas Department of Corrections (DOC), Amos was confined in the Wyandotte County jail for trial on felony charges. While confined, Amos committed numerous violations of prison rules and regulations, including assaulting staff members, threatening and intimidating behavior, disruptive behavior, fighting, disobeying orders, possessing contraband, gambling, and encouraging group demonstrations. Amos was listed by the jail officials as a member of a gang and a habitual disciplinary problem.
Amos was transferred to the custody of the DOC’s Topeka Correctional Facility (TCF) on March 4,1994. His DOC commitment was based upon aggravated escape and robbery convictions. Extensive documentation listing Amos’ 12 violations of rules and regulations during January and February 1994 at the Wyandotte County jail was provided to TCF. Based on this information the DOC placed Amos in administrative segregation under K.A.R. 44-14-302(f) and (g) on March 4, 1994, for exhibiting consistent bad behavior and posing both a security and escape risk. The DOC records note that Amos was “interviewed prior to placement in seg.” Amos acknowledged receipt of ther segregation report on March 4, 1994, and requested a hearing. On April 7, 1994, Amos was transferred to EDCF. Thereafter, he received weekly reviews of his segregation status on April 8, 13, 19, . and 26, 1994; on May 4, 1994; and thereafter, on a monthly basis.
On November 8, 1994, Amos filed a petition for a writ of habeas corpus (K.S.A. 60-1501) in the Butler County District Court alleging that his placement in administrative segregation by the DOC was without legal or just cause and was cruel and unusual punishment in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. Amos alleged that after being “interviewed,” he was placed in administrative segregation without a hearing and then denied the hearings required by K.A.R. 44-14-311 after his placement. Amos asserted his placement in administrative segregation violated the regulations governing equal treatment of all inmates, deprived him of a liberty interest without due process, and violated the constitutional prohibition against double jeopardy.
The EDCF asserted that Amos had no protected liberty interest in avoiding administrative segregation and, therefore, no due process or equal protection rights were violated. The EDCF argued that the discretionary functions of DOC officials are subject to judicial review only for clear abuse. The EDCF asked that the inmate’s petition be dismissed because Amos had failed to show a clear abuse of discretion in his placement in administrative segregation.
In agreeing with the EDCF, the district judge noted:
“Plaintiff’s case stands or falls upon the legal question of whether or not Kansas regulations governing administrative segregation create a liberty interest, which is required for any due process claim. Without a liberty interest, plaintiff’s claims simply have no constitutional foundation and it matters not whether he had certain hearings or not.
“This Court is of the opinion that the Kansas regulations governing such segregation do not create a protected liberty interest. To create such interests, state regulations must use both mandatory language to limit discretion and require a particular result. The Kansas regulations on administrative segregation do not contain such necessary language. See Dotson v. Maschner, 764 F. Supp. 163 (D. Kan. 1991). Plaintiff has not been deprived of any liberty interest.”
The district judge then concluded:
“To avoid summary dismissal of a habeas corpus petition, allegations must be made of shocking and intolerable conduct or continuing mistreatment of a constitutional nature. Swisher v. Hamilton, 12 Kan. App. 2d 183, Syl. ¶ 1, 740 P.2d 95, rev. denied 242 Kan. 905 (1987). As noted above, no constitutional rights have been abrogated. Additionally, the Court sees nothing in the circumstances set forth herein that shock the conscience or amount to intolerable conduct.
“As to plaintiff’s double jeopardy claims, it should be noted that double jeopardy protection applies to multiple criminal prosecutions for the same act. Administrative segregation procedures are not criminal prosecutions.”
The district judge found that the files and records of the case conclusively showed that Amos was not entitled to relief, dismissed the petition for failure to state a claim, and assessed “court costs” of $25 pursuant to K.S.A. 60-1505(a).
Amos appealed, challenging the dismissal of his petition for a writ of habeas corpus and the assessment of court costs. In an unpublished decision, the Court of Appeals, in affirming the district court, followed Davis v. Finney, 21 Kan. App. 2d 547, 902 P.2d 498 (1995). Davis, which dealt with an inmate’s placement in disciplinary segregation, held that there is no review of a claim of a due process violation concerning placement in administrative or disciplinary segregation unless (1) the state law and regulations governing the authority of prison officials contain language of an unmistakably mandatory character and (2) the discipline imposed is a significant and atypical hardship on the inmate of a nature not contemplated in the conditions of the original sentence. 21 Kan. App. 2d 547, Syl. ¶ 1. The Court of Appeals in the present case concluded that because there was no showing that an inmate’s placement in administrative segregation was a significant and atypical hardship not contemplated in the conditions of the original sentence, the district judge had properly dismissed Amos’ petition and affirmed the judge’s assessment of court costs. This court granted Amos’ petition for review.
Scope of Review
Judicial review of agency actions is governed by the Act for Ju dicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. The Act creates only procedural rights and'imposes only procedural duties. K.S.A. 77-603(b). The Act does not apply to agency actions concerning the management, discipline, or release of persons in the custody of the Secretary of Corrections. K.S.A. 77-603(b)(2). Therefore, the scope of our review is limited to questions of law.
Does Amos have a protected liberty interest, i.e., a due process right in avoiding placement and retention in administrative segregation? Before discussing the issue, it will be helpful to review the regulations governing the placement of inmates in administrative segregation.
Segregation Regulations
Each correctional institution and facility is required to establish a set of procedures designated as security segregation procedures. Those procedures are: (a) administrative segregation, including protective custody and medical segregation; and (b) disciplinary segregation. K.A.R. 44-14-102. The minimum standards for segregation of an inmate for disciplinary or administrative segregation are set out in K.A.R. 44-14-101.
Disciplinary Segregation
Disciplinary segregation is a procedure in which an inmate’s privileges and certain rights are restricted or removed for punishment in order to maintain discipline in the correctional facilities. The purpose of disciplinary segregation is to incarcerate for punishment inmates currently serving a sentence as meted out by the disciplinary board and approved by the principal administrator. K.AR. 44-14-201(b). No inmate shall, under any condition except those set out in the regulations, be placed in a disciplinary segregation unit unless all of the requirements of the disciplinary procedure have been met. K.A.R. 44-13-101 et seq. It is important to note that even though disciplinary procedure regulations, which set timelines for action and appeals by the inmate, use the word “shall,” K.A.R. 44-13-705 states: “Failure to meet deadlines required in the. review and appeal process may result in the dismissal of the appeal at the discretion of the reviewing authority.” The classification of offenses and penalties is set out in K.A.R. 44-12-1301 et seq. The penalty for an offense may include disciplinary segregation, loss of good time credits, and a fine not to exceed $20. The maximum sentence of disciplinary segregation for all violations arising out of one incident cannot exceed 60 days. K.A.R. 44-12-1308. ' - ‘
Administrative Segregation
Administrative segregation procedures are established for control of inmates for necessary administrative purposes, other than punishment. The various reasons inmates may be confined for administrative segregation are stated in K.A.R. 44-14-302. Amos’ initial placement in administrative segregation resulted from consistent bad behavior during incarceration and from his status as a substantial threat to the safety and' security of the facility. Under the regulations, an inmate “may” be confined in administrative segregation for engaging in consistent bad behavior as evidenced by three documented instances of bad behavior within the preceding 12 months if the instances arise from separate fact situations and cause a substantial' threat to the safety and security of the facility. Placement for this reason requires prior written approval of the principal administrator: K.A.R. 44-14-302(f). An inmate also “may” be confined in administrative segregation .under the category of “other security risk” if the inmate engages in behavior which threatens security or control in the; facility. If an. inmate is placed in administrative segregation for behavior which threatens security or control in the facility, the principal administrator shall, in writing, explain the threat to security and show justification for segregation. K.A.R. 44-14-3Q2(g).
If an inmate is to be placed in administrative segregation-, certain procedural requirements arise., Unless an emergency Situation is documented, “inmates placed in segregation shall be provided with a hearing prior to placement in order to provide them .with an opportunity to present objections, explanations or reasons as to why such a placement should not be effected.” K.A.R. 44-l4-303(b). Further, an administrative segregation report shall be completed, indicating specifically the reason for placing the inmate in admin istrative segregation. K.A.R. 44-14-304(a). The inmate shall receive written notice of the reasons for placement in administrative segregation before the placement occurs, unless an emergency exists. This notice must be given to the inmate before the hearing is held so the inmate knows the reasons for the placement. K.A.R. 44-14-305.
Each DOC institution has an administrative segregation review board (ASRB). K.A.R. 44-14-309. The ASRB interviews the inmate and holds an initial hearing within 3 working days of the placement to review the inmate’s placement in administrative segregation. This requirement applies to every case of administrative segregation. K.A.R. 44-14-310(a). At the hearing, the inmate shall be given an opportunity to present his or her case. K.A.R. 44-14-310(b). Thereafter, the ASRB reviews the status of each inmate confined in administrative segregation. Reviews shall occur every 7 days for the first 2 months of segregation and at least every 30 days thereafter. K.A.R. 44-14-311(a). At each review, the ASRB makes a recommendation that the inmate be continued in administrative segregation or that other action be taken. K.A.R. 44-14-3ll(b), (c). The inmate shall be permitted to submit a written request for release to the ASRB. K.A.R. 44-14-311(d). An inmate placed in administrative segregation may be transferred to another facility. Unless released from administrative segregation status by the principal administrator of the transferring facility prior to transfer, the inmate shall be held on the same status pending the next regularly scheduled review by the ASRB of the new facility. K.A.R. 44-14-318(a), (b). An initial appearance before the ASRB of the new facility is not required unless no appearance was held before the ASRB of the transferring facility due to a serious emergency or a major disturbance. K.A.R. 44-14-3l8(c).
Liberty Interest
Amos argues that he was denied his constitutional due process rights by being placed in administrative segregation. The Fourteenth Amendment to the United States Constitution prohibits states from depriving any person of fife, liberty, or property without due process of law. There is no requirement of constitutional due process unless a protected liberty interest is involved. Thus, the issue is whether Amos has a protected liberty interest in avoiding administrative segregation.
The limited range of liberty interests afforded by the Fourteenth Amendment to prison inmates arises from two sources: (1) the Due Process Clause itself and (2) the laws of the states. Hewitt v. Helms, 459 U.S. 460, 466, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). In applying a test set out in Hewitt to determine if an interest was involved, a split of authority emerged in the Court of Appeals as to whether Kansas regulations concerning administrative segregation create a protected liberty interest. In Gray v. Nelson, 20 Kan. App. 2d 900, 893 P.2d 842 (1995), decided April 14, 1995, the Court of Appeals determined that the regulations concerning administrative segregation created a protected liberty interest. The Gray court stated:
“It is inherent in the nature of the management of penal institutions that the initial discipline or administrative segregation will be a disciplinary function based upon tire judgment of a correctional officer. Once that decision is made in Kansas . .., a host of mandatory procedures instantly attach to the process which require notifications, written reports, and continued periodic hearings for as long as an individual is in administrative segregation.” 20 Kan. App. 2d at 905-06.
Noting the similarities between the Kansas regulations and those in Hewitt, the Gray court held that “ ‘the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates’ demands our conclusion that Kansas has created a protected liberty interest.” 20 Kan. App. 2d at 906. However, Gray nonetheless affirmed the dismissal of the inmate’s petition for habeas corpus because due process was followed and the inmate had failed to allege continuing mistreatment of a constitutional nature or conduct that was shocking or intolerable.
The opposite conclusion was reached by a separate panel of the Court of Appeals in Graham v. Nelson, 20 Kan. App. 2d 896, 893 P.2d 294 (1995), also decided on April 14,1995. The Graham court reasoned that although the regulations governing administrative segregation mandated procedural safeguards when an inmate was placed in segregation, the decision whether to place the inmate in administrative segregation was an executive function left to the discretion of the facility administrator. 20 Kan. App. 2d at 898. The Graham court found that the regulations did not contain necessary mandatory language and, thus, no liberty interest was created. 20 Kan. App. 2d at 899. In reaching its conclusion, the Graham court relied on Dotson v. Maschner, 764 F. Supp. 163 (D. Kan. 1991), which held that Kansas administrative segregation regulations do not create a protected liberty interest since they contain no mandatory language which limits the discretion of prison officials. 764 F. Supp. at 166. The Graham court concluded that because the operation of penal institutions is an executive function, the conduct challenged must clearly show an infringement of a constitutional right, shock the general conscience, or be intolerable to fundamental fairness. 20 Kan. App. 2d 896, Syl. ¶ 2.
It is helpful to review the federal case law concerning state-law created liberty interests existing at the time the two panels of the Court of Appeals reached contrary results. Hewitt v. Helms, 459 U.S. 460, involved the placement of an inmate in administrative segregation following a prison riot. Although the Hewitt Court noted the Due Process Clause itself did not give rise to a protected liberty interest in remaining in the general prison population, the Court held that Pennsylvania state law created a liberty interest. 459 U.S. at 470-71. The Court reasoned that the Pennsylvania state regulations used “language of an unmistakably mandatory character, requiring that certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed” and that the regulations required “that administrative segregation will not occur absent specified substantive predicates — viz., ‘the need for control,’ or ‘the threat of a serious disturbance.’ ” 459 U.S. at 471-72. Although the Hewitt Court found the state’s statutory framework governing administrators of its prisons gave rise to a liberty interest, it held the administrative process afforded the inmate due process.
Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989), concerned Kentucky regulations governing prison visits. Although Kentucky generally had an open visiting policy, the visitation regulations provided a nonexhaustive list of specific reasons for excluding visitors and permitted denial of entry of a visitor if the visitor’s presence would constitute a “clear and probable danger to the safety and security of the institution or would interfere with the orderly operation of the institution.” 490 U.S. at 457. The Thompson Court applied the Hewitt test but determined that, although the Kentucky regulations created substantive predicates placing limitations on the discretion used to determine visitation, the regulations lacked the relevant mandatory character necessary to create a liberty interest. 490 U.S. at 463-64. The Court noted that the regulations stopped short of requiring that a particular result follow upon a finding that the substantive predicates had been met. Specifically, visitors who fell into certain categories could be excluded but did not have to be. 490 U.S. at 464.
As enunciated in Hewitt and followed in Thompson, the test for determining whether state regulations give rise to a due process liberty interest is whether those regulations place limitations on the use of discretion by prison officials in the form of substantive predicates, and whether those regulations use mandatory language which provides that when the substantive predicates are either met or not met, certain actions must follow. See Thompson, 490 U.S. at 462-63. This test was applied in Shepherd v. Davies, 14 Kan. App. 2d 333, 789 P.2d 1190 (1990), which held that disciplinary segregation regulations created a protected liberty interest. See also Goddard v. Kansas Dept. of Corrections, 16 Kan. App. 2d 408, 824 P.2d 991 (1992) (applying the same test and holding that regulations regarding recommendations for sentence modification did not create a protected liberty interest.)
The split in the Court of Appeals in Graham and Gray appears to have arisen when applying Hewitt to the regulations because the panels interpreted differently the discretion allowed prison officials: Graham focused on the discretionary language concerning when administrative segregation “may” be imposed, whereas Gray focused on the fact that once the decision is made to place an inmate in administrative segregation, certain mandatory procedures “shall” be followed.
After reviewing the two decisions, we note that there is support for the conclusions reached in both Graham and Gray based on the rationale of Hewitt and the Kansas administrative segregation regulations. However, because the United States Supreme Court recently narrowed the application of the Hewitt standard for determining whether federal or state prison regulations give rise to a protected liberty interest in Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), we will review Sandin. The holding in Sandin represented a major departure by the Court from the Hewitt test.
In Sandin, an inmate alleged he was denied due process in connection with a disciplinary hearing. The district court granted the prison official’s motion for summary judgment. The Ninth Circuit Court of Appeals applied the Hewitt test, concluded that the Hawaii prison regulations governing disciplinary segregation gave rise to a protected liberty interest, and reversed the district court. The United States Supreme Court opined that the Hewitt approach produced at least two undesirable effects. First, Hewitt created disincentives for States to codify prison management procedures in the interest of uniform treatment of inmates. Second, Hewitt led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources without any actual benefit. 515 U.S. at 482. The Sandin Court abandoned Hewitt’s methodology and returned to the due process principles established by prior cases. While still recognizing that states may, under certain circumstances, create liberty interests which are protected by the Due process Clause, the Sandin Court stated that those interests “will be generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 515 U.S. at 483-84. Applying this test to the Hawaii regulations, the Sandin Court reversed, holding that since disciplinary segregation did not present a dramatic departure from the basic conditions of the original sentence imposed, no liberty interest was created. 515 U.S. at 486-88.
The rationale of Sandin was applied by the Kansas Court of Appeals in Davis v. Finney, 21 Kan. App. 2d 547, 902 P.2d 498 (1995). As in Sandin, Davis concerned disciplinary segregation regulations. The Davis court determined that the inmate had no protected liberty interest in avoiding placement in disciplinary segre gation because the segregation did not represent a significant and atypical hardship on the inmate not contemplated within the realm of conditions of the original sentence. 21 Kan. App. 2d at 558-59. In reaching its conclusion, the Davis court set out a two-step analysis, applying Hewitt as the first step and Sandin as the second. The Davis court indicated that the two-step analysis applies both to disciplinary and administrative segregation.
Because of the split of authority in the Court of Appeals’ decisions and the United States Supreme Court’s subsequent decision in Sandin, this court heard Murphy v. Nelson, 260 Kan. 589, 921 P.2d 1225 (1996), to resolve the conflict. Murphy was filed on July 26,1996. In that case, Murphy sought injunctive relief, alleging he was illegally restrained in administrative segregation without legal justification, in violation of the Fourteenth Amendment. At the hearing, the evidence established that Murphy was one of a number of inmates who had been placed in administrative segregation pending an investigation of an inmate uprising that resulted in the death of a corrections officer. In order to avoid jeopardizing the resulting criminal cases, no disciplinary proceedings had been initiated. Some inmates who were initially segregated had been tried and convicted while Murphy continued to be held in administrative segregation pending investigation.
The district court held that, by holding Murphy in administrative segregation, the warden had acted beyond his authority. The court reasoned that the regulation on which the warden relied, K.A.R. 44-14-302(g), permits administrative segregation only if the inmate engages in behavior threatening to the security or control of the prison. In addition, the district court faulted the failure to provide the ASRB with necessary information so it could make a meaningful decision as to the justification or lawfulness of retaining Murphy in administrativé segregation for investigation. The district court ordered Murphy’s immediate release from administrative segregation and his return to the general pdpulation. The warden appealed. The appeal was transferred to this court by our order of February 20, 1996.
We observed in Murphy that the constitutional procedural due process analysis is a two-step procedure in which the court must first determine whether due process is involved and, if it is, then the court must determine the nature and extent of the process which is due. 260 Kan. at 597-98 (citing Curtis Ambulance v. Shawnee Cty. Bd. of Cty. Comrs, 811 F.2d 1371, 1375 [10th Cir. 1987]; Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 354, 770 P.2d 443 [1989]).
We noted that first, due process violations can be established only if the inmate is able to show that he or she was denied a specific entitled procedural protection. Then, the appropriate procedural protection that must accompany a deprivation of a particular liberty interest is resolved by a balancing test, which weighs the individual loss at stake, the risk of erroneous deprivation, and the State’s interest in. the procedures used. 260 Kan. at 598-99. We next observed that the importance of Sandin is its pronouncement as to how a court should determine whether an inmate has a protected liberty interest in some type or condition of confinement. 260 Kan. at 599. We held that subsequent to Sandin, Kansas regulations need not follow the strict test of Hewitt. 260 Kan. at 599. We concluded that the administrative regulations in Kansas governing correctional segregation “compel a holding, as a matter of law, that administrative segregation does not represent a significant and atypical hardship on the prisoner in relation to the ordinary incidents of prison life.” 260 Kan. at 602.
Returning to the instant case, Amos argues that the Court of Appeals incorrectly interpreted and then improperly applied San-din in Davis. He asserts that Davis erroneously changed the mandate of Sandin. He contends that while Sandin set forth the standard which imposes atypical and significant hardship on the inmate in relation to “the ordinary incidents of prison life,” the Davis court decreed the standard to be a significant and atypical hardship on the prisoner which is not contemplated “within the realm of conditions of the original sentence.”
We do not find a distinction or a difference in the terms “ordinary incidents of prison life” and “within the realm of conditions of the original sentence.” This claim is without merit.
Amos also argues that the Sandin rationale applies only to disciplinary segregation and not to administrative segregation. This argument is not persuasive. Disciplinary segregation is more invasive and sets stricter limitations on inmates’ privileges than does administrative segregation. If consideration of whether atypical and significant hardships occur is relevant to the question of whether disciplinary segregation regulations give rise to a liberty interest, it is also relevant to the same question in the context of administrative segregation.
Amos’ final argument is that administrative segregation imposes an atypical and significant hardship in relation to the ordinary incidents of prison life. However, K.A.R. 44-14-306 states:
“Each inmate in administrative segregation shall be treated as nearly as possible like any other inmate in the general population of the institution or facility. When possible, the inmate shall retain such privileges and property as are commensurate with the particular circumstances or condition for which the inmate was placed in administrative segregation. Administrative segregation shall not be used or considered as punishment.”
Additionally, EDCF guidelines do not place atypical and significant hardships on inmates placed in administrative segregation. Inmates must be provided all prescribed medications, clothing that is not degrading, and access to basic personal items unless there is a clear and present danger that inmates will destroy such items or use them to injure themselves or others. Inmates confined to segregation also receive the same meals as the general prison population except in certain circumstances involving their behavior or for religious or medical reasons. Inmates in segregation have access to reading materials, hair care services, telephone privileges, and linen and clothing on the same basis as inmates in the general population, as well as personal legal materials, legal reference materials, the opportunity to shower and shave three times per week, the same communication privileges as inmates in the general population, visitation “in accordance with GO 16-107” (not defined in the record on appeal), and exercise periods outside their cells a minimum of 1 hour per day, 5 days per week. Inmates in disciplinary segregation have additional restrictions relating to television privileges, reading materials, canteen privileges, telephone privi leges, and tobacco privileges. Unlike inmates confined to disciplinary segregation, those in administrative segregation have access to the commissary, social and counseling services, religious guidance, recreation, educational services, telephone privileges, reading materials, legal services, and personal property.
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.
Our analysis of Amos’ claim of hardship associated with administrative segregation does not reflect the kind of atypical and significant hardships on the inmate in relation to the ordinary incidents of prison life necessary to establish a protected liberty interest. Therefore, under such circumstances Amos has no protected liberty interest in avoiding placement in administrative segregation. Because Amos has no protected liberty interest in avoiding placement in administrative segregation, there was no violation of due process, and he is not entitled to habeas corpus relief. The district court did not err in dismissing Amos’ claim, because under no set of facts would Amos be entitled to relief.
Assessing Costs
In its order dismissing Amos’ petition, the district court assessed $25 in court costs pursuant to K.S.A. 60-1505(a). That statute states in part that “[i]f the plaintiff is an inmate in the custody of the secretary of corrections and the motion and the files and records of the case conclusively show that the inmate is entitled to no relief, the writ shall be dissolved at the cost of the inmate.”
Because of the opposite conclusions reached by separate panels of the Court of Appeals in Gray and Graham, it cannot be conclusively shown that Amos’ claim had no merit. The circumstances allowing assessment of costs to the inmate did not arise here.
Affirmed in part and reversed in part.
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The opinion of the court was delivered by
ÁLLEGRÚCCI, J.:
Donovan Shaw appeals convictions of felony múrder, aggravated robbery, aggravated burglary, conspiracy to commit aggravated burglary, and misdemeanor' theft. He argues that (1) there was insufficient evidence that he caused the victim’s death to' sustain the conviction, for felony murder; (2) the pathologist’s opinion should not have been admitted into evidence; (3) the trial court erred in not granting Shaw’s motion for change of venue due to pretrial’ publicity; and (4) the trial court erred in failing to give tire instruction requested by Shaw on voluntary intoxication. '
On Saturday, March 5, 1994, a neighbor found William Trembley’s body. Trembley’s hands and feet had been bound with duct tape, and his hands were secured to the foot of the bed with tape. His body, from about mid-chest down, was off the bed. There was duct tape over his mouth. When the emergency medical team arrived at approximately 7 p.m., Trembley’s body was cold, and his upper extremities had become stiff. His télephone was dead; the wire had been cut outside the house. The screen was off a window on the south wall of the house, and it was determined that the house had been entered through that window. In the front room, the drawers of a chest of drawers “were pulled open as if someone had looked through them.” In the kitchen, there were wrapped and loose coins scattered on the floor, and on the stove was a wooden chest about half filled with wrapped coins. The hasp on the chest had been pried off. In the bathroom, a piggy bank, coins, and coin wrappers were on the floor. A white box about, the size of an army foot locker had been pried open, and there were coins and coin wrappers in it.
Dr. James Cooper, a pathologist, performed an autopsy on the body of William Trembley. He found numerous bruises and abrasions. He identified the cause of death as acute myocardial infarction, that is, recent death of the heart muscle. Dr. Cooper explained that heart cells die “[w]hen the demand of the heart for oxygen is not supplied by the blood supply to the heart.” This imbalance between oxygen demand and supply may occur, he testified, “[w]hen there’s preexisting narrowing and then demands [are] placed on the heart [so] that the amount of oxygen in the blood getting to the heart is not adequate.” He added that the demands placed on the heart could be from physical exertion or an elevated adrenalin level.
Dr. Cooper found arteriosclerotic cardiovascular disease in Trembley, who was 86 years old at the time of death. In some areas it was mild; in other areas it was severe. Dr. Cooper testified that “[o]verall it would be classified as moderate.” This condition is a narrowing of arteries, which decreases the supply of blood available to the heart. A small area of the back wall of the left ventricle of Trembley’s heart showed scar tissue from a heart attack which had occurred at least 6 months earlier.
Trembley had been a patient of Dr. Cathcart-Rake, an internal medicine specialist in Salina, for approximately 14 years. He had last seen Trembley in January 1994. At that time, Trembley weighed 107 pounds. He had been a smoker in the past, he was being treated for high blood pressure, “which wasn’t really much of a problem,” and he had mild emphysema. Trembley had reported no symptoms of a heart condition to his doctor, nor was he being treated for any type of heart condition.
Based on his examination of the heart cells, Dr. Cooper testified that Trembley lived for at least 6 hours after the heart attack occurred. Trembley lived, at most, 48 hours after the heart attack occurred.
Dr. Cooper answered a number of questions about circumstances which tend to increase the likelihood that death will result from a heart attack. He testified that stress, fear, and physical exertion all would increase the chance of death because they would cause the heart to work harder. Dr. Cooper believed that Trembley’s death occurred when his mouth was obstructed by duct tape, his stress level was increased, and he exerted himself physically when struggling against the duct tape with which he was bound.
We will first determine if Dr. Cooper’s opinion testimony is admissible, since his testimony is the key to determining if the evidence was sufficient to support Shaw’s conviction of felony murder. Shaw urges the court to review this issue de novo. He justifies his position by characterizing the evidentiary rules governing admissibility of expert witnesses’ opinions as “legal boundaries.” We decline to do so. The accepted standard was stated in State v. Lumbrera, 257 Kan. 144, Syl. ¶ 4, 891 P.2d 1096 (1995): “The admissibility of expert testimony lies within the sound discretion of the trial court, and its determination will not be reversed on appeal absent a showing of an abuse of discretion.”
Admission of expert testimony is governed by K.S.A. 60-456(b) and (d):
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
“(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.”
Shaw concedes that the pathologist was testifying from within the scope of his special knowledge in stating that Trembley died of a heart attack and that heart attacks may be induced by stress or trauma. He objects, however, to the pathologist’s expressing the opinion that Trembley’s fatal heart attack was induced by stress or trauma. He refers to this testimony as “speculation] about fact[s] that cannot be proven.” It should be noted that Dr. Cooper actually named three factors that he believed had combined to cause Trembley’s heart to malfunction. Dr. Cooper cited lack of oxygen, emotional trauma, and unusual physical exertion.
Dr. Cooper was asked to formulate his opinion on the basis of the information obtained from the autopsy, Trembley’s age, his history of smoking and high blood pressure, and his emphysema and absence of complaints of chest pain, as well as the time and circumstances of death. He was asked to bring his education and experience to bear on the question. And he was directed to formulate his opinion with a reasonable degree of medical certainty. In these circumstances, Shaw’s charge that the pathologist’s opinion was “purely speculative” is unpersuasive. Nor has Shaw shown that the trial court judge abused his discretion. We conclude that Dr. Cooper’s testimony was properly admitted into evidence.
We next consider if there was sufficient evidence to sustain Shaw’s conviction of felony murder. Our standard of review is well established:
“If 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 fact-finder could have found the defendant guilty beyond a reasonable doubt.” State v. Richmond, 258 Kan. 449, Syl. ¶ 1, 904 P.2d 974 (1995).
In the present case, Shaw challenges the sufficiency of the evidence that the presence or conduct of the burglars in Trembley’s house caused his death. Shaw relies on State v. Hearron, 228 Kan. 693, 696, 619 P.2d 1157 (1980), for the familiar factors to be considered with respect to the causal relationship of the underlying felony and the killing:
“Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony and, therefore, subject to the felony-murder rule. Whether the underlying felony had been abandoned or completed prior to the killing so as to remove it from the ambit of the felony-murder rule is ordinarily a question of fact for the jury to decide. When we apply the factors of time, distance, and causal relationship to the facts of this case, we have no hesitancy in holding that it was a factual issue for the juiy to determine whether the killing of [the victim] occurred during the commission of the attempted burglary.”
Hearron, it is said by Shaw, is a key Kansas case on the issue of causation in felony murder. He does not rely on Hearron as being factually comparable to the present case, and it is not.
Shaw relies on a New Mexico case as rejecting the “notion that a felony can [be] deemed to have caused anything that occurs during the res gestae of a homicide.” In State v. Harrison, 90 N.M. 439, 441-42, 564 P.2d 1321 (1977), the New Mexico Supreme Court defined causation in felony murder as follows: “[C]ausation must be physical; causation consists of those acts of defendant or his accomplice initiating and leading to the homicide without an independent force intervening, even though defendant’s or his accomplice’s acts are unintentional or accidental.” In a footnote, the court further explained: “A policeman who shoots at an escaping robber but misses and kills an innocent bystander would be considered a dependent, intervening force, and the robber would be criminally liable for felony murder under this test. Lightning striking and killing the bystander would be an independent, intervening force.” 90 N.M. at 442 n.l.
It is Shaw’s contention that, in effect, lightning struck Trembley. Shaw asserts that in Trembley’s condition he could have had a heart attack at anytime. Shaw would discount the pathologist’s testimony that Trembley’s heart attack was caused by agitation from the burglary as “mere conjecture and speculation.” He concedes that “[t]he state may have shown that it is possible that the actions of the burglars caused Mr. Trembley’s death,” but he argues that it is the State’s burden to prove beyond a reasonable doubt the causal link between the felonious conduct and the death.
Aside from the general discussion of legal causation in a felony-murder case, Harrison offers little guidance for the present case due to widely differing fact patterns in the two cases and differing legal developments of New Mexico and Kansas. The issue presented to the New Mexico appellate court was whether Harrison’s conviction of false imprisonment, which was not a “first-degree felony,” would support the presumption that one who committed that felony had the requisite mens rea to commit first-degree murder. 90 N.M. at 442.
The narrow issue addressed in Harrison is settled law in Kansas. The felony-murder statute in this state provides: “Murder in the first degree is the killing of a human being committed ... in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” K.S.A. 21-3401(b). Both aggravated robbery and aggravated burglary are designated inherently dangerous felonies. K.S.A. 21-3436(a)(4) and (10).
The State cites State v. Dixon, 222 Neb. 787, 387 N.W.2d 682 (1986), which involved the death of a 76-year-old woman from cardiac arrhythmia due to emotional trauma and, perhaps, exposure to cold. The medical evidence was that her arrhythmia was precipitated by the shock of having her door kicked in by Dixon. She collapsed from her abnormal heartbeat. If she was still alive when Dixon left, the extreme cold to which she was exposed by the broken door contributed to her ultimate death. Dixon challenged the sufficiency of the evidence of felony murder. He contended that there was “no evidence that his presence or conduct in the burglarized house caused [the victim’s] death.” 222 Neb. at 796. As a threshold matter, the Nebraska court examined foreign cases with comparable facts. From that review, it concluded that “a victim’s fatal heart attack, proximately caused by a defendant’s felonious conduct toward that victim, establishes the causal connection between felonious conduct and homicide necessary to permit a conviction for felony murder.” 222 Neb. at 798. The court then reviewed the evidence from Dixon’s trial. It concluded that there was sufficient evidence of his forcible breaking into the victim’s house and that the coroner’s explanation of the cause of her death provided the jury with opinion evidence on the fact of causation. 222 Neb. at 799. Thus, the felony-murder conviction was upheld.
The State also relies on the cases discussed by the Nebraska court. In State v. Spates, 176 Conn. 227, 405 A.2d 656 (1978), cert. denied 440 U.S. 922 (1979), a robbery victim suffered a fatal heart attack after being handcuffed during the robbery and left on the floor despite his plea that a doctor be called because he was suffering a heart attack. Spates argued that there could be no culpable homicide in the absence of corporal harm inflicted by the defendant on the victim. The court rejected the view as one which long since had been outmoded. 176 Conn, at 231. Spates fashioned a similar argument in terms of proximate causation. He focused on the victim’s weakened condition due to prior heart attacks. The court considered the death to be a foreseeable and natural consequence of the defendant’s act which was not diminished in its criminality if other causes, including the preexisting heart condition, cooperated to produce it. 176 Conn, at 232-33. The court expressed the view that Spates took the victim as he found him. Thus, if the victim’s “death came about as a result of the conjunction of his heart disease and the violence, shock or excitement caused by the defendant’s acts, it was still brought about by the criminal ‘conduct’ of the defendant, for the consequences of which he is answerable.” 176 Conn, at 233.
In People v. Stamp, 2 Cal. App. 3d 203, 82 Cal. Rptr. 598 (1969), cert. denied 400 U.S. 819 (1970), the court considered an armed robbery of a business office in which the workers were required to lie on the floor. Within 15 or 20 minutes after the robbery, the manager died of a heart attack. The evidence with regard to the manager’s general condition was that he was obese, had a history of heart disease, was under a great deal of pressure in his business, and did not take good care of his heart. There was medical evidence that the manager suffered from “an advanced case of atherosclerosis, a progressive and ultimately fatal disease.” 2 Cal. App. 3d at 208. Nonetheless, three doctors concluded that he would not have had a seizure at that time if it had not been for the robbery. With regard to the sufficiency of proof of causation, the court concluded: “[T]here was substantial evidence of the robbery itself, that appellants were the robbers, and that but for the robbery the victim would not have experienced the fright which brought on the fatal heart attack.” 2 Cal. App. 3d at 209.
In State v. Atkinson, 298 N.C. 673, 259 S.E.2d 858 (1979), a robbery victim suffered lacerations and contusions consistent with blows of a baseball bat. According to the medical examiner, the injuries enormously stimulated the heart and blood pressure, bringing on the victim’s death. The medical testimony further showed that the victim’s heart was in terrible condition, that he suffered from severe hardening of the arteries, and that he probably had suffered an earlier heart attack. The medical examiner called the victim “a walking bombshell.” 298 N.C. at 682. Atkinson argued that the State had not proven a causal link between the blows inflicted during the robbery and the death. The court rejected the argument in the following words:
“The consequences of an assault which is the direct cause of the death of another are not excused nor is the criminal responsibility for the death lessened by a preexisting physical condition which made the victim unable to withstand the shock of the assault and without which preexisting condition the blow would not have been fatal.” 298 N.C. at 682.
In State v. Lashley, 233 Kan. 620, 664 P.2d 1358 (1983), the defendant was convicted of felony murder. The underlying felony was the theft of a silver tray from the victim’s home in Arkansas, where the victim was killed. The defendant contended that the theft had been completed in Arkansas prior to the killing of the victim and, therefore, could not support a conviction of felony murder. This court disagreed, stating;
“[The victim’s] property stolen in Arkansas was brought into Wilson County, Kansas. Time, distance, and the causal relationship between the underlying felony and kilting are factors to be considered in determining whether the killing is a part of the felony and therefore subject to the felony-murder rule. Whether the underlying felony had been abandoned or completed prior to the killing so as to remove it from the ambit of the felony murder rule is ordinarily a question of fact for the jury to decide. [Citation omitted.] When the evidence is conclusive, as a matter of law, and the murder occurred within the res gestae of the crime, the trial court need not instruct that determination of whether the murder occurred within the res gestae is a fact question for the jury. [Citation omitted.]
“A literal reading of [K.S.A. 21-3401] would find any felony to be sufficient to support a charge of felony murder,if a causal relation exists. The purpose of the statute is to deter those engaged in felonies from killing negligently or accidentally, and that doctrine should not be 'extended beyond its rational function which it was designed tó serve. To invoke the- felony murder rule there must be proof that a homicide was committed in the perpetration of or an attempt to perpetrate a felony and that the collateral felony was one inherently dangerous to human life.” 233 Kan. at 63L ,........
In the present case, the medical evidence of the cause of death was given by Dr. Cooper, who performed the autopsy of Trembley. The pathologist waá’asked what, in .his opinion, precipitated the myocardial infarction.' He responded that a combination of factors caused the heart attack — Trembley’s heart’s need for oxygen was not met due td thé tape which covered his mouth, his adrenalin level was increased due to stress, and his physical' exertions due to struggling against the tape with which he had been bound' caused his heart tó work toó hard. Dr. Cooper’s opinion took Trembley’s age, condition, and history into" account:
; “Q. Dr. Cooper,. .. . . for file purposes of responding to this question I want you to consider the information you obtained as a result of performing your autopsy on William Trembley. Additionally, that you consider that William Trembley was a man 86 years of age, he had in the past been á smoker, there are indications that he had emphysémá, that he had no complaints of chest pain, . . . had a history of high blood, pressure, that he was> found dead on March the 5th of 1994 duct-taped to his bed at approximately 6;50 p.m. in the evening, that he had duct tape over his mouth at the time that he was found, that he was cold and rigor mortis was present. Now, assuming those facts, based on your autopsy investigation, your education and experience, and based on a reasonable degree of medical certainty, do you have an opinion as'-to what precipitated the myocardial infarction that related in Mr. William Trembley’s death?
“A. Yes, I do.
“Q. What is that opinion?
- “A. That the oxygen . . . need of the heart was exceeded by the increased oxygen getting in the blood in the first place. Due to this man with emphysema, any decrease — like tape or any obstruction over the mouth or nose would decrease the available oxygen, as well as increased stress levels increasing the adrenalin, and any sort of excess physical movement would have increased the work of the heart and all these factors combined.
“Q. And the stress and increased physical movement relating to the duct tape?
“A. Yes.”
As stated in the foreign cases cited by the State, the victim must be taken as the defendant finds him. In this case, Shaw encountered an 86-year-old man with emphysema who was being treated for high blood pressure. Shaw’s felonious conduct emotionally traumatized Trembley, obstructed his breathing, and caused him to physically exert himself in attempting to break free. In Dr. Cooper’s opinion, based upon a reasonable medical certainty, the heart attack was caused by the combined stress, lack of oxygen, and physical exertion. Death resulting from a heart attack will support a felony-murder conviction if there is a causal connection between the heart attack and the felonious conduct of the defendant. Here, Dr. Cooper’s testimony provided that causal link between the felonious conduct and the victim’s death. Trembley’s preexisting condition may have made him unable to withstand the stress and exertion, but it would not lessen Shaw’s criminal responsibility. Applying the factors of time, distance, and causal relationship of the felonious conduct and the killing to the facts of this case, we conclude it was for the jury to determine whether the killing of Trembley occurred during the commission of the aggravated burglary and/or aggravated robbery.
A review of all the evidence, viewed in the light most favorable to the prosecution, shows that a rational factfinder could have found the defendant guilty of felony murder beyond a reasonable doubt. Thus, there was sufficient evidence to support the conviction of the defendant for felony murder.
Shaw next argues that the trial court should have granted his motion for change of venue due to pretrial publicity. K.S.A. 22-2616(1) provides:
“In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.”
In State v. Lumbrera, 252 Kan. 54, 845 P.2d 609 (1992), the court discussed the issue of a change of venue based upon extensive pretrial news media coverage:
“The determination of whether to change venue Mes 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.” Syl. ¶ 2.
“The defendant must show that such prejudice exists in the community that it was reasonably certain the defendant 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.” Syl. ¶ 3.
It is Shaw’s contention that he was entitled to a change of venue as a matter of law because the extent and nature of pretrial news media coverage created an unresolvable dilemma for defense counsel. The objectionable nature of the coverage, according to Shaw, was its focus on his prior criminal record and release from prison as a result of sentence conversion under the Sentencing Guidelines Act. The dilemma was in his not being able to question potential jurors about their gaining information about Shaw’s prior criminal record from news coverage without revealing his prior criminal record to those who were not already aware of it.
Shaw’s motion for change of venue was accompanied by 12 affidavits of Saline County residents who expressed the belief that Shaw could not receive a fair and impartial trial due to newspaper coverage of the crime. Also attached to the motion are photocopies of newspaper articles from the Salina paper and a press release, dated April 8, 1994, by attorney general candidate Jeny Shelor about crimes committed by men who had been released from prison under the Sentencing Guidelines Act. The press release names Shaw. There is no indication that any of the jurors would have seen the press release. As pointed out by defense counsel during argument on the motion for change of venue, however, two of the newspaper articles attached to the motion contained references to Shaw’s prior criminal record.
The district court denied the motion for change of venue on the ground that Shaw had not satisfied his burden of showing “such pervasive prejudice in the community that a fair trial could not be obtained.” In fact, Shaw has not brought to the court’s attention anything in the record on appeal which would show that Shaw’s trial counsel sought to excuse any prospective jurors on the ground that exposure to pretrial publicity might preclude them from rendering a fair and impartial verdict. In its brief, the State asserts that only four prospective jurors were excused for cause from the first group interviewed. Examination of the transcript of that portion of voir dire shows that' one prospective juror was excused so that she could attend a wedding and three were excused due to employment commitments which could not be satisfied by substitutes. Neither party mentions prospective jurors being excused from the second group.
Examination of the transcript also shows that Shaw’s trial counsel passed each panel of veniremen for cause. Once the questions to prospective jurors were completed, defense counsel expressed no concerns about the ability of the jury to be fair and impartial in its consideration of the evidence.
Shaw has shown no abuse of the district court’s discretion in its denying the motion for change of venue.
Finally, we consider whether the instruction requested by Shaw on voluntary intoxication should have been given to the jury. Shaw proposed that the following instruction be given to the jury: “Voluntary intoxication may be a defense to the charge of aggravated burglary, where the evidence indicates that such intoxication impaired a defendant’s mental faculties to the extent that he was incapable of forming the specific intent to commit a theft.” The district court declined defense counsel’s request to instruct the jury on voluntary intoxication. This court has stated generally:
“In a criminal action, a trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the refusal of a trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction.” State v. Scott, 250 Kan. 350, Syl. ¶ 4, 827 P.2d 733 (1992).
In addition, in State v. Shehan, 242 Kan. 127, 130-31, 744 P.2d 824 (1987), the court considered and discussed the precise issue presented here:
“No Kansas case has been located which prohibits a defendant from asserting an alibi defense as well as offering evidence of voluntary intoxication to negate an element of the crime charged. To the contrary, it has long been recognized that ordinarily a defendant in a criminal case may present and rely upon inconsistent defenses. In State v. Hunter, 241 Kan. 629, Syl. ¶ 7, 740 P.2d 559 (1987), the court held that a defendant is not precluded from asserting compulsion as a defense even though he denies commission of the crime. The court cited the general rule that inconsistent defenses are generally permissible in criminal prosecutions. The general rule that intoxication may be asserted even when the defendant relies upon an alibi is stated in 5 Am. Jur. Proof of Facts 2d (1987 Supp.), p. 28, as:
‘[T]he defendant may deny the commission of the offense and submit evidence, such as alibi evidence, in support of such denial, while at the same time presenting evidence of intoxication sufficient to prevent the formation of the necessary intent.’
See People v. Hansma, 84 Mich. App. 138, 269 N.W.2d 504 (1978); and State v. Kills Small, 269 N.W.2d 771 (S.D. 1978). We agree that a defendant in a criminal case may rely upon voluntary intoxication to show a lack of specific intent even though he also relies upon other defenses which may be inconsistent therewith.”
Nonetheless, the court affirmed Shehan’s convictions:
“We conclude the trial court was in error in refusing the requested instruction on the basis that Shehan relied on the defense of alibi and contended he had nothing to do with the crime. However, where the trial court reaches the correct result based upon the wrong reason, this court will affirm the trial court. State v. Durst, 235 Kan. 62, 69, 678 P.2d 1126 (1984). Thus, even though the court erred in the basis for its ruling, if there was not sufficient evidence to submit the issue of intoxication to the jury, no instruction was required and there would be no reversible error.
“The degree of proof necessary in Kansas to establish a submissible issue of voluntary intoxication was considered in the recent case of State v. Keeler, 238 Kan. 356, 710 P.2d 1279 (1985). The court stated:
“Where the crime charged requires a specific intent, voluntary intoxication may be a defense and an instruction thereon is required where there is evidence to support that defense. State v. Sterling, 235 Kan. 526, Syl. ¶ 2, 680 P.2d 301 (1984). The defendant has the burden of showing that he was so intoxicated that he was robbed of his mental faculties, and whether he was drunk to such extent is a question for the trier of the facts to decide, under proper instructions. 21 Am. Jur. 2d, Criminal Law § 155; State v. Falke, 237 Kan. 668, 703 P.2d 1362 (1985). 238 Kan. at 360. (Emphasis added.)
“In State v. Payton, 229 Kan. 106, 622 P.2d 651 (1981), the defendant argued on appeal that his requested instruction on voluntary intoxication was erroneously denied. This court reviewed the record for evidence of defendant’s intoxication to determine the propriety of the trial court’s ruling that the evidence wás insufficient to warrant submission of the issue to the jury. The court-concluded; The evidence did not show the appellant was intoxicated to the extent that his ability to form the requisite intent was impaired.’ 229 Kan. at 114.
“There must be some evidence of intoxication upon which a jury blight find that a defendant’s mental faculties were impaired to the extent that he was incapable of forming the necessary specific intent to commit the crime. Here'; although Shehan testified he and Chambers togéther disposed of a substantial quantity of liquor and drugs, there was no evidence that, as a-result thereof, appellant was intoxicated or that his mental faculties were impaired. To the contrary, the evidence presented by the appellant, when viewed in the light most favorable to him, negates a showing of intoxication. We have carefully considered the authorities relied upon by appellant and find them readily distinguishable from this case.. We hold that under the facts of this case there was not sufficient evidence to require the giving of the requested instruction . . . .” 242 Kan. at 131-32.
Thus, the court’s inquiry in the present case is whether there was sufficient evidence of Shaw’s intoxication to require submission of the issue to the jury. The inquiry must take into account that the burden of showing that he was so intoxicated that he was robbed of his mental faculties so as to he incapable of forming the requisite intent to commit the crime belongs to Shaw. In addition, the evidence must be viewed in the light most favorable to Shaw.-
Shaw’s brief is singularly uninformative in this matter. In' his discussion of this issue, the only mention of evidence of intoxication is the following unsupported assertion: “The evidence in support of the defense of voluntary intoxication is a matter of record.” I-n his statement of facts, the only mention of Shaw’s intoxication is the following which appears under the subheading “The alibi”: ■
“Sheldon Judd testified and accounted for his and Mr. Shaw’s whereabouts at the time of the Trembley break-in. This testimony was corroborated by Johnny Judd, who was Sheldon’s younger brother. Johnny Judd worked at a local restaurant. He worked until about-ten in the evening on March 3,1994. Following work; he went out to Rumors, a Salina bar. He drove, and he was accompanied by his brother Sheldon and Mr. Shaw. The three gentlemen stayed at Rumors until it closed at about 1:30 a.m. Both Sheldon and Johnny Judd noted that by this time, Mr. Shaw was quite intoxicated. He was stumbling and weaving as he walked through the parking lot.”
Shaw’s recitation of alibi evidence continues-with an account of his whereabouts until approximately 3 a.m., by which time he had “passed out.”
Examination of the transcribed testimony of John Judd, the brother of Shaw’s codefendant Sheldon Judd, discloses that he went to a club with Shaw and Sheldon after he got off work at 10 p.m. on Thursday, March 3. They left the club at approximately 1:30 to 2 a.m. on Friday, March 4. John testified that while they were at the club he drank two beers, and he described himself as “pretty drunk.” With regard to Shaw’s condition, John testified that Shaw was “kind of drunk.” He testified that Shaw “was staggering all over the place. We got in the car, he had like dry heaves and stuff. I had to make my brother pull over and roll down the window.” The three went to the Judds’ parents’ house and went down into the basement. According to John, Shaw fell asleep very shortly after they got there.
Sheldon Judd testified that, leaving the club at closing time, Shaw “was weaving and bouncing off the cars.” Sheldon said Shaw “needed help getting in the car.” In the basement, Sheldon and Shaw joked with John about when he was a little kid. After approximately 30 minutes, Shaw went to sleep.
There is no evidence in the testimony of either John or Sheldon Judd about the effects, if any, on Shaw’s mental faculties. The only evidence of his intoxication seems to consist of several very general statements about his physical state. There is nothing in the evidence which has been examined that would indicate whether Shaw was capable of forming the necessary intent to commit the crime. Where, as here, there is no evidence to support the defense of voluntary intoxication, the trial court did not err in refusing to give the requested instruction.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
McFarland, C.J.:
The single issue in this case is whether the district court erred in allowing the plaintiff, a judgment creditor, to attach/gamish a savings account and certificate of deposit owned by defendant. Defendant contends that the bulk of the funds are social security benefits awarded retroactively and are exempt under federal law.
The facts may be summarized as follows. In December 1991, J.R.W. resided with her mother, siblings, and defendant, Jimmy Dean Hall. Defendant severely injured the child by tearing her vagina with his finger. Defendant was charged with, and pled nolo contendere to, the crime of rape. He has been an inmate in the Kansas prison system at all pertinent subsequent times, serving a 15-year to life sentence.
On December 15, 1993, the present action was filed seeking damages for the child’s injuries. Simultaneously, a petition was filed seeking prejudgment attachment of funds belonging to defendant which were being held in a bank. Pursuant to K.S.A. 60-706, the order of attachment was issued, directing the bank to reply as garnishee. The bank replied that it held the following funds belonging to defendant:
Certificate of deposit $19,772.16
Savings account 4,364.35
Total $24,136.51
Defendant filed an affidavit asserting “[t]hat all monies except for institutional pay of nine dollars per month are monies received as social security benefits” retroactively awarded. The district court held the funds were not exempt. Subsequently, the plaintiff was awarded a judgment against defendant in the amount of $23,156.54. Defendant was given credit for $2,156.54 restitution previously paid, which left a judgment of $21,000 plus costs and judgment interest. There is no issue before us challenging the personal injury judgment or the attachment garnishment procedure itself. The issue is whether the monies defendant received from social security are exempt’
Resolution of the issue depends upon interpretation of 42 U.S.C. §§ 407 and 659 (1994). Interpretation of a statute is a question of law over which this court has unlimited review. See Mariche v. Mariche, 243 Kan. 547, 552, 758 P.2d 745 (1988); Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Defendant argues that the district court erred in deciding that an implied exception to the statutory exemption allows attachment of these social security funds. Plaintiff contends that public policy compels an interpretation of the federal statutes to allow this attachment.
A concise summary and history of the relevant federal statutes can be found in Mariche, 243 Kan. 547. There, we considered whether the district court erred in finding that the defendant’s social security disability benefits were not exempt from garnishment to pay pást-due child support under K.S.A. 60-2308(a). We first noted that the issue was governed by the federal statutes pertaining to social security benefits, specifically 42 U.S.C. § 407 and § 659. In reaching the conclusion that Mariche’s benefits were not exempt, we set out the following history of the federal statutes, still applicable today:
“Prior to 1975, 42 U.S.C. § 407 (1970) provided that social security payments of all types were not transferable or assignable or subject to execution, levy, attachment, garnishment, or other legal process:
‘The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.’
“Aware of the importance of the right of a spouse and children to receive support from an absent parent, Congress in 1975 enacted § 459 of the Social Security Act (42 U.S.C. § 659 [1982] ), which waived the sovereign immunity previously enjoyed by the United States and specified that wages of government employees and also social security benefits are subject to garnishment in child support and alimony cases. A 1983 amendment to 42 U.S.C. § 407 included a provision that no other law enacted before, on, or after a certain date could be construed to limit, supersede, or otherwise modify the provisions of § 407 except to the extent it does so by express reference to that section. 42 U.S.C. § 407 (Supp. III 1985). Currently, 42 U.S.C. § 659 (Supp. III 1985) provides:
‘Notwithstanding any other provision of law, (including section 407 of this title) effective January 1,1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the armed services, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments.’ (Emphasis supplied.)
“42 U.S.C. § 662(f) (Supp. III 1985) defines 'remuneration for employment’ to include ’periodic benefits ... or other payments to such individual under the insurance system established by subchapter II of this chapter.’ (Emphasis supplied.) 42 U.S.C. § 423 (1982 and Supp. Ill 1985) provides for social security disability benefits and is included in subchapter II of the Social Security Act. Thus, under the federal statutes, the garnishment of social security disability benefits is authorized in order to permit recovery of past due child support or alimony payments. The Code of Federal Regulations (5 C.F.R. § 581.103 et seq. [1988]) interprets the federal statutes to authorize the garnishment of federal disability payments to pay child support and alimony payments.” 243 Kan. at 548-49.
The language in these federal statutes is unchanged. See 42 U.S.C. §§ 407, 659 (1994).
In another Kansas case, Younger v. Mitchell, 245 Kan. 204, 777 P.2d 789 (1989), this court considered whether a judgment creditor could garnish Mitchell’s bank accounts which contained his veteran’s administration (VA) benefits and his social security disability benefits, as well as his wife’s social security disability benefits. The trial court held that Mitchell’s VA benefits were not exempt, that his wife’s social security disability benefits were not subject to garnishment for Mitchell’s debt, that Mitchell’s social security benefits were exempt from garnishment, and that any carryover amounts were not exempt pursuant to K.S.A. 60-2308(a). 245 Kan. at 205-06.
Addressing the merits of Mitchell’s appeal, we first noted that, although not properly before the court, the trial court was correct in finding that the social security benefits were exempt pursuant to 42 U.S.C. § 407(a). 245 Kan. at 209-10. Although the facts vary slightly, the case before the court here asks basically the same question as was before this court in the dicta portion of Mitchell. The court also held the VA benefits were exempt.
The United States Supreme Court has addressed these statutes at least twice: Philpott v. Essex County Welfare Board, 409 U.S. 413, 34 L. Ed. 2d 608, 93 S. Ct. 590 (1973), and Bennett v. Arkansas, 485 U.S. 395, 99 L. Ed. 2d 455, 108 S. Ct. 1204 (1988). Lower federal appellate courts have also interpreted these statutes.
In Philpott, the welfare board sued its welfare recipient and his trustee to reach a bank account in which the recipient’s trustee had deposited a check for 6 months’ retroactive social security disability benefits. The state Supreme Court allowed the attachment based upon an agreement executed by the recipient with the welfare board. In this agreement, signed at the time of application for welfare, the recipient agreed to reimburse the welfare board for all payments received. The United States Supreme Court reversed, disallowing the attachment. 409 U.S. at 417.
In reaching its decision, the Court interpreted 42 U.S.C. § 407, stating:
“On its face, the Social Security Act in § 407 bars the State of New Jersey from reaching the federal disability payments paid to [the recipient]. The language is all-inclusive: ‘[N]one of the moneys paid or payable . . . under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process . . . .’ The moneys paid. as .. retroactive benefits were ‘moneys paid . . . under this subchapter’; and the suit brought was an attempt to subject the money to ‘levy, attachment ... or other legal process.’ ” 409 U.S. at 415-16.
Although the welfare board argued that there was an implied exception to the § 407 exemption in that the state welfare benefits could have been- reduced by the amount of the federal grant had the social security payments been received monthly, the Court refused to find such an implied exception. -The* Court found that “the funds on deposit were readily withdrawable and retained the quality of ‘moneys’ within the purview of § 407 . . . [The statute] imposes a broad bar against the use of any legal process to reach all social security benefits. That is broad enough to include all claimants, including a State.” 409 U.S. at 417.
■ As previously noted; since the Philpott decision the Social* Security Act has been amended to -allow attachment of social security funds in order to pay past-due child support and alimony. Manche, 243 Kan. at 549. - ’ ‘
In 1980, an-implied exception to the bar against attachment was created by Department of Health, etc. v. Davis, 616 F.2d 828 (5th Cir. 1980). There, the recipient was incompetent and unable to care for himself to any degree; all his needs, during the period of timfe he was in the state hospital, were met by the State. Under these facts, the Davis court distinguished Philpott and held that the State could reach the funds held by the recipient’s guardian. The court justified its decision by noting that the purpose of sociál security benefits for the disabled is to provide* for their care and maintenance. Further, the purpose of the exemption is to protect social security beneficiaries from creditors’ claims. Because neither the purpose of the-benefits nor the purpose of the-exemption was being accomplished by barring the State from reimbursement, the collection was allowed. 616’F.2d at 829-31.
The social security benefits’ statutory exemption was addressed more recently in Bennett, 485 U.S. 395. There, a state statute authorized the State-to seize a prisoner’s property or estate, including social security benefits, in order to defray the cost of maintaining the state’s prison system. The state Supreme Court upheld an attachment of social security funds, believing that the federal statutory exemption from legal process was subject to . an implied exception when the State provided for. the care and maintenance of a social security beneficiary. The United States Supreme Court rejected this reasoning and held that a State was not permitted to seize the prisoner’s, social security benefits. The Court also held that the state statute conflicted with the federal statute and, under the Supremacy Clause of the United States Constitution, the state statute must give way. 485 U.S. at 397-98.
The Court rejected the distinction, made in Davis, that because the State paid all of the recipient’s care rather than just a part of his care, as was the case in Philpott, an implied exception to the § 407 exemption had been created. “[W]e do not think that such a distinction carries the day given the express language of § 407(a) and the clear intent of Congress that Social Security benefits not be attachable.” 485 U.S. at 398.
Thus, under 42 U.S.C. § 407 and § 659, social security disability benefits are exempt from attachment except in cases were the attachment is ordered to pay past-due child support or alimony.
The plaintiff argues that public policy should permit her to reach the funds. Defendant’s1 needs are being met by the prison system, and he has no family to support. If we were free to decide the case on public policy or equitable consideration, there could be no strong reason asserted for not permitting the attachment. The language of the relevant federal statutes and the United States Supreme Court decision make it clear that we do not have the luxury of deciding the case on the basis of what is the “right” or desirable result. Plaintiff herein is a judgment creditor. Neither past-due child support nor alimony is involved. We find no legal basis for holding the funds are not exempt due to some implied exception.
As a fail-back position,, plaintiff argues that the money in the certificate of deposit has lost its character as social , security proceeds.
Citing Porter v. Aetna Casualty Co., 370 U.S. 159, 8 L. Ed. 2d 407, 82 S. Ct. 1231 (1962), as authority, plaintiff contends that in order to retain the statutory exemption defendant must show that the funds attached are proceeds of social security benefits; that the funds are necessary for the support of himself and/or his family; and that the funds must be readily available and retain the quality of moneys. Because defendant can show no evidence of the last two points, plaintiff asserts, his funds do not retain their exempt status. Plaintiff argues that, once defendant placed the money in a certificate of deposit, the funds were no longer exempt because they became a permanent investment.
In Porter, a judgment creditor was allowed by the lower court to attach VA benefits (subject to a similar exemption from attachment) held in a federal savings and loan association. Because, by virtue of the deposit, the recipient had become a shareholder of the association rather than a creditor, and because his funds were subject to withdrawal only after a 30-day demand, the creditor argued that the funds had lost their exempt status. The Supreme Court rejected this argument. Agreeing with the district court’s assessment that a withdrawal of these funds could be made as quickly as a withdrawal from a checking account, the Court found that these funds retained the quality of monies and thus retained their exempt status. As for the argument that these deposits were permanent investments, the Court noted that they were “not of a speculative character nor were they time deposits at interest.” 370 U.S. at 162. The Court believed that Congress
“intended that veterans in the safekeeping of their benefits should be able to utilize those normal modes adopted by the community for that purpose — provided the benefit funds, regardless of the technicalities of title and other formalities, are readily available as needed for support and maintenance, actually retain the qualities of moneys, and have not been converted into permanent investments.” 370 U.S. at 162.
The bare reference in Porter to time deposits at interest is not persuasive. Certificates of deposit generally pay higher rates of interest than savings accounts in exchange for some restrictions on access. If immediate access to the funds is less important than the higher interest rate, certificates of deposit are frequently the preferred vehicle of savings deposits. Certificates of deposit are certainly “normal modes adopted by the community” for the safekeeping of funds. We find no legal basis for concluding that funds in certificates of deposit are permanent investments which have lost the quality of money.
We conclude the district court erred in holding that the monies held by the bank which were received as social security benefits were not exempt from attachment/gamishment by the plaintiff. Because of the result reached by the district court, it made no determination as to how much of the funds were attributed to earned bank interest and to defendant’s monthly inmate pay. Monies from those two sources are not exempt and may be reached by plaintiff.
The judgment allowing the attachment/gamishment is reversed, and the case is remanded to the district court to determine the amount of funds available to plaintiff.
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The opinion of the court was delivered by
Lockett, J.:
Pursuant to K.S.A. 1994 Supp. 38-1602(b)(3), defendant was prosecuted as an adult based upon a prior juvenile adjudication. On appeal, defendant claims the use of K.S.A. 1994 Supp. 38-1602(b)(3) to prosecute him as an adult and the district court’s inclusion of his prior felony level juvenile adjudication in scoring his criminal history classification enhanced the severity level or applicable penalties and violates K.S.A. 21-4710(d)(ll).
This is an issue of first impression which requires us to interpret the effect of K.S.A. 1994 Supp. 38-1602(b)(3) upon K.S.A. 21-4710(d)(ll).
K.S.A. 1994 Supp. 38-1602(b)(3) provides:
“[A juvenile] does not include 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 a separate prior juvenile proceeding as having committed an act which would constitute a felony if committed by an adult and the adjudication occurred prior to the date of the commission of the new act charged.”
K.S.A. 21-4710(d)(ll) provides:
“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.” (Emphasis added.)
The facts are not in dispute. On October 24, 1994, the defendant, Mario A. Lanning, was charged with felony theft in McPherson County. At the time of the offense, Lanning was 16 years old. Prior to October 22, 1994, he had previously been adjudicated a juvenile offender for a felony level theft in Crawford County. Pursuant to K.S.A. 1994 Supp. 38-1602(b)(3), Lanning was prosecuted as an adult in McPherson County based upon the prior juvenile adjudication.
Lanning pled no contest to the McPherson County felony theft charge. The presentence investigation report classified that offense as a severity level 9 offense. Lanning’s prior 1993 juvenile adjudication for felony theft in Crawford County was scored as a nonperson felony conviction. This resulted in his classification in criminal history category G rather than criminal history category H.
Prior to sentencing, Lanning objected to use of the prior juvenile adjudication for felony theft in Crawford County both to prosecute him as an adult and to score his criminal history classification. He argued that K.S.A. 21-4710(d)(ll) precludes the use of his prior nonperson felony juvenile adjudication to (1) authorize his prosecution as an adult pursuant to K.S.A. 1994 Supp. 38-1602(b)(3) and then (2) to enhance his criminal history category. After a hearing, the district court overruled the objection and determined the presentence investigation report properly classified Lanning as having a criminal history category of G; Lanning was sentenced pursuant to the Kansas sentencing guidelines to 8 months’ incarceration. -
Lanning appealed. Specifically, he argues that his 1993 juvenile adjudication, which requires that he be prosecuted as an adult, cannot be used to enhance the severity level of his subsequent adult conviction.
The State asserts that K.S.A. 1994 Súpp. 38-1602(b)(3) is a statute of classification for prosecution of an offender rather than punishment. The State argues that use of the prior juvenile adjudication in the first instance did not enhance the severity level or any applicable penalty within the meaning of K.S.A. 21-4710(d)(ll). Rather, it determined whether Lanning was a juvenile or should be prosecuted as an adult offender.
Statutory interpretation is a question of law. An appellate court’s review of a question of law is unlimited. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). 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 (1994). Generally, criminal statutes are to be construed strictly against the State. State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993). However, this rule of construction is subordinate to the rule that judicial interpretation must effectuate legislative design and the true intent of the legislature. State v. Schlein, 253 Kan. 205, 215, 854 P.2d 296 (1993).
In State v. LaMunyon, 259 Kan. 54, 911 P.2d 151 (1996), this court considered an argument similar to that made, by Lanning. LaMunyon, an adult, pleaded nolo contendere to one count of possession of marijuana with intent to sell and was sentenced to 3 to 10 years. After the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., became effective, the district court found LaMunyon ineligible for retroactive sentence conversion based on his criminal history score, which included a juvenile adjudication for burglary. LaMunyon appealed, arguing that the Kansas Juvenile Offenders Code (the Code), K.S.A. 38-1601 et seq., prohibited ju venile adjudications from being used to calculate an offender’s criminal history under the KSGA. On petition for review, this court affirmed the Court of Appeals’ holding “that the defendant’s juvenile adjudications may properly be used in determining his criminal history score under the KSGA.” 259 Kan. at 68.
The LaMunyon court noted the Kansas Legislature permitted consideration of juvenile adjudications in the sentencing of adult offenders prior to the adoption of the KSGA when it enacted K.S.A. 21-4606a (determination of the presumption of probation), K.S.A. 21-4606b (determination of presumptive assignment to community corrections), and K.S.A. 38-1610(e) (permitting use of expunged juvenile records in sentencing of subsequent juvenile dispositions and adult criminal convictions). 259 Kan. at 60. The LaMunyon court also observed that in enacting the KSGA in 1992, the legislature expressly required the consideration of certain juvenile adjudications when determining an offender’s criminal history. 259 Kan. at 57; see K.S.A. 21-4703(c), K.S.A. 21-4709, K.S.A. 21-4710, K.S.A. 21-4711, and K.S.A. 21-4714(b)(5).
Finally, the LaMunyon court observed that the KSGA provision at issue here, K.S.A. 21-4710(d)(11), refers to prior convictions rather than juvenile adjudications. In other words, what Lanning has failed to perceive is that K.S.A. 21-4710(d)(11) is inapplicable to the issue he raises because his prior juvenile adjudication is not a prior “conviction.” As the LaMunyon court stated:
“it is well established that a juvenile adjudication is not a ‘criminal conviction’. . . . When specifying in the KSGA, that ‘criminal history’ includes specific juvenile adjudications, and criminal convictions (see K.S.A. 1993 Supp. 21-4703[d]), the Kansas Legislature was aware that a juvenile adjudication was not a criminal conviction. . . . The mere fact that a juvenile adjudication is not a criminal conviction does not prohibit using a juvenile adjudication in calculating a criminal history score for purposes of sentencing an adult under the KSGA.” [Citations omitted.] 259 Kan. at 59.
The KSGA provides guidance to the sentencing court in the form of a rational sentencing structure which is based on two controlling factors: crime severity and criminal history of the offender. See Kansas Sentencing Guidelines, Desk Reference Manual 1, 3 (1995).
Pursuant to K.S.A. 21-4703:
“(c) ‘criminal history’ means and includes adult felony, class A misdemeanor, class B person misdemeanor, or select misdemeanor convictions and comparable juvenile adjudications possessed by an offender at the time such offender is sentenced;
“(d) ‘criminal history score’ means the summation of the convictions described as criminal history that place an offender in one of the criminal history score categories . . . .”
The Kansas Juvenile Offenders Code is a general statement of public policy as to the effect of juvenile adjudications, whereas the KSGA sets out specific exceptions to the Code. Considering a juvenile adjudication in calculating an offender’s criminal history score under the KSGA does not turn that adjudication into a criminal act. The terms “criminal act” and “criminal history score” mean different things. The KSGA’s requirement that juvenile adjudications be considered in calculating an offender’s criminal history score is not inconsistent or in conflict with the statement in K.S.A. 38-1601 that a juvenile adjudication shall not be deemed or held to import a criminal act.
The KSGA clearly provides that juvenile adjudications should be considered in determining a defendant’s criminal history category. Adopting Lanning’s position would clearly frustrate the intent of the legislature in enacting the provisions of the KSGA which specifically provide for scoring of prior juvenile adjudications in determining criminal history.
The use of Lanning’s prior juvenile adjudication does not violate K.S.A. 21-4710(d)(ll), which refers only to prior criminal convictions. The use of the prior juvenile felony adjudication in determining whether to prosecute a juvenile offender as an adult under K.S.A. 1994 Supp. 38-1602(b)(3) does not enhance the severity level of a crime, as Lanning contends, but determines when a juvenile may no longer be classified as a juvenile. When an offender who has one prior felony juvenile adjudication is charged with a second felony, the offender is classified as an adult. It is only after this classification has been made and the offender is prosecuted and then convicted of the second felony crime that the sentencing guidelines apply. K.S.A. 21-4710(d)(ll).
Here, because Lanning had a prior juvenile adjudication for felony car theft and was charged with felony car theft for a second time, K.S.A. 1994 Supp. 38-1602 governed his classification and mandated that he be prosecuted as an adult offender. After his conviction he was subject to being sentenced as an adult. An adult convicted of felony car theft with one prior juvenile adjudication for car theft would be scored as a level G on the sentencing guidelines grid. Therefore, Lanning’s criminal history score was properly determined.
Affirmed.
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The opinion of the court was delivered by
Six, J.:
This criminal case concerns a preliminary examination probable cause determination. Defendant Joe Donald Whittington was charged with aggravated battery against his wife. The district court, reasoning that the State failed to present sufficient evidence to bind Whittington over for trial, dismissed the complaint. The State appeals. Our jurisdiction is under K.S.A. 22-3602(b)(l) (State’s appeal from order dismissing complaint).
Our standard of review is de novo. See State v. Garza, 259 Kan. 826, 827, 916 P.2d 9 (1996). We find probable cause and reverse.
FACTS
Whittington and his brother hosted a July 4th barbecue at the Whittington residence. Judy, Whittington’s wife, arrived home, saw “a couple of girls” in the garage she did not know, and became angry. She screamed at Whittington, who responded by climbing inside his Chevy Blazer, which was parked on the grass next to the driveway. Judy followed Whittington and stood behind the Blazer. Whittington started the engine. Other guests told Judy to move. She did. The Blazer backed up. She then went to the driver’s side, slammed a glass mug against the vehicle door, and stood in front of the Blazer. Whittington drove forward, knocking her to the ground. Her wrist was broken. Judy testified that her husband got out to help her, she screamed at him to leave her alone, and he drove away.
Officer Jennings, of the Salina Police Department, spoke with Judy and others who were attending the barbecue. Jennings’ impression was that Judy did not want to say anything against her husband. Whittington told Jennings that he and Judy had had a “domestic” dispute, and she told him maybe he should pack his bags and leave. He went into the house for clothes, came back out, and got into the Blazer. As he was attempting to leave, Judy stepped in front of the Blazer, and he drove forward to scare her.
The State charged Whittington with aggravated battery under K.S.A. 21-3414(a)(l)(C) (intentionally causing physical contact) or, in the alternative, aggravated battery under K.S.A. 21-3414(a)(2)(B) (recklessly causing bodily harm). At the preliminary examination, the State called Judy, Officer Jennings, Debra Knight, and Harold Schweitzer, a cousin of Whittington’s. Judy testified that the Blazer was on wet grass and skidded when it hit her. According to Judy, Whittington had tried to stop before he slid into her. She told the police she did not feel Whittington intentionally struck her with the Blazer.
Debra Knight was sitting in the garage about 6 to 7 feet from the Blazer at the time of the incident. She saw Whittington getting into the Blazer to leave. She then saw Judy standing with her back against the rear of the Blazer and then hitting the Blazer with a mug. Debra heard the Blazer go into gear and told Jody, Judy’s daughter, to “please go get your mother.” Judy moved, and Whittington backed up the Blazer. The rear wheels were over the curb in tire street. Judy was standing about 3 feet in front of the Blazer. Whittington drove the Blazer forward, striking Judy, who fell backward. Debra thought Whittington was just trying to scare Judy. Debra did not see or hear anything to indicate that Whittington put on the brakes. After Judy was hit, Whittington left. Debra did not see him get out of the Blazer. Judy was taken inside the house.
According to Schweitzer, who witnessed the knockdown, Whittington backed out the Blazer and was coming forward on the grass as if to talk to Judy when she ran in front of the Blazer as Whittington hit the brakes. The Blazer slid about a foot as it struck Judy. Schweitzer did not think Whittington deliberately hit Judy. He described the striking as a “freak deal.”
After both sides presented their evidence, the district judge recalled Judy and asked her if she was “not real” excited about having her husband charged with a felony. She answered that she was not. The judge also inquired how long the couple had been married and if there was any history of domestic violence. She said they had been married 17 years with no history of domestic violence. At the close of the State’s argument urging a bind over, the district iudere said:
“I think the issue is deeper than that, Mr. Stanton [State'’ s-counsel]. If that was two strangers or two acquaintances, even that logic and argument would certainly be appropriate-, but I don’t think the State’s got any business disrupting a marital relationship where-the parties don't want the-State-to intervene in that marital relationship. These people, apparently under questioning, have been perhaps not happily, but certainly married for 17 years. There’s been no history of domestic violence. This is a domestic situation which they need to handle between them. A felony prosecution under circumstances of this could have .a very disruptive effect on a marital relationship and the State has just the opposite interest in, a marital relationship. You need to encourage the parties, rather than to disrupt those relationships. (Emphasis added.)”
DISCUSSION
Probable Cause'
If, from the evidence presented at the preliminary examination, it appears that a crime has been committed and there is probable cause to believe the defendant committed the crime, the magistrate shall bind the defendant over for trial. K.S.A.- 22-2902(3). “The evidence need not.prove guilt beyond a reasonable doubt, only probable cause. The trial court must draw,the inferences favorable to the prosecution from the evidence presented at the preliminary examination.” State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). “Probable cause at a preliminary [examination] signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt.” State v. Puckett, 240 Kan. 393, Syl. ¶ 1, 729 P.2d 458 (1986).
We have- commented on the magistrate’s limited view from the bench by observing:' ....
“It is not the function- of the magistrate at a preliminary examination 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 magistrate to conclude there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent. [Citation omitted.]” State v. Bockert, 257 Kan. 488, 492, 893 P.2d 832 (1995).
Aggravated Battery
K.S.A. 21-3414(a), the statute under which- Whittington was charged, provides in part:.
“Aggravated battery is:
“(1) ■ . . (C) intentionally causing physical contact with another person when done in a rude, insulting or angiy manner with a deadly weapon, or in anymanner whereby great bodily harm, disfigurement or death can be inflicted; or
“(2) . . . (B) recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.”
In considering the elements of K.S.A. 21-3414(a)(l)(C), we first inquire, was there probable cause that Whittington intentionally caused physical contact with Judy? Whittington struck Judy with the Blazer with sufficient force to knock her backwards, causing her to fall and break her wrist. All the witnesses, including Judy, indicated that they thought Whittington only intended to scare her. Whittington admitted his intent to scare to Officer Jennings. However, according to Knight, Judy had to be warned to move out from behind the Blazer when Whittington started in reverse. After Whittington backed the Blazer’s rear wheels over the curb, Judy stood 3 feet in front of the Blazer, apparently on the grass. Whittington could have continued to back up into the street, away from Judy. Instead, he drove the Blazer forward on the grass, striking Judy. Judy’s and Schweitzer’s testimony suggested Judy may have jumped in front of . the Blazer as Whittington was attempting to drive off. However, Knight was clear in her testimony that Judy was standing 3 feet in front of the Blazer when Whittington drove forward, striking her. Whittington clearly intended to drive toward Judy.
The testimony conflicted as to Whittington’s movements in and out of the Blazer. Judy testified that her husband left the Blazer and approached to check on her; Knight testified that Whittington drove away after striking Judy, never getting out of his Blazer. Whittington’s leaving the scene after Judy was obviously injured suggests he may have intentionally struck her. When diere is a conflict in testimony at the preliminary examination, a question of fact exists for the jury, and the magistrate must draw the inference favorable to the prosecution. State v. Jones, 233 Kan. 170, Syl. ¶ 4, 660 P.2d 965 (1983).
Next we inquire, was there probable cause that Whittington made physical contact with Judy in a rude, insulting, or angry man ner? Judy testified that she started screaming at Whittington as soon as she arrived home and saw the women she did not know in the garage. Knight thought Whittington was calm up to the point Judy banged the mug on the Blazer,, because Judy was doing the yelling and Whittington was not saying anything as he was leaving. But Knight thought Whittington intended to scare Judy when he put the Blazer in drive and came forward, hitting her. Although there was no direct testimony that Whittington was “rude, insulting or angry,” the movement o£ the Blazer towards Judy suggests that he may have been. •
The third inquiry relates to use of a deadly weapon. The determination of whether an object is a deadly wéapon requires an objective test and is a question for the jury. State v. Manzanares, 19 Kan. App. 2d 214, Syl. ¶ 2, 886 P.2d 1083 (1994) (In the course of a child custody disptite, Manzanares chased his former wife at high speeds in his van and rear-ended her. The jury’s determination that the van was a deadly weapon was proper.).
We have defined “deadly weapon,” in the context of the crime of aggravated battery, as “an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury.” State v. Hanks, 236 Kan. 524, 537, 694 P.2d 407 (1985) (citing Black’s Law Dictionary 487 [4th ed. rev. 1968]).
Unlike the victim in Manzanares, Judy was not inside another car when the Blazer struck her. Knight testified that after her fall, Judy kept saying; “I can’t breathe,” which may indicate the Blazer’s impact was sufficient to knock the wind out of her. Whittington may not have intended to seriously injure Judy. However, almost any frontal impact between a moving automobile and a human being could produce serious injury. A jury question is raised as to whether Whittington was using the Blazer as a deadly weapon.
Our final inquiry finds probable cause that the contact between the Blazer and'Judy was made “in any manner whereby great bodily harm, disfigurement or death can be iriflicted.” Judy was standing 3 feet in front of the Blazer when'Whittington drove forward. She was defenseless. Her fall from the knockdown could have resulted in an injury much more serious than a broken wrist.
We next review the elements of K.S.A. 21-3414(a)(2)(B) (recklessly causing bodily harm). The evidence, particularly Knight’s testimony, indicates that Whittington may have recklessly caused bodily harm to Judy, even if he did not intend to hit her when he drove forward. The other elements of the charge have been discussed in our K.S.A. 21-3414(a)(l)(C) analysis.
Viewing the evidence most favorably to the State, there is probable cause sufficient to bind Whittington over. The district judge viewed the incident as a domestic situation to be handled by husband and wife. The fact that Judy and Whittington had been married 17 years and had no history of domestic violence influenced the district judge. The strong inference drawn from the district judge’s comment at the close of argument is that if Whittington and Judy had not been married, Whittington would have been bound over. Marriage does not change the probable cause bind over standards for aggravated battery. Whittington struck Judy with a moving vehicle, when she was standing a few feet in front of it.
The district court also may have been influenced by Judy’s opposition to the criminal proceeding against her husband. A criminal action is between the State and the accused, and the wishes and actions of the victim do not control whether a prosecution should be pursued. Puckett, 240 Kan. 393, Syl. ¶ 4. When the State has established the necessary probable cause at a preliminary examination, 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. 240 Kan. 393, Syl. ¶ 5.
The district court exceeded its authority to the extent that the dismissal of the complaint was based not on a lack of evidence to show probable cause, but on the conclusion that prosecution would have a disruptive effect on the marital relationship. “A county attorney or district attorney is the representative of the State in criminal prosecutions. As such, he or she controls criminal prosecutions. It is the county or district attorney who has the authority to dismiss any charge or to reduce any charge.” State v. Williamson, 253 Kan. 163, 165, 853 P.2d 56 (1993).
The State advances a public policy argument by asserting that affirming Whittington’s dismissal would send a message to law enforcement officers contrary to the legislative expression in K.S.A. 22-2307. K.S.A. 22-2307 requires law enforcement agencies to adopt written policies on domestic violence calls. K.S.A. 22-2307(b)(1) provides that those policies shall include a statement directing officers to make an arrest when they have probable cause to believe that a crime has been or is being committed. The State asserts that K.S.A. 22-2307 is a legislative response to the frequent occasions when the victim of domestic violence requests that no action be taken against the perpetrator.
While the State’s public policy observation appears sound, we need not rely on legislative intent to dispose of this case. Our inquiry centers on the evidence presented at the preliminary hearing. Was there probable cause to bind Whittington over on the charge of aggravated battery? The answer is, “Yes.”
Whittington points out that the district court found that Judy’s actions precipitated the injury by “her conduct in attempting to prevent . . . defendant from exercising a legitimate right to leave when he wanted to.” Judy testified, “He was trying to leave and I wouldn’t let him leave.” Whittington may have been upset when Judy followed him to the Blazer, screamed at him, banged the side of the Blazer with a mug, and stood behind the Blazer as he was attempting to leave. Judy’s conduct may have contributed to Whittington’s state of mind. Her conduct, however, did not legally excuse Whittington’s response for probable cause purposes.
Reversed and remanded with directions to reinstate the charges against Whittington for aggravated battery under K.S.A. 21-3414(a)(2)(B) and 21-3414(a)(l)(C) and for further proceedings in conformity with this opinion.
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The opinion of the court was delivered by
Lockett, J.:
Defendant Hector Vargas appeals his conviction of second-degree murder, K.S.A. 21-3402 (Ensley 1988), a class B felony, and the maximum sentence imposed of 15 years to life. Defendant was 15 years old at the time of the murder. The defendant was prosecuted as an adult pursuant to K.S.A. 38-1636. The defendant argues that the trial court erred in (1) overruling defendant’s objection to the State’s peremptory challenges striking Hispanic and African-American members of the jury panel; (2) admitting preliminary examination testimony of an absent witness at trial, thereby, violating the Sixth Amendment right to confrontation; (3) authorizing defendant to be prosecuted as an adult; and (4) abusing its discretion in imposing the maximum sentence of 15 years to life.
Evidence at Trial
On September 16, 1992, Vargas and his stepbrother, Carlos Diaz, drove into and parked their van at a Sonic Drive-in in Kansas City, Kansas. Diaz was driving the van. Vargas was in the front passenger seat. Diaz and Vargas noticed Enrique Espinoza and his cousin, Ricardo Ramora, sitting at an outside table at the Sonic a few feet from where their vehicle was parked. All four individuals were juveniles. After Vargas and Diaz were served, they began to drive away. The four boys then exchanged insulting words. Testi mony conflicted as to who spoke first. After the exchange of words, Diaz pulled the van back into the parking space. Diaz got out of the van and approached the two boys seated at the table. A fight ensued between Diaz and Espinoza. Testimony as to Ramora’s actions conflicted. One witness testified Ramora remained seated; another witness testified that Ramora stood up during the fight.
The defendant testified argumentative words were exchanged between Diaz and the two boys at the table. Vargas, who was sitting in the van, stated that he believed Ramora was going to get up and charge, but did not know if Ramora would charge him or Diaz. Vargas testified he reached for a gun, which belonged to Diaz, and to protect himself fired one shot out of the window of the van. Vargas stated he did not intend to kill Ramora, but merely to warn him not to attack. The shot killed Ramora. After the shooting, Diaz returned to the van and drove away. Vargas later threw the gun out of the window of the van. Diaz testified he did not know where Vargas had obtained the gun.
Vargas was convicted of second-degree murder and sentenced to a term of not less than 15 years nor more than life. Vargas appeals his conviction and sentence for second-degree murder, raising four issues.
BATSON CHALLENGE
After the jury was empaneled, Vargas alleged the State’s peremptory challenge strikes of two African-Americans and two Hispanics from the venire were racially motivated, violating the 14th Amendment Equal Protection Clause of the United States Constitution and Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). The State argued to the judge that the defense had not presented a prima facie case of discrimination and then proceeded to articulate its reasons for striking the jurors.
The State responded:
M.B., a single and unemployed black woman, was struck by the State because she lived close to the restaurant where the shooting occurred and went there twice a month. M.B. was familiar with the stalls at the Sonic and had previously heard about the crime.
R.S., a black woman, was struck by the State because she remembered the case from the news and thought she recognized the defendant from seeing him on television in a police car. R.S. also indicated she knew another person on the jury panel and had several friends who had committed suicide or were murdered. She stated charges had been filed in some of the instances.
P.H., a Hispanic woman, was struck by the State because she and her daughter had attended a fiesta located a few blocks from the shooting the night of the crime. P.H. stated she had heard “scuttlebutt” at the fiesta concerning the shooting at the Sonic, which had occurred a couple of hours earlier. P.H. also lived close to the defendant’s residence and stated she might know people who knew some of the individuals involved in the crime.
R.R., a Hispanic man, was struck by the State because he had the same last name as one of the State’s witnesses. Although R.R. indicated he did not know the witness, the State’s attorney stated to the judge that he believed precaution was necessary to avoid getting into the middle of the trial and then discovering that the juror and witness knew each other.
The trial court found that the State did not systematically discriminate in exercising these peremptory challenges.
In reviewing a Batson violation concerning the State’s use of a peremptory challenge, the applicable appellate standard of review is whether the trial court abused its discretion in determining if the challenged strikes were constitutionally permissible. State v. Walston, 256 Kan. 372, 373-74, 886 P.2d 349 (1994). Judicial discretion is abused only when exercised in an arbitrary, fanciful, or unreasonable manner, or in other words, when no reasonable person would take the view adopted by the trial court. Walston, 256 Kan. at 374 (citing State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 [1991]).
The Batson analysis involves a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Batson, 476 U.S. at 96-97. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. 476 U.S. at 97-98. Finally, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination. 476 U.S. at 98.
The Supreme Court recently elaborated upon this analysis in Purkett v. Elem, 514 U.S. 765, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995). The Purkett court agreed that the Batson analysis is a three-step test.
The Purkett court observed that the second step of the Batson process does not demand an explanation that is persuasive, or even plausible, but requires merely facial validity of the prosecutor’s explanation. It determined further that unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral. It concluded that the ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike. Purkett, 131 L. Ed. 2d at 839.
As to this claim, the defendant first argues that the trial court abused its discretion because it ruled that the defendant had failed to establish even a prima facie case of racial discrimination (step 1). A review of the record reflects that the trial court followed the three-step procedure set out in Batson when considering the State’s proffer of its race-neutral reasons for striking each of the four jurors.
Defendant next argues that the trial court abused its discretion in finding no systematic discrimination by the State’s exercise of its peremptory challenges. As we have stated, the Batson analysis avoids placing a determinative emphasis on any one factor. Batson places the primary determination of whether the State acted with unlawful purpose during jury selection in the hands of the trial judge. The trial judge can objectively compare numbers or other facts and subjectively evaluate the credibility of the State’s counsel in explaining the reasons for each challenged strike. Walston, 256 Kan. at 379. There will seldom be an abundance of evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge, the evaluation of which lies peculiarly within a trial judge’s province. Hernandez v. New York, 500 U.S. 352, 365, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991).
Applying the deferential Batson standard to this case, it appears none of the reasons proffered by the State relate to characteristics of any particular race. A review of the record does not convey a sense that the State purposefully attempted to strike Hispanics or African-Americans from the jury. As the State and trial judge noted, the defendant, the victim, and most of the witnesses were Hispanic; therefore, the State had no reasons to discriminate. In addition, we note that one Hispanic juror was struck by the defense. With respect to the two African-Americans struck by the State, the State pointed out that four African-Americans served as jurors. Under the circumstances, we cannot say that the trial court abused its discretion in finding the State’s justification for use of its peremptory challenges to be racially neutral.
UNAVAILABLE WITNESS
Prior to trial, the State moved, pursuant to K.S.A. 60-460(c)(2)(B) and K.S.A. 60-459(g)(4), to declare Enrique Rosas Dominguez unavailable as a witness because he no longer resided in Kansas but had returned to Mexico, probably to the state of Chihuahua. The State’s motion asserted that Rosas Dominguez was unavailable because he was an illegal alien and could not return to the United States. The judge granted the State’s motion.
K.S.A- 60-460(c)(2)(B) provides a general exception to the hearsay rule to allow the admission of hearsay evidence:
“if the judge finds that the declarant is unavailable as a witness at the hearing, testimony given as a witness in another action or in a preliminary hearing or former trial in the same action . . . when . . . the issue is such that the adverse party on the former occasion had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the testimony is offered.”
K.S.A. 60-459(g) provides in part:
“ ‘Unavailable as a witness’ includes situations where the witness is . . . (4) absent beyond the jurisdiction of the court to compel appearance by its process, or (5) absent from the place of hearing because the proponent of his or her statement does not know and with due diligence has been unable to ascertain his or her whereabouts.”
Defendant asserts that trial judge committed error in declaring the State’s witness, Enrique Rosas Dominguez, unavailable and admitting a tape recording of his preliminary examination testimony. First, he contends that the judge, who presided at the preliminary examination, cut short his cross-examination of the witness and prevented effective cross-examination of the witness, thereby denying the defendant his Sixth Amendment right to confrontation. Secondly, he challenges the trial judge’s finding that the witness was unavailable, arguing that the State failed to demonstrate it had used due diligence to locate the witness. The due diligence issue is raised for the first time on appeal.
The Sixth Amendment to the United States Constitution guarantees the right of a criminal defendant to confront the witnesses against him or her. The Confrontation Clause has been held to apply to the states in Pointer v. Texas, 380 U.S. 400, 403, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). The same right is guaranteed by the Kansas Constitution Bill of Rights, § 10. Where a witness is unavailable, the Sixth Amendment permits introduction of the preliminary examination testimony of a witness at trial because the witness’ prior statement was under oath and subject to cross-examination. Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). Furthermore, in Ohio v. Roberts, the Supreme Court stated: “[T]he opportunity to cross-examine at the preliminary hearing — even absent actual cross-examination — satisfies the Confrontation Clause.” 448 U.S. at 70.
Defendant claims the judge who conducted the preliminary examination made comments during defense counsel’s cross-examination of the State’s first witness that so intimidated his counsel, he declined to cross-examine Rosas Dominguez. Defense counsel stated:
“[T]he judge chewed my rear end until it was down to the bone. And he said he was not going to hear any of that, and I would not ask those questions, or he was going to put me in the can. And it only — it came time for — when it came time for Mr. Rosas Dominguez to testify, the judge pretty much trained me to his point of view, and I simply passed the witness, even though I have a statement that he made to the police officer on the day of the shooting that contradicts with several of the things he said at the preliminary hearing.”
The record reveals that the judge at the preliminary examination interrupted defense counsel three times during cross-examination of the first witness, Enrique Espinoza. The judge admonished defense counsel not to ask repetitive questions and reminded him that that was a preliminary examination, not a discovery proceeding, stating:
“If you have any questions that might shed some new light on what else [the witness] may have to offer here that has not already been offered, pursue that. Otherwise, let’s get on to the next witness.
“[L]et’s make sure I hear all that is relevant and cogent, and let’s not spend all day on things that have nothing to do with a preliminary examination.”
The scope of cross-examination is a matter within the sound discretion of the trial court and, absent a showing of clear abuse, the exercise of that discretion will not constitute prejudicial error. State v. Wiggins, 248 Kan. 526, 530, 808 P.2d 1383 (1991); State v. Parker, 213 Kan. 229, 231, 516 P.2d 153 (1973) (discretion of trial court extends to permitting, restricting, or refusing to allow protracted cross-examination of witness covering ground which is useless, irrelevant, or previously covered). In addition, repetitious questions may be excluded and such is not an abuse of discretion. State v. Jaso, 10 Kan. App. 2d 137, 143, 694 P.2d 1305 (1985).
Defendant now asserts that he would have impeached Rosas Dominguez with a prior statement he had made to police after the shooting. However, the record does not indicate that the judge would have prevented defense counsel from impeaching this witness with a prior statement. In addition, the record reflects that Rosas Dominguez’ statement, which defendant claims to be inconsistent, was not inconsistent. Contrary to defendant’s assertion, Rosas Dominguez never testified that he saw the victim charging Vargas.
There was no error in the admission of Rosas Dominguez’ preliminary examination testimony at trial. Therefore, the trial court did not abuse its discretion in finding that the defendant had a sufficient opportunity to cross-examine Rosas Dominguez, and there was no violation of the defendant’s Sixth Amendment right to confrontation.
Vargas for the first time on appeal contends the trial court, by not applying the due diligence standard, erred in. ruling that Rosas Dominguez was an unavailable witness within the meaning of K.S.A. 60-459(g). The standard for determining if a witness is unavailable follows the “reasonable diligence rule,” requiring a “good faith effort to obtain the witness’ presence at trial.” State v. Watie, Heard & Heard, 223 Kan. 337, 340, 574 P.2d 1368 (1978). The question of availability turns on the totality of the facts and circumstances of each case.Watie, 223 Kan. at 340.
Here, defendant failed to make a contemporaneous objection regarding the due diligence issue. As a result of defendant’s failure to raise this issue at trial, the State had no opportunity to respond. Therefore, the point is not properly before this court on appeal. See State v. Mick, 229 Kan. 157, 162, 621 P.2d 1006 (1981).
PROSECUTION AS AN ADULT
Vargas next argues that the trial judge erred in authorizing his prosecution as an adult. Vargas was 15 years old at the time of the crime. K.S.A. 38-1636(f) allows the district court to authorize adult prosecution if it finds that there is substantial evidence that the respondent should be prosecuted as an adult for the offense with which the respondent is charged. Our standard of review is whether substantial competent evidence supports the trial court’s decision. See K.S.A. 38-1636(f)(3); State v. Brown, 258 Kan. 374, 388, 904 P.2d 985 (1995) (citing State v. Tran, 252 Kan. 494, 508, 847 P.2d 680 [1993]).
K.S.A. 38-1636(e) sets forth eight factors which shall be considered by the court:
“(1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a delinquent or miscreant under the Kansas juvenile code or a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of phys ical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution.”
However, K.S.A. 38-1636(e) provides further that “[t]he insufficiency of evidence pertaining to any one or more of the factors listed in this subsection shall not in and of itself be determinative of this issue.”
Vargas argues that the district judge failed to consider factors other than the gravity of the offense and specifically failed to consider facilities and programs available to Vargas if he were prosecuted as an adult. A review of the record reveals otherwise. After presenting evidence from two witnesses at the waiver hearing, the State discussed all eight factors and the evidence presented as to each factor. The State conceded that no evidence as to the sophistication of the respondent or the facilities likely to rehabilitate him had been presented.
The judge took judicial notice that the respondent had one unadjudicated juvenile matter pending (one count of battery) and one prior adjudication (unlawful use of a weapon) and then stated:
“[T]his is . . . not an easy decision for the Court to make, but the Court considers the seriousness of the offense. The offense is against a person as opposed to property, and the Court believes that the best interest of the community would be served by criminal prosecution here. It was done in a public place where it did happen, and Hector does have a previous history with this Court, and the Court does believe this was done in an aggressive manner.”
In addition, the judge’s order authorizing defendant’s prosecution as an adult stated that the judge had “considered the factors set forth in K.S.A. 38-1636(e).”
While the judge’s analysis could have been more detailed, his comments establish that he considered not only the gravity of the offense, but also Vargas’ prior juvenile history, the pending juvenile matters, the aggressive manner in which the crime was committed, the fact that the crime was against a person rather than property, and the interest of the community in prosecuting the defendant as an adult. Under these circumstances and mindful that the failure to find one or more of the factors adverse to respondent does not preclude the trial court from concluding that respondent should be prosecuted as an adult, see State v. Walker, 252 Kan. 117, Syl. ¶ 3, 843 P.2d 203 (1992), we hold there was substantial evidence to support the court’s decision to allow the prosecution of Vargas as an adult.
SENTENCING
Vargas was sentenced to a maximum term of 15 years to life pursuant to the then-governing statute, K.S.A. 1993 Supp. 21-4501(b), for the class B felony for second-degree murder. K.S.A. 1993 Supp. 21-4501 provided a minimum sentence of 5 to 15 years and a maximum sentence of 20 years to life imprisonment. He contends that the trial court abused its discretion in imposing the maximum sentence. The defendant does not allege that the judge failed to consider the statutory factors, but argues the court failed to give sufficient consideration to mitigating factors such as defendant’s age and that a shorter sentence would have “served the needs of community safely, but still have left Hector with a chance to eventually be a valuable part of the community.”
K.S.A. 1993 Supp. 21-4606 set forth the factors to be considered by the court in imposing the lowest minimum term “consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime:”
“(1) The defendant’s history of prior criminal activity;
“(2) The extent of the harm caused by the defendant’s criminal conduct;
“(3) Whether the defendant intended that the defendant’s criminal conduct would cause or threaten serious harm;
“(4) The degree of the defendant’s provocation;
“(5) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
“(6) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission;
“(7) Whether the defendant has compensated or will compensate the victim of the defendant’s criminal conduct for the damage or injury that the victim sustained.”
At defendant’s sentencing hearing, the trial court noted that certain factors stood out:
“One thing being Mr. Vargas’ young age. At this time apparently he’s 16 years old, perhaps even looks a little bit younger than that. But I think the facts of this case, and I heard the trial and the evidence, the facts of this case indicate one more time that a 15-year-old can kill somebody just as dead with a firearm as can a 25-year-old. That does nothing to lessen the loss to this victim’s parents, family. And I would further say that as I heard the evidence . . . [it] could have supported even a charge of murder in the first degree .... At any rate . . . certainly this jury . . . found that the act of this defendant was intentional, and for him to say that he pointed a gun out of the car, but didn’t intend to hurt anybody, is just that. It’s a statement, and we all know that we’re responsible for the natural, probable consequences of our act. And if you point a gun at somebody from close range, especially like that, the likelihood is you’re going to certainly injure them, if not . . . kill them. And so, I’ve taken into consideration this young man’s age, but also taken, as far as I’m concerned, the matters as set out, the factors as set out in K.S.A. 21-4601 and 21-4606, and I think that there is nothing that I heard from the evidence sufficient to — for me to utilize as far as . . . mitigating factors concerning the number of years to be imposed in this sentence. I find . . . based upon the facts of this case, that under the proper circumstances, this defendant is extremely dangerous to the public of this community. And as was manifested in his actions on the date this crime was committed.”
We have held that a sentence which is within the statutoiy limits will not be disturbed on appeal, provided it is within the realm of discretion on the part of the trial court and not a result of partiality or prejudice. State v. Gibbens, 253 Kan. 384, 385, 855 P.2d 937 (1993). The record indicates the trial judge properly considered the statutory factors and the relevant mitigating circumstances. Therefore, we find the trial court did not abuse its discretion in sentencing the defendant.
Affirmed.
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The opinion of the court was delivered by
Davis, J.:
The case involves a question concerning uninsured motorist coverage under an insurance policy issued to Felix Degollado and Vicenta Degollado by United States Fidelity and Guaranty Company (USF&G). The United States Tenth Circuit Court of Appeals certified the following question: “Is a provision in an insurance contract limiting uninsured motorist coverage to the United States and Canada void because territorial limitations are not listed in [K.S.A.] 40-284(e) as one of the permitted exclusions to mandatory uninsured motorist coverage?” Our jurisdiction is under K.S.A. 60-3201 et seq., the Uniform Certification of Questions of Law Act. We answer the certified question “no.”
A summary of facts is set forth by the Tenth Circuit Court of Appeals:
“On April 4, 1993, Ronnie Degollado was on vacation in San Roberto, Nuevo Leon, Mexico. On that date, he was a passenger in a 1990 Chevrolet Storm 2x2 automobile driven by his sister, Connie Degollado. As they proceeded on the highway, a motor vehicle driven by Emilio Cruz Gallegos approached from the opposite direction. As Gallegos approached, the left front wheel and lug nuts of his vehicle suddenly came off and struck the Degollados’ vehicle. The lug nuts broke through their [automobile] windshield, striking Ronnie Degollado in the head. He died three days later of the resulting injuries.
“The vehicle in which Ronnie Degollado was a passenger was insured through a policy issued by United States Fidelity and Guaranty Company (USF&G). The policy was purchased and executed in accordance with Kansas law, through a Kansas agent, and delivered in the state of Kansas. The Degollados had paid all required policy premiums and had complied with all other conditions precedent to make the policy valid and enforceable. The policy contained a provision insuring passengers in the vehicle in the event of injury or death caused by an uninsured motorist, as required by Kan. Stat. Ann. § 40-284(a).
“However, the policy limited coverage to the territorial United States and the Dominion of Canada. Recause the accident in question occurred in Mexico, USF&G denied the claims of Ronnie Degollado’s survivors for uninsured motorist coverage. This lawsuit followed.”
The plaintiffs brought this action in the United States District Court. The district court concluded that the territorial restriction on uninsured motorist coverage was not void under Kansas law and entered judgment in favor of USF&G. The plaintiffs appealed this ruling to the Tenth Circuit Court of Appeals, which submitted the certified question to this court.
The question addressed to this court is whether the insurance policy territorial limitation is valid under Kansas law. The resolution of this certified question involves the interpretation of K.S.A. 40-284, governing uninsured motorist provisions in insurance contracts. The interpretation of a statute is a question of law over which this court has unlimited review. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
The question is one of statutory interpretation to determine whether the territorial limitations of the policy conflict with or attempt to diminish or omit the statutorily mandated coverage. K.S.A. 40-284(a) provides that no liability insurance policy can be sold in the state unless it contains an uninsured motorist provision with policy limits equal to the liability coverage. K.S.A. 40-284(a) is silent as to the geographic extent of mandated coverage. We have held that insurance policy provisions which condition, limit, or dilute uninsured motorist coverage mandated by K.S.A. 40-284 are void and unenforceable. Allied Mut. Ins. Co. v. Gordon, 248 Kan. 715, 733, 811 P.2d 1112 (1991). At the same time, Kansas law supports the proposition that the policy provisions must be examined, and to the extent that the provisions do not conflict with or attempt to diminish or omit the statutorily mandated coverage, the limiting provisions will be controlling between the parties. State Farm Mut. Auto. Ins. Co. v. Cummings, 13 Kan. App. 2d 630, 633, 778 P.2d 370, rev. denied 245 Kan. 786 (1989).
The plaintiffs base their argument upon subsection (e) of K.S.A. 40-284, which provides:
“(e) Any insurer may provide for the exclusion or limitation of coverage:
“(1) When the insured is occupying or struck by an uninsured automobile or trailer owned or provided for the insured’s regular use;
“(2) when the uninsured automobile is owned by a self-insurer or any governmental entity;
“(3) when there is no evidence of physical contact with the uninsured motor vehicle and when there is no reliable competent evidence to prove the facts of the accident from a disinterested witness not making claim under the policy;
“(4) to the extent that workers’ compensation benefits apply;
“(5) when suit is filed against the uninsured motorist without notice to the insurance carrier; and , . ,.
“(6) to the extent that personal injury protection benefits apply.”
The plaintiffs argue that because K.S.A. 40-248(e) does not provide for'the'exclusion or limitation of coverage when the accident occurs in Mexico, no such exclusion or limitation is allowed in the policy. More specifically, plaintiffs contend that K.S.A. 40-284 mandates uninsured motorist coverage in Kansas and subsection (e) sets forth the exclusion or limitation of such coverage. Since there is no territorial exclusion mentioned, the USF&G policy provisions attempting to impose territorial limitations are void. The plaintiffs’ argument is based upon the familiar principle of statutory construction expressio unius est exelusio dlterius, which means that the mention or inclusion of one thing implies the exclusion of another. State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977).
However, blind adherence to the maxim expressio unis est ex-elusio dlterius has never been the rule in Kansas. We have held that while the maxim may assist in determining legislative intent that is not otherwise manifest, it should not be employed to override or defeat a clearly contrary legislative intention. State v. Luginbill, 223 Kan. at 20.
Two important rules of statutory construction control that decision in this case. The first rule anda cardinal rule of construction is 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). Secondly, the legislature is presumed to intend that a statute be .given a reasonable construction so as to avoid unreasonable or absurd results. Todd v. Kelly, 251 Kan. at 520.
The purpose of K.S.A. 40-284 is to fill the gap inherent in motor vehicle financial responsibility and compulsory insurance legislation mandated in the state. See Winner v. Ratzlaff, 211 Kan. 59, 63-64, 505 P.2d 606 (1973). As such, it provides that no automobile liability insurance policy may be sold in Kansas unless it contains a provision for uninsured motorist coverage equal to its liability coverage.. See K.S.A. 40-284(a). The mandated requirements of a liability policy are contained in K.S.A. 40-3107: An insurance policy sold in Kansas must contain, at the very least,- liability provisions as mandated by K.S.A. 40-3107 and uninsured motorist coverage equal to that liability coverage as mandated by K.S.A. 40-284.
K.S.A. 40-3107(b) mandates that any liability insurance policy issued in the state must insure the policyholder against loss from damages arising out of the ownership, maintenance, or use of the covered vehicle within the United States or Canada. As. the purpose of K.S.A. 40-284 is to provide equal coverage against damage caused by an uninsured motorist, it is logical to construe it as requiring such coverage over the same geographical area, i.e., the United States and Canada. To construe the statute otherwise would result in a situation wherein liability coverage must cover the United States and Canada, but uninsured motorist coverage in the same policy must cover the insured anywhere in the world. This is an absurd result which would go far beyond the intent of the legislature that uninsured motorist coverage fill in the gap left by, and mirror, liability coverage.
Nevertheless, the plaintiffs argue that because K.S.A. 40-284(e) does not expressly list territorial limitations as a permitted exclusion, such territorial limitations cannot be applied. However, a provision providing uninsured motorist coverage in the United States and Canada is not an exclusion, limitation, or dilution of the uninsured motorist coverage mandated in K.S.A. 40-284 unless we start with the proposition that the coverage mandated by the statute is worldwide in the first place. The problem with the plaintiffs’ reasoning is illustrated by a similar case decided by the Pennsylvania Supreme Court, Hall v. Amica Mut. Ins. Co., 538 Pa. 337, 648 A.2d 755 (1994). In Hall, the court disapproved of an earlier case, Gerardi v. Harleysville Ins. Co., 293 Pa. Super. 375, 439 A.2d 160 (1981), which had used this fine of reasoning to determine that territorial limitations on uninsured motorist coverage were void. The Hall court stated:
“The rationale in Gerardi is not persuasive. It provides an illustrative example of the logical fallacy of petitio principii. The syllogism representing this rationale may be stated thus: the statute requires worldwide uninsured motorist coverage; the statute authorizes three exceptions but does not authorize a territorial limitation; explicit exceptions exclude all other exceptions; therefore the statute re quires worldwide coverage. The reasoning is valid only if one starts with the conclusion. Unless the statute requires worldwide coverage, a territorial limitation is not an exception, the rule of statutory construction, expressio unius est exclusio alterius — expression of one exception excludes all others — does not come into play, and the logic breaks down entirely." (Emphasis added.) 538 Pa. at 344.
The same is true in this case.. Were we to assume that K.S.A. 40-284 mandates worldwide uninsured motorist coverage, then any provision limiting coverage to the United States and Canada would be an impermissible exclusion of mandated coverage and, therefore, void. However, we conclude that such an assumption would be contrary to the legislative intent of K.S.A. 40-284. We are convinced that K.S.A. 40-284 must be read in pan materia with K.S.A. 40-3107 in order to determine the coverage mandated in Kansas.
When K.S.A. 40-284 is read together with K.S.A. 40-3107, it is evident that both the liability provisions and the uninsured motorist provisions in Kansas must protect the insured against liability imposed or damages suffered from accidents occurring in the United States and Canada. Any provision attempting to limit the territorial effect of this coverage is void as an impermissible exclusion. However, a provision limiting coverage to that required by the statute is not void for the same reason.
We note that our conclusion in this case echoes the result reached in the overwhelming majority of jurisdictions that have considered this same issue. See Curtis v. Allstate Ins. Co., 631 F.2d 79 (5th Cir. 1980); Mission Ins. Co. v. Brown, 63 Cal. 2d 508, 47 Cal. Rptr. 363, 407 P.2d 275 (1965); Robles v. California State Auto Assn., 79 Cal. App. 3d 602, 145 Cal. Rptr. 115 (1978); Heinrich-Grundy v. Allstate Ins. Co., 402 Mass. 810, 525 N.E.2d 651 (1988); Smith v. Illinois Farmers Ins. Co., 455 N.W.2d 499 (Minn. App. 1990); State Farm Auto Ins. Co. v. Cabuzzi, 123 N.H. 451, 462 A.2d 129 (1983); Hall v. Amica Mut. Ins. Co., 538 Pa. 337; Marchant v. S.C. Insurance Co., 281 S.C. 585, 316 S.E.2d 707 (1984); Lovato v. Liberty Mutual Insurance, 109 Wash. 2d 43, 742 P.2d 1242 (1987); Cf. Bartning v. State Farm Fire and Cas. Co., 162 Ariz. 344, 783 P.2d 790 (1989). Although we deal here with our own version of an uninsured motorist statute, we find the reasoning in the above cases persuasive.
The question put to this court by the Tenth Circuit Court of Appeals was whether a provision in an insurance contract limiting uninsured motorist coverage to the United States and Canada is void because territorial limitations are not listed in K.S.A. 40-284(e) as one of the permitted exclusions to mandatory uninsured motorist coverage. For the reasons stated above, we answer the question
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The opinion of the court was delivered by
Abbott, J.:
The issue in this case is whether the plaintiff landowner, Universal Motor Fuels, Inc., has a cause of action for breach of contract against the Kansas Department of Transportation (KDOT) or is limited to a claim for inverse condemnation. The trial court held the landowner has no cause of action for breach of contract. The landowner dismissed the claim for inverse condemnation (without prejudice) and appealed.
The landowner owns real estate in Goddard, Kansas, which abuts U.S. Highway 54, a controlled access highway. In 1962, Haynes Pruitt, Eileen Pruitt, Andrew Pruitt, Doris Pruitt, and Universal Service Station, Inc. (the landowner’s predecessors) entered into a contract with the State Highway Commission (now known as KDOT) in which the Pruitts and Universal Service Station, Inc. sold a portion of their highway access rights to KDOT, but reserving certain rights. The deed (which the contract merged into) stated in pertinent part:
“[T]he parties of the first part [plaintiff’s predecessors], in consideration of the sum of One Hundred Dollars to Them in hand paid by party of the second part [KDOT], receipt whereof is hereby acknowledged by these presents, do grant, bargain, sell and convey unto the party of the second part forever all their right, title and interest in and to the following described real estate lying and situate in the County of Sedgwick and State of Kansas, to wit:
“ ‘FOR CONTROLLED ACCESS HIGHWAY PURPOSES’ the land in Lot 1, Block C Pruitt’s Addition to Goddard, shall have no right or easement of access to the highway over and across the North line of Lot 1, Block C; Except and reserving however, unto owners of abutting land, their successors or assigns, the right of access to said highway for the purpose of entrances over and across the following described courses: BEGINNING at a point on the North line of said Lot 1, Block C, 49.0 feet East of the Northwest Comer thereof; thence East along said North line 45.0 feet; also beginning at a point on said North line, 169.0 feet East of said Northwest Comer; thence East along said North line 45.0 feet; Also beginning at the Northeast Comer of said Lot 1, Block C and extending West along said North line, 40.0 feet.” (Emphasis added.)
The landowner asserts that in this 1962 deed, its predecessors promised to give KDOT all of their access rights to U.S. 54 except for the three reserved areas. In return, the landowner contends that KDOT promised to give the landowner’s predecessors $100 and assured the landowner’s predecessors that they or their successors and assigns could keep the reserved access rights forever without the rights ever being restricted by KDOT.
Universal Service Station, Inc., built a service station/convenience store on the property. To provide access to the service station, Universal Service Station, Inc., used two of the three portions of access rights reserved in the contract and built two highway entrances.
In the summer of 1993, KDOT repaved U.S. Highway 54. In so doing, KDOT closed both of the highway entrances from the service station to U.S. 54. Upon completion of the repavement, KDOT widened, improved, and reopened one of the entrances to the service station. However, KDOT did not reopen the second entrance. The second entrance was permanently curbed for safety reasons. The third reserved area, which did not have a highway entrance built on it, was also restricted.
In December, 1993, the landowner filed a petition in Sedgwick County District Court alleging inverse condemnation because the State had taken its property without compensation. Later, the landowner amended its petition by also alleging breach of contract. The landowner contends that the closure of this entrance constituted a breach of contract by KDOT because KDOT violated its contractual promise that the landowner, as an assign or successor of the Pruitts and Universal Service Station, Inc., could keep the reserved access rights forever without restriction. KDOT contends it did not make a contractual promise that the landowner could keep the reserved access rights forever. Further, KDOT contends that even if it did make this contractual promise and breached the contract, it was justified in closing the entrance based upon the police power of the State. Finally, KDOT contends that the landowner is really bringing a disguised inverse condemnation action that should fail because of the State’s'police power. Based on these arguments, KDOT filed a motion to strike the landowner’s breach of contract claim.
The trial court found that the landowner did not have a right to recover for breach of contract and dismissed the contract claim. The court reasoned it should not recognize a breach of contract claim under the facts because the State often acquires highway access rights by contract. . Thus, if the court found that the landowner could bring this action under a breach of contract theory, then all landowners who sold a right-of-way to the State by contract could also bring a breach of contract claim. The court found this to be unacceptable because allowing breach of contract actions would expand the case law on inverse condemnation cases. For instance, in a typical inverse condemnation case, the court decides, not the jury, if a compensable taking has occurred. Whereas, in a breach of contract action, the jury would be able to determine whether a contract had been breached. Of more importance, in a breach of contract action, the landowner could recover lost business profits which are clearly excluded as damages under traditional inverse condemnation cases. Thus, the court dismissed the breach of contract action, finding that the landowner’s cause of action is for inverse condemnation in which the court must determine whether this was a compensable taking or noncompensable as the exercise of police power.
The landowner dismissed its inverse condemnation claim without prejudice and appealed the trial court’s dismissal of the contract claim to the Court of Appeals. The appeal was transferred to this court.
DID KDOT BREACH A CONTRACT?
The only way KDOT could have breached a contract when it restricted the landowner’s reserved right of access is if KDOT had promised in the 1962 deed that it would never restrict the reserved rights of access. Thus, the issue is whether in the deed KDOT promised that it would preserve the landowner’s reserved rights of access as free from restrictions forever. “[An appellate] court can review the negotiated agreement and decide its legal effect. Regardless of the construction the district court gave the agreement, [an appellate] court may independently construe the contract and determine its legal significance. [Citation omitted.]” NEA-Goodland v. U.S.D. No. 352, 13 Kan. App. 2d 558, 562, 775 P.2d 675, rev. denied 245 Kan. 785 (1989). When interpreting contracts, the court must look to the intent of the parties. Palmer v. The Land & Power Co., 180 Kan. 492, 306 P.2d 152 (1957); Catholic Diocese of Dodge City v. Raymer, 16 Kan. App. 2d 488, 825 P.2d 1144, aff’d 251 Kan. 689, 840 P.2d 456 (1992).
According to the landowner, the reservation of access rights in the contract constituted a promise or assurance by KDOT which it gave to the landowner’s predecessors, their successors, and their assigns that the landowner would continue to enjoy access to the highway at those specific points forever. The landowner concedes that the contract was for the sale of the landowner’s predecessors access rights to KDOT. However, the landowner contends that KDOT intended to give the landowner’s predecessors something in return for these access rights — $100 and an assurance that the reserved access rights would never be disturbed. The landowner argues that if KDOT did not intend to make this promise, then the contract would have simply described the specific areas which the landowner’s predecessors were selling to KDOT. Instead, the contract specifically stated that the landowner’s predecessors reserved access rights which accrued to the grantors, their successors and assigns. According to the landowner, the deed expressed a covenant that KDOT would never restrict the reserved access rights which ran with the access rights to successive owners.
KDOT contends that the parties did not agree in the contract that the landowner’s predecessors, their successors, and their assigns could keep the reserved access rights forever or that the rights would always' be free from restrictions. The clause at issue is: “Except and reserving however, unto owners of abutting land, their successors or assigns, the right of access to said highway for the purpose of entrances over and across the following described courses . . . [land description].” Citing Black’s Law Dictionary, KDOT asserts that the word “reserving” as used in the contract is used to describe property rights which are retained or set aside for a particular purpose or person. According to KDOT, the “reserved” access rights as guaranteed in this contract mean that the access rights will remain with the landowners but not that the rights are protected forever against a restriction by KDOT’s police power. KDOT contends that the contract does not contain any language which guarantees that it would never need to redo the highway and restrict the landowner’s access rights for safety reasons. In fact, KDOT contends that it does not even have the power to contract away its police power if it wanted to. According to KDOT, the contract should not be interpreted as the landowner contends because this was not the parties’ intent.
“[Restrictive covenants in deeds are to be construed in accordance with the intent and purpose of the grantors after examination of the entire instrument under consideration.” South Shore Homes Ass'n v. Holland Holiday’s, 219 Kan. 744, 751, 549 P.2d 1035 (1976) (citing Sporn v. Overholt, 175 Kan. 197, 262 P.2d 828 [1953]). This court has held that “where atnbiguity or uncertainty of contract is involved in an agreement, the intention of the parties is not ascertained by resort to literal interpretation, but by considering all language employed, the circumstances existing when the agreement was made, the object sought to be attained, and other circumstances, if any, which tend to clarify the real intention of the parties.” Richardson v. Northwest Central Pipeline Co., 241 Kan. 752, 758, 740 P.2d 1083 (1987).
We hold the “reserving” and “excepting” language along with the description of the land simply indicates that the landowner’s predecessors conveyed most of their highway access rights to KDOT, but reserved three specific access points as easements appurtenant. “ ‘ “An easement appurtenant inheres in the land, concerns the premises, and is necessary to the enjoyment thereof. It is incapable of existence separate and apart from the particular messuage or land to which it is annexed, there being nothing for it to act on.” ’ ” Allingham v. Nelson, 6 Kan. App. 2d 294, 296, 627 P.2d 1179 (1981) (quoting Smith v. Harris, 181 Kan. 237, 247, 311 P.2d 325 [1957]). The easements at issue concerned the dominant estate (the land which the service station was on), allowing the landowners and their customers to have access to the highway from the service station. Thus, the contract reserved and excepted three easements appurtenant.
The landowner contends that the landowner’s predecessors did not merely reserve easements in the contract. Instead, the landowner implies that the “successors and assigns” language of the contract indicated a promise by KDOT that it would never restrict the easements but instead would preserve the easements forever so the landowners’ successors and assigns could use them. In other words, the landowner believes the deed contained a restrictive covenant running with the land, promising that KDOT would never restrict the easements reserved in the contract. See Beall v. Hardie, 177 Kan. 353, 356, 279 P.2d 276 (1955) (defining a covenant as a contractual promise.) We disagree with the landowner’s interpretation of the contract.
An easement appurtenant “ ‘ “attaches to the land to which it is appurtenant, and passes to the heirs or assigns of the owner of the land, such as by a conveyance or devise of the dominant estate.” ’ ” 6 Kan. App. 2d at 296 (citing 181 Kan. at 247). (Emphasis added.) The “successors or assigns” language in the contract simply refers to the legal rule that easements appurtenant pass to the assigns of the original owner. The language was used in the contract to make it perfectly clear that the access rights reserved in the contract were easements appurtenant which passed to the landowners’ successors and were not easements in gross or any other type of property. This “successor and assigns” language was not meant to be a promise by KDOT that the landowners or their assigns would own the easements forever without any restrictions imposed by KDOT’s police power. On the contrary, easements appurtenant, even though they pass to the assigns of the original owner, are not protected from restriction by KDOT’s police power. See Smith v. State Highway Commission, 185 Kan. 445, 453, 346 P.2d 259 (1959) (“The police power is the power of government to act in furtherance of the public good, either through legislation or by the exercise of any other legitimate means, in the promotion of the public health, safety, morals and general welfare, without incurring liability for the resulting injury to private individuals.”) Based upon the facts of this case, the easements at issue should not be treated any differently just because they were reserved in a contract in which KDOT, as the landowner of the servient estate, agreed to the easement.
Thus, the three easements appurtenant reserved in the 1962 deed passed to Universal Motor Fuels, Inc., as an assign or successor of the Pruitts and Universal Service Station, Inc., and would have continued to pass to the assigns and successors of the dominant estate, except two of the easements were subsequently restricted by KDOT. The “successors and assigns” language in the contract does not indicate that KDOT promised to preserve the access rights for the landowner forever and never restrict them. Since KDOT did not make this promise or convey a restrictive covenant running with the land in the contract, KDOT could not have breached the contract by subsequently restricting two of the easements. The contract was completely satisfied when the landowner’s predecessors gave KDOT the access rights contracted for while reserving the easements and KDOT gave the landowners $100. The restriction of one of the reserved easements had no effect on the contract.
Having held the defendant has no cause of action for breach of contract in this case, the remaining issues are moot.
The landowner’s issue of whether the action of KDOT in this case is a reasonable exercise of police power is not moot. However, this issue was not decided by the trial court, as it was an issue in the inverse condemnation case which the landowner dismissed without prejudice; thus, it is not properly before this court.
Affirmed.
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The opinion of the court was delivered by
Six, J.:
The first impression issue is whether the physician in this case owes a duty to the bicycling plaintiffs (or other members of the driving public) under either Restatement (Second) of Torts § 315 (1964) or § 324A (1964), arising from his failure to warn the patient not to drive. Kenneth C. Calwell and Joseph W. (Trey) Hall were injured in a head-on collision with a car driven by defendant Sharon K. Rylant. Rylant fell asleep while driving on August. 8, 1991, and veered across the road. Defendant Rizwan U. Hassan, M.D., a neurologist, was treating Rylant for a sleep disorder. Cal-well and Hall alleged that. Hassan negligently treated Rylant for her sleep disorder and failed to warn her not to drive. The district court granted Hassan’s motion for summary judgment,- deciding as a matter of law that he owed no duty to Calwell and Hall. In the alternative, the district court reasoned that even if a duty was owed, no causal connection existed between Hassan’s failure to meet that duty and the plaintiffs’ injuries. Calwell and Hall appealed. The Court of Appeals reversed. Calwell v. Hassan, 21 Kan. App. 2d 729, 908 P.2d 184 (1995). Our jurisdiction results from granting Hassan’s petition for review. K.S.A. 20-3018(b).
We find no duty owing, reverse the Court of Appeals, and affirm the trial court. (Two personal injury suits are consolidated in this appeal. Both Calwell and Hall sued Hassan. Calwell also sued Rylant. The Court of Appeals granted Calwell’s application for permission to take an interlocutory appeal.)
FACTS
Hassan first saw Rylant, who was 45 years old, on June 21,1988, for her problem of daytimé drowsiness. Hassan’s notes from the initial visit reflect: “According to [Rylant], she sleeps on her breaks at work and also while driving she has to fight to stay awake and also she feels foggy most of the time.” Hassan’s impression was: “Disorder of excessive sleep (D.O.E.S.). Rule out narcolepsy.” Rylant was scheduled for a “multiple sleep latencies test” (MSLT), which involves allowing the patient to fall asleep in a laboratory setting. The time it takes the patient to fall asleep is measured and compared. Rylant also underwent a polysomnogram, which involves an overnight sleep monitored in a laboratory setting.
Hassan observed Rylant had no breathing problems in her sleep, which showed she did not have sleep apnea. Hassan’s impression was that the MSLT results were consistent with the disorder of “excessive daytime sleep.” He ruled out the possibility that Rylant had narcolepsy, based on her history and the lack of associated symptoms. Hassan described narcolepsy as “an irresistible sleep and patient will fall asleep without warning” and “has more than usual REM sleep.” Rylant had no history suggesting cataplexy, which is a symptom that often accompanies narcolepsy.
Because the accident injuring Calwell ,and Hall occurred more than 3 years after Rylant’s initial appointment, we will describe her’ treatment schedule with Hassan.
On July 27,1988, Hassan explained the test results to Rylant and prescribed 25 mg. of Elavil at bedtime for 4 days, thereafter increasing to 50 mg. at bedtime. Hassan next saw Rylant on August 8, 1988. Rylant was pleased with the Elavil and did not have to fight sleep any more during the daytime. “Rylant stated that after she started taking Elavil and also after the dosage was increased, she had no problem staying alert when driving.” 21 Kan. App. 2d at 730-31. Hassan continued the Elavil at 50 mg. per day at bedtime and scheduled Rylant for an appointment in 3 months. On August 17, 1988, Rylant saw Hassan for a complaint of hives. He gave her Benadfyl, along with the Elavil. On November 11, 1988, Rylant complained to Hassan that the Elavil was not working as well and she had a recurring problem of sleeping in the daytime. He increased the Elavil to 75 mg. per day at bedtime and scheduled a follow-up appointment in 1 month. Rylant saw Hassan again on December 21, 1988, and she was doing fine. A follow-up visit was scheduled in 3 months. However, Rylant did not keep her appointment and did not see Hassan again until June 1, 1989, when she complained of problems with sleepiness. Hassan increased the Elavil to 100 mg. per day at bedtime and scheduled a follow-up visit in 3 months. Rylant again did'not keep her appointment. She next saw Hassan on July 31, 1990. His notes reflected that she complained of not having sound sleep during the night, more dreaming, and she could sleep during daytime anytime. She also seemed more depressed. Hassan started Rylant on 20 mg. per day of Prozac in the morning on a trial basis (along with the Elavil at bedtime) and scheduled Rylant to come back in 20 days. Rylant reported “doing better” at her August 22, 1990, follow-up visit. The medication was continued; and she was scheduled for another appointment in 4 months, which she did not keep. Hassan did not see Rylant again until July 29, 1991, when she complained of dozing off at work and going into a dreaming state. She also took occasional naps at break during work. Hassan discussed with Rylant her sleep hygiene, i.e., sleep schedule, habits, and diet. He scheduled her for a follow-up visit in 4 months.
Before the August 8, 1991, accident Rylant had never fallen asleep driving. She had not reported to Hassan, other than in the initial June 1988 appointment, any problems related to her driving. “Hassan testified that Rylant never told him at any of her appointments that she had ever fallen asleep while driving, as she had done at work, nor that she could not stay awake while driving. For these reasons, Hassan stated he did not feel it was necessary to warn her not to drive.” 21 Kan. App. 2d at 731. Hassan understood her initial complaint to mean that she could stop driving if she felt drowsy. Rylant did not ask Hassan whether she should drive. Rylant’s husband said that if Hassan had told Rylant not to drive, he would have been available to drive her to work.
Initially, when Rylant took the prescribed medication, she always was alert. When Rylant did not return for her scheduled appointments, it was because the medication was working. She was not having trouble with sleepiness or drowsiness during the day. She did not go to the doctor unless something was wrong.
On August 8, 1991, Rylant arose as usual at 4:30 a.m., fixed her husband breakfast, and left the house to drive to work. She customarily left at 5:45 a.m. Her work shift began at 7:30 a.m. She stopped at the stop sign and crossed an intersection which was tom up and required some maneuvering. Between crossing that intersection and coming to the next intersection, she began to feel drowsy. The next thing she knew, she heard someone say, “Oh my God,” felt an impact, and stopped her car on the left side of the road; she had struck and seriously injured bicycle riders Calwell and Hall.
On the day of the accident, Rylant knew that she had a problem with drowsiness and that it was getting worse. She had never before just fallen asleep like she did that morning. However, she knew she could fall asleep if she was drowsy and that she should not drive if she was too drowsy. She knew from common sense that if she got drowsy, she would pull off to thé side of the road, but she did not recall ever having pulled over on . the way to work.
Rylant phoned Hassan after the accident that day and came to see him. She reported that her problems with drowsiness commenced 2 days before the accident. Also, she had been having dizziness and vertigo during the week before the accident and had gone to see another doctor for a virus affecting her inner ears. Hassan told her not to drive until her dizziness and vertigo improved and asked her to call him in a week to schedule a new polysomnogram and MSLT. Rylant did not return to Hassan. She stopped taking her medicine and did not see anyone else for the drowsiness problem. She has driven herself to work since the accident.
The Summary Judgment Motion
Hassan asserted in his motion for summary judgment that as a matter of law, he did not owe a duty to either Calwell or Hall (attached to the motion were portions of depositions — his own, Rylant’s, and Calwell’s — and part of Rylant’s medical records.). Calwell and Hall responded, controverting some of Hassan’s factual allegations and submitting portions of depositions of Hassan; Rylant; Rylant’s husband; Dr. Harry White, Clinical Professor of Neurology at the University of Missouri, Columbia, Missouri, plaintiff’s medical expert; Dr. Dorsey Dysart, Hassan’s medical expert; and excerpts from various medical texts concerning sleep disorders.
Calwell and Hall submitted excerpts of pages from the Physician’s Desk Reference (PDR) describing the drugs Elavil and Prozac. Elavil is described as an amitriptyline and an antidepressant with sedative effects. Prozac is described as an antidepressant suggested for depression.
White reviewed the medical records. He was not certain whether Rylant had narcolepsy. His best guess was that she had idiopathic CNS hypersomnolence, which is one type of excessive daytime sleep disorder, and could also be narcolepsy. White described narcolepsy as a disorder of excessive sleep characterized principally by periodic attacks of an irresistible urge to fall asleep. When asked the question “This patient, Mrs. Rylant, did not have narcolepsy, did she?” White responded, “I’m not certain what she had.” When asked whether there was a difference between narcolepsy and idiopathic hypersomnolerice, White stated, “I don’t think that’s a resolved issue yet.” White’s report does not state that Hassan’s treatment was inappropriate. White did not offer any comment on whether the medication Rylant was taking contributed to her drowsiness on the date of the accident. When asked what medications Rylant was taking on the date of the accident, White stated, “I have no idea what medicine she was on that morning.” In a letter to counsel for Calwell and Hall, White gave the following opinions:
“(1) Was Dr. Hassan’s diagnosis of excessive daytime sleeping disorder correct?
“Yes. Her history clearly indicated a pathological state beyond simple tiredness, fatigue, or exhaustion. Mrs. Rylant, by the history recorded, has what is diagnostically referred to as a Disorder Of Excessive Somnolence. I suspect that a more specific diagnosis would be idiopathic hypersomnolence. This description refers to repeated and persistent drowsiness without known cause and the absence of REM-onset sleep and cataplexy.
“(2) Was the treatment appropriate?
“In part, yes. Sleep hygiene instructions as given are appropriate. The medication prescribed, amitriptyline [Elavil], is appropriate for the symptoms of cat aplexy . . . which she did not have. Medications used to prevent excessive somnolence are Ritalin, Dexedrine, and Cylert.
“(3) Should Dr. Hassan advise her not to drive?
“In my opinion, he should have advised her not to drive until her symptoms of excessive daytime somnolence became controlled with medication or otherwise ceased.”
Dysart’s impression based on a review of Rylant’s medical records and not on a personal examination, was that Rylant had a “hypersomnolence secondary to mood disorder.” He disagreed with White’s diagnosis of idiopathic hypersomnolence. Dysart described hypersomnolence as “[ejxcessive daytime sleepiness, more than usual, causing difficulty in the daytime, making it difficult to stay awake.” Dysart believed that a person with Rylant’s MSLT results could have an irresistible urge to go to sleep during the day. He did not say that Rylant’s history showed she had such irresistible urges. When asked whether Dysart believed that driving should have been discussed with Rylant, he stated:
“Depends on the degree. There are, basically, they talk about three levels of hypersomnolence with the International Classification of Sleep Disorders from mild to severe. She says she never had trouble staying awake driving and only napped occasionally, never got in trouble when she was working for being found asleep on the job. There was a history that the husband never noted that she had difficulty staying awake when driving. I think it would have been left up to the conversation, but with that I would say I have no reason to say, based on that, not to drive unless there is apparent urges to fall asleep that she couldn’t resist. For example, in the case of narcolepsy, was napping at work, and I don’t know how stimulating it was.” (Emphasis added.)
Dysart did not think it was inappropriate to use Elavil. However, Dysart would not use Prozac, that is, it would not be his first drug of choice, because it can cause insomnia in some and a sedation response in others. Dysart was under the mistaken impression that Hassan had prescribed Prozac to be taken at night, instead of the morning.
The district judge decided, as a matter of law, that Hassan owed no duty to Calwell and Hall and also stated an alternate reason for his decision:
“Even if the duty plaintiff claims exists, there is, as a matter of law, no causal connection between the failure to meet that duty by Hassan and the accident. Nothing would have been accomplished for Hassan to have advised Rylant not to drive. . . . His advising her of what she already knew would be redundancy accomplishing nothing and is certainly too scant a connection to hable him for her negligent actions.”
The district judge noted that he could not “discern medical testimony and evidence that Dr. Hassan deviated from standard medical care in the administration of either Elavil or Prozac” and none of what was presented “create[d] a factual dispute dealing with either medically inappropriate medication of Rylant or failure to advise her of the effects of medication causing drowsiness or sleeping while driving.”
The Court of Appeals reversed and remanded, determining that under Restatement (Second) of Torts § 315, the doctor-patient relationship between Hassan and Rylant was a “special relationship” and “there may have been a duty to warn Rylant not to drive.” 21 Kan. App. 2d at 748. The Court of Appeals also recognized that Hassan maybe liable under Restatement (Second) of Torts § 324A, in that his failure to warn Rylant not to drive “may have increased the risk that Rylant would cause physical harm to herself and the driving public.” 21 Kan. App. 2d at 748. The Court of Appeals did not decide as a matter of law that Hassan had a duty to advise Rylant not to drive, but rather said only that Hassan “may” have had such a duty. The legal question of whether a duty exists was left to the trier of fact. The Court of Appeals also noted a “disputed issue of causation.” 21 Kan. App. 2d at 749. The Court of Appeals labeled this case a “personal injury/medical malpractice case.” 21 Kan. App. 2d at 729. Personal injury negligence and medical malpractice cases require similar proof, except the element of injury and causation in medical malpractice cases is usually phrased in terms of a causal connection between the breached duty and the injury “sustained by the patient.” See Wozniak v. Lipoff, 242 Kan. 583, 587, 750 P.2d 971 (1988). Although key players in this case include a physician and a patient, there is no allegation here of injury “sustained by the patient.” Thus, while this is a negligence case based in part on the actions of a physician toward his patient, we disagree with the medical malpractice characterization. See Boulanger v. Pol, 258 Kan. 289, 297-98, 900 P.2d 823 (1995).
DISCUSSION
This case is before us on summary judgment. The standard of review applicable to summary judgment motions instructs us to ask: (1) Do 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; (2) could reasonable minds differ as'to the conclusions drawn from the facts; (3) have we read the record in the light most favorable to the party defending against the motion; arid (4) has the nonmoving party come forward with specific facts showing a genuine issue for trial? Moorhouse v. City of Wichita, 259 Kan. 570, 575-76, 913 P.2d 172 (1996). From our review of the record, we conclude no disputed material facts preverit our consideration of whether a duty is owing from Hassan to Calwell and Hall.
Is There A Duty Owing?
Calwell arid Hall’cdntend that Hassan had a duty to warn Rylant not to drive because her driving was á foreseeable risk to the driving public. They reason that if a doctor knows or should have known that a patient’s condition might impair the ability to drive, the patient should be warned. According to Calwell and Hall, Hassan “breached his duty owed to Rylant, and given the foreseeable dangerous nature of her condition,” (21 Kan. App. 2d at 735) he also breached a.duty to the general public.
A review, of the elements of a negligence claim is appropriate. For negligence to exist there must be a duty owed by one person to another and.a breach of that duty. The injured party must show: (1) a causal connection between the duty breached and the injury received and (2) damage from negligence. An accident which is not reasonably foreseeable by the exercise of reasonable care and prudence is not sufficient grounds for a negligence action. A fundamental rule is that actionable negligence must be based on a breach of duty. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983). A special relationship between certain persons could cause a duty. Whether a duty exists is a question of law. Whether the duty has beeri breached is a-question of fact. Whether there is a causal connection between the breached duty and the injuries sustained is also a question of fact. 234 Kan. at 488.
Our review of questions of law is unlimited. P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 831, 877 P.2d 430 (1994). Without a duty there can be no breach to support thé claims of Calwell and Hall. See Nero v. Kansas State University, 253 Kan. 567, 571, 861 P.2d 768 (1993).
The Court of Appeals applied the Restatement (Second) of Torts § 315 and § 324A and found a duty owing. Thus, we turn to an examination of those two sections of the Restatement as applied in our cases. We begin with the observation that historically there is no general duty to act for the protection of others.
We said in C.J.W. v. State, 253 Kan. 1, Syl. ¶ 2, 853 P.2d 4 (1993):
“As a general rule, in the absence of a ‘special relationship’ there is no duty on a person to control the conduct of a third person to prevent harm to others. A special relationship may exist between parent and child, master and servant, the possessor of land and licensees, persons in charge of one with dangerous propensities. and persons with custody of another.”
The Court of Appeals found a § 315 “special relationship,” observing “there may have been a duty to warn Rylant not to drive.” 21 Kan. App. 2d at 748.
The Restatement (Second) of Torts § 315 (1964), provides:
"There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
“(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
“(b) a special relation exists between the actor and the other which gives to the other a right to protection.”
Comment (c) to § 315 in part explains:
"The relations between the actor and a third person which require the actor to control the third person’s conduct are stated in §§ 316-319. [§ 316, Duty of Parent to Control Conduct of Child; § 317, Duty of Master to Control Conduct of Servant; § 318, Duty of Possessor of Land or Chattels to Control Conduct of Licensee; § 319, Duty of Those in Charge of Person Having Dangerous Propensities] The relations between the actor and the other which require the actor to control the conduct of the third persons for the protection of the other are stated in §§ 314A and 320.”
We recently considered the existence of a physician-patient special relationship involving a duty to warn claim under § 315 in Boulanger, 258 Kan. 289. Our holding in Boulanger is significant in the resolution of this case. See Boulanger, 258 Kan. at 304 for a list of our § 315 special relationship cases.
Boulanger was shot by Hill, a patient of Dr. Pol’s, 10 days after Hill’s release from Applewood Care Center, Inc. (Applewood), an intermediate health care facility which Hill had voluntarily entered. Although before entering Applewood, Hill had a history of violence against Boulanger, his uncle, Hill did not indicate any intention to harm Boulanger while at Applewood. Boulanger sued Pol, Apple-wood’s medical director, and Applewood for negligent release: Pol was Hill’s primary care physician during Hill’s stay at Applewood. The district court granted summary judgment for defendants. One of the issues was whether Pol and Applewood owed a duty to Boulanger based on the special relationship doctrine in § 315 of the Restatement. Boulanger argued that Pol had a duty either to detain Hill and seek his involuntary commitment or to warn Boulanger of the danger. We held that no § 315 special relationship existed. Boulanger was fully aware of his nephew’s propensity for violence at the time of Hill’s release. Pol and Applewood had neither a duty to warn Boulanger, nor a duty to take affirmative action, to control Hill even if a special relationship under § 315 had been established. 258 Kan. at 308. We further determined that neither Pol nor Applewood had the requisite control of Hill which might create a duty under § 319 (duty of those in charge of a person having dangerous propensities). 258 Kan. at 308. Thus, no special relationship existed imposing any duty under § 315.
None of the Kansas cases in which a “special relationship” has been found concern medical doctor/outpatient relationships. We are aware that Mahomes-Vinson v. U.S., 751 F. Supp. 913 (D. Kan. 1990), did find a § 315 special relationship between a psychotherapist and a voluntary mental patient in a negligent release case arising from the rape, sodomy, and murder of two young girls. The Mahomes-Vinson court noted that the records indicated the mental patient had 90 incidents involving sexual deviance or violent behavior since beginning treatment at the Veterans Administration (VA). The patient’s wife stated he had fantasies about little girls 2 weeks before the murders. The patient told the supervising physician prior to release that “I need to stay away from little girls.” 751 F. Supp. at 916. A psychiatrist opined that the patient should have been involuntarily committed at the time óf his release and that the two murdered children were identifiable as potential targets at the time of discharge. Mahomes-Vinson focused on the VA’s duty to detain its mental patient, possibly evén to the extent of seeking involuntary commitment. Mahomes-Vinson is distinguished from this case.
Only in C.J.W., 235 Kan. 1; Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984); and Washington v. State, 17 Kan. App. 2d 518, 839 P.2d 555, rev. denied 252 Kan. 1095 (1992), (all involving juvenile or adult incarceration settings) was there a finding of a special relationship creating any duty under § 315. In Boulanger, we decided that a psychiatrist owed no affirmative duty to the injured plaintiff with respect to a voluntary mental patient. 258 Kan. 289. In Nero, 253 Kan. 567, we found that a material issue of fact remained about whether Kansas State University (KSU) owed Nero a duty under a landlord-tenant theory, not under § 315. Nero, a female student, was sexually assaulted in a KSU residence hall by Davenport, a male co-resident. She sued KSU for negligence, alleging KSU had a duty to protect her against Davenport’s assault. At the time of the assault, Davenport had a rape charge pending against him for an incident with another female student in a different residence hall. The district court granted KSU’s motion for summary judgment. On appeal, Nero argued that
“KSU took charge of Davenport and was under a duty to exercise reasonable care to control him and prevent him from physically harming others because the university knew or should have known he was likely to cause such harm. The legal basis for argument is Restatement (Second) of Torts § 315(a), 319 (1964).” 253 Kan. at 581.
We disagreed, holding that “KSU did not have the type of control or custody over Davenport contemplated by § 315.” 253 Kan. at 582.
We have, imposed a § 315. duty only in situations involving a dangerous person in a custodial setting.
Finding no direct Kansas authority supporting the existence of a § 315 special relationship between a medical doctor and patient in an outpatient setting, the Court of Appeals was “most persuaded” by two duty to warn cases cited by Calwell and Hall: Duvall v. Goldin, 139 Mich. App. 342, 362 N.W.2d 275 (1984), and Myers v. Quesenberry, 144 Cal. App. 3d 888, 193 Cal. Rptr. 733 (1983). 21 Kan. App. 2d at 739. The pivotal role played by Duvall and Myers in the Court of Appeals’ opinion invites comment on the two decisions.
Alice and William Duvall were injured when their car was hit by a car driven by Hubbard, who was an epileptic. The Duvalls sued Hubbard and later, Dr.. Goldin, the physician treating Hubbard, claiming Goldin owed a duty to persons on the public highway to properly treat Hubbard. Goldin had breached that duty by failing to prescribe and continue Hubbard on anti-epileptic medication and to instruct Hubbard not to drive after removing Hubbard from the medication. The trial court granted summary judgment for Goldin. The Court of Appeals of Michigan reversed, relying on: (1) § 315 of the Restatement, (2) Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976) (decedent’s killer confided intention to kill decedent to therapist; therapist held to have special relationship duty to warn readily identifiable victim of patient’s violent intentions), and (3) Davis v. Lhim, 124 Mich. App. 291, 335 N.W.2d 481 (1983) (psychiatrist held to owe duty to exercise reasonable care to protect decedent against dangerous tendencies of patient).
The Duvall court found a § 315 duty owing under circumstances beyond those provided in §§ 314A or 316 through 320. Duvall relied on the “dangerous person” theory, i.e., Hubbard (who had had previous epileptic seizures) was a dangerous person when removed from his anti-epileptic medication. 139 Mich. App. at 350. Duvall is factually distinguishable. Rylant was not a “dangerous person.” She had not been removed frbm medication required to prevent seizures. She told Hassan at the time she first sought treatment that she had to fight to stay awake while driving. She never told Hassan that she had fallen asleep without warning while driving. Rylant responded positively to Hassan’s treatment over 37 months, although she periodically returned to see him for recurrences of drowsiness, and her medication was modified. We find no evidence in the record creating a material fact issue as to whether Hassan improperly diagnosed or treated Rylant’s daytime drowsiness condition. While a person prone to an epileptic seizure without warning might be viewed as potentially dangerous to others in certain situations (such as driving), Rylant’s symptoms during the time she saw Hassan did not show she posed a danger to others. While under Hassan’s treatment, she had been driving for over 3 years without incident. She also knew that she should pull over if she felt drowsy.
Myers is also distinguishable. Myers was struck by a car driven by Hansen, who, while pregnant, was suffering a diabetic attack. Hansen had seen her doctor, who advised her that her fetus was dead and needed to be removed within 18 hours. Hansen became emotionally upset. She was advised by the doctors to drive immediately to the hospital for preliminary lab tests. The accident occurred thereafter. The Myers court could not tell whether the collision occurred between the doctors’ office and the hospital or after Hansen left the hospital. The complaint against Hansen’s physicians alleged that they had negligently failed to control her conduct by allowing her to drive to and from the hospital and failing to warn her not to drive in an irrational and uncontrolled diabetic condition. She lost control of her car while having a diabetic attack. The trial court dismissed the complaint. Relying on Tarasoff, the California Court of Appeal reversed. Myers does not reference § 315. The liability issue analysis in Myers is grounded on policy considerations.
“The question of negligence liability is more accurately analyzed when the word ‘duty’ is eliminated, with the focus solely on the issue of whether liability should be imposed. This issue, in turn, is best analyzed by determining whether public policy considerations justify making an exception to the general rule of liability.” 144 Cal. App. 3d at 891.
As in Duvall, Myers reached beyond § 315 to find a special relationship and accompanying duty in the medical doctor/outpatient setting. Liability was based on the doctor’s failure to warn the patient not to drive.
Section 315 liability arises from either of two special, relationships: (a) one between the doctor and the patient imposing a duty to control the patient, or (b) one between the doctor and the person injured by the patient’s conduct imposing a duty to protect the injured person. The special relationship here concerns the one between Hassan and Rylant, not Hassan and Calwell and Hall. Cal-well and Hall do not claim Hassan had a duty to warn them.
The Court of Appeals distinguished a line of cases cited by Cal-well and Hall concerning a physician’s duty to warn others of the spread of infectious diseases, stating: “The issue in the present case is not the failure of Hassan to warn the plaintiffs, but his alleged negligence in failing to warn Rylant.” 21 Kan. App. 2d at 741. Section 315 says nothing about a duty to warn the person who is the active force in causing the injury. Instead, it discusses a duty to control such person or a duty to protect the injured person.
The only basis for imposing a “special relationship” duty under § 315 in this case is under the theory that Hassan’s actions created a risk of harm to Calwell and Hall. Rylant already was aware of her daytime drowsiness problem at the time she first sought treatment. Rylant also knew that she should pull over if she felt drowsy while driving. There was no evidence that the medication Hassan prescribed for Rylant caused or worsened her daytime drowsiness problem. She had been taking the same level of medication for slightly over a year before the accident. “Rylant testified she was feeling fine and had no problems between August 22, 1990, and July 29, 1991.” 21 Kan. App. 2d at 731. According to the PDR excerpts submitted by Calwell and Hall, Hassan’s prescription levels for Elavil and Prozac were within the recommended dosages. We find no issue of material fact about whether Hassan’s conduct created a risk of harm to Calwell and Hall.
We have found a duty owing under § 315(a) only in situations in which the party owing the duty did have the ability or right to control the third person causing the harm. See Boulanger, 258 Kan. 289, P.W., 255 Kan. 827, and C.J.W., 253 Kan. 1. Calwell and Hall concede that Hassan had no duty to control Rylant but rather a duty to warn.
Our § 315 analysis in Boulanger is applicable to the disposition of the § 315 issue here. We find no special relationship between Hassan and Rylant exists under Restatement (Second) of Torts § 315 imposing on Hassan a duty to warn Rylant not to drive. As we noted in Boulanger, our § 315 cases are fact specific. 258 Kan. at 304. The uncle in Boulanger knew of his nephew’s dangerous attitude. Here Rylant knew she might become drowsy or fall asleep while driving. We held in Boulanger that Pol had no duty to warn the uncle of what the uncle already knew. 258 Kan. at 307. Hassan had no duty to warn Rylant of what she already knew. We acknowledge that Boulanger concerned the injured uncle’s knowledge of the risk. Here, Rylant knew the risk of falling asleep, but she caused the injury. However, the concept that there is not a duty to warn someone of what they already know applies to both cases.
Restatement (Second) of Torts § 324A(a)
The fact that Rylant was aware of her drowsiness and that she might fall asleep while driving also influences our duty to warn analysis under § 324A.
The Court of Appeals stated with respect to § 324A: “We also recognize that Hassan may also be liable for appellants’ injuries under Restatement (Second) of Torts §324A(a). He rendered services to Rylant and might be bound to recognize that those services were necessary for the protection of third persons, namely appellants.” 21 Kan. App. 2d at 748. Section 324A(a) provides:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the 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 . . . .”
The initial requirement for the application of § 324A(a) is that Hassan undertook, gratuitously or for consideration, to render services to another. See Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 669, 792 P.2d 993 (1990). In treating Rylant for daytime drowsiness, Hassan met that requirement. However, examination of our cases applying § 324A shows that merely rendering services to another does not by itself activate liability. The services rendered must be those “which [defendant] should recognize as necessary for the protection of a third person.” Restatement (Second) of Torts § 324A. “In order to meet this [threshold] requirement, the evidence must show the defendant did more than act, but through affirmative action assumed an obligation or intended to render services for the benefit of another.” McGee v. Chalfant, 248 Kan. 434, Syl. ¶ 5, 806 P.2d 980 (1991). We observed in McGee that “[T]he extent of the undertaking should define the scope of the duty.” 248 Kan. at 442.
Hassan relies on Gooch, 246 Kan. 663, and Anderson v. Scheffler, 248 Kan. 736, 811 P.2d 1125 (1991). In Gooch and Anderson, the defendants rendered services to others but were not held to have undertaken any § 324A duties to the plaintiffs. The defendants in Gooch inspecting the church that later collapsed on the plaintiffs’ decedents rendered services, but those services were not rendered to the church, and defendants did not agree to be responsible for the safety of the structure. The defendant in Anderson rendered services to the plaintiff’s employer by ordering the component parts of the conveyor system upon which plaintiff was injured. However, the defendant did not assume the obligation of designing a safe conveyor system.
In Hanna v. Huer, Johns, Neel, River & Webb, 233 Kan. 206, 662 P.2d 243 (1983), two ironworkers, injured when an improperly secured structural steel joist fell during construction of a shopping center, sued the architect. The ironworkers alleged the architect was contractually responsible for safety precautions on the job site and alternatively, the architect was negligent as to job site safety. The architect appealed the adverse jury verdict. The evidence showed that the architect had no contractual responsibility for job site safety. In addition, the architect did not assume such responsibilities outside the duties imposed by the contract. We reversed and remanded for judgment in favor of the architect. The architect rendered services, but not to the extent of undertaking responsibility for the safety of third parties.
We rejected a § 324A claim in McGee, 248 Kan. 434, which also involved a limited undertaking by the defendants. Chalfant had been drinking beer at several parties. Cooper and Lett, upon Chalfant’s request, took Chalfant from one. of the parties to his car. Chalfant was clearly intoxicated at the time. Later, Chalfant injured McGee in an automobile collision. McGee sued Cooper and Lett, claiming liability under § 324A. We reversed the district court’s denial of summary judgment, stating:
“After reviewing the Kansas case law and cases from other jurisdictions concerning § 324A and the duty to third persons for negligent acts of others, we conclude Cooper and Lett did not owe a duty of care to McGee. Cooper and Lett did not take control of Chalfant or intend to; they only agreed to transport Chalfant to his automobile. We hold this does not constitute such an affirmative act as to amount to the exercise of custody or control over Chalfant.
“The extent of the undertaking should define the scope of the duty. Here, Cooper and Lett agreed to take Chalfant to his automobile. We find no evidence that Cooper and Lett agreed to do anything further, such as see that he got home. Thus, although Cooper and Lett had knowledge Chalfant was intoxicated, they did not undertake a duty to prevent him from driving. Therefore, Cooper and Lett cannot be held liable for the negligent performance of a task they did not agree to assume.” 248 Kan. at 442.
Hassan argues that he did not undertake to protect third persons from Rylant’s driving merely by virtue of agreeing to treat her for her daytime drowsiness problem. Although Hassan undertook to treat Rylant, he did not undertake to control Rylant’s driving activities. Hassan also argues that his treatment of Rylant did not increase the risk of harm to Calwell and Hall. We agree. There was no evidence that Rylant was a dangerous driver during the time Hassan treated her before the accident. Hassan acknowledges that had he warned Rylant not to drive, the risk might have been decreased, but his failure to warn does not show that he increased such risk. During her deposition, Rylant was asked, “So then do I take it before the accident happened you were already aware of the fact that it was a possibility when you were driving to work or driving that you could doze off, get drowsy and doze off, didn’t you, you knew that, did you not?” She responded, ‘Well, I would pull over, I mean common sense would say you would pull over.” A warning to Rylant not to drive if she felt drowsy would simply be telling her something she already knew. A duty to warn does not arise when the patient already knows of the danger. Boulanger, 258 Kan. at 307.
We decline to impose on physicians a § 324A duty to warn a patient of something the patient is already aware of. In our view, such a rule would subject physicians to liability claims from unknown third parties for the acts of patients over which physicians would have no control.
The uncontroverted evidence supports the district court’s conclusion that Hassaris treatment of Rylant did not increase the risk of harm to Calwell and Hall. There was no indication that the medication caused Rylant’s drowsiness. Rylant testified that the medication she took in the morning woke her up, although she was coming to a point where it would not help. Rylant’s 1988 MSLT results showed she had a daytime drowsiness problem. There was nothing in Rylant’s history showing either that she wás subject to irresistible sleep attacks present with narcolepsy or that Hassan should have foreseen that Rylant would suddenly lose the ability to anticipate falling asleep while driving. Although she felt drowsy at times at work, Rylant never “just fell asleep like I did that morning [of the accident].” Hassan had successfully treated her drowsiness problem for 3 years, and she had never before fallen asleep in the daytime without warning. Even in the accident, she had the warning of feeling drowsy beforehand.
The Court of Appeals acknowledged Hassaris argument that his treatment of Rylant did . not increase the risk of harm to Calwell and Hall and discussed three cases on that issue: Flynn v. Houston Emergicare, Inc., 869 S.W.2d 403 (Tex. App. 1993); Joy v. Eastern Maine Medical Center, 529 A.2d 1364 (Me. 1987), and Wilschinsky v. Medina, 108 N.M. 511, 775 P.2d 713 (1989). 21 Kan. App. 2d at 745-48.
Flynn, Joy, and Wilschinsky are distinguishable. All three involved situations in which the patient was in a car accident almost immediately after seeking medical treatment at a doctor’s office or emergency room. In Flynn, there was no evidence that the treatment received impaired the patient’s driving ability, and no third-party duty was imposed. In Joy and Wilschinsky, there was evi dence that the treatment impaired the patient’s driving ability, and a third-party duty was imposed. The Wilschinsky court limited its holding to plaintiffs injured by a patient driving from a doctor’s office after the patient had just been injected with drugs known to affect judgment and driving ability. 108 N.M. at 515. We are not dealing here with a “leaving the doctor’s office” case.
Rylant last visited Hassan 9 days before the accident. At that visit,- Hassan continued Rylant on the same medication she had been taking for the previous year and ádvised her on her diet and sleeping habits. After that visit, Rylant did not experience daytime drowsiness until 2 days before the accident. She did not call or see Hassan during those 2 days. She had been experiencing dizziness and vertigo the week before the accident and had seen another doctor for a virus in her inner ear. She had been driving for more than 3 years with no complaints of drowsiness while at the wheel. Her only mention to Hassan of a driving concern was during the initial June 1988 consultation. There is no evidence that Hassan’s treatment of Rylant or his failure to warn increased the risk to the driving public.
The Court of Appeals saw Hassan’s failure to warn Rylant as raising a question of fact, apparently relying upon Joy. In Joy, plaintiff was injured in an automobile accident with Marston who was wearing an eye patch. Just before the accident, Marston had been treated for an eye abrasion at an emergency room, where the eye patch was applied. The treating physician failed to warn the patient not to drive with the eye patch. However, in Joy, the patient’s treatment (the eye patch) created the driving impairment, and there was no evidence establishing that the patient knew the eye patch was an impairment to driving. The Joy court based its holding on a recognized “general requirement” that “when a doctor knows, or reasonably should know that his patient’s ability to drive has been affected, he has a duty to the driving public as well as to the patient to warn his patient of that fact.” 529 A.2d at 1366. Here, there is no evidence that the medication prescribed by Hassan caused Rylant to become drowsy, and Rylant expressly admitted knowing through common sense that she should pull over if she felt drowsy.
Neither the uncontroverted facts nor the case law cited from other jurisdictions support the Court of Appeals’ conclusion that Hassan “may” owe a duty under § 324A.
Was There a Genuine Issue as to Any Material Fact Concerning the Question of Whether Hassan Owed a Duty to Calwell and Hall?
Calwell and Hall listed the following categories of disputed facts:
“1. The proper diagnosis of defendant’s medical condition.
“2. Whether Rylant should have been advised not to drive.
“3. Whether Rylant should have been able to anticipate losing consciousness.
“4. Whether the medication prescribed by Dr. Hassan would tend to alleviate' Rylant’s sleep disorder or exacerbate it.
“5. Whether Rylant would have discontinued driving had she been advised to.”
They assert that the district court erred in granting summary judgment because genuine issues of material fact remain. We find no evidence that Hassan’s diagnosis was incorrect or that the medication he prescribed exacerbated Rylant’s condition. We conclude from a review of the record that none of the other factúal disputes are material to our decision. “ In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case.’ ” Boulanger, 258 Kan. at 308. Our holding also makes it unnecessary to address the district court’s alternative ruling on the causation issue.
CONCLUSION
We hold, under the facts of this case,
(1) no special relationship exists under Restatement (Second) of Torts § 315 which warranted a duty on Hassan to warn Rylant not to drive because she might become drowsy and fall asleep;
(2) Hassan owed no duty to injured plaintiffs under Restatement (Second) of Torts § 324A; and
(3) there are no material disputed facts which precluded summary judgment in this case.
Judgment of the Court of Appeals is reversed. Judgment of the district court is affirmed.
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The opinion of the court was delivered by:
McFarland, C.J.:
Darron Edwards was convicted on pleas of guilty to two counts of aggravated kidnapping (K.S.A. 21-3421 [Ensley 1988]), a class A felony; two counts of rape (K.S.A. 21-3502 [Ensley 1988]), a class B felony; one count of aggravated criminal sodomy (K.S.A. 21-3506[a][3][A] [Ensley 1988]), a class B felony; one count of aggravated burglary (K.S.A. 1991 Supp. 21-3716), a class C felony; one count of attempted rape (K.S.A. 21-3502 [Ensley 1988], K.S.A. 1991 Supp. 21-3301), a class C felony; and one count of aggravated battery (K.S.A. 21-3414 [Ensley 1988]), a class C felony. Defendant’s controlling term of life consecutive to 20 years to life was affirmed in his direct appeal. State v. Edwards, 254 Kan. 489, 867 P.2d 355 (1994). This is an appeal from the district court’s denial of defendant’s subsequent pro se motion pursuant to K.S.A. 22-3504 to correct an illegal sentence.
A detailed recitation of the facts underlying the convictions is unnecessary for determination of the issue presented herein. Those facts, however, are set forth in State v. Pratt, 255 Kan. 767, 876 P.2d 1390 (1994), the direct appeal of the codefendant. The victims of the aggravated kidnapping counts were 64-year-old M.C. and her 92-year-old mother R.C. The victim in the sex crimes convictions was M.C. The victim in the aggravated battery conviction was R.C.
In his direct appeal, defendant raised' and briefed two claims of error:
1. The amended information was defective as it charged two counts of simple kidnapping rather than two counts of aggravated kidnapping to which defendant plead guilty. Defendant had filed a motion to withdraw his pleas of guilty based upon said defect and appealed the district court’s denial of his motion.
2. The district court did not consider K.S.A. 21-4601 and K.S.A. 21-4606 in denying defendant’s motion to modify the sentences imposed.
After the briefs were filed and oral arguments heard in the direct appeal, but prior to the filing of the opinion, defendant filed a written motion to withdraw the issue relative to the alleged error in charging aggravated kidnapping. The motion was granted on December 29, 1993, with the opinion being filed on January 21, 1994. The reason for the withdrawal of the issue was defendant’s concern over the “ramifications of withdrawing his plea.”
On December 27, 1994, defendant filed a pro se “Motion Attacking Sentence” pursuant to K.S.A. 22-3504 (correction of illegal sentence). The basis for the motion is the same claimed defect in the amended information which was the subject of the withdrawal in the direct appeal. Only the relief sought is different. Defendant seeks to be sentenced for simple kidnapping. This avoids the risk of exposure to increased sentences if the pleas are withdrawn. In denying the defendant’s motion herein the district court stated, in part:
“2. Following his convictions, the defendant was appointed counsel on appeal. Appellate counsel filed a brief with the Supreme Court. Issue II of the appellant’s brief starts as follows:
‘ISSUE II: The trial court erred in not granting Darron Edwards’ motion to withdraw his guilty plea in that with regard to the two counts of aggravated kidnapping (a) the complaint was defective, (b) there was no factual basis for the plea, (c) the plea was not knowingly and voluntarily made, and (d) Mr. Kidd did not provide effective assistance.
This entire issue focuses on one major error in this case: despite the state claiming it charged Mr. Edwards with aggravated kidnapping, what Mr. Edwards was actually charged with, and pled to, was simple kidnapping.’
“The defendant also raised the claim the trial court erred in denying his motion to modify sentence.
“3. The opinion issued by the Supreme Court states, in part: ‘Subsequent to the hearing of oral arguments herein, Edwards filed a motion to withdraw the issue raised relative to denial of his motion to withdraw his guilty pleas. The motion was granted.’ State v. Edwards, 254 Kan. 489, . . . 867 P.2d 355 (1994).
“4. The defendant is in no position to raise arguments to the court that were presented to the Supreme Court and abandoned. The defendant’s first complaint does not entitle him to relief.”
The two aggravated kidnapping counts state:
“COUNT ONE
in the County of Sedgwick, and State of Kansas, and on or between September 21, 1991 to September 22, 1991, A.D., DARRON * EDWARDS, did then and there unlawfully, willfully take or confine another, to-wit: [M.C.], by force or threat, with the intent in him, the said DARRON ' EDWARDS, to hold the said [M.C.], to facilitate the commission of a crime, to-wit: rape, aggravated criminal sodomy, attempted rape or theft;
“Contrary to K.S.A. 21-3421(b) (Aggravated Kidnapping, Class A Felony, Count One)
“COUNT TWO
in the County of Sedgwick, and State of Kansas, and on or between September 21. 1991 to September 22, 1991, A.D., DARRON 0 EDWARDS, did then and there unlawfully, willfully take or confine another, to-wit: [R.C.], by force or threat, with the intent in him, the said DARRON ° EDWARDS, to hold the said [R.C.], to facilitate the commission of a crime, to-wit: battery, aggravated battery, theft, rape, aggravated criminal sodomy, or attempted rape.
“Contrary to K.S.A. 21-3421(b) (Aggravated Kidnapping, Class A Felony, Count Two)”
Neither count contains the element that bodily harm was inflicted upon the victim. There is no question that at the time of the pleas and sentencing all parties considered aggravated kidnapping as the charge in each count.
The first issue to be determined is whether defendant had the right to reassert this claim of error in his motion to correct his sentence. The State argues that the district court was correct when it held that by withdrawing this claim of error from consideration in the direct appeal, defendant has abandoned this issue. Defendant in his brief states only: “Mr. Edwards initially raised this issue on direct appeal, but withdrew the issue from the court’s consideration after oral argument.” Defendant does not brief the question of the legal effect of withdrawing the claim of error.
It is well settled that an issue neither briefed nor argued on appeal is deemed to have been abandoned. State v. Pratt, 255 Kan. 767, Syl. ¶ 4; State v. Wacker, 253 Kan. 664, 670, 861 P.2d 1272 (1993); State v. Mims, 222 Kan. 335, 564 P.2d 531 (1977). In such circumstances, nonaction is considered to constitute abandonment. Here, more than nonaction is involved — defendant took specific action to withdraw the issue from consideration. Defendant did not want the issue determined because of possible adverse ramifications of being successful on this claim of error. Does withdrawal of an issue equate to saving it for later? We think not. We conclude that the withdrawal of the claim of error from consideration in the direct appeal constitutes abandonment of the claim of error. The withdrawn claim of error cannot be the basis for a second appeal.
By virtue of this determination, we do not reach the merits. The judgment is affirmed.
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The opinion of the court was delivered by
Davis, J.
This is a direct criminal appeal by Travis E. Knighten from his convictions of second-degree murder and aggravated battery of a law enforcement officer. He contends (1) the evidence was insufficient to support his convictions; (2) evidence of gang affiliation was improperly admitted, (3) he was denied a preliminary hearing, and (4) his motion for change of venue should have been granted. Finding no reversible error, we affirm.
On May 22,1993, there was a disturbance in the recreation shack at the Lansing Correctional Facility. As a result of this disturbance, one corrections officer, Mark Avery, was killed and another corrections officer, Michael Bidatsch, was severely injured. For his part in the disturbance, the defendant was charged with one count of first-degree murder and one count of aggravated battery against a law enforcement officer.
The defendant was arrested on these charges on August 30, 1993, based on an arrest warrant dated the same date. On November 2, 1993, a grand jury indicted the defendant on both charges. The defendant moved to dismiss the indictment on the grounds that he had already been charged prior to the convening of the grand jury and, therefore, was entitled to a preliminary .hearing. The district court denied his motion.
The defendant moved for a change of venue, arguing that pretrial publicity in Leavenworth County was so great that a sufficient number of fair and impartial jurors could not be summoned. After jury selection, the district court found that a fair jury had been impanelled and denied a change of venue.
Michael Bidatsch, one of the victims of the disturbance, testified that he was assigned to the exercise yard at Lansing on the day Avery was murdered. Because it was raining that day, 200 to 300 inmates were gathered in the recreation shack. Bidatsch was in the shack along with Avery, and a few other officers were in and out of the shack throughout the exercise time.
Bidatsch stated that he first became suspicious of trouble when he noticed a group of Hispanic inmates who usually played at a specific table was not there. Instead, a different group of inmates was playing at the table. Bidatsch testified that he was standing next to the ice machine in the recreation shack when an inmate named Chris Davis hit him in the head with a small weight plate. The plate then bounced off his head and struck a nearby inmate named Reich in the face.
The force of the blow drove Bidatsch to his knees. He reached for his radio but found that it was missing. He then chased Davis into the weight area but lost sight of him in the crowd. As Bidatsch went back into the main part of the recreation shack, he was suddenly attacked by a group of inmates. He fell to the ground and was kicked twice by an inmate named Darrick Harris. Other inmates hit, kicked, and threw pool balls at him as he attempted to crawl out of the shack to safety. Bidatsch testified that he could not identify all of the inmates who attacked him. He was finally able to crawl to safety, but his injuries forced him to spend 3 days in the intensive care unit at the local hospital.
H.R. Woodcock, an investigator at Lansing, stated that he was alerted to the disturbance when he heard an alarm go off. Woodcock testified that when he arrived at the recreation shack, he saw Bidatsch come out of the shack bleeding heavily. Woodcock and other officers entered the shack, where they found Avery lying in a pool of blood. Avery subsequently died from multiple blunt trauma wounds to the head.
Mark Swope, a corrections officer assisting with the investigation, testified that he obtained clothing and shoes from the defendant because the defendant was suspected of taking part in the disturbance. William Hamm, a DNA specialist with the Kansas Bureau of Investigation, testified that some blood spots on the defendant’s shoelaces matched Avery’s blood. He testified that the probability of a random match was 1 in 40 million for Caucasians, 1 in 13 million for blacks, and 1 in 15 million for Hispanics.
Delbert Hawel, another investigator, stated that he interviewed the defendant about the incident. According to Hawel, the defendant denied being in the recreation shack at the time of the disturbance and stated that any blood found on his shirt would probably be the result of a tattoo he had earlier received.
Victor King, an inmate at the facility at the time of the disturbance, testified on behalf of the State. King stated that he saw someone hit Avery with a weight plate and at sometime during the disturbance, he saw the defendant standing over Avery with a weight plate in his hand. He did not see anyone chase an inmate into the weight pit area. King admitted that in the initial investigation he had lied to officers to protect himself but stated he now felt safe because he had been paroled to Texas.
Michael Madison, another inmate at Lansing, testified that on the day of the disturbance he was playing poker at the recreation shack. He saw a white inmate named Reich get hit in the head with a weight plate. According to Madison, Avery had gone to help Reich when a group of gang members got mad and began fighting with Avery. Madison testified that during the attack the defendant was restraining Avery’s arms and legs and also hitting and kicking Avery. Another inmate, Darrick Harris, was hitting Avery with a weight plate. Madison also saw Bidatsch crawling for the door. Madison testified that he went over to where Avery was lying on the ground and saw a halo around Avery’s head. Madison then saw Avery’s spirit rise out of his body and recite Revelations 12:7.
Marquis Holmes, also an inmate at Lansing, testified that the disturbance broke out when an inmate named Green threw a weight at Bidatsch. Holmes stated that he also saw the defendant hit Bidatsch and that Bidatsch chased the defendant and Green into the weight pit area. When Bidatsch went into the weight pit area, Avery came under attack from a large group of inmates. Later he saw the defendant involved in hitting Avery.
Byron Wash, another inmate, testified that he saw Bidatsch by Reich, who had been hit by a weight plate. According to Wash, the defendant then hit Bidatsch and tan into the next room, with Bi datsch following him. Avery then came in to help Reich, and a group of inmates attacked him. Wash stated that after Bidatsch came back into the room and was attacked, he saw the defendant hitting Bidatsch.
Inmate Joe Campbell testified that prior to the disturbance, he saw the defendant take a 25-pound weight from the weight pit area and set it next to the wall by the restroom. Another inmate, Green, was holding a 10-pound weight in his hands. Campbell stated that when Avery was attacked and fell to the ground, the defendant was holding a weight plate. He also saw the defendant strike Bidatsch in the weight pit area.
Gerald Mayfield, also an inmate, stated that he felt there would be trouble on the day of the incident because there was a lot of tension in the recreation shack. He saw the defendant run into the weight pit area, followed by Bidatsch. He then saw the defendant hit Bidatsch, and there was a large disturbance. Mayfield also testified that the defendant was one of the individuals attacking Avery.
The defendant presented the testimony of Dwayne Garrett, a fellow inmate, who testified that the defendant was outside the recreation shack talking on the telephone when the disturbance happened. On cross-examination, he admitted that although the defendant was on the telephone immediately prior to the disturbance, he did not actually see the defendant on the telephone during the disturbance. Also on cross-examination, the State asked Garrett if he was a member of a gang called the Junior Boys. Garrett stated that he was not.
Inmate Demetrius Jenkins also testified that he was outside the recreation shack with the defendant using the telephone when the disturbance started. He left the defendant on the telephone and went to use the restroom, and then went back outside. On cross-examination, he stated that while the defendant might be a member of the Junior Boys, he himself is not.
Inmate Andre Jackson supported the defendant’s claim that he was on the telephone during the entire incident. He testified that immediately prior to the disturbance, the defendant was on the telephone. After the disturbance began, he, Jenkins, Garrett, and the defendant walked away from the recreation shack to the bas ketball courts. On cross-examination, he stated that he was not a gang member but that the defendant is a Junior Boy.
Finally, Tiffany Gouldsby testified on behalf of the defendant. She stated that she is a friend of the defendant and that on the day in question he talked to her on the telephone around 3 or 3:30 p.m.
On rebuttal, the State called Roger Bonner, an investigator at Lansing. Bonner stated that part of his job was to maintain files relating to gang activity within the prison. Bonner testified that the defendant, Jenkins, Garrett, and Jackson are all identified as being members of the Junior Boys. According to Bonner, gang members are extremely supportive and protective of each other.
(1) Sufficiency of Evidence
When the sufficiency of the 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. State v. Timley, 255 Kan. 286, Syl. ¶ 13, 875 P.2d 242 (1994).
The defendant argues that there was insufficient evidence for the jury to have found him guilty beyond a reasonable doubt. He contends that Bidatsch did not mention him as one of the attackers and the testimony which points to him is wildly inconsistent and not probative.
Although the defendant argues that there was not sufficient evidence to sustain his conviction, a review of the record shows numerous witnesses who incriminated the defendant as to both crimes charged. As to the murder charge, Victor King testified that he saw the defendant standing over Aveiy with a weight plate in his hand. Michael Madison testified that the defendant was hitting and lucking Avery, as well as holding him down so that others could hit him. Marquis Holmes also stated that the defendant was one of the persons attacking Avery. Joe Campbell saw the defendant taking a weight from the weight pit area immediately prior to the disturbance and saw the defendant carrying a weight during the disturbance. Gerald Mayfield saw the defendant attacking Aveiy. Finally, blood on one of the defendant’s shoelaces was consistent with Avery’s blood.
As to the charge of aggravated battery of Bidatsch, Marquis Holmes testified that the defendant hit Bidatsch and then ran into the weight pit area. Byron Wash also saw the defendant hit Bidatsch and run into the weight room and saw the defendant strike Bidatsch after he came back into the main room. Joe Campbell testified that he saw the defendant strike Bidatsch when they were in the weight pit areá. Finally, Mayfield testified that he saw the defendant strike Bidatsch in the weight pit area.
The defendant argues that because many of the stories given by the inmates testifying are inconsistent with the testimony of Bidatsch in some areas, they are not credible. However, it is well established that this court does not pass on the credibility of witnesses or weigh conflicting evidence, and all questions of credibility are resolved in favor of the State. State v. Van Winkle, 254 Kan. 214, 225, 864 P.2d 729 (1993), cert. denied 128 L. Ed. 2d 890 (1994). It was for the jury to decide the credibility of the witnesses, the weight to be given the evidence, and the reasonable inferences to be drawn from, the evidence. See State v. Bowen, 254 Kan. 618, 631, 867 P.2d 1024 (1994). Viewing all of the evidence in a light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
(2) Gang Membership
The defendant next argues that the district court erred in admitting evidence that he was a member of the Junior Boys gang. He contends that this evidence was not relevant, was highly prejudicial, and should not have been admitted.
The admission of evidence is governed by its relevancy to the issue in question, and the exclusion of evidence is within the discretion of the district court. State v. Toney, 253 Kan. 651, 654, 862 P.2d 350 (1993). Under K.S.A. 60-445, the district court has discretion to exclude evidence when its probative value is outweighed by its prejudicial effect. 253 Kan. at 653.
In the case before us, the State, over the objection of the defendant, questioned several of the defendant’s witnesses about whether the defendant was a member of the Junior Boys and whether they themselves were. Uniformly, they answered that while the defendant may be a member, they were not. The State then introduced evidence on rebuttal that all of those questioned were indeed members of the Junior Boys.and that such gang members would have a tendency to protect each other.
The defendant contends that while evidence of a defendant’s gang affiliation is admissible to show motive for an otherwise inexplicable act, it is only admissible when there is sufficient proof that such evidence is related to the crime charged, citing State v. Tran, 252 Kan. 494, Syl. ¶ 6, 857 P.2d 680 (1993). He argues that there was no such evidence in this case.
The defendant’s argument misses the point, however. The evidence of the defendant’s gang membership was not introduced to show motive, but instead to show bias on the part of the defendant’s witnesses. As such, it is relevant to show that the defendant and the witnesses testifying on his behalf were all members of the Junior Boys and, therefore, the witnesses had a strong bias. The evidence, was relevant, and the only remaining question is whether the district court abused its discretion in finding that the evidence was more probative than prejudicial.
The probative value of evidence of gang membership as it pertains to witness bias is high. In United States v. Abel, 469 U.S. 45, 49, 83 L. Ed. 2d 450, 105 S. Ct. 465 (1984), the United States Supreme Court held that evidence of gang membership is probative of witness bias, and that “[p]roof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.” 469 U.S. at 52.
Such bias is certainly relevant in this case, where the only witnesses not incriminating the defendant were all members of the defendant’s gang. While the defendant argues that this bias could have been established without mentioning gang membership simply by showing that the witnesses were friends of the defendant, this argument is not persuasive. Simple friendship does not create the same inference of incentive to protect another person that is created by evidence of membership in the same gang.
The question of whether the probative value of the evidence outweighed its prejudicial effect is one addressed to the sound discretion of the trial court. Discretion is abused only when no reasonable person would take the view adopted by the trial court. The defendant has failed to establish an abuse of discretion. This is not a case where there was no actual evidence as to gang affiliation or where gang affiliation had little relevance. See State v. Cox, 258 Kan. 557, 565, 908 P.2d 603 (1995); State v. Vincent, 258 Kan. 694, 698-99, 908 P.2d 619 (1995) (holding abuse of discretion where there was no evidence of gang affiliation and no evidence that killing was motivated by gang membership). In this case, because there was evidence that both the defendant- and his supporting witnesses were members of the same gang, membership was very probative on the issues of witness bias and credibility.
(3) Denial of Preliminary Hearing
The defendant acknowledges that a probable cause determination was made in his case through indictment by grand jury. However, he contends that once he was arrested and charged prior to the convening of the grand jury, he was entitled to a preliminary hearing under the provisions of K.S.A. 22-2902(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.”
The purpose of a preliminary examination is to afford the person arrested, as the result of a complaint, an opportunity to challenge the existence of probable cause for further detaining him or her or requiring bail. State v. Ramsey, 228 Kan. 127, 131, 612 P.2d 603 (1980). This right is purely statutory and is not required by the Constitution and, therefore, does not implicate due process. See State v. Sherry, 233 Kan. 920, 927-28, 667 P.2d 367 (1983).
K.S.A. 22-2902(1) requires that a person who has been arrested and charged with a crime be given the right to a preliminary hear ing to challenge the existence of probable cause unless an indictment has already been handed down by a grand jury, in which case, probable cause has already been established. The question presented in this case is whether a grand jury indictment can supersede a preliminary hearing if the grand jury finds probable cause before the defendant has had a preliminary hearing.
Although Kansas has not addressed this question, several federal courts have held that failure to hold a preliminary hearing where there is a subsequent indictment is not grounds for reversal. See United States v. Miller, 532 F.2d 1335, 1339 (10th Cir. 1976); United States v. Mulligan, 520 F.2d 1327 (6th Cir. 1975); United States v. English, 501 F.2d 1254 (7th Cir. 1974); United States v. Brumley, 466 F.2d 911 (10th Cir. 1972). The court in Miller stated the reason for this holding is that “once an indictment has been handed down the purpose of a preliminary hearing — to determine whether there is probable cause for the accused’s detention, [citations omitted] — has been fulfilled.” 532 F.2d at 1339.
The same may be said in this case. The reason for a preliminary hearing is so that a determination can be made as to probable cause. State v. Ramsey, 228 Kan. at 131. Once a grand jury has handed down an indictment, a determination of probable cause has been made and a preliminary hearing is no longer necessary.
The language used in K.S.A. 22-2902(1) also compels this conclusion. It provides that a preliminary hearing is necessary unless the arrest is the product of a grand jury indictment. The statute provides for some means of a test of probable cause but recognizes that once a grand jury indictment has been handed down, such a test has occurred. It matters little whether the grand jury indictment is handed down before or after the defendant is charged with the crime. In either case, a determination of probable cause has been made. The fact that the indictment came after, not before, the arrest and charge is not grounds for reversal.
(4) Change of Venue
K.S.A. 22-2616(1) provides:
“In any prosecution, the court upon motion of the defendant shall order that the case be transferred ... if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.”
The 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. The burden is on the defendant to show that such prejudice exists in the community that it was reasonably certain he or she could not have obtained a fair trial. State v. Anthony, 257 Kan. 1003, 1013, 898 P.2d 1109 (1995).
A review of the record in this case indicates that 69 potential jurors were questioned on voir dire. Many of them had read something about the case or heard about it on television, but in most cases any prior information was slight. The defendant’s argument centers around the fact that many jurors had friends or relatives working at the prison. Out of the 69 potential jurors, 29 indicated that they had friends, acquaintances, or relatives at the prison, although in many instances the acquaintances were not well known: Of those 29 jurors indicating that they knew someone working at the prison, 12 were dismissed for cause.
The record also reveals that the district court was very generous in allowing strikes for cause. In all, 27 potential jurors were, dismissed for cause. At no time did the judge refuse to dismiss any potential juror where the defendant’s attorney had requested dismissal. Of the 12 jurors seated, only four had friends or acquaintances working at the prison. This is not a case where the judge attempted to press jurors into service or where the defendant’s objections to jurors were overruled. Defense counsel passed all of the panel for cause. The defendant failed to meet his burden to show that such prejudice exists in the community that it was reasonably certain he could not have obtained a fair trial. The district court properly denied his motion for change of venue.
Affirmed.
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The opinion of the court was delivered by
Six, J.:
Before sentencing, defendant Johnnie C. Shears moved to withdraw his no contest pleas to first-degree premeditated murder, tape, and aggravated robbery. After new counsel was appointed to represent Shears, the district court heard and denied the motion.
The primary issue is whether the district court abused its discretion in denying Shears’ motion. Additional issues are whether: (a) Shears’ no contest plea to premeditated first-degree murder should be set aside because the factual basis provided failed to establish the elements of that offense; and (b) the district court erred (1) when it used Shears’ pleaded-to convictions to enhance his criminal history score and (2) in accepting Shears’ prior adjudications as a juvenile offender to calculate his criminal history score.
Our jurisdiction is under K.S.A. 22-3601(b)(l) (Shears was convicted of an off-grid crime). We find no error and affirm.
FACTS
Shears was charged with premeditated first-degree murder, K.S.A. 21-3401, an alternative count of felony murder, and attempted aggravated robbery, all arising from Shears’ killing of David Cook on December 7, 1994 (the murder case). After the pre liminary hearing, the State served notice of its intent to seek a hard 40 sentence.
Shears was also charged with: (1) rape, K.S.A. 21-3502, and aggravated battery, K.S.A. 21-3414, arising from an incident on September 27, 1994, at a Motel 6 (the rape.case), and (2) aggravated robbery, K.S.A. 21-3427, because of a robbery of Little Caesar s on December 5, 1994 (the robbery case). .
Retained counsel Thomas Lietz entered appearances on behalf of Shears in all three cases. At the time of the offenses, Shears was 17 years of age and on probation for three prior juvenile adjudications.
In a Januaiy 31, 1995, letter to Lietz, David Debenham, Assistant District Attorney, memorialized the State’s plea agreement proposal for the murder and rape cases. Shears would enter a plea of guilty to: (1) premeditated first-degree murder (the State would dismiss the attempted aggravated robbery charge and agree not to seek the hard 40 sentence), and (2) rape (the State would dismiss the aggravated battery charge). In a Februaiy 6, 1995, letter, Debenham offered that if Shears would plead in the robbery case, the State would not oppose a sentence concurrent to any sentence imposed in the murder and rape cases.
Shortly after receiving the letters, Lietz reviewed them with Shears, discussing the terms of the proposed plea bargain. However, Shears claims not to have read the letters.
The State followed through with its agreed concessions and further agreed not to seek an upward departure in the robbery case.
Before the plea hearing, District Judge James P. Buchele informed Lietz that he (Judge Buchele) had received a letter from Shears expressing dissatisfaction with Lietz. Lietz talked with Shears, Shears’ mother, and Shears’ grandparents. Lietz thought they had worked everything out.
The facts of the murder case were provided to District Judge Fred Jackson by the State during the plea hearing. Because Shears limits his claim of an inadequate factual basis to die premeditation elements in the murder case, we need not set out the facts of the rape and robbery cases.
At the beginning of the hearing, the State informed the judge of the terms of the plea agreement and made it clear that there was no agreement concerning departure in the rape case. Lietz agreed that the terms were correctly stated. The judge then asked Shears if he had had enough time to discuss die case with his attorney. Shears said that he did not understand what was said, because he understood there would be no departure. After the judge gave Shears some time to discuss the matter with his attorney, the State agreed not to seek an upward departure. The judge asked if Shears understood what was going on and if the State’s statements concerning the plea negotiations agreed with Shears’ understanding, and Shears said, ‘Tes.”
The judge asked Shears if he understood the charges in the three cases and repeated those charges to Shears. The following discussion took place:
SHEARS: “I thought the first charge was felony murder.”
COURT: “Well, it’s charged felony murder in the alternative.” (Conference with counsel).
COURT: “Do you understand the charges?”
SHEARS: “I thought it was felony murder.” (Conference with counsel).
“MR. LIETZ: Thanks, Judge.”
COURT: “(By the Court) Do you understand the charges, Mr. Shears?”
SHEARS: “Yeah.”
Shears waived formal reading of the charges.
The judge asked Shears if he understood the possible penalties for the charges, and Shears responded, “Not all of them.” Shears was given additional time. The judge asked Lietz if he had explained the possible penalties and Shears’ rights to Shears. Lietz stated they had gone through it three more times. The judge asked Lietz to state for the record his advice to Shears concerning the penalties. Lietz said: “Judge, we were looking at the murder charge as being off the grid. We were looking at the rape charge as being a Level 2, Category B. We were looking at the agg. robbery as severity Level 3 and then again B for criminal history.”
The State added:
“Judge, just for the record, the murder case carried a life imprisonment sentence with parole eligibility in 25 years. The rape case is as Mr. Lietz stated, Level 2, criminal history, I believe it appears to be B at this point and time, which would place him within 260 months at tihe low end, 275 at die middle — excuse me, 274 at the middle, 288 at the high end. However, that whole range would be depending on his criminal record anywhere from 68 months to 308 months if it was category A.
“On the Level 3, which would be the agg. robbery, again we believe his criminal history would place him in B level, which would be a low of 172 and medium sentence of 180 months, the high of 190. But the whole range, depending on his actual criminal history, would be between 46 months and 206 months.”
Shears responded ‘Tes” to the judge’s inquiry whether he understood the range of possible penalties. In response to the judge’s question, Shears also indicated he understood that his sentence would depend in large part on his criminal history and the results of a presentence investigation, and that his sentences in the cases could be ordered to be served consecutively or concurrently.
The State then orally presented the facts in the three cases. Before accepting Shears’ pleas of no contest, the judge asked if there was any reason that Shears knew of why he should not enter a plea, and Shears responded, “No.”
On February 10, 1995, Carol Williams, a court services officer, visited Shears as part of the presentence investigation. Shears had a copy of a newspaper article about his plea and a piece of paper with some numbers written on it which he showed to Williams. Shears asked Williams if the newspaper article indicating Shears was going to get 25 years was true, and Williams said that was “pretty realistic.” Shears claimed that Lietz had told him something else. Williams described the paper as having two columns of numbers, one under “good” and the other under “bad.” At the bottom of “good” was circled the number 9V2, and at the bottom of “bad” was circled the number 70 or 72. According to Shears, Lietz wrote down the different crimes, felony murder, rape, and aggravated robbery on the paper and different numbers of months for those crimes. On one side of the paper, Lietz wrote how much time Shears would be looking at if he did not plead, and on the other side, the numbers if he did plead. According to Shears, Lietz told him that if he did not plead, he could be looking at 62 years or “a hundred and something” years. Shears, tried to explain to Williams that lietz said that if he pleaded to the charges, he would end up doing 9V2 years. The sheet of paper was later lost and is not in the record.
On or about February 23, 1995, Shears asked'Othell Jones, his “guardian,” to type up a statement in which Shears requested that his plea of nolo contendere be changed to not guilty on the basis of inadequate representation and that Shears did not fully understand the plea proceedings. Shears signed it, had it notarized at the jail, and sent it to the courthouse. The statement was file-stamped March 1, 1995.- Shears also claimed to have sent to the courthouse, before his plea hearing, an earlier letter typed by Othell jones, in which Shears requested another attorney. However, the letter is not in the record. About February 27,1995, Lietz received a handwritten letter signed by Shears expressing dissatisfaction with his services. The letter claimed that Lietz had lied to Shears about doing only 9Vz years if he pleaded and- requested that Lietz have Shears’ plea withdrawn. Shears’ mother wrote the letter. Lietz then filed a motion to withdraw, which was granted.
Cindy Sewell, Assistant District Defender, was appointed to represent Shears. She filed a motion to set aside his no contest pleas. The motion advanced the following grounds:
“(1) There was confusion regarding the agreement not to seeíc'depártures;
“(2) Defendant stated he didn’t understand what was being said;
“(3) During the plea there were repeated conferences between defendant and Mr. Lietz;
“(4) Defendant thought he was pleading to felony murder;
“(5) Defendant did not understand the penalties- for the crimes;
“(6) The Court ordered Mr. Lietz to explain to defendant his rights and what was going on;
“(7) Upon being asked by the Court as to maximum penalties that defendant was , advised, Mr., Lietz merely gave severity level;
“(8) Defendant was induced to enter said plea by his attorney’s misstatements of .the law. He did not understand the consequences of his plea.”
At the hearing on the motion before Judge Buchele, Sewell called Lietz, Shears,- and Williams as witnesses. Besides direct examination and the State’s cross-examination; Judge Buchele questioned Lietz at length about his representation of Shears. Judge Buchele denied the motion, and Shears later appeared for sentencing.
The State requested that Shears be sentenced using criminal history classification A, treating the three crimes as separate cases and using them as prior crimes in the criminal history determination. The State also requested that the sentences for first-degree premeditated murder and rape be imposed consecutively. Ms. Sewell objected to the criminal history classification as “A,” opposing the use of any of the crimes in the three cases in the criminal history determination, although she agreed that Shears’ criminal history included two prior person felonies (the juvenile adjudications). Ms. Sewell requested that Shears be sentenced using criminal history category B.
Ms. Sewell asked that the motion to withdraw the plea be reconsidered and also placed the following objections to sentencing on the record: (1) ineffective assistance of counsel due to misrepresentation and wrong advice from Shears’ attorney before and at the time of the plea; (2) the complaint and affidavit in the murder case show that Shears stated the shooting was an accident; and (3) the rape case was dismissed after it was first filed, but was refiled after the murder occurred, and the rape victim stated she was intoxicated at the time and did not know who shot her.
Judge Buchele denied the motion to reconsider. He found that Shears’ criminal history classification should be “category A.”
The appeals of all three cases have been consolidated.
DISCUSSION
Withdrawal of the No Contest Plea
K.S.A. 22-3210 sets forth the procedures for acceptance and withdrawal of guilty or nolo contendere pleas. The appropriate standard of review is whether the district court abused its discretion in refusing to allow withdrawal of the plea. Shears bears the burden of showing such abuse. State v. Johnson, 258 Kan. 607, 610-11, 907 P.2d 140 (1995).
Shears contends his plea was involuntary because of Lietz’s misleading or incorrect advice. He recognizes that “abuse of discre tion” is the standard of review, but argues that the district court’s refusal to set aside his plea is a denial of constitutional magnitude.
“To set aside a guilty plea because ineffective assistance of counsel has rendered the plea involuntary, a defendant must show that counsel’s performance fell below the standard of reasonableness and that there is a reasonable probability that but for counsel’s errors the defendant would not have pleaded guilty and would have insisted on going to trial.” State v. Wallace, 258 Kan. 639, Syl. ¶ 2, 908 P.2d 1267 (1995).
Shears must overcome a presumption that Lietz’ assistance was reasonable. Chamberlain v. State, 236 Kan. 650, 654, 694 P.2d 468 (1985).
“Defense counsel has an obligation to advise a defendant as to the range of permissible penalties and to discuss the possible choices available to the defendant. [Citation omitted.] A mere inaccurate prediction by defense counsel, however, does not constitute ineffective assistance of counsel. [Citation omitted.]” State v. Solomon, 257 Kan. 212, 223, 891 P.2d 407 (1995),
Shears relies on State v. Hill, 247 Kan. 377, 385, 799 P.2d 997 (1990):
“In determining whether a defendant should be allowed to withdraw his plea, the trial court should consider whether the defendant was represented throughout by competent counsel; whether he was misled, coerced, mistreated, or unfairly taken advantage of; and whether his plea was freely, fairly, and understandingly made. [Citation omitted.]” .
Did Shears Receive Competent Representation?
Shears contends that Lietz gave him incorrect advice, which prejudiced him. If he had had correct advice, Shears says he would not have entered the pleas. Shears claims that Lietz told him the penalty for first-degree murder was “25 yeárs to life,” which was incorrect. The penalty is life imprisonment. K.S.A. 21-3401; K.S.A. 21-4706. >
During the hearing on Shears’ motion to withdraw his plea, Lietz repeatedly emphasized in his testimony that-he told Shears the penalty for premeditated first-degree murder was a “flat” 25 years before any parole eligibility.
Shears argues that he understood “25 years to life” to mean that he would only have to serve half of that time, i.e., 12Vz years, and would also be entitled to a 20% good time credit, reducing his time in prison to 9% years. Lietz denied ever telling Shears that if he pleaded to the charges offered by the State, he would be eligible for parole in W2 years. Lietz also denied telling Shears that Shears would be entitled to good time credit on the premeditated first-degree murder penalty. Most telling is Shears’ own testimony on this subject. At the hearing on Shears’ motion to withdraw his plea, the State asked Shears during cross-examination:
“Q. Okay. You knew at the time of the plea based on what I said that the premeditated murder charge that you were going to plead to, on that charge, you would have had to do at least 25 years before you were even parole eligible, didn’t you?
“A. Yes.”
Shears also contends that he thought he was pleading to felony murder, not premeditated first-degree murder, and received incorrect advice from Lietz regarding the distinction between premeditated first-degree murder and felony murder.
Lietz emphasized repeatedly in his testimony that he informed Shears that the State wanted a plea to premeditated first-degree murder, not felony murder, and that he explained the difference in the penalties.
According to Shears, Lietz also misinformed him by telling him his criminal history was category “C.” Lietz’ testimony contradicts this. Lietz said that he knew that Shears was in the B level as far as criminal history at the time of the plea. The motion to withdraw the plea does not assert that Lietz incorrectly informed Shears of his criminal history. Neither the State nor Lietz ever mentioned criminal history category C at the time of the plea.
Was Shears Misled, Coerced, Mistreated, or Unfairly Taken Advantage Of?
Other than the incorrect legal adrice he claims he received from his counsel, which is contradicted by Lietz, Shears offers no evidence of being coerced, mistreated, or unfairly taken advantage of with regard to his plea. Although 17 years old at the time of the crimes, Shears was already a seasoned criminal with extensive exposure to the juvenile court system, haring at least two prior adjudications for person felonies. Shears had only an eighth grade education. However, he could read well. During the hearing on the motion to withdraw his plea, at the judge’s request, Shears read aloud from the transcript of the plea hearing, in response to the State’s questions. Shears asked questions during his plea hearing each time he did not understand something, and the judge gave him the opportunity to confer with his counsel to clear up the question. After Shears conferred with Lietz following each question, the judge inquired to make sure that Shears’ question was answered properly. Shears claims that his confusion about whether an agreement on departures had been reached (when in fact none had been) supports his contention that he did not understand the sentencing agreements that had been reached with the prosecution. We do not agree. Shears demonstrated his bargaining skills during the plea hearing — not his lack of understanding — in obtaining an additional concession from the State not to pursue a departure.
Lietz testified that the State had never offered to let Shears plead to felony murder. Judge Jackson recessed the plea hearing in order for Lietz to explain to Shears the difference betwéen premeditated first-degree murder and felony murder. After the hearing continued, Shears responded to the judge that he understood the charges and waived formal reading of them. Whatever question Shears may have had about the penalties was cleared up before Shears’ plea was taken.
Shears has not overcome the presumption that Lietz’ representation was reasonable.
The Hearing Before Judge Buchele
Shears points out that at the hearing on his motion to withdraw his plea, Judge Buchele repeatedly referred to the murder charge as “murder one.” While the more specific term “premeditated first degree murder” would have been preferred, the context in which the term “murder one” was used makes it clear that the judge was always using the term with reference to premeditated first-degree murder.
Judge Buchele’s last two uses of the term “murder one” in his questions to Lietz make clear that he was referring to premeditated first-degree murder:
“THE COURT: All right. I guess all I’m trying to establish, at least as to the major case here, the controlling count, that what we’re really talking about, the State’s position was consistently, “You must plead to murder one,’ and that he knew that if he was convicted of murder one, that there was going to be a flat 25 years involved?
“MR. LIETZ: Yes.
“THE COURT: No matter. And the concurrent and consecutive and what he pled to in those other cases was all secondary and you could play in and out games and up and down games, the fact was it was a 25 year flat minimum sentence that was involved. Do you feel that that was understood between you and your client as to a murder one conviction?
“MR. LIETZ: Yes, I do.”
After the exchange between Judge Buchele and Lietz, the State responded with the following questions for Lietz:
“Q. (BY MR. DEBENHAM) The State never offered to let your client plea to felony murder, did they?
“A. No. I asked several times and it was always a flat, ‘No way.’
“Q. And the difference between those is felony murder is a life imprisonment with parole eligibility after 15 years, wasn’t it?
“A. I think that’s correct.
“Q. The State always demanded a premeditated murder felony, premeditated murder plea in this case, didn’t they?
“A. That’s correct.”
Shears claims that Lietz “used coercive tactics” to persuade him to plead. According to Shears, Lietz told him that he should go along with the plea because he was upsetting the judge and if he did not enter the plea, he would spend the rest of his life in prison. Lietz denies the coercive tactics claim. After further cross-examination by the State, Shears said that while he and Lietz were standing in front of the judge at the time of the plea, Lietz simply told Shears to say “no contest.”
Contrasted against Shears’ claim of coercion is Judge Jackson’s question to Shears immediately before accepting Shears’ plea: “Is there any reason that you know of why you should not enter a plea?” Shears responded, “No.”
The Jail Visit
Shears focuses on the figure 9Vz (written on the lost sheet of paper) in arguing that 91/2 supports his contention that Lietz mis informed him as to the number of years Shears would face in prison on the murder charge. Judge Buchele had problems with the number 9Vz.
“THE COURT: I can’t come up with nine and-a-half. I told you. That’s why I was raising the question. Maybe they were playing with boxes or criminal history, too. You see, I can’t come up with nine and-a-half. I can’t think of any, with a rape conviction — ”
Shears claims that the court’s and counsel’s references at the plea hearing to the charge as first-degree murder, without designating it as premeditated or felony, support his contention that he thought he was pleading to felony murder, not premeditated first-degree murder. The term premeditated first-degree murder was used by the State at the plea hearing. At the beginning of the hearing, the State described the plea negotiations, saying: “In [the murder case], the defendant would enter a plea to Count I, premeditated first degree murder, the State would dismiss the alternative count of felony murder in that count.” Later in the proceeding, judge Jackson asked Shears: “Do you understand the charges in [the murder case], the charge is murder in the first degree.” Shears responded: “I thought the first charge was felony murder.” Shears’ response shows that he knew the judge was referring to premeditated first-degree murder, not felony murder. After the plea to the first-degree murder charge was taken, Judge Jackson stated: “The Court will accept your pleas of no contest, you are adjudged guilty on your pleas and the alternative count of felony murder and the Count 2 in [the murder case] are dismissed.” “[Mistaken subjective impressions, in the absence of substantial objective proof showing that they were reasonably justified, do not provide sufficient grounds upon which to vacate a guilty plea.” State v. Snyder, 10 Kan. App. 2d 450, 452, 701 P.2d 969 (1985) (quoting People v. Smithey, 120 Ill. App. 3d 26, 33, 458 N.E.2d 87 [1983]). We find no abuse of discretion in denying Shears’ motion to withdraw his pleas.
The Premeditation and Intentional Elements
K.S.A. 22-3210(a)(4) states: “Before or during trial a plea of guilty or nolo contendere may be accepted when . . . the court is satisfied that there is a factual basis for the plea.” The trial court must establish that all elements of the crime charged are present. State v. Shaw, 259 Kan. 3, 7, 910 P.2d 809 (1996). When a prosecutor presents the evidence to the court, and that evidence shows that all elements of the crime charged are present, a factual basis for a plea has been reached. State v. Reed, 248 Kan. 506, 512-13, 809 P.2d 553 (1991).
Shears waived the reading of the complaint at his plea hearing. Judge Jackson, who conducted the plea hearing, did not preside at the preliminary hearings in either the murder case or the rape case. The State gave a lengthy recitation of the facts in the murder case. Although the State informed Judge Jackson at the plea hearing that the preliminary hearing was relied on as part of the factual basis, there is nothing in the record to show that the judge saw or read the transcript of the preliminary hearing.
Premeditated first-degree murder is defined at K.S.A. 21-3401 as: “the killing of a human being committed: (a) Intentionally and with premeditation.”
Shears acknowledges that the State’s factual recitation included his admissions to: (1) planning the scheme to rob David Cook with the help of Shears’ girlfriend, Torríe Masón, and (2) shooting David Cook in the back of the head after searching Cook’s car, not finding any money, and ordering Cook to start walking. However, in Shears’ admissions, he claimed to have shot Cook by accident as he attempted to pistol whip Cook with his 9mm handgun. Although admitting that the elements of a felony murder were satisfied, Shears claims there was not a sufficient factual basis for either the intentional or premeditation elements of the offense.
Premeditation can be established by circumstantial evidence. See State v. Sanders, 258 Kan. 409, 414, 904 P.2d 951 (1995) (“Premeditation and deliberation may be inferred from the established circumstances, provided the inference is a reasonable one.”); State v. Calderon, 233 Kan. 87, 93, 661 P.2d 781 (1983) (“Intent, like any element of a crime, may be shown by circumstantial evidence.”).
The State mentions several factors from which the intentional and premeditation elements can be inferred: (1) There was no provocation; (2) Shears armed himself with a deadly weapon; (3) there was no evidence that Shears received any cuts, wounds, or abrasions; (4) the shooting occurred shortly after Shears arrived; and (5) the’ gun barrel was in direct contact with the back of the victim’s head at the time it was fired. '
“It is incumbent upon the judge td personally make a finding that a factual basis for the guilty, plea in fact exists.” Snyder, 10 Kan. App. 2d at 454.
While the State’s recitation could have contained more evidence from the preliminary hearing, the facttial'recitation that tbe State gave to Judge Jackson at the plea hearing was sufficient to.establish the “intentional” and “premeditation” elements of premeditated first-degree murder and the remaining elements that Shears concedes were presented. The State provided a brief summary of Dr. George Thomas’, testimony from .the preliminary .hearing that “there were no abrasions, contusions or bruises to the back of Mr. Cook’s head, that the gunshot wound was a contact wound, that it was in direct contact'with the back of the head when the gun was fired.”'Although Sheafs claimed' that the.shooting was accidental in his statement to pólice, Dr. Thoriías’' testimony showed the shooting was no accident.
Shears points but that thq. State’s recitation to Judge Jackson included a reference to an'incident occurring on September 19, 1994, in which Shears fired shots at Torrie Mason’s house while she and David Cook were inside. This fact is irrelevant. The State did not show that Shears knew David Cook was inside at the time or that Shears was shooting at Cook. However, the other evidence described by the State is sufficient to establish a factual basis for premeditated first-degree murder.
Enhancing Shears’ Criminal History Score
In determining Shears’ sentences for the rape and aggravated robbery convictions Judge Buchele determined that Shears’ criminal history category was “A.” In making the criminal history determination, Judge Buchele applied the “inclusive rule” announced in State v. Roderick, 259 Kan. 107, 115, 911 P.2d 159 (1996) (al though Roderick had not yet been filed at the time of Shears’ sentencing).
Shears argues that the statutory interpretation applied to his sentencing (the “inclusive rule”) is unfair and violates his right to due process under the Fourteenth Amendment. Shears does not support this argument with any authority, nor does he discuss it any further in his brief, beyond simply mentioning it. An issue which is not briefed is deemed abandoned. State v. Wacker, 253 Kan. 664, 670, 861 P.2d 1272 (1993). Shears did not raise a constitutional objection with respect to criminal history at the time of sentencing or in a post-sentence motion to the district court. Ms. Sew-ell did object in the district court to sentencing on the grounds that Shears was denied his Sixth Amendment right to counsel and due process rights concerning his plea agreement. When constitutional grounds are asserted for the first time on appeal, they are not properly before us for review. State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993).
Shears’ Prior, Adjudications as a Juvenile Offender
Shears asserts that the district court erred in accepting his prior adjudications as a juvenile offender to calculate his criminal history score.
Shears did not raise this issue in the district court. State v. McDaniel, 255 Kan. 756, 765, 877 P.2d 961 (1994) (“A point not raised in the trial court cannot be raised for the first time on appeal.”).
Even if Shears had raised the juvenile offender argument below, the issue was recently addressed and disposed of contrary to Shears’ assertion in State v. LaMunyon, 259 Kan. 54, 911 P.2d 151 (1996).
Affirmed.
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Per Curiam:
This is an original proceeding in attorney discipline in which respondent, Keen K. Brantley, has filed exceptions to the report of the hearing panel of the Kansas Board for Discipline of Attorneys, which recommended published censure. The panel found violations of MRPC 1.1 (Competence) (1995 Kan. Ct. R. Annot. 251), 1.2 (Scope of Representation) (1995 Kan. Ct. R. Annot. 255), 1.4 (Communication) (1995 Kan. Ct. R. Annot. 263), 1.5 (Fees) (1995 Kan. Ct. R. Annot. 268), 1.7 (Conflict of Interest: General Rule) (1995 Kan. Ct. R. Annot. 275), 1.9 (Conflict of Interest: Former Client) (1995 Kan. Ct. R. Annot. 281), 1.14 (Client under Disability) (1995 Kan. Ct. R. Annot. 293), 3.3 (Candor Toward the Tribunal) (1995 Kan. Ct. R. Annot. 311) and 8.4 (Misconduct) (1995 Kan. Ct. R. Annot. 340). Our jurisdiction is under Rule 212 (1995 Kan. Ct. R. Annot. 214).
The issue is whether the findings and recommendations of the panel are amply sustained by the evidence and should be adopted by this court. We adopt the recommendation of the panel and impose published censure. In addition, we order restitution, as set forth below. We determine that the findings of misconduct are established by clear and convincing evidence.
FACTS
The panel’s findings of fact and conclusions included in its report are reproduced below. Brantley filed exceptions to several findings of fact (Nos. 6, 12, 17, 19, 21, 22, 23, 24, 27, 28, 31, and 32), and conclusions (Nos. 2 through 10). Brantley’s exceptions or responses are set out in italics after certain findings of fact or addressed in our discussion. Observations gleaned from the record have been interspersed throughout the panel’s findings and identified in brackets.
After his initial telephone call to Mary Storm at her nursing home, Brantley neither met personally nor had any direct communication with the elderly widow, whose Dickensian dilemma is addressed in our opinion.
“FINDINGS OF FACT
“1. Respondent, Keen K. Brantley, is a licensed Kansas attorney who has engaged in the general practice of law in Scott City, Kansas, since 1970. . . .
“2. The complainant is Carla Hendrix, granddaughter of Mary Storm, a ninety-one year old resident of Anchorage, Alaska, who formerly resided in Scott City, Kansas. Following the death of her personal attorney, Charles Fleming, Mary Storm became a client of the Respondent in 1983. During the time in question, Mary Storm had done most of her banking business at the First National Bank of Scott City but had done some business at the Security State Bank in Scott City. At no time has Mary Storm ever been found to be incompetent, incapacitated or disabled by any medical person or court in Kansas or Alaska.
“3. In 1977, Mary Storm’s husband, R. E. Pfenninger, died leaving his entire estate to her under a joint and mutual will. The estate was valued at some $77,000.00. Under the terms of the will, any property remaining at Mary Storm’s death was to be divided equally between the surviving children of Mr. Pfenninger by a previous marriage and Mary Storm’s only child, Wayne Hendrix, by a prior marriage.
“4. In 1985, Mary’s brother, Leo Scott McCormick, died leaving his entire estate to Mary Storm, the only surviving McCormick sibling. The McCormick estate was valued at approximately $193,000.00. The First National Bank of Scott City was the executor and was represented by Respondent.Brantley and his firm.
“5. In February 1986, Mary Storm wrote a letter to her son, Wayne Hendrix, and his wife Delores stating, among other things, that her brother’s estate would be settled soon and that most of the estate would go to Wayne as she did not need it. She further observed that she and Wayne were the only surviving family members.
“6. Following the distribution of the McCormick estate, during the period April 1986, through July 1987, Mary Storm, from time to time, deposited sums of money in a savings account that her son and daughter-in-law had opened at Security State Bank in Scott City, Kansas. Mary Storm wrote seven different checks for deposit to their account over the fifteen month period totalling $191,425.00. Mary Storm’s name was not on the Hendrix account, and at no time did Wayne or Delores Hendrix transfer any of Mary Storm’s money into their account. During this period of time, Mary Storm, with the assistance of Respondent Brantley, caused Wayne Hendrix’s name to be added as a joint tenant to several of her certificates of deposit and parcels of inherited real estate. At no time has Wayne or Delores Hendrix attempted to exercise any right of ownership to the certificates of deposit or the several parcels of real estate or the income therefrom.
[We observe that the record does not show who made the deposits to the Hendrix account, although it is likely that Mary Storm made the deposits up until she broke her hip in December 1986. Prior to that time, Mary Storm made at least monthly visits to Security State Bank. Most of the deposits were made before her injury. Wayne Hendrix may have made deposits after Mary broke her hip. Also, not all of the deposits were from checks signed by Mary Storm and payable to Wayne Hendrix.]
[On April 28, 1986, Maiy Storm wrote two checks to Wayne in the amount of $30,000 each. One of the $30,000 checks had a specific reference to the Scott McCormick Estate. On August 15, 1986, a First National Bank of Scott City money order for $20,000 was deposited into the Hendrix account. The money order had a reference to “Mary Storm’s loan proceeds.” On October 27,1986, a First National Bank of Scott City money order payable to Security State Bank was purchased for $41,562.74 and deposited in the Hendrix account. It had a reference to the Scott McCormick estate. On February 9,1987, a check in Wayne Hendrix’s handwriting but signed by Mary Storm and payable to Wayne in the amount of $15,000 was deposited in the Hendrix account. Wayne was also jointly on Mary Storm’s checking account at Security State Bank On May 1, 1987, Wayne wrote a check in the amount of $2,000 on Mary Storm’s checking account for travelers’ checks. On July 13, 1987, a check payable to Mary Storm from Railway Savings and Loan in the amount of $52,862.88 was deposited in the Hendrix account.]
[Brantley admitted assisting Mary Storm in placing her three real estate installment contracts in joint tenancy with Wayne, but denied involvement in placing Wayne’s name on any of Mary Storm’s certificates of deposit as a joint owner.]
“7. From October 1986, through January 1988, the Hendrixes authorized wire transfers in the total amount of $85,000.00 from their Scott City account to their credit union account in Alaska, where they then resided.
“8. In December 1986, Mary Storm fell and fractured her hip, which injury required a, period of hospitalization followed by nursing home care. Prior to such injury Mary Storm had lived in her own home, had driven her own car, and had been self-sufficient.
“9. Mary Storm continued to reside in a nursing home, and in July 1989, she was visited by her step-són, Ralph Pfenninger, who resided in Oklahoma. During this visit, Mr. Pfenninger states that he was advised by the nursing home administrator that Mary Storm was giving all of her money away arid would soon have nothing to live on. As a matter of fact, Mary Storm had more than $100,000.00 in liquid assets and a comfortable income.
“10. Ralph Pfenninger also visited with an officer of the Security State Bank of Scott City [Louise Wendler], who advised him that there had been some large transfers of funds from Mary Storm to her son, Wayne Hendrix.
“11. Ralph Pfenninger then met with Respondent Brantley and expressed his concerns relative to the feared dissipation of Mary Storm’s assets. Respondent Brantley was informed that the Security State Bank of Scott City had indicated a willingness to serve as conservator, and he thereupon conferred with Louise Wendler, a Vice President of Security State Bank, who further confirmed to him confidential information that Wayne and Delores Hendrix had made transfers from their Kansas account to their Alaska account totalling $85,000.00. Ms. Wendler further volunteered that, in her opinion, Mary Storm’s deposits into the Hendrixs’ account could not possibly be gifts due to their large amount. She admitted, however, that she had never consulted Mary Storm about this assumption.
“12. Respondent Brantley never met personally with Mary Storm regarding the voluntary conservatorship but recalls that he talked by telephone with her at the nursing home and inquired if she was aware that Wayne Hendrix was in town withdrawing large amounts from her bank accounts. Understandably, Mary Storm replied that she knew nothing about any recent withdrawals from her accounts. Bank records in evidence reflect that she was correct in her reply.
[Brantley’s version of the telephone conversation with Mary Storm indicates:
“Respondent called Mary Storm at Park Lane Nursing Home and told Mary he had learned from Louise Wendler and Ralph Pfenninger that there had been substantial deposits of her funds by Wayne to his account while he was in Scott City and was she aware of these. Mary Storm replied she was not aware of any transfers or deposits. Respondent asked Mary Storm if she had intended that her funds be deposited in Wayne’s account. She stated she intended her funds pass to Wayne after her death but not while she lived. Mary Storm mentioned that Wayne was on her checking account as a joint tenant for that reason.”]
“13. Without further investigating the reported transfers of Mary Storm’s assets, and without further personal conversation with Mary Storm, Respondent Brantley caused voluntary conservatorship proceedings to be prepared and sent the same to the nursing home for Mary Storm’s signature with an office employee. The Security State Bank was appointed conservator under the voluntary conservatorship proceeding on July 11, 1989. Respondent Brantley candidly admits that, at this time, he was representing the conservatee, Mary Storm; her step-son, Ralph Pfenninger; and the conservator, Security State Bank, all in the same proceeding.
“14. The conservatorship operated without event until September 21, 1989, when Respondent Brantley filed a Petition for Sale of Personal Property at Public Auction. Respondent Brantley prepared such pleadings for his client Security State Bank. The Petition was set for hearing on September 29,1989, and copy of notice of hearing was reportedly mailed to Mary Storm. On September 22, 1989, Respondent Brantley filed a Petition for Appointment of Guardian ad Litem. The proposed guardian ad litem, William Wright, was not known to Mary Storm. As in the case of the Petition for Sale, Mary Storm was not consulted in connection with the Petition for Appointment of Guardian ad Litem.
“15. Prior to the hearing on the Petition to Sell Personal Property and without court authorization or Mary Storm’s knowledge, the Security State Bank contacted an auction company in early September and caused Mary Storm’s personal property to be boxed and inventoried. Further, auction handbills were caused to be posted in Scott City and advertisements for sale placed in the local newspaper. Without court approval of the sale, the Security State Bank paid the auction company $450.00 out of Mary Storm’s conservatorship funds on September 28, 1989, a day before the hearing.
“16. The above mentioned Petition for Sale of Personal Property at Public Auction, prepared by Respondent Brantley, contained an allegation, Tt is necessary to sell said personal property to pay taxes and expenses of the conservatorship.’ The allegation, which is untrue, was verified on behalf of the conservator, Security State Bank.
“17. Mary Storm’s grandson, Richard Hendrix of WaKeeney, Kansas, was alerted by one of Mary Storm’s neighbors a week before the proposed auction. He contacted WaKeeney attorney Paul Oiler in regard to representing Mary Storm in having the sale halted. Mary Storm subsequently retained Paul Oiler to represent her and instructed him to have the sale stopped and the conservatorship terminated.
“18. At the September 29, 1989, hearing on Mary Storm’s Petition for Termination of Conservatorship, the voluntary conservatorship was terminated and the Petition to Sell Personal Property was denied.
“19. Later, on the same day, Respondent Brantley presented to the magistrate judge, ex parte, a Temporary Order restraining the disposition of the estate of the ‘conservatee’ until the ‘petition’ could be heard and further orders issued. No notice was given to Mary Storm or her attorney, Paul Oiler. The Temporary Order was filed at 4:20 o’clock p.m. on September 29, 1989.
“20. The above noted Temporary Order contained the caption of the previously terminated voluntary conservatorship proceeding. The order contained no explanation or justification for having been filed in a closed case. The Temporary Order was also silent as to the identity of the client being represented by Respondent Brantley in such matter.
“21. The Temporary Order stated that there should be no further disposition or depletion of the estate of the conservatee at a time when there was no conservatee and no conservatee estate. The Temporary Order prepared by Respondent Brantley further provided that the Temporary Restraining Order would continue in effect until the petition could be heard and further orders of the court issued, all at a time when there was no petition on file. In preparing and filing such order, Respondent Brantley was not following the direction of his purported client Maty Storm, and was acting adversely to her.
“22. On October 2, 1989, Respondent Brantley filed an Involuntary Petition for Appointment of Conservator, on which petition he shows himself as attorney for the Petitioner, Ralph Pfenninger. At no time did Respondent consult with his purported client Mary Storm, or obtain her consent to his materially adverse representation of her step-son.
“23. The Petition for Involuntary Conservatorship, prepared by Respondent Brantley for his client Ralph Pfenninger, stated that Mary Storm was ‘completely disoriented as to person, place and time as noted in the letter of Daniel R. Dunn, M.D. marked Exhibit A attached hereto and made a part hereof.’ In fact, there was no Exhibit A attached to the petition, there was not in existence any letter from Dr, Dunn, Respondent Brantley never contacted Dr. Dunn to request such a letter, and Respondent Brantley candidly admitted that he made up the language supposedly ‘noted in the letter.’ At no time during any of the conservatorship proceedings did the Respondent ever meet personally with Maiy Storm to determine for himself her state of mind or knowledge of her financial affairs, and his false statements contained in said petition have never been corrected.
“24. On October 3,1989, Respondent Brantley obtained Preliminary Orders which he had prepared on behalf of his client Ralph Pfenninger. On October 10, 1989, Maiy Storm, through her attorney, Paul Oiler, filed Answer of Proposed Conservatee, which answer raised multiple objections to Respondent Brantley’s continued representation adverse to Maiy Storm and listed numerous violations of the Model Rules of Professional Conduct. The answer further requested an accounting of all funds received by and spent by the conservator and requested disqualification of Respondent Brantley and discharge of the court appointed attorney. Respondent Brantley did not file a response or withdraw from the adverse representation.
“25. Purportedly'at the request óf the court appointed attorney for Maiy Storm, William Wright, the magistrate judge undertook to interview Mary Storm 'at the nursing home without any notice to interested parties. Later, he undertook to interview Mary Storm a second time in a Garden City hospital where she was recovering from recent cancer surgery. At the hospital visitation, the magistrate was accompanied by a court reporter. Again, the visitation was without notice to Mary Storm’s family or her retained attorney of record. On October 12, 1989, the day following her cancer surgeiy, the magistrate judge dismissed Mary Storm’s granddaughter from the hospital-room and proceeded to interrogate Maiy Storm. While not within the purview of the panel, the- panel is shocked that a magistrate judge would undertake to interrogate an elderly person on the day following major surgeiy. [Maiy Storm was recovering from a mastectomy and was not in a position to answer questions about the conservatorship. She did not deny having talked with Paul Oiler, but could not say one way or the other. Even in her condition, Mary Storm expressed her opposition to the proposed sale. She also expressed dislike for the Security State Bank officer she believed was responsible for the sale effort.]
“26. On October 16, 1989, hearing was had before the magistrate judge on Ralph Pfenninger’s Petition for Involuntary Conservatorship and Mary Storm’s Motion for Disqualification of Brantley. Apparently based upon his interview with Mary Storm, the magistrate judge ordered her attorney, Paul Oiler, discharged from her representation and the motions filed by Oiler were denied. No decision was reached in connection with the Petition for Involuntary Conservatorship, which matter was continued to November 14, 1989.
“27. On October 25,1989, Mary Storm’s attorney, Paul R. Oiler, filed an Attorney and Client Agreement with the court followed with the filing of a renewed answer on behalf of Mary Storm raising issues earlier asserted. Mary Storm again requested that Respondent Brantley be disqualified because of a conflict of interest, but the Respondent continued his representation of the step-son in the adversarial involuntary conservatorship proceeding.
“28. At a court hearing on November 6,1989, Respondent Brantley; Louise Wendler from the Security State Bank; Mary Storm’s attorney, Paul Oiler; and court appointed attorney, Bill Wright, appeared and agreed to a partial conservatorship of Mary Storm’s assets which would not include her home, any of her personal property and her personal bank account for her own spending. Security State Bank was discharged and a new conservator appointed. No conservatorship bills were presented at the November 6, 1989, hearing when all of the parties were represented. Instead, Respondent Brantley, representing the discharged conservator, prepared an order for the magistrate’s approval for the discharged conservator to pay claims of $1,802.41 including $575.00 to Respondent Brantley. Respondent Brantley gave no notice of such order for proceedings thereon. His bill for services was never furnished to Mary Storm or her attorney, Paul Oiler. As a result of the order for approval of claims of the conservator, Mary Storm paid for Respondent Brantley’s representation of the Security State Bank and the step-son, Ralph Pfenninger, which services included efforts to sell her personal property and place her in an involuntary conservatorship, both against her expressed wishes.
“29. In November 1989, Mary Storm was returned to possession of her home where she continued to reside with minimal outside assistance until the Spring of 1993, at which time she moved to Anchorage, Alaska, to live with her son, Wayne Hendrix, and his wife.
“30. In July 1993, Mary Storm executed affidavits and powers of attorney empowering her granddaughter, Carla Hendrix, to return to Kansas, gather her assets, terminate the conservatorship and transfer Mary’s assets to Alaska. As an alternative the conservatorship could be transferred to Alaska for court supervision.
“31. A hearing was had on Mary Storm’s request at which hearing Respondent Brantley appeared on behalf of the step-son in opposition to Maiy Storm’s expressed wishes. Mary Storm’s request was denied by the court for the stated reason that she was not represented at the hearing and needed to be represented in order for a full adjudication to be rendered. Later, however, on October 13,1993, the Mary Storm conservatorship was transferred to Anchorage, Alaska, to be supervised by the probate court in that jurisdiction. Since such transfer both the step-son, Ralph Pfenninger, and the Respondent Brantley have continued to attempt to monitor said proceedings and to obtain confidential information from the Alaska conservatorship.
“32. In ex parte meetings with the magistrate judge and in scheduled hearings in the Storm case, Respondent justified the need for a conservatorship for Mary Storm by stating that the evidence would prove that her son, Wayne Hendrix, was an alcoholic, was financially irresponsible, and was guilty of wrongfully misappropriating some $85,000.00 of her funds. In fact, Respondent did not have evidence to support such claims and had not made a reasonable investigation in such regard.
[Brantley responded as follows:
“There is no evidence in the record Respondent had any ex parte meetings with the magistrate judge or that Respondent stated to the court Wayne Hendrix was an alcoholic or was financially irresponsible. Respondent stated in open court on two occasions the evidence would be that Wayne Hendrix had misappropriated approximately $85,000.00 of Mary Storm’s funds. The uncontroverted evidence, not only reasonably believed by Respondent to be what he would offer in support of this statement, but was in fact what Respondent did offer in support of this statement to the hearing panel was as follows: Respondent called Louise Wendler at Security State Bank. She told Respondent about the transfers of funds from Mary to Wayne’s account and that she. believed these were misappropriations by Wayne Hendrix in the approximate amount of $85,000.00.’’]
[We observe that Carla Hendrix testified she learned Brantley claimed the voluntary conservatorship was needed because her father, Wayne, was stealing Maty Storm’s money, and Wayne was an alcoholic and in bankruptcy. Ralph Pfenninger admitted telling Brantley such information. However; there was no direct testimony that Brantley stated to Judge Goering that Wayne was an alcoholic and financially irresponsible. Whether Brantley did or did not state to Judge Goering that Wayne was an alcoholic and financially irresponsible is not material to the panel’s ultimate finding of an ethical violation. The record revealed two occasions when Brantley represented to Judge Goering he had evidence that Wayne had misappropriated $85,000 of Mary Storm’s funds: September 29, 1989 (the date the ex parte temporary restraining order was issued) and the July 1993 hearing when Carla Hendrix requested funds from the conservator to move Mary Storm’s belongings to Alaska.]
[The witnesses were in dispute as to whether Paul Oiler and Carla Hendrix were present at the time Brantley made the statement on September 29, 1989, to Judge Goering. Paul Oiler and Carla Hendrix believed those conversations took place after they left the courthouse that morning with the judge’s signature on the order terminating the conservatorship. They were surprised to later learn that the judge had issued an ex parte temporary restraining order. Brantley, Wright, and Judge Goering stated that Oiler and Carla Hendrix were present for those discussions, although Wright and Judge Goering were vague in their recollections. The panel believed the testimony of Oiler and Carla Hendrix.]
“33. While never medically or judicially determined, Mary Storm’s ability to make adequate considered decisions in connection with Respondent’s representation was, from time to time, ap parently impaired, particularly during her nursing home stay and her post-cancer surgexy period.
CONCLUSIONS
“1. A majority of the Hearing Panel conclude that the following noted violations of-the Model Rules of Professional Conduct, Supreme Court Rule 226 [1995 Kan. Ct. R. Annot. 245], were established by clear and convincing evidence.
“2. MRPC 1.1 Competence [1995 Kan. Ct. R. Annot. 251]— Respondent failed to provide competent representation to his clients in the following particulars: (a) failure to fully investigate the claims of improper transfers from the account of Mary Storm and the threatened dissipation of her assets prior to initiating conservatorship proceedings; (b) failure to personally interview a client for whom a conservatorship proceeding was proposed; (c) permitting his client conservator to proceed with sale related activities in regard to Mary Storm’s personal property before a court order had been entered directing such sale, which activity resulted in unwarranted expense to Maty Storm; (d) obtaining an ex parte order in a closed involuntary conservatorship proceeding, all in connection with a planned involuntary conservatorship proceeding not yet filed; (e) preparing and causing to be filed a Petition for Involuntary Conservatorship relying on a non-existent medical report, which is herein characterized as incompetence only because there is insufficient evidence to establish a violation of MRPC 3.3 Candor Toward the Tribunal [1995 Kan. Ct. R. A.nnot. 311].
“3. MRPC 1.2 Scope of Representation [1995 Kan. Ct. R. Annot. 255] — Respondent failed to abide by his client Mary Storm’s decisions concerning the representation.
“4. MRPC 1.4 — Communication [1995 Kan. Ct. R. Annot. 263] — Respondent failed to keep his client, Mary Storm, reasonably informed.
“5. MRPC 1.5 Fees [1995 Kan. Ct. R. Annot. 268] — Respondent failed to communicate the basis or rate of the fee to the client, Mary Storm, who was ultimately responsible therefore, and caused her estate to be charged for legal services rendered to adversarial persons.
“6. MRPC 1.7 Conflict of Interest [1995 Kan. Ct. R. Annot. 275] — Respondent represented Security State Bank and Ralph Pfenninger in matters adverse to his client, Mary Storm, without consulting and without consent.
“7. MRPC 1.9 Conflict of Interest [1995 Kan. Ct. R. Annot. 281] — Respondent, after undertaking to represent Mary Storm, later represented others in substantially related matters in which interests were materially adverse to her, all without her consent after consultation.
“8. MRPC 1.14 Client Under Disability [1995 Kan. Ct. R. Annot. 293] — Respondent failed to reasonably maintain a normal client-lawyer relationship with Mary Storm when he believed her to be under a disability.
“9. MRPC 3.3 Candor Toward the Tribunal [1995 Kan. Ct. R. Annot. 311] — Respondent made statements and allegations to the magistrate court which he knew, or should have known, to be false. In addition, he made false statements to the magistrate court without making reasonable and diligent inquiry, as above noted, into the true facts.
“10. MRPC 8.4 Misconduct [1995 Kan. Ct. R. Annot. 340] — As a result of the foregoing conclusions, Respondent has violated the rules of professional conduct and has engaged in conduct prejudicial to the administration of justice.”
The Disciplinary Administrator recommended to the panel a sanction for a definite period of time, such as 6 months, conditioned upon restitution and taking and passing the Multistate Professional Responsibility Examination.
In a split decision, the panel recommended published censure with costs assessed to Brantley. One panel member dissented, agreeing with Brantley s position.
DISCUSSION
A threshold observation in beginning our analysis relates to our standard of review.
Rule 212(f) (1995 Kan. Ct. R. Annot. 215) provides:
“The recommendations of the panel or the Disciplinary Administrator as to sanctions to be imposed shall be advisory only and shall hot prevent the Court from imposing sanctions greater or lesser than those recommended by the Panel or the Disciplinary Administrator.”
“In State v. Klassen, 207 Kan. 414, 415, 485 P.2d 1295 (1971), we explained that we have a ‘duty in a disciplinary proceeding to examine the evidence and determine for ourselves the judgment to be entered.’ In State v. Ziegler, 217 Kan. 748, 755, 538 P.2d 643 (1975), this court stated that, although the report of the disciplinary board ‘is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony.’ [Citation omitted.]” In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993).
We now turn to the panel’s findings of Brantley’s rule violations.
MRPC 1.1 — Competence
MRPC 1.1 (1995 Kan. Ct. R. Annot. 251) provides:
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for die representation.”
The Comment provides in part:
“In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. . . .
“Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation.” 1995 Kan. Ct. R. Annot. 251-52.
Brantley has been practicing law in Scott City since 1970. He was the attorney for the executor of the estate of Scott McCormick, Mary Storm’s brother, with Mary Storm being the sole heir of that estate. Brantley prepared a codicil for Mary Storm’s will (naming him as her executor) and in 1986, at her request, prepared assignments by which Mary Storm created joint tenancy ownership in three real estate installment contracts with her son, Wayne. Brantley was an experienced attorney well acquainted with Mary Storm and her legal affairs.
(a) Failure to Fully Investigate Claims of Improper Transfers
According to Brantley, the driving force behind this whole unfortunate scenario was Brantley’s belief that Wayne Hendrix had misappropriated $85,000 from Mary Storm. After Ralph Pfenninger and Louise Wendler told him of the supposedly suspicious transfers by Wayne Hendrix in 1986 and 1987, Brantley called Mary Storm at the nursing home in July 1989 and asked her if she knew about them. Brantley did not provide sufficient information to Mary Storm for her to respond to his inquiry. She could not have made an informed decision about transactions that occurred some two years earlier, based on the scant information Brantley provided her over the telephone. There is no indication that Brantley ever asked Mary Storm if she wanted him to investigate the bank records on this matter, or that Brantley (with Mary Storm’s permission) ever obtained or showed the documentation or specific information on these transfers to Mary Storm to confirm whether she knew or approved of them.
The subject wire transfers were from the Hendrix account at Security State Bank in Scott City to the Hendrix account in Alaska and all occurred from October 1986 (prior to Mary’s broken hip) to January 1988. Those transfers, by themselves, should not have aroused suspicion. There were several large deposits into the Hendrix account at Security State Bank from April 1986 to July 1987, totalling $191,425.62. All but $69,862.88 of those deposits took place prior to December 1986, before Mary Storm broke her hip.
The panel’s finding of incompetence based on Brantley’s failure to investigate the circumstances of the supposedly improper transfers is amply supported in the record.
(b) Failure to Interview Mary Storm Before Proposing the Conservatorship
Establishment of a conservatorship, even a voluntary one, is a drastic step. See In re Conservatorship of Marcotte, 243 Kan. 190, Syl. ¶ 1, 756 P.2d 1091 (1988) (“A voluntary conservatee may not dispose of personal property by inter vivos conveyance during the conservatorship without court approval.”). Yet Brantley took this drastic step without even a face-to-face interview with Mary Storm, choosing instead to rely on a brief telephone conversation and the statements of Ralph Pfenninger, her stepson, and Louise Wendler from Security State Bank.
(c) Permitting Sale-related Activities Prior to Court Approval
As Brantley emphasized, there is no evidence in the record that Brantley knew Security State Bank engaged an auction company and incurred advertising expenses before the sale was approved by the court. The bank’s actions were improper, but there was no evidence that Brantley permitted those actions.
The panel’s conclusion that Brantley permitted the Bank’s actions does not appear to be supported by the evidence in the record. Other conduct by Brantley, however, established his violations of MRPC 1.1.
(d) Obtaining Ex Parte Order Prior to Filing Petition for Involuntary Conservatorship
The record indicates that after Judge Goering terminated the voluntaiy conservatorship, Brantley represented to the judge that he had evidence Wayne Hendrix had misappropriated $85,000 of Mary Storm’s funds and that Mary Storm’s assets were at risk without a conservatorship in place. Not surprisingly, Judge Goering then suggested that an involuntary conservatorship should be filed, issued the temporary restraining order against Mary Storm’s assets, and directed William Wright, as guardian ad litem, to lock up her house. Judge Goering acted upon Brantley’s inaccurate, incomplete, and unsupported representations. Brantley demonstrated incompetence by making those representations to the judge.
(e) Filing Involuntary Petition Containing Allegation as to Non-existent Medical Report
Brantley excuses this mishap because the allegation was taken from a standardized form and left in the petition by mistake. Also, Judge Goering had already stated he would not rely on a doctor’s letter and intended a complete evaluation of Mary Storm by Area Mental Health Center.
The fact that Judge Goering would not rely on a doctor’s letter does not excuse Brantley’s incompetence in leaving this untrue allegation in the petition. If Brantley knew at the time the petition was drafted that Judge Goering was not going to rely on a doctor’s letter, then why was the allegation included? Even if this allegation was taken from a standardized form, it specifically referred to both Mary Storm and Dr. Dunn. The involuntary petition was a two-page document easy to proofread.
MRPC 1.2 — Scope of Representation
MRPC 1.2 (1995 Kan. Ct. R. Annot. 255) provides:
“(a) A lawyer shall abide by a client’s decisions concerning the lawful objectives of representation, subject to paragraphs (c), (d), and (e), and shall consult with the client as to the means which the lawyer shall choose to pursue.”
The Comment provides in part:
“The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. . . .
“In a case in which the client appears to be suffering mental disability, the lawyer’s duty to abide by the client’s decisions is to be guided by reference to Rule 1.14. ” 1995 Kan. Ct. R. Annot. 255-56.
Failure to Abide by Mary Storm’s Decisions Concerning Representation
Brantley never consulted with Mary Storm as to whether she wanted to have her household property auctioned off. Instead, he relied on Louise Wendler’s and the guardian ad litem’s statements that Mary Storm had agreed to the side. At the September 29,1989, court appearance, when he learned that Paul Oiler had filed an objection to the sale on behalf of Mary Storm and the conservatorship had been terminated, Brantley represented to Judge Goering that Hendrix was misappropriating Mary Storm’s funds and convinced the judge that a temporary restraining order needed to be issued. Brantley followed that representation by filing the petition for involuntary conservatorship signed by Ralph Pfenninger. Brantley’s authority to act on- behalf of Mary Storm ended when the voluntary conservatorship was terminated.
Brantley contends that the parties’settlement agreement in November 1989 allowing the conservatorship to continue somehow cures this ethical violation. Brantley ignores the fact that before the settlement agreement was reached, Mary Storm had to retain her own attorney to represent her interests and oppose the involuntary conservatorship.
MRPC 1.4 — Communication
MRPC 1.4 (1995 Kan. Ct. R. Annot. 263) states:
“(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
The Comment provides in part:
“The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. . . .
“. . . The guiding principle is that the lawyer should fulfill reasonable client expectationis for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation.
“Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from mental disability. See Rule 1.14.” 1995 Kan. Ct. R. Annot. 263.
Mary Storm has not been determined to be mentally incompetent or disabled, so she should have been entitled to appropriate communication from Brantley. Brantley breached his ethical obligation to Mary Storm when, prior to the conservatorship, he failed to provide her sufficient information (and get her permission to do so) to make an informed decision concerning the purported suspicious fund transfers by Wayne Hendrix. Thereafter, he failed to communicate at all with Mary Storm, though he claims to have done so through the conservator and the guardian ad litem.
Mary Storm obviously was not given sufficient information about the proposed sale of her household property to make an informed decision. She voiced to Judge Goering during his ex parte hospital visit her opposition to the sale.
MRPC 1.5 — Failure to Communicate Fees and Charging for Services Rendered to Adversaries
MRPC 1.5 (1995 Kan. Ct. R. Annot. 268-69) provides in part:
“(a) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
“(4) the amount involved and the results obtained.”
Brantley never sent any fee statements to Mary Storm in connection with the conservatorship. He sent those to the conservator for payment. Mary Storm should have been advised of Brantley’s fees. Brantley claims that he did not render any services to adversarial persons in connection with the conservatorship because neither Security State Bank nor Ralph Pfenninger “had any other thought than to help Mary Storm.” However, fees generated by Brantley in pursuing the proposed sale, temporary restraining order, and the involuntary petition were adversarial to Mary Storm. Those fees were paid by the conservator.
MRPC 1.7 — Conflict of Interest
MRPC 1.7 (1995 Kan. Ct. R. Annot. 275) provides in part:
“(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
“(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
“(2) each client consents after consultation.”
The Comment provides in part:
“Loyalty is an essential element in the lawyer’s relationship to a client. An impermissible conflict of interest may exist before representation is undertaken, in which event the representation should be declined. If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation.” 1995 Kan. Ct. R. Annot. 275.
Brantley faced a conflict of interest from the beginning. Ralph Pfenninger saw Brantley in July 1989 and wanted a conservatorship for Mary Storm after Louise Wendler told Ralph that she had suspicions that Wayne Hendrix was misappropriating Mary’s funds. Ralph was named as a residuary legatee under the mutual will of Mary and Ralph’s father, R.E. Pfenninger. R.E. Pfenninger died in 1977. The residuary clause of this mutual will, obligated Mary, as survivor, to devise her residue in equal shares to her natural child, Wayne, and her husband R.E. Pfenninger’s four natural children (or their issue, if not then living). Ralph may have believed that he would be entitled to a share of Maiy’s estate upon her death under this residuaiy clause. If so, Ralph had an obvious incentive to keep Mary Storm’s assets intact until her death and restrict her ability to make inter vivos gifts. Brantley had assisted Maiy Storm in placing her interests in three real estate installment contracts in joint tenancy with Wayne. Brantley handled Maiy’s brother’s estate (Scott McCormick), which made a substantial distribution to Mary in 1986. It would be no surprise if Ralph Pfenninger harbored some jealousy and resentment toward Mary’s son Wayne and would be anxious to stop Mary from giving her property to Wayne. During oral argument, Brantley stated he was unaware that Ralph Pfenninger was a residuary legatee under Maiy’s will, but indicated he would not have acted any differently if he had known that fact.
After Mary Storm retained Paul Oiler to file an objection to the proposed sale of her household goods and obtain termination of the voluntary conservatorship, Brantley should have withdrawn from the case. Even if Brantley was unaware of Ralph’s status as a residuary legatee under Mary’s will, the adversarial relationship was clear by that point. He never obtained Mary Storm’s consent to represent Security State Bank, Ralph Pfenninger, or both in seeking an involuntary conservatorship.
Brantley demonstrated mixed loyalties by failing to adequately investigate and relying on unsubstantiated suspicions of Ralph Pfenninger and Louise Wendler that Wayne Hendrix was misappropriating Mary Storm’s funds. Brantley’s pursuit of the involuntary conservatorship after Mary Storm retained her own attorney to oppose the sale and conservatorship confirmed this, as did his representation of Ralph Pfenninger in opposing Carla Hendrix’s request for funds from the conservatorship to pay for moving expenses of Mary Storm’s belongings to Alaska in 1993.
Brantley argues that his representation of Security State Bank or Ralph Pfenninger in the conservatorship matter was never adverse to Mary Storm because she ultimately needed a conservatorship. He contends that the fact she retained Paul Oiler to oppose the conservatorship should be disregarded, because Judge Goering struck Oiler’s pleadings after interviewing Mary Storm ex parte at the hospital. Aside from Judge Goering’s own conduct, his interview with Mary Storm made one thing very plain: Mary opposed the efforts to sell her household property.
Brantley cites two cases from other jurisdictions, Hillman v. Stults, 263 Cal. App. 2d 848, 70 Cal. Rptr. 295 (1968), and American Nat. Bank v. Bradford, 28 Tenn. App. 239, 188 S.W.2d 971 (1945), to support his argument that his simultaneous representation of Maiy Storm, Security State Bank, and Ralph Pfenninger was not adverse to Maiy Storm.
Both cases are distinguishable. Bradford involved a ward initially adjudged insane. Mary Storm has never been adjudged incompetent or disabled in any sense. In Hillman, the court determined the attorneys’ and conservators’ prior isolated representation of the conservatee’s sister did not present any conflicts or involve confidential information, so disqualification for conflict of interest was not appropriate in a proceeding adversarial to the then-deceased sister. 263 Cal. App. 2d at 879-80. Brantley obtained confidential information concerning Mary Storm’s and her son’s banking transactions and used that information to advance the interests of Mary Storm’s stepson, who wanted an involuntary conservatorship for Mary so that her assets could be preserved.
MRPC 1.9 — Conflict of Interest: Former Client
MRPC 1.9 (1995 Kan. Ct. R.' Annot. 281) states in part:
“A lawyer who has formerly represented a client in a matter shall not thereafter:
“(a) represent another person in the same or a substantially related matter in which that person’s interests aré materially adverse to the interests of the former client unless the former client consents after consultation; or
“(b) use information relating to the representation to the disadvantage of the formér client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.”
The Comment states in part:
“When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited. . . .
“Information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client.” 1995 Kan. Ct. R. Annot. 282.
Brantley’s representation became “materially adverse” to Mary Storm when she retained Paul Oiler to stop the proposed sale and terminate the voluntary .conservatorship. Thereafter, Brantley sought the temporary restraining order and involuntary conservatorship on behalf of Ralph Pfenninger and Security State Bank. The involuntary conservatorship petition satisfies the elements of a MRPC 1.9(a) violation. Mary Storm, the former client, did not consent to, nor was she consulted about, Brantley’s continued involvement in the case after she retained Paul Oiler.
Brantley’s representation of Pfenninger in opposition to Carla Hendrix’s request in 1993 for funds to move Mary Storm’s personal property to Alaska was “materially adverse” to Mary Storm. Again, Brantley did not request or receive consent from Mary Storm for this adverse representation.
MRPC 1.14 — Client Under Disability
MRPC 1.14 (1995 Kan. Ct. R. Annot. 293) states:
“(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
“(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.”
The Comment provides in part:
“The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client . . . suffers from a mental disorder or disability, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, an incapacitated person may have no power to make legally binding decisions. Nevertheless, a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. Furthermore, to an increasing extent the law recognizes intermediate degrees of competence. . . . [I]t is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.
“The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. If the person has fto guardian or legal representative, the lawyer often must act as de facto guardian. Even if the person does have a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.
“If a legal repr'esentativé has already been appointed for the client, the' lawyer should ordinarily look to the representative for decisions on behalf of the client.” 1995 Kan. Ct. R. Annot. 293.
The record indicates'that.Brantley totally disregarded this rule. He had one telephone call with .Mary Storm before filing the voluntary conservatorship and' failed to provide her with adequate information in. that .call;. Thereafter, he had no -direct communication with Mary Storm.
MRPC 3:3 — Candor Toward the Tribunal
' MRPC 3.3 (1995 Kan. Ct. R, Annot. 311-12) statés:
“(a) A lawyer shall not.knowingly: '
“(1) make a false statement of material fact or law to a tribunal.
• “(d) In an ex'parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.” ' -
The Corrimént provides in part:'
“An advocate is responsible for pleadings and other documents prepared for litigation,,but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client’s behalf, and not‘assertions by the lawyer. . . . However, an' assertion purporting tó be on the lawyer’s own knowledge, as in an affidavit by the lawyer-'or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it- to be true on the basis of a reasonably diligent inquiry.” 1995 Kan. Ct. R. Annot. 312.
The Comment indicates that á¡lawyer making an assertion in open court-without a;belief that the assertion is true, based on reasonably diligent inquiry, may violate the rule.
As described in the panel’s Findings of Fact Nos. 16 and 23, Brantley made untrue allegations in pleadings filed in the court. Also, in obtaining thé ex parte temporary restraining order, Brantley represented’to Judge Goering after termination of the volun tary conservatorship that Wayne Hendrix had misappropriated $85,000 of Mary Storm’s funds and her assets were at risk. Brantley continued to make this representation to the court at the 1993 hearing when Carla Hendrix sought funds from the conservator to pay for moving Mary Storm’s belongings to Alaska, where Mary Storm lived.
Brantley contends that he made no knowingly false statements to the court and his representation that Hendrix had misappropriated $85,000 of Mary Storm’s funds had a reasonable basis.
There does not appear to be any evidence in the record that Brantley made knowingly false statements to the court. However, according to the Comment, Brantley’s failure to make a reasonable investigation regarding the Hendrix fund transfers before accusing Hendrix in court of misappropriating funds may be considered a violation of the rule. Making such accusations in an ex parte setting violates MRPC 3.3(d). The record does not show that Brantley provided the judge complete information about these transfers, such as the dates of the transfers (the last one well over a year before the conservatorship) and the fact that they involved only Hendrix’s own account.
MRPC 8.4 — Misconduct
MRPC 8.4 (1995 Kan. Ct. R. Annot. 340) states in part:
“It is professional misconduct for a lawyer to:
“(a) Violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another.”
Brantley has violated numerous rules of ethical conduct.
Aggravating and Mitigating Factors
The panel found the following aggravating and mitigating factors in the report:
“Aggravating factors:
1. A pattern of misconduct is established throughout the Mary Storm conservatorship matter involving multiple offenses.
2. Respondent steadfastly refuses to acknowledge the wrongful nature of his conduct, and expresses remorse only if found to be in violation of the Model Rules of Professional Conduct.
3. The victim in this matter, Mary Storm, was quite vulnerable to the abuses and violations noted herein.
4. The Respondent has substantial experience in the practice of law.
“Mitigating factors:
1. The Respondent has no prior disciplinary offenses!
2. While Respondent’s actions are subject to the perception that he could financially benefit from a conservation of Mary Storm’s assets in Scott City, should he someday handle the probate of her estate, the panel does not find any dishonest or selfish motive.”
Brantley takes exception to aggravating factor No. 1 and mitigating factor No. 2. All factors were amply supported by the record.
Restitution
The Disciplinary Administrator requests that this court reconsider the issue of restitution. At the hearing, the Disciplinary Administrator submitted exhibits of fees and expenses, and Carla Hendrix testified as to the expenses and legal fees incurred in connection with the conservatorship, both in Scott City and Alaska. These included, among other things, Brantley’s fees charged to the conservatorship totalling $1,180 in 1989. She also listed certain travel expenses she had incurred in making trips between Alaska and Scott City in connection with the conservatorship proceedings, additional attorneys’ fees incurred in Alaska, and other miscellaneous expenses totalling approximately $11,000 all attributed to the dispute over the conservatorship.
The panel did not recommend restitution. We order restitution to include Brantley’s fees in the sum of $1,180.
Conclusion
The panel recommended that Respondent be publicly censured under Supreme Court Rule 203(a)(3) (1995 Kan. Ct. R. Annot. 191) and that costs be assessed against Respondent. We find in the record clear and convincing evidence sustaining the panel’s con elusions that Brantley violated MRPC 1.1, 1.2, 1.4, 1.5, 1.7, 1.9, 1.14, 3.3, and 8.4 and that he be sanctioned by published censure. We accept the report of the panel. We concur in the findings, conclusions, and recommendations of the panel with the additional imposition of restitution of attorney fees received by Brantley. Restitution is ordered in the sum of $1,180.
It Is Ordered That Keen K. Brantley be subject to published censure for his violations of the Model Rules of Professional Conduct.
It Is Further Ordered That this order be published in the official Kansas Reports and that the costs of the proceeding, including the sum of $1,180 as restitution, be assessed against respondent, to be paid to the office of the Disciplinary Administrator within 60 days from the date of this opinion.
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The opinion of the court was delivered by
ABBOTT, J.:
Plaintiff, Joleta Ripley, at age 50, filed a civil action against her biological father, B.E. “Jack” Tolbert, alleging he sexually abused her when she was a minor. Plaintiff also sued her biological mother, Pearl Tolbert, for not preventing the sexual abuse. Numerous counts were filed against both parents claiming childhood sexual abuse pursuant to K.S.A. 60-523; intentional infliction of emotional distress; negligence per se for violating criminal statutes which prohibit sexual conduct with children; negligence against Jack Tolbert for his failure to use ordinary care in allowing himself to be in Ripley’s presence and for his failure to use ordinary care in seeking help for' his irresistible impulses; and negligence against' both defendants because they provided improper supervision, care, medical treatment, and psychological treatment for the plaintiff, all of which created an unreasonable risk of harm and injury to the plaintiff.
The pleadings reveal that the plaintiff was bom on November 28, 1943, and that on or about April 18, 1991, she claims she spontaneously experienced a memory recall of her father sexually abusing her. Three days shy of the 3-year anniversary of this alleged memory, the plaintiff filed this action. In response to this petition, the defendants filed an answer and a motion to dismiss for failure to state a claim or in the alternative a motion for judgment on the pleadings. The court granted the defendants’ motion to dismiss, relying on Swartz v. Swartz, 20 Kan. App. 2d 704, 894 P.2d 209 (1995), and finding that the statute of repose extinguished the plaintiff’s claims.
We have previously considered our scope of review in Bruggeman v. Schimke, 239 Kan. 245, 247, 718 P.2d 635 (1986), where we said:
“Our scope of review, where the trial court has sustained a motion to dismiss, is concisely defined in Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, 620 P.2d 837 (1980):
“ “When a motion to dismiss under K.S.A. 60-212(b)(6) raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff’s petition. The motion in such case may be treated as the modem equivalent of a demurrer.’ Syl. ¶ 1.
“ ‘Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff’s favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.’ Syl. ¶ 2.
“ ‘In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff’s description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.’ Syl. ¶ 3.”
The pleadings are not clear as to when the alleged abuse occurred, but it necessarily occurred before the plaintiff reached the age of majority. It is of no importance to this case whether we use the plaintiff’s 18th birthday (November 28,1961) or her 21st birthday (November 28, 1964) as her age of majority.
The bottom Une is that plaintiff relies on K.S.A. 60-523, a statute enacted in 1992, for her cause of action.
K.S.A. 60-523 states:
“(a) No action for recovery of damages suffered as a result of childhood sexual abuse shall be commenced more than three years after the date the person attains 18 years of age or more than three years from the date the person discovers or reasonably should have discovered that the injury or illness was caused by childhood sexual abuse, whichever occurs later.
“(b) As used in this section:
(1) ‘Injury or illness’ includes psychological injury or illness, whether or not accompanied by physical injury or illness.
(2) ‘Childhood sexual abuse’ includes any act committed against the person which act occurred when the person was under the age of 18 years and which act would have been a violation of any of the following:
(A) Indecent liberties with a child as defined in K.S.A. 21-3503 and amendments thereto; (B) aggravated indecent liberties .with a child as defined in K.S.A. 21-3504 and amendments thereto; (C) aggravated criminal sodomy as defined in K.S.A. 21-3506 and amendments thereto; (D) enticement of a child as defined in K.S.A. 21-3509 and amendments thereto; (E) indecent solicitation of a child as defined in K.S.A. 21-3510 and amendments thereto; (F) aggravated indecent solicitation of a child as defined in K.S.A. 21-3511 and amendments thereto; (G) sexual exploitation of a child as defined in K.S.A. 21-3516 and amendments thereto; or (H) aggravated incest as defined in K.S.A. 21-3603 and amendments thereto; or any prior laws of this state of similar effect at the time the act was committed.
“(c) Discovery that the injury or illness was caused by childhood sexual abuse shall not be deemed to have occurred solely by virtue of the person’s awareness, knowledge or memory of the acts of abuse. The person need not establish which act in a series of continuing sexual abuse incidents caused the injury or illness complained of, but may compute the date of discovery from the date of discovery of the last act by the same perpetrator which is a part of a common scheme or plan of sexual abuse.
“(d) This section shall be applicable to:
“(1) Any action commenced on or after July 1,1992, including any action which would be barred by application of the period of limitation applicable prior to July i; 1992:
“(2) any action commenced prior to July 1,1992, and pending on July 1,1992.”
In dismissing the plaintiff’s claim, the district court found that 60-515(a) applied to the plaintiff’s claim before 60-523 was enacted in 1992. The district court also found that the 8-year statute of repose in 60-515(a) barred the plaintiff’s claim prior to 1992. As such, the district court found that 60-523 could not revive the plaintiff’s claim without unconstitutionally depriving the defendants of due process. In reviewing the district court’s ruling, our first step is to determine whether 60-515(a) actually applied to the plaintiff’s case before the enactment of 60-523. If so, the questions are, did the 8-year statute of repose in 60-515(a) bar the plaintiff’s claim before 1992, and was such a bar unconstitutional?
K.S.A. 60-515(a), which was amended in 1992 to include the language italicized below when K.S.A. 60-523 was enacted, provides:
“(a) Effect. Except as provided in KS.A. 60-523, if any person entitled to bring an action, other than for the recovery of real property or a penalty or a forfeiture, at the time the cause of action accrued or at any time during the period the statute of limitations is running, is less than 18 years of age, an incapacitated person or imprisoned for a term less than such person’s natural life, such person shall be entitled to bring such action within one year after the person’s disability is removed, except that no such action shall be commenced by or on behalf of any person under the disability more than eight years after the time of the act giving rise to the cause of action.
“Notwithstanding the foregoing provision, if a person imprisoned for any term has access to the court for purposes of bringing an action, such person shall not be deemed to be under legal disability.”
According to the plaintiff, 60-515(a) does not now and has never applied to her causes of action. The plaintiff contends that 60-515(a) only applies to those causes of action which accrue while the plaintiff is less than 18 years old. The plaintiff asserts that her cause of action did not “accrue” while she was a minor because she did not reasonably ascertain her injuries or the causé of her injuries until her spontaneous memory of the incest on April 18, 1991, when she was 48 years old. Thus, the plaintiff contends that 60-515(a) and its 8-year statute of repose does not apply to her. Instead, the plaintiff points to other statutes, discussed later, which she asserts govern her claims. The plaintiff concedes that some statutes of limitations did bar her claim in 1992 when 60-523 was enacted. However, the plaintiff contends that these statutes of limitations were not substantive and did not implicate due process upon their expiration; thus, they were properly revived by the enactment of 60-523.
According to the plaintiff, her causes of action accrued in 1991 while she was an adult. Thus, the plaintiff contends that all the statutes which apply to adult causes of actions applied to her claim prior to 1992. For instance, the plaintiff asserts that K.S.A. 60-512, imposing a 3-year statute of limitations and no statute of repose to actions based upon statutory liabilities, applied to her sexual abuse claim when it accrued in 1991 because the claim is based on the defendant’s violation of criminal statutes which prohibit sexual conduct with minors. Under 60-512, the plaintiff’s first cause of action would have been timely filed in 1994 because it was filed within 3 years of the 1991 accrual of her action. As such, the plaintiff insists that her sexual abuse claim was not dead in 1992 and was not improperly revived by 60-523. Instead, the plaintiff contends that she simply chose to sue under the newly enacted 60-523 instead of under 60-512.
Likewise, the plaintiff asserts that K.S.A. 60-514, imposing a 1-year statute of limitations and no statute of repose on battery actions, also applied to her sexual abuse claim prior to 1992. Under this statute, the plaintiff’s action would have been barred by the 1-year statute of hmitations in 1992. An expired statute of limitations, as opposed to an expired statute of repose, is constitutionally revivable. Thus, according to the plaintiff, her sexual abuse/battery claim under 60-514 was revived in 1992 by 60-523. As such, the plaintiff contends that under 60-523, she had 3 years from the 1991 accrual of her claim to file her claim, which she did.
Finally, the plaintiff contends that K.S.A. 60-513(a)(4) applied to her other four causes of action when they accrued in 1991. K.S.A. 60-513(a)(4) imposes a 2-year statute of limitations and a 10-year statute of repose. Yet, the plaintiff asserts that the 10:year statute of repose in 60-523 was enacted after her father sexually abused her and does not apply to her claim. The plaintiff asserts that 60-513(a)(4), which applied to her claims when they accrued in 1991, only required her to file the claims within 2 years of accrual; since the plaintiff’s claims became reasonably ascertainable or accrued in 1991, this 2-year statute of limitations under 60-513(a)(4) had not yet expired in 1992. Thus, according to the plaintiff, her claims were not barred by 60-513 when 60-523 was enacted in 1992. As such, when 60-523 was enacted in. 1992, it did not need to revive the plaintiff’s actions but simply became an alternative statute to sue under. When the plaintiff finally filed suit in 1994, the statute of limitations under 60-513 had expired, but the 3-year statute of limitations under 60-523 had not yet expired. Hence, the plaintiff contends that she timely filed her claims under 60-523. Based on these arguments, a threshold question is whether 60-515(a) and the accompanying statute of repose applies to the plaintiff’s claims.
K.S.A. 60-515(a), with its 1-year statute of limitations and 8-year statute of repose, applies to persons who are under 18 “at the time the cause of action accrued or at any time during the period the statute of limitations is running.” According to the plaintiff, her action was not reasonably ascertainable and did not accrue until 1991, when she was no longer under 18; thus, 60-515(a) does not apply to her. On the other hand, the defendants argue that the alleged act giving rise to the cause of action would have occurred while the plaintiff was under 18 and that the 8-year statute of repose began to run while the plaintiff was under 18; hence, 60-515(a) applies to the plaintiff’s claim.
This court, in Gilger v. Lee Constr., Inc., 249 Kan. 307, 319, 820 P.2d 390 (1991), ruled that “K.S.A. 60-515(a) triggers the eight-year statute of limitations for minors on the date of the negligent act.” This language makes it clear that the 8-year statute of repose under 60-515(a) applies to all tortious acts committed while the plaintiff is a minor, regardless of how old the plaintiff is (a minor or an adult) when the action actually accrues. This interpretation of 60-515(a) is consistent with the purpose of a statute of repose.
The purpose of a statute of repose is explained in Harding v. K.C. Wall Products, Inc., 250 Kan. 655, Syl. ¶ 6, 831 P.2d 958 (1992).
“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 a cause of action may not have yet accrued. It is substantive.”
Since the plaintiff was a minor when the alleged sexual abuse occurred, the K.S.A. 60-515(a) 8-year statute of repose applies to all of the plaintiff’s claims. This statute of repose barred all of the plaintiff’s claims prior to 1992, the year 60-523 was enacted. Assuming the last act of sexual abuse occurred on the last day of the plaintiff’s minority, the day before her 18th birthday, then the last act of sexual abuse occurred on November 27, 1961. Or, if age 21 is used as the age of majority, the age which Kansas law recognized as the age of majority until 1972 when age 18 became the age of majority, the last possible act of sexual abuse would have occurred on November 27,1964, the day before the plaintiff’s 21st birthday. The 8-year statute of repose under 60-515(a) would have begun to run on the date of this last act. Thus, the statute of repose under 60-515(a) would have expired on November 27, 1969, or November 27,1973. If the injury was reasonably ascertainable and accrued while the plaintiff was still a minor, then the plaintiff had 1 year from reaching the age of majority to file her claim. As such, the statute of limitations under 60-515(a) expired on November 28, 1962 (if age 18 is the age of majority), or November 28, 1965 (if age 21 is the age of majority), and barred the plaintiff’s action prior to 1992. While expired, this was just a procedural statute of limitations and could be amended or revived at any time without due process implications. See Harding, 250 Kan. at 668-69. The defendants do not contest this. If the injury was not reasonably ascertainable and did not accrue until the plaintiff was an adult, then the plaintiff had 2 years from the date her injury became reasonably ascertainable to her to file her claim under 60-513(a)(4). The plaintiff claims that the cause of action accrued when she reasonably ascertained her injury on April 18, 1991. Thus, under the facts, the statute of limitations expired on April 18, 1993, and did not bar the action in 1992. Under either accrual date, the statute of limitations does not irrevocably bar the action, whereas, under both scenarios, the action was barred by the 8-year statute of repose under K.S.A. 60-515(a) in 1969 or 1973. We thus hold the plaintiff’s action was barred by the K.S.A. 60-515(a) statute of repose.
Next, the plaintiff contends that if her action is barred by the 60-515(a) statute of repose, then 60-515 is unconstitutional. The plaintiff points out that 60-515(a) classifies plaintiffs who are under a legal disability, such as minority, incompetence or incarceration, and applies a shorter statute of repose (8 years) to these plaintiffs than the statute of repose which is applied to other plaintiffs (10 years) under 60-513. Also, the plaintiff contends that 60-515(a) and its 8-year statute of repose discriminate between minor plaintiffs, depending upon their ages. On the one hand, a minor who is subjected to negligence between the ages of 0-10 will never be able to bring a cause of action in his or her own name once he or she turns 18 before the cause of action will have expired under the 60-515(a) statute of repose. On the other hand, a minor who is subjected to negligence between the ages 11-18 will be able to bring a cause of action in his or her own name once he or she turns 18 before the statute of repose expires. According to the plaintiff, such classification and discrimination violates the equal protection and due process rights guaranteed under the Fifth, and Fourteenth Amendments to the United States Constitution and guaranteed in §§ 1, 5 and 18 of the Kansas Constitution Bill of Rights.
Wheeler v. Lenski, 8 Kan. App. 2d 408, 658 P.2d 1056, rev. denied 233 Kan. 1093 (1983), has addressed this issue. In Wheeler, the plaintiffs, who were adoptive parents of a minor, sued a doctor on the minor’s behalf to recover damages for the doctor’s negligence in treating the minor. The district court found that the plaintiffs’ suit was barred by the 8-year statute of repose found in 60-515(a). The plaintiffs appealed, contending that 60-515(a) violated their rights to due process and equal protection of the law.
The Court of Appeals found that the shortened statute of repose for minors and others with disabilities found in 60-515(a) did not violate due process or equal protection. 8 Kan. App. 2d at 411. In so holding, the court analyzed the issue in the following manner:
“Prior to 1976, a minor or person under legal disability had one year after reaching the age of majority or the termination of disability to sue for damages. The 1976 legislature shortened this period to eight years as part of its response to the report and recommendations of a special interim committee on medical malpractice. Report on Kansas Legislative Interim Studies to the 1976 Legislature, Part II, Special Committee on Medical Malpractice; L. 1976, ch. 254. Two other sections of this medical malpractice legislation have been held constitutional by the Kansas Supreme Court as having a reasonable basis in the need for doctors to procure medical malpractice insurance. State ex rel. Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221 (1978); Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, 631 P.2d 222 (1981). It is clear from the legislative history that the ‘long-tail’ of the statute of limitations regarding discovery of medical malpractice was of equal concern with respect to the limitations on injuries to minors and incapacitated persons, and therefore an attempt was made initially to copy the 6-year statute of limitations of Indiana. Interim Committee Minutes, September 23-24, 1975, pp. 4-5. The Indiana Supreme Court has upheld their 6-year statute of limitations against equal protection and due process attacks in Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 404 N.E.2d 585 (1980). The court there said:
‘The general purpose of a statute of limitations is to encourage prompt presentation of claims. United States v. Kubrick, (1979) 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259. . . .
‘In balancing the interests involved here, the Legislature may well have given consideration to the fact that most children by the time they reach the age of six years are in a position to verbally communicate their physical complaints to parents or other adults having a natural sympathy with them. Such communications and the persons whom they reach may to some appreciable degree stand surrogate for the lack of maturity and judgment of infants in this matter.’
“The legislative history indicates the 1976 Kansas legislature used similar reasoning in reaching its decision to shorten the limitation for minors and other incapacitated persons. As such it had a reasonable basis for enactment of K.S.A. 1982 Supp. 60-515(a). Much of the reasoning of Stephens v. Snyder Clinic Ass'n, 230 Kan. 115, in upholding K.S.A. 60-513, is applicable to K.S.A. 1982 Supp. 60-515(a).
“The appellants contend that because K.S.A. 1982 Supp. 60-515(a) is a general statute relating to minors and incapacitated persons, it does not deal directly with a health care crisis and should therefore be subject to a more rigorous ‘judicial scrutiny’ test rather than the ‘rational basis’ test. Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980). The New Hampshire statute dealt with a special limitation for minors in medical malpractice actions and thus deprived these minors of a broader limitation for infants and mental incompetents in other personal injury actions. Kansas avoided this problem by making its statute applicable to all minors and incapacitated persons, and thus the Kansas statute has uniform application to all members within the class and does not violate equal protection. Stephens v. Snyder Clinic Ass’n, 230 Kan. at 131. Unless a classification involves fundamental rights or suspect classifications such as race, religion, or alienage, the reasonable basis test is the yardstick for measuring equal protection arguments. New Orleans v. Dukes, 427 U.S. 297, 303, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (1976). Statutes of limitations do not involve fundamental-rights (Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 89 L. Ed. 1628, 65 S. Ct. 1137 [1945]), and this one clearly does not deal with a suspect classification.” 8 Kan. App. 2d at 409-11.
We agree. The shorter statute of repose in K.S.A. 60-515(a) does not violate due process or equal protection. Thus, this issue is without merit.
The plaintiff also contends that if her actions are barred by GO-515, then these actions were revived in 1992 upon the enactment of K.S.A. 60-523. K.S.A. 60-523 states:
“(d) This section shall be applicable to:
“(1) Any action commenced on or after July 1,1992, including any action which would be barred by application of the period of limitation applicable prior to July 1, 1992.”
“ ‘A statute operates prospectively unless its language clearly indicates that die legislature intended that it operate retrospectively.’ ” Harding v. K.C. Wall Products, Inc., 250 Kan. at 666 (quoting Jackson v. American Best Freight System, Inc., 238 Kan. 322, 324, 709 P.2d 983 [1985]). “The legislature has the power to revive actions barred by a statute of limitations if it specifically expresses its intent to do so through retroactive application of a new law.” Harding, 250 Kan. at 669.
In K.S.A. 60-523, the legislature specifically expressed its intent that the statute operate retroactively and revive any action barred by a period of limitation prior to July 1, 1992, specifically if the action is barred by 60-515(a) prior to 1992. Here, the plaintiff’s claims were barred by the 60-515(a) limitation period prior to 1992. If the action accrued while the plaintiff was a minor, the 1-year statute of limitation under 60-515 (a) expired and barred the plaintiff’s claim on November 28, 1962, or November 28, 1965. The 8-year statute of repose under 60-515(a) expired and barred the plaintiff’s claim on November 27,1969, or .November 27,1972. Thus, it is clear that plaintiff’s claims were barred by a period of limitation, the statute of repose under 60-515(a), and possibly the statute of limitations under 60-515(a) prior to July 1, 1992.
The defendants concede that a statute can operate retroactively and revive causes of action previously barred by a procedural statute of limitations if this is the legislature’s intent. However, the defendants argue that the legislature cannot apply a statute retroactively and disturb one’s vested substantive rights in a statute of repose. To do so would be to take one’s vested right without notice and violate the due process of law. Thus, the.defendants contend that they had a vested due process right in the time bar defense that the plaintiff’s claims were barred by the 60-515(a) 8-year statute of repose; when the legislature tried to revive the action barred by the substantive statute of repose, the legislature disturbed the defendants’ vested rights in the time bar defense. Thus, according to the defendants, the revival by K.S.A. 60-523 of the plaintiff’s claims, which were already barred by the 60-515(a) 8-year statute of repose when 60-523 was enacted, violated due process and was invalid.
The defendants’ argument is based on an evolution of Kansas case law, including Harding v. K.C. Wall Products, Inc., 250 Kan. 655; Jackson v. American Best Freight System, Inc., 238 Kan. 322; and Swartz v. Swartz, 20 Kan. App. 2d 704, 894 P.2d 209 (1995). On the other hand, the plaintiff contends that in See v. Hartley, 257 Kan. 813, 896 P.2d 1049 (1995), this court withdrew from the direction that this line of cases was headed. Moreover, the plaintiff contends that if the Swartz line of cases remains intact, then they are in direct conflict with Wheeler v. Lenski, 8 Kan. App. 2d 408, and must be altered in order to be reconciled with Wheeler. In order to analyze this issue, it is necessary to evaluate the evolution of the case law up until this point.
In Jackson v. American Best Freight System, Inc., 238 Kan. 322, the plaintiffypassenger sued several defendants to recover damages for the personal injuries she sustained in an automobile accident. The 2-year statute of limitations for the plaintiff to bring her action expired on June 30, 1983. The plaintiff filed her petition by this date but did not properly serve process on the defendants before the expiration of this statute of limitations. On July 1, 1983, 1 day after the plaintiff’s statute of limitations expired, K.S.A. 60-203(b) became effective, allowing a party an additional 90 days to serve process on the defendants after the original service has been found invalid. The district court ruled that ,60-203(b) could not be applied retroactively. Thus, the district court found that the plaintiff’s service of process was invalid and dismissed the suit because the 2-year statute of limitations had expired before process was properly served.
The plaintiff appealed. While the legislature did not indicate an intent to apply 60-203(b) retroactively, the plaintiff contended that 60-203(b) was a procedural statute and could be applied retroactively. Yet, the defendants argued that the plaintiff’s suit was barred by the 2-year statute of limitations before 60-203(b) became effective. Thus, the defendants asserted that their defense in the statute of limitations bar had become vested before 60-203(b) was enacted. As such, the defendants argued that the procedural statute could not be applied retroactively under these circumstances be cause such application would disturb the defendants’ vested rights in the statute of limitations defense.
This court agreed with the defendants, stating:
“While generally statutes will not be construed to give them retrospective application unless it appears that such was the legislative intent, nevertheless when a change of law merely affects the remedy or law of procedure, all rights of action will be enforced under the new procedure without regard to whether they accrued before or after such change of law and without regard to whether or not the suit has been instituted, unless there is a savings clause as to existing litigation. Davis v. Hughes, 229 Kan. at 101; Lakeview Village, Inc. v. Board of Johnson County Comm'rs, 232 Kan. 711, 659 P.2d 187 (1983).
“While retrospective operation of procedural statutes has been allowed generally, where a vested right of defense exists prior to the effective date of the procedural statute, it would not be proper to allow the retrospective application of 60-203(b). Once it was established the defendants had never been served, the statute of limitations barred any further actions against them. Defendants had a vested right in the defense provided by the statute of limitations. There is no distinction between a vested right of action and a vested right of defense. Accordingly, the general rule is that a vested right to an existing defense is protected in like manner as a right of action, with the exception only of those defenses which are based on informalities not affecting substantial rights. Pritchard v. Norton, 106 U.S. 124, 132, 27 L. Ed. 104, 1 S. Ct. 102 (1882). The trial court was correct when it determined that under the facts of this case K.S.A. 60-203(b) did not apply retrospectively and that Jackson’s action was barred by the two-year statute of limitations.” 238 Kan. at 324-25. (Emphasis added.)
In Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 831 P.2d 958 (1992), the court was not pleased with the harsh result of Jackson because it disallowed retroactive application of new statutes to all statute of limitations which had already expired and vested in the defendant. Thus, the court tried to soften this rule by recognizing, for the first time, a distinction between statutes of limitations and statutes of repose. As such, the court found that statutes of limitations were merely procedural and could not grant vested rights. Thus, unlike Jackson, statutes of limitations could be amended by retroactive application of a new statute even if the limitations period had already expired before the effective date of the new statute. On the other hand, the court partially followed Jackson and found that statutes of repose were substantive and could grant vested rights in a time bar defense once they had ex pired. As such, statutes which became effective after a statute of repose had expired could not be applied retroactively and could not revive an action barred by an expired statute of repose without violating due process.
Harding involved a tort action by the plaintiff, individually and as an executrix of her husband’s estate, against the defendant who sold the plaintiff’s husband asbestos-containing drywall products for his paint contracting business. Alleging that her dead claim was revived by K.S.A. 60-3303, the plaintiff filed a negligence and strict liability action.
K.S.A. 60-3303 states in pertinent part:
“(d)(1) In a product liability claim against the product seller, the ten-year limitation, as defined in K.S.A. 60-513, and amendments thereto, shall not apply to the time to discover a disease which is latent caused by exposure to a harmful material, in which event the action shall be deemed to have accrued when the disease and such disease’s cause have been made known to the person or at the point the person should have been aware of the disease and such disease’s cause.
(2) The term ‘harmful material’ means . . . any chemical substances commonly known as asbestos ....
“(e) Upon the effective date of this act through July 1, 1991, the provisions of this subsection shall revive such causes of action for latent diseases caused by exposure to a harmful material for: (1) Any person whose cause of action had accrued, as defined in subsection (d) on or after March 3,1987; or (2) any person who had an action pending in any court on March 3, 1989, and because of the judicial interpretation of the ten-year limitation contained in subsection (b) of K.S.A. 60-513, and amendments thereto, as applied to latent disease caused by exposure to a harmful material the: (A) Action was dismissed; (B) dismissal of the action was affirmed; or (C) action was subject to dismissal. The intent of this subsection is to revive causes of action for latent diseases caused by exposure to a harmful material which were barred by interpretation of KS.A. 60-513, and amendments thereto, in effect prior to this enactment.” (Emphasis added.)
The district court agreed with the plaintiff, finding that the plaintiff’s claims were revived by 60-3303. The defendant appealed, contending any such revival of the plaintiff’s claim by 60-3303 was unconstitutional. The issue was whether 60-3303 constitutes a taking of property and violates the due process protections provided in the Kansas and United States Constitutions. 250 Kan. at 661-62.
In analyzing this issue, this court started out with the premise that statutes are presumed constitutional. This court then acknowledged that it had never recognized a distinction between statutes of limitations and statutes of repose. Up until the Harding case, this court had treated all time limitations the same. At that time, a time limitation could be extended by a newly enacted statute if it had not already run out. Yet, if an action was already barred by an expired time limitation (statute of limitation or statute of repose), then the action could not be revived or extended by a newly enacted statute. 250 Kan. at 663-64 (citing Jackson v. American Best Freight System, Inc., 238 Kan. at 325; Bowman, et al., v. Cockrill, 6 Kan. 311 [1870]; and Morton v. Sharkey, 1 Kan. 535 [1860]).
In Harding, this court held that K.S.A. 60-3303 could revive actions, even though the actions were barred by a statute of limitations before 60-3303 was enacted, and that such revival did not violate due process. In so holding, the Harding court recognized the distinction between statutes of limitations and statutes of repose by making the following analysis:
“We now turn to the Kansas Constitution Bill of Rights, § 18: ’All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law.’ As previously pointed out, we have recognized a defendant has a vested right to a defense after the statute of limitations has run, except where no substantial rights are affected. See Jackson v. American Best Freight System, Inc., 238 Kan. at 325. We have so held without distinguishing statutes of limitations from statutes of repose. Our failure to make this distinction makes it difficult to separate procedural law from substantive law. This is important to this case because the courts have historically recognized that legislatures may by express provision make procedural law retroactive because no property rights are involved. A different rule applies, however, to substantive laws. They affect vested rights and are not subject to retroactive legislation which would constitute the taking of property without due process.
“Even though the United States Supreme Court makes no distinction between statutes of limitations and statutes of repose, and we have not clearly expressed the distinction in our cases, we consider it important to explain the difference between the two theories. 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. Thus, Kansas constitutional protection applies only to statutes of repose because they pertain to substantive rights.
“With our recognition of the distinction between statutes of repose and statutes of limitations, we modify the rule in Morton v. Sharkey, Bowman, et al., v. Cockrill, and other cases which prohibit the legislature from reviving causes of action barred by a statute of limitations. The legislature has the power to revive actions barred by a statute of limitations if it specifically expresses its intent to do so through retroactive application of a new law. The legislature cannot revive a cause of action barred by a statute of repose, as such action would constitute the taking of property without due process.
“Let us now examine the applicable Kansas statutes. The standard two-year limitation of actions found in K.S.A. 1991 Supp. 60-513(a) is a statute of limitations. It fits the definition completely. However, the 10-year provision in K.S.A. 1991 Supp. 60-513(b), ‘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,’ is a statute of repose. It bars the cause of action after the 10-year period even though the action may not have yet accrued.
“. . . K.S.A. 1991 Supp. 60-3303(e) applies retroactively only to the two-year statute of limitations, K.S.A. 1991 Supp. 60-513(a). As we previously noted, a defendant has no vested right in a statute of limitations. It is an expression of legislative public policy, is procedural, and may be applied retroactively when the legislature expressly makes it so. We hold K.S.A. 1991 Supp. 60-3303(e) is not in violation of either the Kansas or United States Constitutions.” 250 Kan. at 667-70.
Relying directly upon the Harding case, the Court of Appeals addressed the same issue at stake in the Ripley case in Swartz v. Swartz, 20 Kan. App. 2d 704. In Swartz, the plaintiff, an adult daughter, sued her mother and adoptive father for damages arising out of childhood sexual abuse perpetrated on her by her adoptive father. The plaintiff was bom on November 18, 1968. According to the plaintiff, her adoptive father sexually abused her between November 8, 1979, and September 27, 1982, when she was between the ages of 11 and 14 years old. The plaintiff also contends that her mother failed to properly supervise her during this time period. The plaintiff filed her petition on November 9,1993, when she was 24. The petition alleged that the defendants were liable for negligence regarding the sexual abuse, for negligent infliction of emotional distress, and for civil conspiracy to commit sexual abuse.
The district court found and the Court of Appeals agreed that the cause of action accrued in 1982, while the plaintiff was a minor. Thus, 60-515(a) applied to all of the plaintiff’s claims. K.S.A. 60-515(a) tolled the statute of limitations until 1 year after the plaintiff reached the age of 18. The plaintiff turned 18 on November 18, 1986, and her causes of action were barred in 1987 by the 60-515(a) 1-year statute of limitation. K.S.A. 60-515(a) also barred all claims which were commenced 8 years after the time of the act giving rise to the cause of action. 20 Kan. App. 2d at 705-06.
Nonetheless, the plaintiff contended that K.S.A. 60-523 revived her dead lawsuit and gave her 3 years to file suit from the time in 1992 when she realized her emotional problems were related to the sexual abuse. Thus, the plaintiff asserts that she timely filed her suit in 1993.
Quoting this court in Harding, the Court of Appeals stated:
“ ‘The legislature has the power to revive actions barred by a statute of limitations if it specifically expresses its intent to do so through retroactive application of a new law. The legislature cannot revive a cause of action barred by a statute of repose, as such action would constitute the taking of property without due process.’ ” (Emphasis added.) 20 Kan. App. 2d at 708.
Based on this rule, the court attempted to determine whether 60-515(a) is a statute of limitations and validly revived, or a statute of repose and invalidly revived. In analyzing the issue, the Court of Appeals found that K.S.A. 60-515(a) “abolishes the cause of action after the eight-year period even though the action may not have yet accrued.” 20 Kan. App. 2d at 708. Thus, the Court of Appeals found that K.S.A. 60-515(a) is a statute of repose which barred the plaintiff’s claims in 1990, prior to the 1992 enactment of 60-523. As such, the court found that the plaintiff’s claims could not be revived by 60-523 without violating due process and affirmed the district court’s dismissal of the suit. 20 Kan. App. 2d at 708.
In spite of the Swartz case, the plaintiff herein still contends that 60-523 properly revived her claims. The plaintiff makes this argument even though her claims were barred by both the 60-515(a) statute of limitations and statute of repose before 60-523 became effective in 1992. The plaintiff makes this argument by contending that Swartz and Harding are no longer good law. The plaintiff bases this assertion upon See v. Hartley, 257 Kan. 813, 896 P.2d 1049 (1995). According to the plaintiff, Hartley draws back from the previous clear demarcation between statutes of limitations and statutes of repose as enumerated in Harding. As such, the plaintiff contends that K.S.A. 60-515(a) is simply a statute of limitations and may be extended at the will of the legislature, even after it has expired, without violating due process.
Hartley involved a medical malpractice action arising out of a surgery performed on September 20, 1988. K.S.A. 60-513(a)(7) requires a plaintiff to file “[a]n action arising out of the rendering of or failure to render professional services by a health care provider” within 2 years of the plaintiff’s injuiy becoming reasonably ascertainable and the accrual of the action. K.S.A. 60-513(c) also provides that in no event shall a medical malpractice action “be commenced more than four years beyond the time of the act giving rise to the cause of action.” The alleged malpractice in Hartley occurred on September 20, 1988, and the plaintiff timely filed his original action on September 16, 1992. The suit was timely filed because the plaintiff’s 2-year statute of limitations period was tolled while a malpractice screening panel determined whether the doctor had breached any duty. K.S.A. 65-4908. Also, the plaintiff filed his action within 4 years of the time of act giving rise to the cause of action. Then, on February 17, 1993, the plaintiff voluntarily dismissed the suit without prejudice. On August 16, 1993, the plaintiff refiled the action. Unfortunately, the 60-513(c) 4-year time limitation from the time of the act giving rise to the cause of action had expired. Thus, the defendant filed a motion for summary judgment, contending that plaintiff’s action was barred by 60-513(c) because the 4-year statute of repose had expired. The district court denied the defendant’s motion for summary judgment, finding that K.S.A. 60-518 saved the plaintiff’s lawsuit. K.S.A. 60-518 provides:
“If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure. ”
The issue in the Hartley case was “whether the plaintiff [could] voluntarily dismiss his lawsuit and refile it within the six-month savings period provided by K.S.A. 60-518, but after the expiration of the four-year period provided by K.S.A. 60-513(c).” 257 Kan. at 814.
Relying on Harding, the defendant argued that a 4-year time limitation in 60-5l3(c) is a substantive statute of repose. Thus, when the plaintiff voluntarily dismissed his claim after the statute of repose had expired, the plaintiff’s action was instantly barred by the statute of repose, and the defendant instantly gained vested rights in this time bar defense. According to the defendant, a savings statute (60-518) could not reactivate a claim which is already barred by a statute of repose and disturb the defendant’s vested rights in the time bar defense without violating due process. The defendant also argued that 60-513(c) is substantive and thus controlling over 60-518 because 60-518 is only procedural in nature. Finally, the defendant argued that the 60-513(c) 4-year statute of repose, as a substantive statute, was not tolled by 65-4908, the malpractice screening panel statute.
This court found that Harding and its distinction between statutes of limitations and statutes of repose were not applicable to the facts of the Hartley case. In so holding, the court stated:
“Prior to our opinion in Harding, the Kansas appellate courts had not specifically recognized a difference between statutes of limitation and statutes of repose. As early as 1870 this court, in Taylor v. Miles, 5 Kan. 498, 515 (1870) stated: [Statutes of limitation] are considered favorably as statutes of repose.’ See also A.T. & S.F. Rld. Co. v. Burlingame Township, 36 Kan. 628, Syl. ¶ 1, 14 Pac. 271 (1887) (’Statutes of limitation are statutes of repose which are founded on sound policy.’).
“While there are differences between statutes of limitation and statutes of repose, those differences are not as clearly defined as Menne [v. Celotex Corp., 722 F. Supp. 662 (D. Kan. 1989)], Harding [v. K.C. Wall Products, 250 Kan. 655, 831 P.2d 958 (1992)], and Wright [v. Robinson, 262 Ga. 844, 426 S.E.2d 870 (1993),] might indicate. Both types of statutes constitute time limitations on the plaintiff 's right to recover for damages received as a result of the defendant’s action or inaction. Thus, in the broader sense, a statute of repose constitutes one type or form of a statute of limitations. Both types of statutes seek the same objective and are founded on the same basic philosophy. ‘Statutes of limitation are statutes of repose, and, as such, are designed to secure the peace of society and to protect the individual from being prosecuted upon stale claims.’ Rochester American Ins. Co. v. Cassell Truck Lines, 195 Kan. 51, 54, 402 P.2d 782 (1965).
“The essential difference between statutes of limitation and statutes of repose are based upon the time of the accrual of a cause of action and the effect of such accrual on the time limitation. K.S.A. 60-513(a) is the general statute of limitations for tort actions and provides for a two-year limitation period from the time the cause of action accrues. Ordinarily, a cause of action accrues at the time of the act giving rise to the alleged injury or damage. If the injury is not simultaneous with the act, it accrues at the time the injury becomes reasonably ascertainable. K.S.A. 60-513(c) applies the general rule for the accrual time of a cause of action for medical malpractice but, in addition, establishes a time limitation on the filing of an action even if the cause of action has not yet accrued.” 257 Kan. at 819-20.
“When the . . . statutes are read together and the obvious intent of each statute is given effect in relation to the others, we conclude that the language ‘and the time limited for [filing the action] shall have expired’ in K.S.A. 60-518 and the language ‘shall toll any applicable statute of limitations’ in K.S.A. 65-4908 should be construed broadly to include any time limitation, regardless of whether it be denominated a statute of limitations or a statute of repose. See K.S.A. 60-102. The repose provisions of 60-513(c) are not applicable to defeat the savings clause of 60-518 when the initial action was timely filed, even though the second action is not filed until more than four years after the act which gave rise to the cause of action. Although there may be basic differences between statutes of limitation and statutes of repose as discussed in Harding, we do not find the difference in semantics or the procedural versus substantive argument persuasive under the facts of this case and the statutes discussed herein. The repose provisions of K.S.A. 60-513(c) simply do not apply under the facts of this case.
“We conclude that once an action is timely filed under the provisions of a so-called ordinary statute of limitations or within the applicable time limitations of a repose statute, such as K.S.A. 60-513(b) or (cj, the action is then subject to the savings provision of K.S.A. 60-518. We also conclude that the tolling provision of K.S.A. 65-4908 is applicable to medical malpractice actions that might otherwise be barred by K.S.A. 60-513(c). In the instant case the original action, although filed more than two years after the cause of action arose, was timely filed because of the tolling provision of K.S.A. 65-4908. The first action, having been timely filed, was subject to the savings provision of K.S.A. 60-518, and therefore the second action was also timely and not barred by K.S.A. 60-513(c).” 257 Kan. at 822-23.
Thus, this court found that 60-518, the savings statute, could save a cause of action even if it was barred by an expired statute of repose. The court also stated in dicta that 65-4908, the tolling provision for actions subject to the medical malpractice screening panel, tolls both a statute of limitations and a statute of repose.
However, Hartley is distinguishable from Swartz; thus, the Swartz rationale still controls the issue in this case. Hartley is distinguishable from Swartz because K.S.A. 60-518 and K.S.A. 65-4908 were enacted and effective statutes on the date the plaintiff’s statute of repose expired. This was not the case in Swartz. In Hartley, the applicable laws, which were effective when the plaintiff’s 4-year repose period expired, informed the defendant that the plaintiff’s claim was not totally extinguished until the 6-month savings statute under 60-518 had run and the statute of repose had run after being tolled by 65-4908. As such, the defendant knew or should have known that the plaintiff’s claim was not dead when the 4-year statute of repose technically expired and the defendant’s rights in the time bar defense could not vest at this time. Thus, none of the defendant’s vested rights were taken or disturbed by the revival of the plaintiff’s claim under 60-518 and 65-4908. Since the defendant’s vested rights were not taken, due process was not violated.
Like in Swartz, but unlike in Hartley, the revival statute in this case, K.S.A. 60-523, was not enacted or effective on the date the plaintiff’s statute of repose expired. All the applicable, effective laws at the time the statute of repose expired informed the defendants that the plaintiff’s claims were completely and totally extinguished. Thus, the defendants had no notice, except for knowledge that the legislature can amend laws in the future, that the plaintiff’s claims might not be completely extinguished or might be revived later by a newly enacted statute when the statute of repose expired. As such, the defendants’ rights in the time bar defense vested when the plaintiff’s substantive statute of repose expired; the defendants’ vested rights would have been taken if the plaintiff’s extinguished claims had been revived in this case by 60-523, which was not effective when the statute of repose expired. If the defendants’ vested rights would have been taken, due process would have been violated.
The plaintiff’s statute of repose ran out in 1969 or 1972. There were no other applicable extension statutes effective at this time. Thus, the plaintiff’s claims were barred by the 60-515(a) substantive 8-year statute of repose before 60-523 became effective and cannot be revived by 60-523 without violating due process.
Finally, the plaintiff contends that Swartz is inconsistent with Wheeler v. Lenski, 8 Kan. App. 2d 408, 658 P.2d 1056, rev. denied 233 Kan. 1093 (1983). According to the plaintiff, the two cases are inconsistent because Wheeler refers to the 8-year limitation in K.S.A. 60-515(a) as a statute of limitations while Swartz holds that the 8-year limitation in 60-515(a) is a statute of repose. It is true that the cases use different terms to define the same time limitation; however, Wheeler was decided 9 years before this court recognized a distinction between statutes of limitations and statutes of repose in Harding. We do not think such a difference in terminology necessarily indicates that one of the cases must be overturned as inconsistent with the other case. Moreover, the holdings of the two cases are not inconsistent.
Wheeler found that the imposition of a shorter statute of limitations/repose on the claims of minors was enacted to keep medical malpractice insurance costs down and did not treat minors differently from other plaintiffs without a rational basis. Also, the Wheeler court found the minor plaintiff in the case was put on notice, while her claims was still alive, that her claims would be subject to a new 8-year time limit as promulgated in 60-515(a). The plaintiff had 3 years from the enactment of 60-515(a) in which to file her claim. Furthermore, if the plaintiff had not had any time left from the enactment of 60-515(a) to file her claim (because 8 years had already passed from the defendant’s act), the statute provided 2 years to the plaintiff to bring her claim. As such, the enactment of the statute, K.S.A. 60-515(a), gave the plaintiff reasonable notice of this 8-year time limitation before her claims could be barred by it. Thus, the plaintiff’s property, an accrued cause of action, was not taken without notice. The court found that 60-515(a) did not violate the minor’s rights to due process or equal protection.
On the other hand, Swartz found that the revival of a claim, by a newly enacted statute, after the claim had already been extinguished by a substantive statute .of repose which created vested rights to a time bar defense in the defendant, took the defendant’s rights without notice. Thus, the court found that 60-523 violated due process under these facts. Both of these cases and holdings follow constitutional principles. These cases and their holdings are not inconsistent with each other.
The plaintiff also contends that the district court erred in dismissing her claim based on a statute of limitations/repose defense. According to the plaintiff, the defendants should be equitably es-topped from asserting the statute of limitations/repose defense. Tbe plaintiff argues that parents of a child are similar to shareholders of a corporation. Thus, the plaintiff asserts that her parents should be estopped from alleging a time bar defense under the adverse domination doctrine just as shareholders are estopped from asserting such a defense. The plaintiff also argues that a party cannot take advantage of a time bar defense if the party’s own concealment resulted in the delay in discovery of the alleged wrongful acts. Apparently, the plaintiff intended to argue at trial that the defendants’ concealment of their alleged wrongful acts resulted in the plaintiff’s delay of discovery of her injury and the subsequent bar of her claims by a statute of repose. As such, the plaintiff intended to assert that the defendants should be estopped from asserting a statute limitations/repose defense.
The defendants point out that the issue of equitable estoppel based on adverse domination and fraudulent concealment was not raised in the trial court. Issues not raised before the trial court will not be heard for the first time on appeal. McCaffree Financial Corp. v. Nunnink, 18 Kan. App. 2d 40, 59-60, 847 P.2d 1321 (1993); see Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan. 548, 552, 731 P.2d 273 (1987).
Affirmed.
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The opinion of the court was delivered by
Larson, J.:
Michael Nelson,-Wardén, El Dorado Correctional Facility (respondent or Warden), appeals the trial court’s rulings in this habeas corpus (K.S.A. 60-1501) proceeding that prison inmate Rodney Murphy must be immediately returned to the general prison population because he was being held in administrative segregation without legal, authority and in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
This case focuses on prisoners’ rights in view of the recent decision of the United States Supreme Court in Sandin v. Conner, 515 U.S. __, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), several recent cases from the Kansas Court of Appeals, and the Kansas Administrative Regulations applicable to prisoners.
Factual Background
On May 24, 1993, Murphy, then an inmate at the Lansing Correctional Facility, was placed in administrative segregation pursuant to K.A.R. 44-14-302(b), pending the results in an investigation of an inmate uprising 2 days earlier during which corrections officer Mark Avery was killed and another guard and prisoner severely injured. No presegregation hearing was held due to the “sensitive nature of investigation,” as allowed by K.A.R. 44-14-303(c). The following day, Murphy appeared before the Administrative Segregation Review Board (ASRB or Board) which approved his segregation and furnished him with a copy of his initial segregation review that changed.his status to “Other security risk” under K.A.R. 44-14-302(g).
The Board explained its decision in the following manner:
“Inmate was placed in segregation by shift supervisor after the inmate was alleged to be a participant in a disturbance on the maximum yard in which one officer was killed, one severely injured, and one inmate severely injured. The inmate’s behavior constitutes a threat to the security and control of the institution. No presegregation placement hearing was conducted due to the serious nature of the emergency. The Board recommends that the inmate remain in segregation until the investigation of the incident is final and complete. The inmate stated that he had no knowledge of the incident.”
Subsequent weekly and then monthly reviews of Murphy’s segregation continued to recommend his segregation as the investigation into the incident continued and he became a suspect. After an October 4,1993, incident in which Murphy attempted to disrupt the segregation unit, he was placed in a quiet cell and his status was changed pursuant to K.A.R. 44-14-307 to “Transfer to more restricted area.” The following day, the ASRB recommended that Murphy be removed from the quiet cell, and his status was returned to “44-14-302(g) Other Security Risk.” Murphy appeared before the Board personally on a number of occasions but, after November 30, 1993, refused to attend the review hearings.
The monthly review of January 4,1994, contained the same language as the earlier reviews and, in addition, stated: “The inmate is a suspect in the death of Officer Avery and faces possible charges.” On February 8, 1994, Murphy received a disciplinary report for possessing dangerous contraband. At no time did Murphy receive any official notice of who had accused him of participating in the Avery incident.
On March 4, 1994, Murphy filed a petition for a writ of habeas corpus pursuant to K.S.A. 60-1501,. which is the subject of this appeal. In his petition he sought injunctive relief, alleging he was illegally restrained in administrative segregation without legal justification and in violation of the Fourteenth Amendment.
On April 18, 1994, a hearing was held on Murphy’s petition. Evidence adduced established that Murphy was part of a large group of inmates who were treated similarly, although most had been transferred to El Dorado. No disciplinary proceedings had been initiated at this time in order to avoid jeopardizing the criminal cases. Some inmates who were initially segregated had been released to the general population because the evidence against them was not as strong as that against Murphy.
The evidence against Murphy was said to be one inmate willing to swear that Murphy was involved in the assault on the slain correction’s officer. Murphy was not then charged criminally for his involvement. At the time of the hearing, prison officials stated they intended to keep Murphy in segregation until the criminal trials were finished in hopes that information gained there would either confirm or deny his involvement.
Major Douglas Friesz, a member of the ASRB, testified he and other Board members were aware of the evidence involving Murphy’s alleged role in the April 1993 incident. Friesz testified Murphy had not been given details of the evidence implicating him in order to reduce the possibility of violence or retaliation against the inmate informant.
As a result of this hearing, the trial court remanded the matter to the Lansing warden, David R. McKune, to reconsider Murphy’s segregation and determine if there was a less restrictive way to accomplish the prison’s goals. The trial court further ordered that if McKune decided to continue administrative segregation, he must present a detailed explanation of the rationale for his decision to the court in camera.
Both sides then filed written arguments with the court concerning the propriety of Murphy’s segregation under established regulations and procedures and the extent of Murphy’s due process rights. McKune presented his in camera evidence, the content of which is not in the record on appeal.
On February 23, 1995, the trial court filed its memorandum decision in which it noted that at that time Murphy had been in administrative segregation for nearly a year and a half and no criminal or disciplinary changes had been filed against him even though 12 others had been charged in connection with the murder of the corrections officer.
The trial court first held that by placing Murphy in administrative segregation McKune acted beyond his authority. The court reasoned that the regulation on which McKune relied, K.A.R. 44-14-302(g), permits administrative segregation only while the in mate is engaging in behavior threatening to the security or control of the prison. The court stated that while there was evidence that one inmate claimed Murphy participated in Avery’s murder, there was no evidence Murphy was presently engaging in threatening behavior requiring his continued segregation.
Second, the trial court held the decision of the ASRB violated Murphy’s procedural due process rights because it was based on no evidence whatsoever. The court reasoned that by withholding from Murphy the name of his accuser during the investigation of his involvement with the murder, and by failing to provide him with the details of his accuser’s statement, he was prevented from having any meaningful hearing, which violated due process of law. In addition, the trial court faulted the failure to provide the Board with necessary information so it could make a meaningful decision as to the justification or lawfulness of retaining Murphy in administrative segregation.
Finally, the trial court stated: “If due process attaches for disciplinary cases that can result in segregation for 45 days, then it must attach to circumstances like this where the inmate may be segregated indefinitely.”
The trial court ordered Murphy’s immediate release from administrative segregation and return to the general population. The trial court granted respondent’s motion for a stay pending the filing of a notice of appeal.
On August 4, 1994, while the case was proceeding in the trial court, Murphy was moved to the El Dorado Correctional Facility and continues to be held in administrative segregation there. Murphy filed a motion for substitution of parties, and we ordered the substitution of Michael Nelson, Warden of the El Dorado Correctional Facility, as the proper respondent herein.
On appeal, respondent essentially raises three principal questions: (1) Did the trial court err in ruling that Murphy was being held in administrative segregation illegally and without statutory or regulatoiy authority because K.A.R. 44-14-302(g), “Other security risks,” requires a showing of present dangerousness or evidence that he is currently engaging in behavior that threatens the security or control of the prison? (2) Did the trial court err in holding that K.A.R. 44-14-101 et seq. and 44-14-301 et seq., dealing with administrative segregation, created liberty interests protected for prisoners by the Due Process Clause of the Fourteenth Amendment to the United States Constitution? (3) Did the trial court err in holding Murphy s due process rights were violated by the failure of the prison officials to inform him of the identity of the informant and the substance of the informant’s statements implicating Murphy in the murder of Officer Avery and the aggravated assault of another corrections officer? In addition to these questions, we will address another question: Did the trial court fail to consider an issue raised by Murphy’s petition which could be the basis for the relief he requested?
We answer each question affirmatively and consequently reverse the trial court. We remand for a determination of the underlying issue raised by the petition. Our analysis will set forth our scope of review, the background and statutory basis for the regulations in issue, and then discuss the issue's in the same order as they were discussed in the trial court’s decision.
Scope of Review and Application of Regulations.
All the issues on appeal concern questions of law upon which our review is unlimited. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). When determining a question of law, we are not bound by the decision of the trial court. Memorial Hospital Ass’n., Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). Additionally, Jones v. Marquez, 526 F. Supp. 871, 878 (D. Kan. 1981), clearly holds that the question of what process is due in a given factual situation is one of law.
It is clear that K.S.A. 1995 Supp. 75-5251 specifically authorizes the adoption of the rules and regulations by the Secretary of Corrections. Additional authority exists under K.S.A. 1995 Supp. 75-5205 and K.S.A. 1995 Supp. 75-5210 generally, and K.S.A. 1995 Supp. 75-5210(f) specifically states: “The secretary shall adopt rules and regulations for the maintenance of good order and discipline in the correctional institutions.”
Tew v. Topeka Police & Fire Civ. Serv. Comm’n, 237 Kan. 96, 100, 697 P.2d 1279 (1985), summarized the application of an ad ministrative agency’s rules and regulations by pointing out they must lie within the.agency’s competency to make and may not contravene or nullify controlling statutes, citing Kansas Commission on Civil Rights v. City of Topeka Street Department, 212 Kan. 398, Syl. ¶ 2, 511 P.2d 253, cert. denied 414 U.S. 1066 (1973). No question exists that the regulations in issue were properly issued.
Tew, 237 Kan. at 100, further teaches us that (1) regulations properly issued have the force and effect of laws, citing Carpenter v. Johnson, 231 Kan. 783, 789, 649 P.2d 400 (1982); (2) agency regulations are issued for the benefit of both the agency and the public and an agency must be held to the terms of its regulations, citing United States v. 2,116 Boxes of Boned Beef, 516 F. Supp. 321, 348 (D. Kan. 1981); and (3) as a general rule an administrative agency may not violate or ignore its own rules, and where it fails to follow the rules which it has promulgated, its orders are unlawful, again citing Kansas Commission, on Civil Rights, 212 Kan. 398, Syl. ¶ 1.
In applying regulations, we do consider and grant considerable deference to an administrative agency’s interpretation of its own regulations. See Hickey v. Kansas Corporation Comm’n, 244 Kan. 71, 76, 765 P.2d 1108 (1988). An agency’s interpretation of its own regulation will not be disturbed unless the interpretation is clearly erroneous or inconsistent with the regulation. In re Tax Appeal of Newton Country Club Co., 12 Kan. App. 2d 638, 647, 753 P.2d 304, rev. denied 243 Kan. 779 (1988). There is a strong presumption of regularity in administrative proceedings and actions. Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 384, 673 P.2d 1126 (1983).
Did the trial court err in ruling that Murphy was being held in administrative segregation illegally and without statutory or regulatory authority because KA.R. 44-14-302(g), “Other security risks,” requires a showing of present dangerousness or evidence that he is currently engaging in behavior that threatens the security or control of the prisonP
The effect of the trial court’s ruling on this issue is that administrative segregation can continue only during the time an inmate’s actual behavior threatens the security and control of the prison. This conclusion of the trial court is based upon the wording of K.A.R. 44-14-302(g):
“Other security risk. The principal administrator may place in administrative segregation or lock-up, in the inmate’s own cell, any inmate or group of inmates if the inmate or inmates are engaging in behavior which threatens the maintenance of security or control in the correctional facility. The principal administrator shall, in writing, explain, for the record,- the threat to security and show justification for segregation or lock-up under these circumstances. A copy of the explanation and justification shall be sent immediately to the secretaiy of corrections.”
Respondent argues the trial court’s construction of this regulation is erroneous for two reasons. It is first contended that requiring the prisoner to be currently engaged in disruptive behavior in order to be held in administrative segregation is inconsistent with the regulatory scheme as a whole, which explicitly provides for special restrictions or discipline for segregated inmates whose conduct while in segregation continues to present a threat to the prison. See K.A.R. 44-14-307; K.A.R. 44-13-308. In this case, while in administrative segregation, such further measures were applied to Murphy during a period in which he was disruptive. If release from administrative segregation is mandatory when the inmate’s actual present behavior is not a threat to the prison, the respondent contends these provisions for further sanctions are merely surplusage.
Second, respondent argues the trial court’s construction of K.A.R. 44-14-302(g) is illogical and would create a revolving door policy which would require that as soon' as an inmate becomes nondistruptive, he or she must be released even though he or she may immediately again cause disruption to the facility. We always strive for a reasonable interpretation or construction which avoids an unreasonable or absurd result. State v. Roudybush, 235 Kan. 834, 846, 686 P.2d 100 (1984).
K.A.R. 44-14-302(g), as part of a larger regulatory scheme, should not be read in isolation, but in light of the full regulatory plan of the agency relating to administrative segregation. The management of a potentially violent prison population could not be accomplished without constant danger to both staff and the inmate population if the prison must immediately release a prisoner from administrative segregation as soon as the prisoner ceases his or her threatening behavior. This construction of the regulation adopted by the trial court is not justified. The trial court erred in stating the Warden’s decision to hold Murphy in administrative segregation under K.A.R. 44-14-302(g) was outside of his grant of authority.
Did the trial court err in holding that KA.R. 44-14-101 et seq. and 44-14-301 et seq., dealing with administrative segregation, created liberty interests protected for prisoners by the Due Process Clause of the Fourteenth Amendment to the United States Constitution?
In resolving this issue we must first dispose of Murphy’s untenable arguments that since Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), was decided subsequent to the trail court’s ruling herein, it may not be considered for the first time on appeal. This contention has absolutely no merit.
Supreme Court Rule 6.09(b) (1995 Kan. Ct. R. Annot. 35) clearly allows parties to rely on new authorities not previously cited, even after briefs have been filed. It is our general rule that a decided case is binding not only on those cases arising in the future, but also on those pending when the case is decided. State v. Waterberry, 248 Kan. 169, Syl. ¶ 1, 804 P.2d 1000 (1991).
Although our analysis will necessarily primarily involve Sandin and the cases cited therein, as well as applicable Kansas cases, it is essential to remember that the Fourteenth Amendment to the United States Constitution provides that no state can “deprive any person of life, liberty or property, without due process of law.” Section 18 of the Kansas Constitution Bill of Rights provides that “[a]ll persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” Although this court could construe the rights granted to prisoners under the Kansas Constitution in a manner different than the United States Supreme Court does under the United States Constitution, traditionally, we have not done so.
The constitutional procedural due process analysis is a two-step procedure in which a court must first determine whether due process is involved and, if it is, the court must then determine the nature and extent of the process which is due. In Curtis Ambulance v. Shawnee Cty. Bd. of Cty. Com’rs, 811 F.2d 1371, 1375 (10th Cir. 1987), the legal standard applicable to due process claims was described as follows:
“To prevail on its due process claim Curtis must prove that it had a definite liberty or property interest and that such interest was, under color of state law, abridged without appropriate process. See Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S. Ct. 2701, 2705, 33 L. Ed. 2d 548 (1972); Casias v. City of Raton, 738 F.2d 392, 394 (10th Cir. 1984); Vinyard v. King, 728 F.2d 428, 430 (10th Cir. 1984). The process requirement necessary to satisfy fourteenth amendment procedural due process comes into play only after plaintiff has shown that it has a property or liberty interest. Vinyard, 728 F.2d at 430 n.5 (citing Roth, 408 U.S. at 569-70, 92 S. Ct. at 2705). To establish a property interest in a particular benefit, one must have a ‘legitimate claim of entitlement’ to it. Roth, 408 U.S. at 577, 92 S. Ct. at 2709. ‘[A]n abstract need or desire for it’ or a ‘unilateral expectation’ is insufficient. Id.; see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct. 1148, 71 L. Ed 2d 265 (1982).”
These identical concepts were restated by Justice Lockett in Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 354, 770 P.2d 443 (1989), when he opined:
“When an interest involving life, liberty, or property is implicated, due process considerations apply. However, a protected due process right must encompass an interest recognized by the Constitution. Harrison v. Long, 241 Kan. 174, 178, 734 P.2d 1155 (1987) (citing Sinclair v. Schroeder, 225 Kan. 3, 8, 586 P.2d 683 [1978]). To prevail on their due process claim, appellants must show that they possess a definite liberty or property interest and that this interest was abridged, under color of state law, without appropriate process. See Board of Regents v. Roth, 408 U.S. 564, 569-79, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).
“To establish a property interest in a particular benefit, appellant must have a ‘legitimate claim of entitlement to it.’ Board of Regents v. Both, 408 U.S. at 577. A person’s interest in a benefit becomes a property interest for due process purposes if there are ‘rules or mutually explicit understandings’ that support the claim of entitlement to the benefit and that the person may invoke at a hearing. Perry v. Sindermann, 408 U.S. 593, 601, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972). Without the existence of such rules or understandings, the person has only an abstract desire for or a unilateral expectation of the benefit. Board of Regents v. Roth, 408 U.S. at 577.”
With it clear that due process violations can be established only if the claimant is able to establish that he or she was denied a specific procedural protection to which he or she is entitled, the question of the procedural protection that must accompany a deprivation of a particular property right or liberty interest is resolved by a balancing test, weighing the individual loss at stake, the risk of erroneous deprivation, and the State’s interest in the procedures used. See Crane v. Mitchell County U.S.D. No. 273, 232 Kan. 51, 57, 652 P.2d 205 (1982) (citing Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 [1976]).
The trial court found both that Murphy had a liberty interest in remaining in, and returning to the general prison population and that his due process rights were violated because he was not afforded the opportunity to know the identity of the informant against him in order to meaningfully participate in a hearing. Because we conclude no liberty interest exists in remaining in the general prison population as opposed to being placed in administrative segregation, the trial court also erred in holding the ASRB was required to inform Murphy of all of the existing evidence which might be used against him in a disciplinary proceeding or in a criminal prosecution.
The United States Supreme Court jurisprudence formalizing the area of prisoner due process claims has culminated in Sandin, which was decided June 19, 1995. Although Sandin arose out of an appeal from the procedure involved in imposition of disciplinary segregation in a Hawaii prison, its holding that Conner’s discipline in segregated confinement did not present the type of atypical significant deprivation in which a State might conceivably create a liberty interest applies to confinement in administrative segregation, as in our case, because it was held in Sandin that at the time of Conner’s punishment, “disciplinary segregation . . . mirrored those conditions imposed upon inmates in administrative segregation and protective custody.” 132 L. Ed. 2d at 431.
The importance of Sandin is its pronouncement as to how a court determines whether an inmate has a protected liberty interest in some type or condition of confinement. The holding in San-din represents a major departure from the rule of Hewitt v. Helms, 459 U.S. 460, 471-72, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983), which the Sandin opinion said had impermissibly shifted the focus of the liberty interest inquiry from one based on the nature of the deprivation to one based on a micro-examination of the language of a particular state or federal regulation dealing with prisoners. In summarizing the procedure which has fallen into disfavor, the methodology of Hewitt was described as examining the regulations to see whether mandatory language and substantive predicates have created an enforceable expectation that the State would produce a particular outcome with respect to the prisoners confinement conditions. The Hewitt test had encouraged prisoners to comb regulations in search of mandatory language on which to base claims of entitlement to privileges, created disincentives for states to codify prison management procedures in the interest of uniform treatment, and “led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefits to anyone.” Sandin, 132 L. Ed. 2d at 429.
We will not repeat the historical analysis of many of the prior United States Supreme Court cases involving prisoners’ claims, which are well chronicled in Sandin. It is enough to note the San-din Court did not overrule Hewitt, when it stated the following:
“Such abandonment of Hewitt’s methodology does not technically require us to overrule any holding of this Court. The Court in Wdkinekona and Thompson concluded no liberty interest was at stake. Although it did locate a liberty interest in Hewitt, it concluded that due process required no additional procedural guarantees for the inmate. As such, its answer to the anterior question of whether the inmate possessed a liberty interest at all was unnecessary to the disposition of the case. Our decision today only abandons an approach that in practice is difficult to administer and which produces anomalous results.” 132 L. Ed. 2d at 249 n.5.
The author of the majority Sandin opinion, Chief Justice Rehnquist, approved the due process analysis of Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974) (Due Process Clause does not create liberty interest in good time credits but statutory provision created a liberty interest in shortened prison sentence), and Meachum v. Fano, 427 U.S. 215, 228, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976) (no liberty interest in inmate intrastate prison transfers) and then went on to state:
“The time has come to return to the due process principles we believe were correctly established and applied in Wolff and Meachum. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. See also Board of Pardons v. Allen, 482 U.S. 369, 96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987). But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, see, e.g., Vitek, 445 U.S. at 493, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (transfer to mental hospital) and Washington, 494 U.S. at 221-222, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (involuntary administration of psychotropic drugs), nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 132 L. Ed. 2d at 429-30.
We believe the Sandin holding is clear that courts are no longer obligated to supervise or be involved in the day-to-day management of prison life:
“Admittedly, prisoners do not shed all constitutional rights at the prison gate, Wolff, 418 U.S. at 555, 41 L. Ed. 2d 935, 94 S. Ct. 2963, but * “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” ’ Jones, 433 U.S. at 125, 53 L. Ed. 2d 629, 97 S. Ct. 2532, quoting Price v. Johnston, 334 U.S. 266, 285, 92 L. Ed. 2d 1356, 68 S. Ct. 1049 (1948). Discipline by prison officials in response to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law.” 132 L. Ed. 2d at 431.
It is no longer required that state regulations such as those involved in our case must be tested under Hewitt. Sandin’s holding that discipline in segregated confinement did not present the type of atypical, significant deprivation by which a state might conceivably create a liberty interest requires that we hold that Murphy’s confinement in administrative segregation is also not the type of significant deprivation by which the State of Kansas might create a liberty interest.
Sandin goes on to state, however, that
“[pjrisoners such as Cornier, of course, retain other protection from arbitrary state action even within the expected conditions of confinement. They may invoke the First and Eighth Amendments and the Equal Protection Clause of the Fourteenth Amendment where appropriate, and may draw upon internal prison grievance procedures and state judicial review where available.” 132 L. Ed 2d at 432 n.ll.
Although the trial court did not consider whether Murphy’s confinement represented a significant and atypical hardship on the prisoner, we do not believe, under the facts of this case, it was necessary for it to do so.
All of the applicable administrative regulations, including the minimum standards of segregation set forth in K.S.A. 44-14-101 which cover (a) diet, (b) cell conditions, (c) clothing and bedding, (d) communication with an attorney, (e) proper authority for segregation, (f) medical services, (g) log of essential facts, (h) weekly reports, (i) report of deprivations, (j) mail, (k) visitations, (1) telephone privileges, (m) legal materials, (n) reading materials, (o) exercise, (p) programs, and (q) daily administrative visitations are before us and fail to show the type of atypical significant deprivation by which the State of Kansas might conceivably have created a liberty interest.
It is clear that the administrative regulations in Kansas governing segregation compel a holding, as a matter of law, that administrative segregation does not represent a significant and atypical hardship on the prisoner in relation to the ordinary incidents of prison life.
In two pre-Sandin cases involving and applying the Hewitt analysis to the regulations concerned with administrative segregation in Kansas, two panels of the Court of Appeals reached opposite results. In Gray v. Nelson, 20 Kan. App. 2d 900, 893 P.2d 842 (1995), one panel held that repeated use of explicitly mandatory language in connection with requiring specific substantive predicates for administrative segregation created a liberty interest. In Graham v. Nelson, 20 Kan. App. 2d 896, 893 P.2d 294 (1995), another panel, relying on Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989), and Dotson v. Maschner, 764 F. Supp. 163 (D. Kan. 1991), found no mandatory language to limit discretion and require a particular result, which would give rise to a liberty interest.
The holding of Gray is disapproved, while the result in Graham is found to be consistent with our decision herein. Although Graham did not apply the current Sandin analysis, we concur with its result that no liberty interest exists in a prisoner’s transfer to administrative segregation.
We will not, in this opinion, reach or discuss the Court of Appeals’ decision in a third case involving the issue of whether there is a liberty interest in being free from segregation, Davis v. Finney, 21 Kan. App. 2d 547, Syl. ¶ 1, 902 P.2d 498 (1995), because Davis is a disciplinary segregation case. Any specific comment we would make would be inappropriate dicta.
Did the trial court err in holding Murphy’s due process rights were violated by the failure of the prison officials to inform him of the identity of the informant and the substance of the informant’s statements implicating Murphy in the murder of Officer Avery and the aggravated assault of another corrections officer?
Because we have held that no liberty interest exists in transfers to administrative segregation, the trial court’s decision that Murphy’s due process rights were violated by the failure of the prison officials to inform him of the identity of the informant and the substance of the informant’s statement implicating Murphy is also erroneous.
Did the trial court fail to consider an issue raised by Murphy’s petition which could be the basis for the relief he requested?
The central complaint in Murphy’s habeas petition was that he continued to be held in administrative segregation for purely investigative reasons.
In the present case, it is undisputed that Murphy is being held as the result of his alleged involvement in an incident which occurred more than 3 years ago. Although Murphy has yet to be charged, others involved in the incident have even had their appeals resolved by this court. See, eg., State v. Harris, 259 Kan. 689, 915 P.2d 758 (1996).
The statute of limitations on the May 22, 1993, incident at the Lansing Correctional Facility has now run on any offense, except for first-degree murder, for which Murphy might be charged. Yet, he remains uncharged, and the reason for his segregation, to determine if additional evidence against him would arise out the trials of those charged, no longer exists.
In establishing the regulations relating to administrative segregation in K.A.R. 44-14-301, the Secretary stated: “Administrative segregation procedures shall be established for the control of inmates for some necessary administrative purpose other than punishment.”
With the reasons stated in the record as the “necessary administrative purpose” no longer in existence, a question arises whether continuing to hold Murphy in administrative segregation is for the prohibited reason of punishment.
We have no wish to have the court system involved in the day-to-day management of the prison system. See Sandin, 132 L. Ed. 2d at 429. We also continue to uphold the strong presumption of the validity of the administrative actions which take place within our correctional system.
However, based on the limited and restrictive facts of this case, we hold Murphy has the right to a K.S.A. 60-1501 hearing, with counsel, before the district court to challenge the.presumption of regularity which has attached to the administrative segregation decision and attempt to establish that such segregation has actually become punishment contrary to K.A.R. 44-14-301. We remand this case for the limited purposes of such a hearing.
Reversed and remanded.
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The opinion of the court was delivered by
Six, J.:
This case,.addresses the rule-making authority of the Kansas State High School Activities Association, Inc. (KSHSAA). The district court after a bench trial enjoined enforcement of all KSHSAA rules, holding the rules are void ab initio because they are the product of an unconstitutional delegation of legislative power. According to the district court, the rules violate Article 2, § 1 of the Kansas Constitution. Additional issues concern whether: (1) the plaintiffs have standing to bring this action and (2) the unconstitutional delegation issue was properly before the district court for decision.
Two fathers, each with two minor sons who play basketball, sued KSHSAA, seeking relief from four rules concerning eligibility for high school and junior high school interscholastic basketball competition. The fathers sought a declaratory judgment, quo warranto, an order of mandamus, and a permanent injunction. The district court stayed the injunction, pending appeal. Our jurisdiction is under K.S.A. 60-2101(b) (a final judgment of the district court in which a Kansas statute was held to be unconstitutional).
We reverse and hold: (1) The fathers have standing; (2) the unconstitutional delegation issue is before us for review; and (3) KSHSAA’s rules are not void and unenforceable as an unconstitutional delegation or sub-delegation of legislative power.
The fathers also alleged in district court that KSHSAA acted beyond its jurisdiction in adopting the questioned rules and that the rules were arbitrary and capricious. The merits of these theories were not addressed by the district court; thus, we do not reach them on appeal.
FACTS
Brook Robinson is the father of Brook, Jr., a freshman at Wichita Southeast High School, and Brandon, now a 7th-grader. Both boys play basketball. Charles Gunter is the father of Chuck, a senior on the varsity basketball squad at Wichita Southeast, and Mario, a freshman at the same school.
The fathers challenge the following four KSHSAA rules: Article 5, Section 1 of Rule 33 (“three players to a squad rule”); Article 4, Section 1 of Rule 33 (“anti-competitive team camp rule”); Article 1, Section 1 of Rule 22 (“outside team rule”); and Section 1 of Rule 26 (“anti-clinic and private instruction rule”). The “three-player rule” may have been repealed, thus possibly mooting the question of its validity. (See “KSHSAA Cuts Down Restrictions,” The Topeka Capital-Journal, Sunday, April 21, 1996, 15-F.)
The “anti-competitive team camp rule” prohibits basketball players from attending competitive team camps in summer or school-organized practices during spring or summer. The rule generally prohibits coaches from basketball-related contacts with their players during those times (except for a one-week team camp). Students may individually attend summer basketball camps that are not school-organized. Soccer and baseball do not have similar restrictions. The fathers desire that their sons have the freedom to attend competitive team camps in the summer, play in summer leagues with school teammates, receive summer instruction from their coaches, and have the freedom to decide what summer activities they will engage in without being penalized by KSHSAA.
The “outside team rule” prohibits a student from playing on both a school team and a non-school team during the basketball season. Mario and Brook, Jr., could not play YMCA basketball during the basketball seasons of their schools. Brandon will not be able to play YMCA and Salvation Army basketball without losing his eligibility, if he plays on a middle school team.
The “anti-clinic and private instruction rule” prohibits two or more players from receiving private instruction from non-school personnel during the basketball season. Former National Basketball Association stars have offered free clinics in the Wichita area, but this rule has prohibited Robinson’s sons from attending.
KSHSAA has existed since 1910, beginning as a voluntary athletic association of some 50 high schools. It has handled rules violation cases involving interscholastic athletics since the 1920’s. In 1937, it became the Activities Association and included speech and music in addition to athletics. It was first incorporated in 1956 as a nonprofit educational corporation, reorganized in 1958, under L. 1955, ch. 341, as amended by L. 1957, ch. 375, and reorganized again in 1969, in order to remain in compliance with statutory requirements. KSHSAA is currently organized under K.S.A. 1995 Supp. 72-130. At present, approximately 365 high schools (over 90% of Kansas high schools) and 400 junior high or middle schools are members of KSHSAA.
DISCUSSION
Standing
KSHSAA argues that the fathers do not have standing to challenge the legality of the KSHSAA rules because they are not members of the KSHSAA. KSHSAA contends that only member schools can challenge its rules. The fathers argue they have standing because the rules directly and expressly apply to their children and adversely affect the children. We note that KSHSAA does not assert a real party in interest argument to support its lack of standing claim. Robinson and Gunter sued in their own names, not in the names of their sons, who are minors. The complaints made about the KSHSAA rules concern the sons, not the fathers. The rules affect the sons’ eligibility for interscholastic competition, not the fathers. At oral argument, counsel confirmed that KSHSAA raised no real party in interest objection. Counsel for the fathers said that had such an objection been raised at the district court level, he would have sought leave to amend the petition naming the sons as plaintiffs. KSHSAA has waived any objections to the fathers as the real parties in interest. See K.S.A. 60-217(a).
Our review of the district court’s conclusion of law as to standing is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). Standing to sue means that a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of the controversy. Joe Self Chevrolet, Inc. v. Board of Sedgwick County Comm’rs, 247 Kan. 625, Syl. ¶ 1, 802 P.2d 1231 (1990).
The district court based its determination that standing existed upon application of the Declaratory Judgment Act, K.S.A. 60-1701 et seq. K.S.A. 60-1701 provides in part: “Courts of record within their respective jurisdictions shall have power to declare the rights, status, and other legal relations whether or not further relief is, or could be sought.” K.S.A. 60-1704 provides:
“Any person having an interest under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may seek deter mination of any question of construction or validity arising under that enactment, document or agreement and may obtain a declaration of rights, status or other legal relations thereunder.”
Plaintiffs do not claim the KSHSAA rules in question violate any of their constitutional rights. Participation in extracurricular school activities is not a fundamental right. Stone v. Kansas State High School Activities Ass’n, Inc., 13 Kan. App. 2d 71, 76, 761 P.2d 1255 (1988). The only constitutional issue in this case involves the non-delegation doctrine.
Cases in other jurisdictions show that judicial review of enforcement of state high school activities associations’ rules can be sought by aggrieved students under an “arbitrary and capricious” standard. See Ind. High School Athletic Ass’n v. Avant, 650 N.E.2d 1164, 1167-68 (Ind. App. 1995); Gerard v. State High School Athletic Ass’n, 210 App. Div. 2d 938, 939, 620 N.Y.S.2d 670 (1994); and Hebert v. Ventetuolo, 480 A.2d 403, 407 (R.I. 1984).
Other courts have allowed judicial review of a high school activities association’s regulations because of the association’s performance of a'quasi-govemmental function and support from public funds. See Crandall v. N.D. High School Activities Ass’n, 261 N.W.2d 921, 925 (N.D. 1978).
We reason that the fathers have the minimal standing required under K.S.A. 60-1701 et seq., although they raise no constitutional rights claims and their sons have not yet done anything that would result in loss of eligibility under the challenged rules. The fathers complain that their sons’ non-school activities are being curtailed by the rules in question. The fathers seek to void the rules so their sons' can participate in certain non-school activities previously avoided for fear of losing eligibility. The fathers allege a stake in an actual controversy to that extent. Again, we emphasize no objection to the fathers as the real parties in interest has been asserted. '
Was the Constitutional Issue Raised?
KSHSAA contends that the fathers did not raise the unconstitutional delegation issue until the day of trial and consequently KSHSAA had no meaningful opportunity to be heard. KSHSAA also reasons that we should apply a de novo standard of review in our analysis of whether the delegation issue has been raised. The fathers respond that the district court’s decision on either whether the issue was raised or to allow an amendment of the pleadings should be reviewed under an abuse of discretion standard, citing Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 897 P.2d 123 (1995). In Fusaro, wé applied an abuse of discretion standard to the district court’s decision allowing Fusaro to amend his petition to claim punitive damages. 257 Kan. at 804. The situation in this case is similar to a ruling on a motion to amend the pleadings. The district court impliedly granted such a motion by deciding the constitutional issue. The abuse of discretion standard of review is appropriate.
The fathers did not specifically allege an unconstitutional delegation of legislative power in the petition, initially assuming KSHSAA should be treated as a state agency. The pretrial statement did not identify the unconstitutional delegation issue with any' clarity. However, the fathers’ trial brief did. Counsel for KSHSAA specifically addressed the unconstitutional delegation issue on the merits in his closing statement at trial, without arguing that the issue was not properly before the court. We find no abuse of discretion in the district court’s consideration of the unconstitutional delegation issue; thus, the issue is ripe for resolution.
Has There Been an Unconstitutional Delegation to KSHSAA?
Our review of the district court’s conclusion of law that KSHSAA’s rules are void ab initio as an unconstitutional delegation of legislative power is unlimited. See Gillespie, 250 Kan. 123, Syl. ¶ 2.
Legislative power is the power to make, amend, or repeal laws. State ex rel. Stephan v. Kansas House of Representatives, 236 Kan 45, 59, 687 P.2d 622 (1984). Article 2, § 1 of the Kansas Constitution provides: “The legislative power of this state shall be vested in a house of representatives and senate.” The delegation of legislative power to a private group or association is constitutionally impermissible. Sedlak v. Dick, 256 Kan. 779, Syl. ¶ 1, 887 P.2d 1119 (1995).
In determining whether an unconstitutional delegation of legislative power has taken place, the first question is, has there been a delegation? KSHSAA, or its predecessors, has been adopting and interpreting rules for interscholastic high school sports competition among member schools since the 1920’s. KSHSAA did not come under any statutory directives until 1955. The legislature required “any organization” whose purpose is the regulation of school activities: (1) to incorporate and file annual reports with the state department of public instruction, (2) select its governing board according to statute, and (3) to provide for an appeal process for students “aggrieved by any rulings or decision.” School districts were prohibited from paying dues to KSHSAA unless KSHSAA complied with the. reporting requirements and governing board selection criteria. L. 1955, ch. 341. The 1955 legislation has been amended six times, resulting in the current version of K.S.A. 72-130 et seq. (L. 1993, ch. 245, §§ 1-4; L. 1992, ch. 262, § 7; L. 1984, ch. 261, § 2; L. 1977, ch. 239, §§ 1-7; L. 1969, ch. 311, §§ 1-7; L. 1957, ch. 375, §§ 1-6.)
The 1957 amendment applied to
“[a]ny organization with a majority of the high schools of the state as members and whose purpose is the state-wide regulation, supervision, promotion or development of any of the activities referred to in this act and in which any public school of this state may participate directly or indirectly.” L. 1957, ch. 375, § 1.
The only organization fitting that criteria was and is KSHSAA.
The 1957 amendment added the requirement that KSHSAA
“adopt such bylaws, rules and regulations governing its organization, membership and activities in conformity with the provisions of [this] act, and file a copy of same with the state department of public instruction. Any additions, alterations or modifications of such bylaws, rules and regulations shall first be submitted to the state superintendent of public instruction for his approval or disapproval. If disapproved by said superintendent, it may be submitted to the state board of education which shall have the power to approve or disapprove the same.” L. 1957, ch. 375, § 1(4).
The subject of education was addressed by the original framers in Article 6 of the Kansas Constitution adopted in 1861 and “designed to provide for the establishment of a school system during pioneer times.” Kansas Legislative Council, The Education Amendment to the Kansas Constitution, p. 4 (Publication No. 256, December 1965). Article 6 underwent a comprehensive constitutional amendment in 1966.
One of the main purposes of the 1966 amendment was to place responsibility for all elementary and secondary public education in the state board of education. The Education Amendment to the Kansas Constitution, p. 7.
As part of the 1966 amendment drafting process, the House Concurrent Resolution No. 537 authorized the Legislative Council to produce the report entitled, “The Education Amendment to the Kansas Constitution.” The resolution provided:
“[T]he Kansas legislative council is hereby directed to make a study of the scope, function and organization of the state in supervising education to comply with the constitutional requirement of a uniform system of public schools, and in particular correlating supervision of programs under the state superintendent of public instruction, the state board of education, the Kansas state high school activities association and the state board for vocational education.” H. Con. Res. 537. (Emphasis added.)
The Legislative Council report states the following concerning KSHSAA:
“ ‘Related activities’ are those activities which affect or impinge on school programs and educational functions, and which may be conducted by agencies outside the regular school system.
“High School Activities. One example of related activities is the area now supervised by the Kansas State High School Activities Association. It was first a voluntary organization to set and enforce policies for most forms of extra-curricular and inter-scholastic competition (e.g., football, basketball, music, debate, track, etc.), but in 1955 the legislature gave it statutory recognition. In carrying out its duties, the Association is essentially an independent unit. The State Superintendent may veto changes in its rules and regulations, but he has no authority to initiate new policies. . . .
“Increasingly, extra curricular activities are a major part of any well-balanced school program. Recause such activities place demands on students, they have a direct effect on programs offered during regular class hours. The Association would probably continue its present responsibilities and form of organization, but its actions would be under the general supervision of the new State Board of Education.” The Education Amendment to the Kansas Constitution, pp. 15-16.
The report shows that the proposed constitutional amendment was not intended by the drafters to change the responsibilities of KSHSAA, but only to change the supervising entity from the State Superintendent of Public Instruction to the State Board of Education.
The 1969 amendment to K.S.A. 72-130 et seq. conformed the statutory language with the 1966 constitutional amendment to Article 6. L. 1969, ch. 311. The statutory amendment required KSHSAA to
“adopt amendments to its articles of incorporation and bylaws in conformity with the provisions of this act, and submit the same to the state board of education for its approval or disapproval. Also, any additions, alterations or modifications of such articles or bylaws made at any time shall first be submitted to the state board of education for its approval or disapproval. If any such articles of incorporation, bylaws or any amendment, addition or alteration thereto is disapproved by the state board of education, the same shall not be adopted.” L. 1969, ch. 311, § 1(3).
The statutory amendment eliminated the requirement imposed in 1957 which required KSHSAA to submit its rules and regulations or amendments to the State Superintendent of Public Instruction for approval. Only articles of incorporation and bylaws or amendments would need to be submitted to the state board of education for approval.
After a study of KSHSAA in 1976 by the Special Committee on Education, as shown in the committee’s Report on Kansas Legislative Interim Studies to the 1977 Legislature, Part I, p. 11-1 (December 1976), K.S.A. 72-130 et seq. was again amended. L. 1977, ch. 239. The Committee recommended statutory revisions to the appeals board provisions, that KSHSAA comply with the open meetings law, and certain changes
“designed to conform certain provisions of the statutes and KSHSAA bylaws, as well as to clarify existing provisions of the law.
“For example, the role and function of the Board of Directors, Executive Board, and Appeal Board are specified in the bill. This results in no departure from present practice as set forth in KSHSAA bylaws.” Interim Studies Report, p. 11-7.
The 1977 changes to K.S.A. 72-130 et seq. followed the recommendations of the committee. L. 1977, ch. 239. A provision added by the amendment required that the association “[b]e governed by a board of directors which shall exercise the legislative authority of the association and shall establish policy for said association.” Ac cording to the Interim Studies Report, this provision was not intended to result in any departure from the practice set forth in the existing KSHSAA bylaws. It was not intended to confer any “legislative authority” on KSHSAA that it did not already have from its member schools.
No statutory provision has ever expressly delegated rule-making authority to KSHSAA. However, since L. 1955, ch. 341, the legislature has dictated the composition of KSHSAA’s governing board and has prescribed the appeals procedures for rulings and decisions of KSHSAA. Since L. 1957, ch. 375, the legislature has required KSHSAA’s bylaws or changes to be approved by the supervising state entity (initially the State Superintendent of Public Instruction and later the State Board of Education). Since L. 1969, ch. 311, § 1(3), KSHSAA has also been required to conform its articles of incorporation to K.S.A. 72-130 and submit any changes to the State Board of Education for approval.
KSHSAA cites cases from other jurisdictions in which courts have rejected arguments of unconstitutional delegations of power from legislatures or school boards in lawsuits challenging enforcement of state high school activities association rules. Cases from other jurisdictions must be viewed with caution, because the constitutional and legislative provisions in those jurisdictions differ from those in Kansas.
KSHSAA adopts its own rules concerning interscholastic activities, which the member schools agree to follow. Students have a choice of whether to follow the rules. If the student wants to participate in the interscholastic activities, he or she must follow the rules. Otherwise, the rules can be ignored.
KSHSAA’s rules are not the result of an unconstitutional delegation of legislative authority. KSHSAA had been exercising rule-making authority over its members in interscholastic sports for decades before the legislature saw fit to impose any statutory requirements on KSHSAA.
The District Court’s Decision
In reaching the determination that an unconstitutional delegation of legislative power had taken place, the district court first concluded that KSHSAA is not a voluntary association. In arriving at that conclusion, the district court relied on the contract doctrine of coercion or duress as stated in Milling Co. v. Gas & Electric Co., 115 Kan. 712, 225 Pac. 86 (1924); Williamson v. Ackerman, 77 Kan. 502, 94 Pac. 807 (1908); and Delano v. Kitch, 663 F.2d 990 (10th Cir. 1981). The district court also compared KSHSAA’s situation to Bunger v. Iowa High School Athletic Association, 197 N.W.2d 555 (Iowa 1972), noting that over 90% of the schools in Kansas belonged to the association. Although Bunger was not relied on, the district court concluded that “withdraw[al] from the Association as a means of exercising some form of voluntariness would be a meaningless act.”
The voluntariness issue goes to the heart of the question of whether KSHSAA’s rules are considered a matter of contract between its members or a delegated legislative function. The district court reasoned that the rules of KSHSAA should not be considered the rules of the member schools because membership in KSHSAA was not voluntary. Member schools had no choice on following the rules, even if they had voted against them.
The relationship of a voluntary association with its members is governed by contract law. Cunningham v. Independent Soap & Chemical Workers, 207 Kan. 812, 818, 486 P.2d 1316, cert. denied 404 U.S. 985 (1971).
KSHSAA has been characterized as a voluntary organization. See Gilpin v. Kansas State High School Activities Ass’n, Inc., 377 F. Supp. 1233, 1237 (D. Kan. 1973) (KSHSAA “is a voluntary nonprofit corporation.”); Stone, 13 Kan. App. 2d at 72 (KSHSAA “is a voluntary association of Kansas high schools that oversees interscholastic activities between member schools.”). Therefore, according to KSHSAA, its rules are a matter of contract and not the result of any delegation of power from the legislature. We agree.
Section 1, Article 1, of the bylaws of KSHSAA provides that any accredited public or private high school may join the association by its principal subscribing to the rules of the association and the payment of annual dues. Member schools can seek to have a rule rescinded or changed through the board of directors. KSHSAA Rules & Regulations Governing Grades Seven Through Twelve, Amendments, KSHSAA Handbook (1994-95 ed.) (“The rales . . . may be amended at any regular or called meeting of the Board of Directors by a majority vote of those present.”).
Nothing compels a high school to join KSHSAA or refrain from withdrawing its membership, if the school is willing to accept the consequences, however unpalatable. Schools are not required to have an interscholastic athletic program. We question the comparison of the KSHSAA — school relationship to the “coercive contract” situations in Milling Co., 115 Kan. 712; Delano, 663 F.2d 990; and Williamson, 77 Kan. 502.
Milling Co., 115 Kan. 712, concerned an action to recover money paid under duress. Just before the United States’ involvement in World War I, a milling company and an electric power company negotiated a contract to supply electricity at a certain rate. During the war, the power company’s costs increased dramatically. The power company requested more than the contract amount from the milling company, stating it could not continue service otherwise. The milling company paid under protest. We determined that such overpayments were made under duress and could later be recovered. “To constitute duress making a payment of money involuntary, there must be unlawful coercion, destroying free agency to pay or not to pay, according to one’s own will.” 115 Kan. 712, Syl. ¶ 1. “It is only when in an emergency for which he is not responsible, a person is compelled to meet an illegal exaction to protect his business interest, that he may recover the payment.” 115 Kan. 712, Syl. ¶ 2.
The facts and holding in Williamson, 77 Kan. 502, Syl. ¶ 1, are stated as follows:
“A contract, in order to be valid and binding, must be the result of the free assent of the parties making it; and where a father is coerced into executing a mortgage to secure the payment of a defalcation of his son, by threats of the arrest and prosecution of the son for embezzlement if such security is not given, the mortgage may be avoided on the ground of duress.”
Delano, 663 F.2d 990, involved a suit by former minority shareholders against the director, officer, and lawyer and the president, alleging breach of fiduciary duties concerning the sale of the corporation. Part of the suit involved a claim that Kitch, the director, officer, and lawyer for the corporation, had exacted a finder’s fee without the plaintiff shareholders’ consent. Kitch argued that plaintiffs ratified his actions by selling their stock. The United States Court of Appeals, affirming the verdict for the shareholders, stated:
“Ratification is not effective in favor of the fiduciary and against the beneficiary if the beneficiary must act to protect his or her own interests or acts under duress imposed by the fiduciary. [Citations omitted.] Plaintiffs acted under duress and to protect their interests. They leame.d of the contract after a majority had already agreed to it and when they had only ten days to decide whether to participate.” 663 F.2d at 999. ' '
Milling Co., Williamson, and Delano áre distinguishable. KSHSAA has taken neither illegal coercive action nor breached a fiduciary relationship. There is no evidence in the record that any member school considers -its membership coérced.
The district court compared KSHSAA’s situation to Bunger v. Iowa High School Athletic Association, 197 N.W.2d 555. In Bunger, the parents of a high school football player ruled ineligible sued the Iowa High School Athletic* Association (ISHAA) questioning the validity of one of ISHAA’s good conduct rules which related to vehicles and alcohol. The Iowa Supreme Court determined that IHSAA did not have authority to adopt the rule. The court noted that the legislature had statutorily delegated rule-making authority to -the’local School boards, but concluded that the school boards of IHSAA member schools had improperly sub-delegated this authority to IHSAA. 197 N.W.2d at 563. An argument IHSAA raised was that the rules were’ actually rules of each member school board because each board agrees to abide by IHSAA’s rules when it joins the association. 197 N.W.2d at 561. The Bunger court saidi ■
“We think this contention is inconsonant with the realities of the situation. The rules are actually association rules. A rule is initially adopted by majority vote of the association members’ Rearing in mind that a school board cannot re-delegate its rale-making power, .how can we say that a school which votes against a proposed rule has itself promulgated that rule? Again, a school which joins IHSAA ¿ter a number of rules have been adopted has no .choice as to the rules it will accept. It must take them all and abdicate its nondelegable responsibility to select the rules it wishes to have. Then what about a member school which becomes dissatisfied with a rule? It has no power to repeal the rule. To say the school can withdraw from IHSAA is no answer. If it leaves IHSAA voluntarily, or involuntarily for violating the rule, its boys’ interscholastic athletic program is at an end . . . .” 197 N.W.2d at 561.
We suggest that the Bunger court’s reasoning is even more inconsonant with the realities of the situation. How can schools organize themselves for interscholastic competition unless they all agree to play by the same rules? How can an individual school board adopt its own rules for interscholastic competition and hope to find other schools willing to compete, if each school has different rules? How is the sport, debate, or music event played out, if each team or group brings along not only its own ball, debate topics, or instruments, but also its own rules? The voluntary aspect of agreeing to abide by KSHSAA’s rales is the desire to become involved in interscholastic competition. The nature of interscholastic competition demands that there be a set of rules all competing schools are willing to abide by. It should be understood that a school wanting to compete in sports or other activities with other schools will agree to abide by the rales they all agree on — whether each school may like or dislike a particular rule.
The fact that almost all high schools in Kansas may belong to KSHSAA does not necessarily suggest that membership is involuntary. It may simply reflect the schools’ universal desire for interscholastic competition. The fact that all member schools must agree to obey the rules governing interscholastic competition, whether or not they individually agree with those rales, likewise does not establish involuntariness. The member schools’ desire that all schools play by the same rules overrides each school’s rales preferences, so that interscholastic competition can take place.
The Iowa constitutional and statutory provisions applicable to Bunger do not parallel those in Kansas. See 197 N.W.2d at 563. There are no statutory provisions in Kansas that expressly delegate rale making, or even rule approval, authority for interscholastic activities to the State Board of Education, local school boards, or KSHSAA. KSHSAA has always exercised rale-making authority— with or without any statutory sanction.
Reliance on Nondelegation Doctrine Cases
In concluding that KSHSAA’s rules were the result of an unconstitutional delegation of legislative power, the district court relied on three of our cases which applied the nondelegation doctrine: Sedlak, 256 Kan. 779; Gumbhir v. Kansas State Board of Pharmacy, 228 Kan. 579, 618 P.2d 837 (1980); and State v. Crawford, 104 Kan. 141, 177 Pac. 360 (1919). The fathers argue that even if no express delegation has been made to KSHSAA, the legislature has delegated by default by allowing KSHSAA to make the rules. As amicus National Federation emphasizes, a statutory source of the delegation must exist. We agree. The fathers’ delegation by default assertion is not persuasive. The district court viewed K.S.A. 1995 Supp. 72-130 as the statutory source of the delegation. All of the nondelegation doctrine cases relied upon by the district court had statutory sources of delegation.
In Crawford, defendant theater operators were charged with misdemeanor violation of the fire prevention act, which required that all electric wiring be in accordance with the national electric code. Defendants challenged the statute as an unconstitutional delegation of legislative power to the outside organizations that adopted the national electric code. We agreed, stating:
“If the legislature desires to adopt a rule of the national electrical code as a law of this state, it should copy that rule and give it a title and an enacting clause and pass it through the senate and the house of representatives by a constitutional majority and give the governor a chance to approve or veto it, and then hand it over to the secretaiy of state for publication.” 104 Kan. at 144.
In Gumbhir, the challenged statute (K.S.A. 1979 Supp. 65-1631[a]) required an undergraduate degree in pharmacy from a school accredited by the American Council on Pharmaceutical Education (ACOPE) before an applicant could take the examination to become a registered pharmacist in Kansas. Only pharmacy schools in the United States were on ACOPE’s accreditation list. Mr. Gumbhir, who received his undergraduate pharmacy degree in India, was refused application for the examination, and he sued. ACOPE was described as “a nongovernmental agency organized exclusively for educational and other nonprofit purposes.” 228 Kan. at 580. We determined that the subject statute was “an unlawful delegation. of legislative authority to a nongovernmental association.” 228 Kan. at 587.
In Sedlak, the constitutionality of certain provisions in the Workers Compensation Act was challenged. Those provisions established the Workers Compensation Board and provided that board members would be selected by one representative of the Kansas Chamber of Commerce and Industry and one representative of the Kansas AFL-CIO. We noted that the “nature of the delegated power ... is appointive rather than regulatory.” 256 Kan. at 801. Acknowledging that the “power of nomination may be exercised by a private organization,” but relying on Gumbhir, we determined that “the challenged statute is an unlawful delegation of legislative authority to a private entity.” 256 Kan. at 802-03.
Crawford, Gumbhir and Sedlak are distinguishable. K.S.A. 72-130 et seq. makes no express delegation of any rule-malting power concerning interscholastic activities (particularly regarding eligibility) to KSHSAA, the State Board of Education, or to local school boards. K.S.A. 1995 Supp. 72-130(a)(3) provides that the board of directors “shall exercise the legislative authority of the association.” However, the reference is to KSHSAA’s inherent legislative authority to govern the interscholastic activities of its member schools — not legislative authority delegated from the state legislature. K.S.A. 1995 Supp. 72-130(a)(4) gives the State Board of Education authority to approve amendments to KSHSAA’s articles of incorporation or bylaws, but it says nothing as to eligibility rules. K.S.A. 1995 Supp. 72-130(a) lists several requirements that an association fitting the prescribed qualifications must comply with, but it does not direct KSHSAA to promulgate eligibility rules. KSHSAA’s rules cover a narrow spectrum: interscholastic competition among its member schools. KSHSAA has been making these rules without any delegation of authority for more than the past 70 years. K.S.A. 1995 Supp. 72-130 prescribes the mechanics that KSHSAA must follow in selecting its governing body, so the rule-making process is representative.
The district court also determined that the local school boards had sub-delegated power to KSHSAA through member schools’ participation in KSHSAA. If there has been no statutory delegation of eligibility rule-making authority from the legislature to local school boards, there can be no sub-delegation of such authority from the schools boards to KSHSAA.
Right for the Wrong Reason
The district court in deciding the case did not reach the fathers’ allegations concerning the validity of the rules themselves. The fathers invite us to address their claim that KSHSAA lacks jurisdiction to adopt the rules as an alternative reason for affirming the district court, citing Bank of Kansas v. Davison, 253 Kan. 780, 792, 861 P.2d 806 (1993), Admire Bank & Trust v. City of Emporia, 250 Kan. 688, Syl. ¶ 2, 829 P.2d 578 (1992), and Prairie State Bank v. Hoefgen, 245 Kan. 236, Syl. ¶ 3, 777 P.2d 811 (1989) (“The reasons given by the district court for its decision are immaterial so long as its ruling was correct for any reason.”). The “right for the wrong reason” rule is applicable when we affirm the district court. Here we reverse. We decline the invitation.
Conclusion
The fathers have met the minimal requirements for standing. The unconstitutional delegation issue was sufficiently raised at a trial to place it before us on appeal. KSHSAA is a nonprofit corporation consisting of voluntary members. KSHSAA’s rules are adopted by its members, through its board of directors, and each member school agrees to obey those rules. We find no unconstitutional delegation or sub-delegation under K.S.A. 72-130 et seq. of legislative power violating Article 2, § 1 of the Kansas Constitution.
The fathers’ remaining theories in the case are: (1) KSHSAA lacks jurisdiction to adopt the questioned rules because the rules attempt to regulate non-school activities, and (2) the subject rules are arbitrary, capricious, and unreasonable. The district court will need to consider the merits of these two theories on remand.
Reversed and remanded.
Abbott, J., not participating.
Terry L. Bullock, District Judge, assigned.
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The opinion of the court was delivered by
Larson, J.:
Vernon K. Coffman appeals his jury convictions of two counts of aggravated criminal sodomy, K.S.A. 21-3506 (Ensley 1988), for oral sexual acts he allegedly perpetrated on a 6-year-old neighbor girl.
The two issues raised by this appeal do not require us to set forth in detail the trial evidence of the alleged sexual acts. Therefore, we turn to the legal questions of (1) whether the trial court erred in failing to instruct on indecent liberties with a child as a lesser included offense of aggravated criminal sodomy when the defendant specifically asked that it not do so, and (2) whether the evidence was insufficient to support the convictions because no direct evidence established that Coffman was not married to his neighbor s 6-year-old daughter.
After the State and the defense both stated they had no objection to the proposed jury instructions, the trial court made a detailed record of why certain instructions read as they did based on an off-the-record instructions conference. In making this record, the trial court specifically enumerated why a lesser included offense instruction of indecent liberties with a child was not given:
“Finally, I want to make a record on lesser included offenses. We had a fairly lengthy discussion about whether any lesser included instructions should be used in this case, and both the State and the defendant indicated that they shouldn’t be. I wanted to make a record that I think a very strong argument could be made that under the second prong of the Fike test, that indecent liberties of a child could be a lesser included instruction of sodomy, at least as we have it here in this particular case. But I’m not giving any instructions on lesser included because the State has — or the defense has specifically requested the Court not to give a lesser included on indecent liberties or any type of lesser included. Normally it’s the Court’s duty to give any lesser included instructions that it feels is applicable to the case, but I don’t think that applies when the defendant is specifically rejecting a proposed lesser included instruction. In other words, I don’t think that the defendant can argue at trial a particular lesser included instruction should not be given and then argue on appeal after a conviction that a lesser included instruction should have been given. I don’t think the defense can have it both ways. So that’s why I’m making this record.”
The trial court clearly recognized its affirmative obligation to give an instruction on any lesser included offenses established by substantial evidence, regardless of whether the defendant requests such an instruction, so long as the defendant does not object. See State v. Harmon, 254 Kan. 87, Syl. ¶ 1, 865 P.2d 1011 (1993); State v. Sutherland, 248 Kan. 96, 101, 804 P.2d 970 (1991).
However, it is obvious the trial court was also well aware of K.S.A. 21-3107(3), which provides in applicable part:
“In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence- adduced. If the defendant objects to the giving of the instructions, the defendant shall be considered to have waived objection to any error in the failure to give them, and the failure shall not be a basis for reversal of the case on appeal.” (Emphasis added.)
This statute precisely covers the situation existing in this case. Under the clear and unmistakable wording of the statute, the defendant, by objecting to the giving of the instruction, has waived any objection, and the failure to instruct on the lesser crime “shall not be a basis for reversal of the case on appeal.”
Appellate counsel, recognizing that Coffman is precluded from relying on this issue by his objection to the instruction at trial, requests us to relieve him of hjs decision below by applying People v. Barton, 12 Cal. 4th 186, 196, 47 Cal. Rptr. 2d 569, 906 P.2d 531 (1995), which held that a trial court has an absolute duty, notwithstanding the objection of either the prosecution or defense, to refuse to allow an “all or nothing” strategy which would prevent the jury from deciding whether a defendant is guilty of a lesser included offense established by the evidence. We hold that People v. Barton is not applicable in Kansas, nor to this case, because California has no statutory provision such as we have in K.S.A. 21-3107(3).
Coffman contended at oral argument that K.S.A. 21-3701(3) is unconstitutional because it invades the province of the jury and is, therefore, a denial of due process. This question was not raised below or briefed as an issue on appeal, and we hold to our longtime rule that when constitutional grounds are asserted for the first time on appeal, they are not properly before us for review. State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993).
Our standard of review on appeal when the sufficiency of the evidence is challenged in a criminal case is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McIntyre, 259 Kan. 488, Syl. ¶ 6, 912 P.2d 156 (1996).
At the time the offense was committed, aggravated criminal sodomy was defined in relevant part as:
“(a) Sodomy with a child who is not married to the offender and who is under 16 years of age;
“(b) causing a child under 16 years of age to engage in sodomy with any person or animal.” K.S.A. 21-3506 (Ensley 1-988).
Coffman’s challenge here on appeal does not pertain to the sufficiency of the evidence establishing he engaged in sodomy with the victim (although contradictory evidence did exist at the trial); rather, Coffman argues the prosecution introduced no evidence proving he was not married to his neighbor’s 6-year-old daughter.
An essential element of the crime charged was that the child victim must not be the spouse of the offender. See State v. Wade, 244 Kan. 136, Syl. ¶ 1, 766 P.2d 811 (1989). Wade also pointed out that the common-law minimum age for females to marry legally in Kansas is 12 years of age. 244 Kan. 136, Syl. ¶ 2. Circumstantial evidence surrounding the crime thus conclusively establishes Coffman was not married to the 6-year-old neighbor girl he victimized. See State v. Reed, 256 Kan. 547, 566, 886 P.2d 854 (1994), which teaches us that even the gravest offense can be proven by circumstantial evidence. We are convinced a rational factfinder could have found Coffman guilty beyond a reasonable doubt.
Affirmed.
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Per Curiam:
This appeal is from a judgment made and entered during a pretrial conference. The district court held the Water Appropriation Act of 1945 (G. S. 1949, 82a-701, et seq., as amended) to be in violation of the constitution of the state of Kansas and the fourteenth amendment to the federal constitution.
The same issues of fact and legal questions were before this court in City of Hesston v. Smrha, 184 Kan. 223, 336 P. 2d 428 and City of Hesston v. Smrha, 186 Kan. 477, 351 P. 2d 204. The parties recognize that the opinions and decisions in those cases control the decision in the present case and consent to a reversal of the trial court’s judgment.
The judgment of the trial court is reversed with instructions to proceed in accordance with the views expressed in the above cited cases.
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which the defendant, Leroy E. Robertson, pleaded guilty to a charge of burglary involving the Union Pacific Railroad depot located at Victoria in Ellis County, Kansas. After sentence was pronounced an oral application for parole by the defendant was denied. Thereupon appeal was duly perfected to this court with the assistance of court-appointed counsel.
The controlling question is whether the appellant waived his right to appeal by making application to the lower court for a parole.
Such action on the part of a criminal defendant has heretofore been held to constitute a waiver of the right to appeal on the ground that the accused thereby recognizes the validity of the judgment and acquiesces therein, which renders the judgment unassailable and precludes appellate review of the conviction. (State v. Mooneyham, 192 Kan. 620, 390 P. 2d 215, cert. denied, 377 U. S. 958, 12 L. Ed. 2d 502, 84 S. Ct. 1640; and State v. Irish, 193 Kan. 533, 393 P. 2d 1015.)
To uphold the appellant’s position herein would require this court to overrule these decisions.
The appellant, Leroy E. Robertson, on June 30, 1963, was a patient in a hospital at Russell, Kansas, along with a friend named Jerry Snyder. Together they left the hospital and traveled to Victoria, Kansas, where it is alleged they broke and entered the Union Pacific Railroad station in the nighttime and took a small amount of money and checks.
On July 3, 1963, they were charged in the county court of Ellis County with burglary and larceny in violation of G. S. 1961 Supp., 21-520 and G. S. 1949, 21-524. The appellant appeared in person without representation by counsel and waived preliminary hearing, after which he was committed to jail upon failure to post bond.
Thereafter, on the 8th day of July, 1963, an information was filed in the district court of Ellis County charging a violation of the foregoing Kansas statutes. At this time the appellant appeared before the district judge, and Edward Larson, a duly admitted and regularly practicing attorney of the State of Kansas, was appointed to represent him. Upon arraignment the appellant stood mute and the court entered a plea of not guilty on each of the charges.
On the 13th day of August, 1963, after various conferences with his court-appointed attorney, the appellant appeared before the district court and, upon motion of his attorney, count two of the information (charging larceny) was dismissed, whereupon the appellant entered a plea of guilty to a violation of the burglary count. The court accepted the plea and sentenced the appellant to not more than ten years nor less than five years pursuant to G. S. 1949, 21-523, giving him credit for time spent in jail while awaiting trial.
The appellant through his attorney then made an oral application for parole, which, after argument by counsel, was denied by the trial court, and the appellant was ordered committed to the Kansas State Penitentiary.
On the 21st day of October, 1963, the appellant requested the appointment of counsel to prosecute an appeal to the Supreme Court of Kansas, and pursuant to Rule No. 56 of the Supreme Court Edward Larson, the same attorney who represented the appellant in the trial court, was appointed to assist him in the prosecution of his appeal. Thereupon notice of appeal was duly prosecuted to this court by his attorney.
Various questions are raised on appeal, all of which become immaterial if this court adheres to State v. Mooneyham, supra. On this point the appellant argues the district judge failed to advise him of his right to appeal after conviction but prior to sentencing, and such failure constitutes a violation of the equal protection of the laws guaranteed by the United States Constitution, thus requiring the appellant’s release from custody. It is argued State v. Mooneyham, supra, is not binding on the appellant in this action “even though an oral request for a parole was made by Appellant’s attorney for the reason that Appellant was not advised of his rights to appeal.” The appellant argues “Any waiver of a right, if in fact the right can be waived, would certainly have to be made at such time as Appellant was aware of the fact that he was waiving such a right by his actions in asking for a parole.”
It may be conceded that failure to allow an indigent criminal defendant to take an appeal with the assistance of counsel denies that equality demanded by the Fourteenth Amendment to the Constitution of the United States. (Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814; and Rule No. 56 of the Kansas Supreme Court.) However, no rule of this court nor statute of this state imposes upon the district judge the specific duty of advising an indigent defendant of his right to appeal, with the assistance of court-appointed counsel, before sentencing. Actually, there is no need for such rule because the indigent defendant is provided with the assistance of counsel at the trial of his case. (G. S. 1961 Supp., 62-1304.) It must be assumed that such appointed counsel will fully and fairly represent the indigent defendant and fully advise him of his rights, including the right to appeal with the assistance of counsel. On the record here presented it may be assumed that the appellant was fully advised on this point.
The appellant’s real concern is with the rule laid down in State v. Mooneyham, supra, that a request for parole constitutes acquiescence in the judgment and thus constitutes a waiver of the right to appeal. The appellant’s counsel argues that without specific advice by the trial court concerning the appellant’s right to appeal, the appellant cannot be said to have had the requisite understanding to make an intelligent waiver of that right. The fallacy of this argument lies in the fact that the underlying theory in State v. Mooneyham, supra, is that the appellant recognizes and acquiesces in the validity of the judgment by seeking probation. He is precluded from appealing, not because he expressly and understandingly waived such right, but because he expressly and understandingly took action which, in and of itself, was inconsistent with an intention to appeal. Since his request for parole, and the consequent acquiescence in the judgment and its validity, was intentionally made, the fact that the appellant may not have understood that he would be bound by the reasonable and logical implications of his action, thereby foreclosing an appeal, is immaterial.
The appellant was present in court with his court-appointed attorney when he entered a plea of guilty to the first count, and also when he made application for parole. The circumstances disclosed by the record fully show that the attorney spoke for his client and that the appellant understood what was being done and acquiesced therein. (State v. Spain, 193 Kan. 1, 391 P. 2d 1001.) He thereby waived his right to appeal from the judgment and sentence under the authority of State v. Mooneyham, supra, and State v. Irish, supra, to which we adhere.
The appeal is dismissed.
Price, J., dissents.
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The opinion of the court was delivered by
Wertz, J.:
This action was brought by a fourteen-year-old boy, through his mother, against the board of education of the city of Newton, the duly elected individual board members, and the principal of a junior high school to recover for personal injuries sustained by plaintiff when he was struck in the head while on the school grounds.
The petition, in pertinent part, alleged:
Defendant board of education was a legal entity, the individual board members named were the duly elected board members exercising governing control, and the principal of the school, L. B. Gregg, was an agent, servant and employee of said board.
■ On or about November 20, 1961, plaintiff returned to school after the noon recess, and it was necessary for him to wait outside the school building until 1:00 p. m., at which time classes resumed. During this waiting period plaintiff was seated on the school ground when a fellow student picked up another student by grasping him under the armpits and swung him through the air whereby his shoes knocked plaintiff in the head with such force as to render plaintiff senseless. The blow caused severe brain damage, loss of speech, and resulted in plaintiff’s becoming a paraplegic for which recovery was sought in a specified amount.
The petition further alleged that plaintiff’s injuries were the result of the board’s failure to: (1) provide adequate supervision or facilities during the assembly period immediately prior to resuming the afternoon school session and (2) comply with its statutory responsibility, particularly to the plaintiff.
Defendants’ joint demurrer on the ground plaintiff’s petition failed to state facts sufficient to constitute a cause of action against defendants being sustained, plaintiff has appealed.
The primary question presented is whether or not the petition, as amended, stated a cause of action against the defendant board of education, its members, and its employee, the principal of the school.
Plaintiff predicates his cause of action on G. S. 1961 Supp., 72-1027, which provides that the superintendent or principal of a school shall have charge and control of the public schools subject to the rules and orders of the board, and section 72-1028, which provides that the school board shall maintain a schoolhouse in good repair, shall keep it clean and comfortable and a healthy place for the purpose for which it was intended, and further provides that the school board shall exercise general management over the affairs of the district.
Plaintiff concedes this action is based solely upon defendant board of education’s failure to comply with its statutory duty, said duty being to have charge and control of the student body, and its failure to provide to plaintiff a healthful place to receive minimal educational instruction required by statute.
It must be conceded that a board of education is a quasi-municipal corporation and its operation of a public school system, including school playgrounds, constitutes performance of a governmental function, as distinguished from proprietary. (Rose v. Board of Education, 184 Kan. 486, 337 P. 2d 652.) The general rule that a governmental corporation or a quasi-municipal corporation, such as the board of education of a city, is never liable for the consequences of a breach of public duty or the neglect or wrong of its officers unless there is a statute expressly imposing such liability has been followed since Lumber Co. v. Elliott, 59 Kan. 42, 51 Pac. 894, through Jones v. City of Kansas City, 176 Kan. 406, 408, 271 P. 2d 803, down to Rose v. Board of Education, supra. No language in our statute imposes such liability or indicates a legislative purpose that public corporations, such as here, shall suffer a penalty for neglect of their officers. Whatever liability may be incurred by the officers themselves for a breach of public duty, it is certain that in the absence of an express statute imposing such liability the municipalities cannot be held liable for their neglect. (Lumber Co. v. Elliott, supra.) In the instant case plaintiff neither attempts to state a cause of action nor seeks to recover against the individual members of the board or the school principal on the point of any tortious act.
Immunity does not apply where a statute expressly imposes a liability or where the governmental body maintains or creates a nuisance or is performing a proprietary function. A review of the amended petition, however, demonstrates no allegation which can be construed as charging the board of education with creating or maintaining a nuisance, nor can there be any doubt but that the board was performing a governmental function as distinguished from proprietary.
Plaintiff also relies on G. S. 1949, 12-201 (the so-called “mob statute”), as permitting a right of action against the board, where there are students gathered on a school ground during an assemblage period prior to resuming afternoon classes. It is his contention that such a group, unsupervised, constitutes a mob. All that need be said about this contention is that the legislature saw fit to limit the application of the provisions of the mentioned statute to incorporated cities and towns. Thus, the statute cannot be extended to include the board of education of a city.
The order of the trial court is affirmed.
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Tbe opinion of the court was delivered by
Foniron, J.:
This case originated in the juvenile court of Meade County, Kansas, pursuant to the provisions of the Juvenile Code, G. S. 1961 Supp., 38-801, et seq. On December 21, 1962, a verified petition was filed in juvenile court alleging that Kay Marie Lennon, a minor child under the age of sixteen years, was dependent and neglected by virtue of being without proper care, custody and support, and praying she be declared a dependent and neglected child, and that the court exercise the state’s parental power and permanently deprive the mother, Mary Lennon, of her parental rights.
Although the record on appeal is silent as to what occurred in juvenile court, we learn from the briefs that the judge of that court found Kay Marie to be dependent and neglected and ordered her placed in the custody of the State Department of Social Welfare. This decision, again according to the briefs, was appealed by the child’s mother, Mary Lennon, to the Meade county district court, where Donald E. Schultz, a Dodge City attorney, was appointed to represent the mother and E. Keith Reard, a lawyer of Meade, was appointed guardian ad litem for the child.
At the conclusion of the trial in district court, at which appellant’s motion for a jury was denied, the court, after finding Kay Marie Lennon to be a dependent and neglected child within the purview of the statute, severed all parental rights and committed the child to the custody of the State Department of Social Welfare. The present appeal was then perfected by the mother.
The stipulated narrative of facts contained in the record discloses the following: The mother (sometimes called Mary herein) lives in a substandard home, is afflicted with a decided speech defect resulting from a childhood injury, has few friends and is more or less ostracized by society. Although contradicted by Mary’s mother and two of her acquaintances, there is substantial evidence that Mary is ill groomed, careless of appearance, cleanliness and personal hygiene, and exudes offensive body odor. Her income derives from monthly payments of $123.33 from the Veteran’s Administration and $22.00 from the Meade county welfare department.
Mary has thrice been married, first in 1946 to a sometime alcoholic, from whom she was divorced in 1949. The two children of this marriage were taken from both their parents by the district court shortly after the divorce and have been reared by other parties since that time. Mary’s second husband, whom she married in 1952, killed the only child of that marriage and was sentenced to prison upon pleading guilty to second degree murder. Mary was hospitalized from the effects of trying to defend her five-month-old baby and she aided in the prosecution of her guilty husband. The second marriage ended in divorce in 1954 and in 1955 Mary took unto herself a third husband, J. T. Lennon, a double leg amputee. This couple has not lived together since at least June, 1961, when Lennon, who then was in Port Arthur, Texas, sent Mary to live in Meade, Kansas.
Two children were born of the Lennon marriage, both of whom make their home with Mary. The girl, who now is six years old, imitates her mother’s speech defect, while Mary accompanies her son John, age seven, to and from school because children have knocked him down and torn his pants. Although there is conflicting evidence as to Mary’s control and management of the two children, it is fair to conclude they are reasonably clean and adequately fed. The evidence leaves no doubt that Mary loves both children, and the new baby as well.
Mary became pregnant after her separation from Lennon, and Kay Marie, the subject of this action, was born December 6, 1962, in Meade. Mary named a Walter Vanderpool as the father of the child, stating that she knew this because she had “marked it on a calendar.” Despite Mary’s pathetic belief that Walter will help and wants to marry her, naught appears of record to suggest any such nobility of character on his part, and the sheriff has told Mary that the estimable Mr. Vanderpool has said he wanted nothing to do with hapless Mary.
Shortly after Kay Marie’s birth, Mary signed a paper denominated “Release of Child,” under circumstances which suggest considerable urging on the part of officials, and at a time when Mary was undergoing much mental stress and hovered on the verge of tears. Since signing the document, under which the Social Welfare Department has been holding the child pending the outcome of this action, Mary has been emotionally upset, subject to spells of nausea, and even hospitalized on occasion.
Sometime between 1949 and 1952, Mary was discovered one night cutting a hole in the back door of a bank and said she was trying to get her money out. When told by the sheriff that she would have to go with him, Mary broke and ran up a stairway, then turned on the officer and struck him several times with a stick or broom handle. On another occasion, in about 1955, the then current sheriff was called to a beer parlor where Mary was threatening to take her own life, but was talked out of that notion.
Finally, the evidence shows that Mary had a violent temper. Following a custody hearing over the two older children, Mary physically attacked Judge Karl Miller, the presiding jurist, in a hall outside the courtroom. And at the conclusion of the trial of the present case in county (juvenile) court, Mary attempted to choke the judge of that court because her baby was being taken, and she had to be restrained.
The first of several points raised by Mary in her appeal relates to the sufficiency of the amended petition which, in substance, alleges that the occupation, environment or association of Mary, and that which Mary would provide, would be injurious to Kay Marie’s welfare. So far as pertinent to this case, G. S. 1961 Supp., 38-802 (g) (3), (4) defines a dependent and neglected child as one less than sixteen (16) years old “whose occupation, environment or association is injurious to his welfare;” or “. . . is otherwise without proper care, custody or support; . . .” (Emphasis supplied.)
The appellant insists that no offense is charged under the statute, claiming that the future rather than the present tense of the verb “be” is used in the amended petition. We consider this objection a mere quibble over semantics, and without substance. Under present usage, we believe that the verb form “would be” may refer to the present as well as the future. In any event, the appellant can in noway be mislead as to the nature of the charge nor, in our opinion, does the language deviate in any vital respect from that of the statute.
Mary next contends that the charge contained in the petition is, as to her, criminal in nature and that she was entitled to have the cause tried by jury. This contention cannot be sustained. In the case of In re Turner, 94 Kan. 115, 145 Pac. 871, this court had occasion to consider proceedings had under the juvenile court act of 1905 (Laws 1905, ch. 190) where the identical question was raised, and rejected. In the opinion, the court said:
“The authorities are nearly all to the effect that statutes of this kind are parental rather than criminal, so that a jury may not be demanded as a matter of constitutional right. This, together with the express declaration of the closing section, that all proceedings, orders and judgments shall be deemed to have been taken and done in the exercise of the parental power of the state, makes it clear that neither the stigma nor the penalty of crime should be held to accompany the proceeding and order in this case." (pp. 121, 122.)
In Hall v. Brown, 129 Kan. 859, 284 Pac. 396, we held:
“On an appeal by a child from the juvenile court to the district court, -under the law governing the custody and control of delinquent, dependent and neglected children under sixteen years of age, a trial by jury cannot be demanded as a matter of right.” (Syl.)
In the more recent case of In re McCoy, 184 Kan. 1, 334 P. 2d 820, this court said:
“. . . Statutes of this kind are parental and as such a jury may not be demanded as a matter of constitutional right. . . . ” (p. 9.)
Our conclusion that the proceeding is not criminal in nature disposes of appellant’s next claim that a higher degree of proof is required in a case of this nature than a mere preponderance of the evidence.
At the commencement of the hearing, the district court, on motion of the guardian ad litem, and in the exercise of authority granted in G. S. 1961 Supp., 38-822, excluded from the courtroom all persons except counsel for interested parties, officers of the court, the witness testifying, and the appellant.
Complaint is made of the court’s action in overruling Mary’s motion to permit her mother to remain in the courtroom because of Mary’s speech impediment. The granting or refusal of a request to exclude witnesses from the courtroom rests in the sound judicial discretion of the court, (West v. West, 135 Kan. 223, 9 P. 2d 981) and while we believe that Mary’s request might well have been granted, we do not believe that its rejection, under the circumstances shown here, constituted an abuse of discretion. The court expressly stated that counsel would be allowed such time as he needed to confer with his client through her mother, and the record nowhere reveals that he was at any time denied such opportunity.
The appellant’s complaint that error was committed in the admission of remote and irrelevant evidence will be considered in connection with what appears to be her most serious contentions, i. e., that the trial court erred in overruling her demurrer to the state’s evidence and that the court’s findings and conclusions were contrary to the law and the evidence. These contentions strike at the hear of this lawsuit, and as we examine them, we must ever bear in mind the purpose which underlies the Juvenile Code and the beneficent objectives which the code seeks to attain. These objectives are well expressed in 38-801, supra, which provides:
“This act shall be liberally construed, to the end that each child coming within its provisions shall receive such care, custody, guidance, control and discipline, preferably in his own home, as will best serve the child’s welfare and the best interests of the state. In no case shall any order, judgment or decree of the juvenile court, in any proceedings under the provisions of this act, be deemed or held to import a criminal act on the part of any child; but all proceedings, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state. This section shall not apply to proceedings under section 30 [38-830] of this act.”
The statute is but a legislative expression of the concern which the people of this state have always had for the welfare of children. This court early gave voice to the public feeling in this regard. Speaking for the court in the case of In re Bullen, 28 Kan. 781, Justice Brewer posed the paramount question:
“. . . What will be best for the welfare of the child? . . .” (p.786.)
Like a vivid, vital strand, this concept of what is best for the child runs through the tapestry woven from our many decisions dealing with child custody, care and placement. In Pinney v. Sulzen, 91 Kan. 407, 137 Pac. 987, cited in the recent case of In re Stafford, 193 Kan. 120, 392 P. 2d 140, this court said:
“While the prima facie right to the custody of the child is in the parent it is not an unconditional right. The well-being of the child is the prime consideration, and courts do not hesitate to take a child from its parents and give it to a stranger if the parents treat the child with cruelty, keep it in vicious or disreputable surroundings, or are unfit to be entrusted with its custody and control by reason of their habits, character or condition. . . .” (p. 412.)
Little doubt can linger in the mind of one who reads this record that Kay Marie fairly fits the statutory definition of a dependent and neglected child. A product of illicit love, she would, indeed, face a dismal and distressing future in the only environment which her unfortunate mother appears capable of providing. Mary’s record throughout her adult years reveals gross instability and lack of moral fiber. The evidence to which the appellant objected pertained to a continuing course of conduct tending to prove Mary’s character in such regard, and we believe it was relevant and admissible for such purpose. (See Slough, Relevancy Unraveled, 5 Kan. L. Rev. 404 [1957].) The question here is whether the environment surrounding her mother’s home would be injurious to Kay Marie’s welfare, and on this point the manner in which Mary has conducted herself in the past and what her past behavior evidences as to her character becomes material, even though the past which is revealed may stretch back across a good many years. (Coates v. Sulau, 46 Kan. 341, 26 Pac. 720.)
No good purpose would be served by again detailing the facts or further recapitulating the evidence. We need only say that we find it difficult to envision a situation which could prove more mimical to a child’s chances in life, or more injurious to its future welfare, than that shown to exist in the Lennon menage of which Mary is its sole head, counselor and guide. In so saying, we do not discount the value of love and affection, which we believe Mary would provide her child within the limits of her capacity. However, love, alone, is not sufficient. In our opinion, no amount of affection would compensate for, much less overcome, Mary’s personal shortcomings and character defects which necessarily find reflection in the atmosphere of the home.
We readily agree that parental rights are not to be considered lightly, and this court has always been diligent in their protection. (Swarens v. Swarens, 78 Kan. 682, 97 Pac. 968; Pinney v. Sulzen, supra.) However, when the welfare of a child so demands, the rights of its parents must yield to the paramount right of their offspring to receive proper parental care, guidance and control. Where such be the case, the state, in the rightful exercise of its power as parens patriae, has the duty to intervene on behalf of the child in furtherance of its legitimate interests. (In re McCoy, supra.)
While we necessarily have great compassion for the unfortunate mother, who must be viewed as the tragic victim of many of life’s cruelties and vicissitudes, we cannot let our sympathy for her blind us to the critical situation in which the helpless Kay Marie finds herself. There is ample competent evidence, not only to justify the trial court in overruling Maiy’s demurrer, but also to support the finding and judgment of that court that Kay Marie Lennon is a dependent and neglected child within the meaning of the code.
The judgment of the court below must be affirmed.
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The opinion of the court was delivered by
Grjskne, J. :
George Potter, a child of six years, while crossing the tracks of plaintiff in error in the city of Lamed, was run upon by one of its trains and injured. He instituted this action by his next friend, John Potter, to recover damages, and judgment was rendered in his favor. The amended petition alleged that while this child was attempting to pass from the south to the north of the company’s right of way and over its tracks, not at a public crossing, but at a place where the public had acquired an implied license to cross by reason of long and continuous use by foot-passengers, with the knowledge of and without objection by the railway company, the latter, through its servants and employees, carelessly and negligently ran one of its trains upon and over him, causing him such injury that it became necessary to amputate one of his legs.
Broadway, Topeka and Tolies avenues in the city of Larned run north and south, and Fourth and Fifth streets east and west. The right of way and tracks of plaintiff in error enter the city from the northeast and cross Tolies avenue north of Fifth street and run in a southwesterly direction across Fifth and Fourth streets, Topeka avenue, and Broadway. Several years ago the city, by ordinance, vacated all of these streets where the right of way crosses. At the southwest, where the right of way crosses Fourth street, and between the Brinkman and Wormwood elevators, the former of which is built in Fourth street, there is kept and maintained a cinder path across Fourth street for foot-passengers. The depot and platform of plaintiff in error extend from the south line of Fifth street, between' Topeka and Tolies avenues, across Topeka avenue. The Wormwood elevator is on the right of way and the office is about 150 feet south and west of the southwest end of the depot platform. The distance from the cinder path on Fourth street to the depot platform is from 150 to 200 feet. The Wormwood elevator is situated on the south side of the south track, and the northeast corner of it is probably eighty feet southwest of the depot platform. It was between the Wormwood elevator and the depot platform that the child was injured.
It is not claimed by plaintiff below that the place where the child was hurt was a public highway, but it is claimed that for several years prior to this accident the public had continuously crossed and recrossed at and in the immediate vicinity of where the boy was hurt, and, by reason of such constant and continuous use, with the knowledge of plaintiff in error, the public had acquired an implied license to cross at this point, and that, in view of this, it was the company’s duty to anticipate persons upon its right of way at this place. On the other hand, the plaintiff in error contends that the child was a trespasser and that the only duty it owed him was not wantonly to injure him, and that -it did not know he was upon the track until he cried out.
At the time of the accident George Potter was only six years old and lived with his parents on the south side of the tracks, on the same side the Wormwood elevator is situated. On the day of the accident he was sent by his parents to this elevator to meet an uncle, who was to take him to the country. He went to the elevator and waited for a time, but the uncle did not appear. He then started to go up town, and went to the cinder path crossing Fourth street, but, the passage being blocked with a train from the west, he undertook to cross at the Broadway crossing, about 100 feet southwest of where the cinder path is over Fourth street; this being blocked — probably by the same train- — -he started toward the Fourth or Fifth street crossing or Tolies avenue, but seeing a vacant place between the elevator and the depot he tried to cross there, and while attempting to do so the train from the .west pulled up alongside of him. While standing between the tracks awaiting the passing of this train, and out of danger, he became frightened or confused and stepped backward and on one of the tracks which he had crossed, and as he did so a boxcar, pushed by an engine, struck him and crushed his leg so that amputation became necessary.
The freight-train that blocked the crossing at Fourth street only remained there while taking water, after which it pulled out northeast, not stopping at the station. The way at Fourth street was only blocked a few minutes. This, however, is immaterial in its application to the conduct of this child, as he is not chargeable with contributory negligence. The particular act of negligence relied on by the defendant in error is that the employees of the plaintiff in error, while switching, were pushing a box-car in front of the'engine at an unusually high rate of speed, and with no outlook on the front of said car, at a place where they should have anticipated that people might be crossing. When the plaintiff below concluded bis evidence the defendant demurred thereto, which demurrer was overruled.
Defendant in error objects to a consideration of this case by this court for the reason that the motion for a new trial was not filed during the term of court at which the case was tried. It appears from the record that on the day the jury returned its verdict the judge adjourned the term to a certain day, and that within three days after the return of the verdict, plaintiff in error filed its motion for a new trial. A judge of a district court has the power to adjourn a term of court from one time to another, and a motion for'a new trial filed after such adjournment, if filed within the time provided by the statute, is filed during the term. This •contention of defendant in error is therefore overruled.
At the trial George Potter testified that while attempting to cross the right of way he stood between the tracks five minutes at a time when the tracks were clear and that he might have crossed in safety. The first contention on the part of plaintiff in error is that in not crossing at this time the boy was guilty of contributory negligence and therefore it is not liable. If he had been a man of mature years and average intelligence this conclusion would be correct, but George Potter was a child of six years, and only chargeable with the proper exercise of the faculties which he then possessed. He could not understand the danger of going upon the railroad-tracks and cannot be held responsible for lack of capacity to appreciate danger. He is not chargeable with the exercise of that degree •of care demanded of one of mature years, whose judgment is not only enlightened by his own observation and experience but by the experience of others.
The plaintiff in error also insists that the court below erred in overruling its demurrer to the evidence. It contends that there was no evidence tending to establish the fact that the public had acquired an implied license, or had been invited to cross its private grounds at the place where this child was hurt; that he and all other persons crossing its right of way at that place were trespassers, and the only duty which it owed persons attempting to cross was not wantonly or negligently to injure them after discovering their presence. There is no claim that the employees of plaintiff in error wantonly ran its train upon George Potter, as he was not discovered by them until after he was hurt. However much we may sympathize with a child injured as George Potter was, at a time when he was incapable of appreciating the danger to which he exposed himself, under the circumstances of this case we are forced to adopt the contention of plaintiff in error,
Ed. Wheeler testified:
“Q,ues. You may state whether the public has-been in the habit of using that as a crossing. Ans. The public cross there like they do all through the yards.
“Q,. The grounds around the depot there? A. Yes,, sir.
“Q,. When there are no trains there, people are in the habit of taking the shortest cut home? A. Yes, sir.
“Q,, Now, for instance, the people living south, when they get off the train, where do they cross? A. Getting off, they would cross right there by the elevator, if they live in that direction ; if they live close there, they would cross wherever they want to go.
“Q,. Do you know whether the public has been in the habit of using the place where the boy Potter was injured as a public crossing? A. Yes, sir.
“Q,. Now, state the facts in relation thereto. A. They cross right in there.
“Q,. You may state how long this has been the habit and custom of the public, if you know. A. About fifteen years.
“Q, One place is just the same as another, so far as that is concerned? A. Yes, sir. But it is customai’y going down the depot platform, that is, everybody that lives down there; they go right across there by the elevator.”
¥m. M. Jordan testified :
“Ques. Do you know where the boy Potter is claimed to have been injured, on the 29th day of July, 1897? Ans. Yes, sir.
“ Q. Do you know what has been the general custom of the general public at that place? A. -Yes, sir.
“ Q. What is it? A. Sometimes they travel that path, and sometimes where the boy was run over/
“Q. How long has that custom existed, if you know? A. It has existed a good many years.
“Q. All of these grounds were the same; there was no crossing laid out anywhere by the railroad company — no plankings put in? A. No, sir; not right there.
“Q. Well, all around the depot grounds and in there, there is nothing to prevent — no fence or anything of that sort preventing a person crossing where-ever they see fit? No, sir.
‘ ‘ Q. They do cross there ? A. They cross where-ever they leave a gap.”
D. E. Babcock testified:
“Ques. Do you know the locality where it is claimed the train run over and injured George Potter, on the 29th day of July, 1897? Ans. I know about where it is.
“ Q. Do you know what has been the custom of the public in relation to traveling over that ground? A. I do.
“Q. What is it? A. Any one, either from the west part of town as far down as Fourth street, would be apt to cross if they were going to the Wormwood elevator, or in going to the depot from that way.
“Q. How long has that custom existed, if you know? A. Ever since I have lived here. I do not know how much longer.
“Q. There was- nothing to prevent people from wandering around in any part of the yard, unless there were cars in the yards? A. I think not.
“Q. They all cross there as much one place as another? A. I suppose. I do.
“Q. Whichever is the shortest way to go? A. Yes, sir.”
A. E. Jordan testified:
“Ques. Do you know where the place is where it was claimed the Potter boy was injured? Ans. I know just about.
“Q. Now, do you know what the custom of the general public is, or what it was in July, 1897, in passing there — that is, foot-passengers? A. Yes, sir.
“Q. What was it? A. Why, we cross along that track when we go home, and when we go to the depot, or in getting on or off the train, generally crossing on the other side of the elevator.
“Q.. Is there a path along where the boy was injured? A. I guess there is no particular path along there ; they cross there almost any place.
“Q. You may state how long that custom has existed, if you know? A. Pretty much ever since I have lived there?”
L. P. Wormwood testified:
“Ques. Are you acquainted with the locality where it is claimed the train ran over the Potter boy, on the 29th day of July, 1897? Ans. Yes, sir.
‘ ‘ Q. Do you know what the custom of the public was at that time in relation to crossing the railroad track in that locality? A. I suppose they go back and forth there. I occasionally see them go back and forth there most every day.
“Q. There is nothing to prevent them from crossing one place any more than another ; it is perfectly open and smooth? A. Persons cross there if they want to go back and forth.”
The plaintiff below failing to prove an implied license or consent on the part of plaintiff in error to the public to use its yards for a public crossing at or in the vicinity of the place where young Potter was injured, the demurrer to the evidence should have been sustained.
No path or paths on either side of the track converged at any point in this yard. One desiring to go from either side of these tracks to the other crossed at any convenient point and in any direction desired. There was no concentration at any point; no particular place where it could be said that this indicates a crossing. A stranger could not have discovered by the appearance of the surface of the ground that the public had been in the habit of crossing at any place between the Wormwood elevator and the depot. Had there been a well-beaten, path up to and across the right of way where young Potter was hurt, which had been constantly used by the public, it could then be said that this was not only a license but an invitation, on the part of the plaintiff in error, to the public to cross. Under such circumstances, it would be as much its duty to anticipate foot-passengers at such place as upon a public highway; but such was not the case. People crossed indiscriminately; there was no path. No facts sufficient to charge the plaintiff in error with having given its consent or invited the public to cross over its right of way at this point were proved.
In Mason v. Chicago, St. Paul, Minneapolis & Omaha R. Co., 89 Wis. 151, 61 N. W. 301, it was said:
“Certainly, mere desultory, occasional or fugitive use of a railroad yard by pedestrians at different places cannot impose any duty to exercise more than ordinary care on the employees of the company; the travel must be confined to a certain and well-defined way; it must have been so continuous, frequent and. well established as to raise an inference of acquiescence in such use on the part of the company, and to impose upon employees the duty of anticipating that the path might or probably would be in use by foot-passengers when cars were being moved across it.”
The evidence in this case falls short of bringing the plaintiff in error within the rule thus announced. It is true that people had been in the habit of crossing these tracks, but it was in a desultory way. It was a license of their own taking, and they did so subject to the rights of plaintiff in error to the exclusive use of its right of way and to the danger of being hurt. All the streets in the vicinity where this accident occurred had been vacated by the city council, and the railroad company had built its tracks upon and occupied all of these grounds.
One witness testified that this space was generally blocked with empty and standing cars, and that persons desiring to cross climbed over or crawled' under them at the most convenient place. This evidence-negatives the idea that an invitation had been extended to the public to use these grounds as a crossing.
In Gaynor v. Old Colony & Newport Railway Company, 100 Mass. 208, 214, 97 Am. Dec. 96, 98, the court said:
“On the other hand, the law requires no one to provide protection or safeguards for mere trespassers or wrong-doers, nor indeed for those who enter by mere permission, without inducement held out by the owner. Such go at their own risk and enjoy the license subject to its perils. Towards them there exists no unfulfilled obligation or duty on the part of the owner."
In Ward v. Southern Pac. Co., 25 Ore. 433-436, 36 Pac. 166, 23 L. R. A. 715, the language of Mr. Justice Nelson in Grethen v. Chicago, M. & St. P. Ry. Co., 22 Fed. 609, is quoted, as follows:
“Persons living in the vicinity of railroads, who use the tracks or the embankments, or the space between the tracks, as a footpath, are wrong-doers, unless permission is granted by the company so to use its tracks. Although pedestrians, or the public generally, travel over them without objection, people go there at their own risk, and, as said by the supreme court of Massachusetts, ‘enjoy the license subject to the perils.’ User of this sort will not establish a public way over the track or relieve those so using it from the imputation of being trespassers.”
Counsel for defendant in error undertake to fortify their position by citing the case of De Tarr v. Heim, 62 Kan. 188, 61 Pac. 689. In that case the public had habitually, for a period of years, passed over an outlying lot, from one street-railway depot to'another, until a well-defined path was made. This path had been covered with cinders for the convenience of public travel. A small building which stood over a vault, close to the path, had been removed, and the cover which had once been securely and safely placed upon it became out of repair. One of the public crossing over the lot, intending to walk on the path, missed her way and fell into the vault. It was said that this path had been used by the public for such a length of time that permission by the occupant and owner must be presumed. The difference between the facts in that case and those established by the defendant in error in this is that in this case no well-defined path was shown to exist. The material facts which, had it not been for other circumstances, would have established a liability in that case, are wanting in this.
The judgment of the court below is reversed, with instructions to sustain the demurrer.
Poster, O. J., Johnston, Smjxh, JJ., concurring.
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The opinion of the court was delivered by
.Ellis, J.:
In 1888 Serena J. Jeakins died intestate in Butler county, Kansas, seized of a tract of 480 acres of land lying in that county, and leaving her husband, Edward Jeakins, plaintiff in error, and six children surviving her. One child of the marriage, named Edward, died in 1869, while an infant. After the decease of Mrs. Jeakins, her sister, Parmilly Scheel, was appointed guardian of four of the minor children, and continued so to act until two of said minors arrived at their majority, after which, as such guardian, with the approval of the probate court of said Butler county, she sold and conveyed to her .husband, Carl Scheel, the interest of the remaining two minors, describing such interest as an undivided one-twelfth each. Previous to said sale she had bought the interests of two of the older children who had attained to majority, and-in the conveyance from one of them her interest was described as an undivided one-twelfth. These two deeds to her were made in February, 1886, and in the month of March thereafter Mrs. Scheel made an oral agreement with plaintiff in error to buy his interest in the estate, and she testified that he agreed to sell her all his interest therein, and informed her that such interest was an undivided one-half thereof. The parties repaired to the office of Buck, Feighan & Evans, attorneys, at Emporia, and Jeakins then and there informed Judge Buck that he had sold his interest in the farm to Mrs. Scheel, and in reply to a question said his interest was an undivided one-half, and that was all. This conversation took place in the presence of Mrs. Scheel, the purchaser, and her husband. Thereupon, Judge Buck dictated a deed to the lands from Jeakins to Mrs. Scheel, describing the interest conveyed as an undivided one-half. Thereafter, and in 1888, Mrs. Scheel purchased the interests of the two remaining living heirs, and the conveyances to her each described the interest conveyed as one-twelfth.
On November 12, 1894, Mrs. Scheel and her- husband conveyed by warranty deed the entire estate to N. F. Frazier, defendant in error, who took possession thereof on March 1, 1895. The evidence tended to show that after making the conveyance; in March, 1886, to Mrs. Scheel, Mr. Jeakins asserted no dominion over the land, or paid any taxes thereon, or made any claim of ownership to any interest therein,, until shortly before this suit was commenced, in December, 1897.
This is an action in ejectment brought by said Jeakins to recover a one-fourteenth interest in said tract of land which he claims to have inherited from his- deceased child Edward, and to recover for the rents, issues and profits, of said land while the same has been occupied by said Frazier. The action was brought in the district court of Butler county, and the plaintiff, after proving title to the land in his deceased wife, her decease without a will, the birth of the seven children, the death of the child Edward, the conveyance by plaintiff of an undivided one-half interest in the land to Mrs. Scheel, and the rental value of the property during the time the same was in the possession of the defendant below, rested his. case. Thereupon the defendant Frazier offered in evidence all of the conveyances hereinbefore referred to, and the oral statements of plaintiff above recited, and also proved that, at the time of the conveyance of the land by Jeakins to Mrs. Scheel, she and her husband gave back to him a mortgage upon an undivided one-half interest in said land to secure the full amount of the purchase-price. The defendant also proved that in 1883, soon after the death of his wife, Jeakins executed a mortgage to Carl Scheel upon an undivided one-half interest in said land to indemnify the mortgagee for signing a bond with said Jeakins as administrator of his wife’s estate. The bond was not executed, as another was appointed administrator.
It satisfactorily appeared from the evidence, and, indeed, was admitted in the' oral argument in this case, that from the relations existing between Mrs. Scheel and her deceased sister, the former must have known of the birth and death of the child Edward at r about the time the same occurred and long before -he ever sought to acquire any title to the lands in dispute. Upon the completion of the evidence of the defendant, the trial court sustained a demurrer thereto and submitted to the jury only the question of the value of the rents and profits during the time the property was withheld from plaintiff by defendant, to wit, from March 1,1895, to December 7, 1897, and which the jury found to be the sum of $123. Judgment being entered accordingly, defendant Frazier brought error to this court.
Numerous errors are assigned, which will not be separately considered, because they are all subservient to one governing principle in the case. It must be assumed that Edward Jeakins did tell Mrs. Scheel that his interest in the farm was only one-half and that he would sell such one-half interest to her for $3500. It cannot be said, however, that she bought in reliance upon such assertion, for all the facts and circumstances disprove it, and although a witness on behalf of the defendant, she made no such statement or pretense. On the contrary, the fact that she bought the interest of two of the heirs before dealing with Jeakins clearly shows that she relied upon her own knowledge as to the number and respective interests of the heirs surviving her sister, and that she depended upon her brother-in-law neither for information as to the facts nor for advice as to the law. No claim is made that plaintiff then understood or believed?he had any greater interest in the estate of his wife than that which he conveyed to his sister-in-law. In other words, these parties, acting under a mutual mistake in regard to the law, made a contract; one executed and the other accepted a conveyance, which was dictated in their presence and afterward read over to them, and which fairly expressed the agreement theyjtiad sought to make in their negotiations.
Under the law as it then existed in Kansas, plaintiff, without his knowledge, was really the owner of an eight-fourteenths interest in the land, as he inherited a one-fourteenth interest from his deceased child. The defendant seeks to reform the deed, and asks the court to convey to Mrs. Scheel, for the use of the defendant, that one-fourteenth interest. Equity will' sometimes grant relief where parties have acted under a mutual mistake of the law, but it will never do so when the effect of a decree is . to give to one party and take from another something of value without any consideration being paid therefor. (See authorities in note to Black v. Ward, 15 Am. Rep. 171.)
In his work on Equity Jurisprudence, Mr. Pomeroy says:
“Wherever a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interests, estates, duties, liabilities, or other relation, either of property or contract or personal status, and enters into some transaction the legal scope and operation of- which he correctly apprehends and understands, for the purpose of affecting such assumed rights, interests, or relations, or of carrying out such assumed duties or liabilities, equity will grant its relief, defensive or affirmative, treating the mistake as analogous to, if not identical with, a mistake of fact.” (2 Pom. Eq. Jur. § 849.)
See, also, Renard v. Clink, 91 Mich. 1, and notes to same case in 30 Am. St. Rep. 460.
The evidence in this case proves beyond doubt that both Jeakins and Mrs. Scheel were mistaken with respect to the former’s interest in the land, and there is no testimony showing or tending to show that the consideration agreed upon for the one-half interest conveyed would have been considered adequate by either of the parties had they known what plaintiff’s real interest therein was. Indeed, it appears that for some of the separate interests purchased by her Mrs. Scheel paid more in proportion than she contracted to pay. Jeakins, assuming that his interest was but one-half.
This is the controlling proposition in the case: A court of equity may not say from the evidence adduced, or rather the lack of it, that Jeakins would have accepted $3500 for an eight-fourteenths interest in the land, when such interest would have been worth $500 more if sold upon the same basis as to value as was the one-half interest conveyed. It is as much the duty of a court of conscience to protect a grantor as it is to aid a grantee. We may not take something of value from him without consideration merely because he was ignorant of his ownership, unless it appears that he has done some act to mislead the other party., or that such other party did not have equal knowledge or means of information.
The appellate court, acting upon a view of the case which we cannot approve, reversed the judgment and ordered a new trial, because, it said, the “defense was sufficiently made out by the evidence to require counter-evidence on the part of the plaintiff, ánd the court erred in sustaining the demurrer and in rendering judgment for the plaintiff.” (Frazier v. Jeakins, 9 Kan. App. 850, 62 Pac. 354.)
In the view we have taken, the evidence in the court below was not sufficient to compel or permit a reformation of the deed, and it would have been idle and perfunctory to submit it to the jury. The case as presented here, and in the original pleadings by the defendant, is treated as one of' estoppel rather than a mutual mistake of law. It is apparent, however, that at least two essential elements of estoppel are wanting, namely: (1) Intentional misrepresentation, or misstatements made under such circumstances as that they should be treated as made with intent to deceive; and (2) trust reposed therein by the party injured, if, indeed, it may be said that one who obtains just what she purchases and intends to purchase may be regarded as having been injured because she did not get something for which she did not contract and did not pay. It is said by defendant’s counsel that Mrs. Scheel would not have purchased a half interest of plaintiff if she had supposed that he was retaining the fourteenth interest which he did not transfer. What she would or would not have done under other circumstances is problematical; what she did, acting with full knowledge of all the facts as they existed, but while ignorant of the law applicable thereto, is ascertained. Assuming that she would not have purchased at all .if she had not believed the muniment of title’ to be acquired would be ever thereafter unassailable by plaintiff, still it does not follow that for a greater interest she would not have been willing to pay a larger sum of money, or that plaintiff would have accepted the same consideration for his entire interest, which, determined by the rule of value adopted by the parties, was worth one-seventh more than he received.
The judgment of the court of appeals is reversed, and that of the district court affirmed.
Johnston, Cunningham, Gkeene, JJ., concurring.
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The opinion of the court was delivered by
Pollock, J.:
This was an application by plaintiff, holding under a tax deed adjudged void, for the ascertainment of the amount of taxes paid, a decree establishing a lien upon the land against which the taxes were assessed, and an order of sale to enforce payment. The land in controversy was sold for the taxes of the year 1862 to the county 'treasurer of Jackson county. The certificate of sale was assigned to one John C. Douglass, who paid and caused to be indorsed upon the certificate of purchase the subsequent accruing taxes for the years 1863 to .1867, both inclusive. On September 8, 1868, a tax deed was executed to Douglass and duly filed and recorded. Douglass also paid the taxes on the land thereafter until the year 1874, and in 1874 he and his v^ife conveyed the property to plaintiff in error, then a minor of the age of six years. The taxes on the property for the year 1874 being in default, at a tax sale held on the 7th day of September, 1875, the property was sold to one Myers, who paid the subsequent taxes until the sale ripened into a tax deed, on October 12, 1878. The taxes again being in default for the year 1882, at a tax sale held on the 7th day of September, 1883, the property was sold to one Linseott, which sale ripened into a tax deed in 1886. By mesne conveyances all the title of Myers and Linseott descended to defendant in error, George L. Reid, who is in possession, claiming title thereunder.
An action in ejectment was commenced June 10, 1887, by plaintiff in error. The first trial was had upon the issues joined November 21, 1888. Judgment was entered for defendants, which was set aside and a new trial granted under the statute. On March 22, 1889, at a subsequent term of the court, the action was by plaintiff dismissed.
This action was commenced March 5, 1900. At a trial had, the tax deed under which plaintiff claimed and the conveyance to her based thereon were declared void. This judgment was affirmed here. (Douglass v. Lowell, 60 Kan. 239, 56 Pac. 13.) Thereafter, plaintiff, by motion, demanded an ascertainment of the amount paid as taxes, judgment therefor, and a lien upon the land, under the provisions of section 7681 of the General Statutes of 1901. This relief was denied and plaintiff brings error. Said statute provides as follows :
* ‘ If the holder of a tax deed or any one claiming under him by virtue of such tax deed be defeated in an action by or against him for the recovery of the land sold, the successful claimant shall be adjudged to pay to the holder of the tax deed, or the party claiming under him by virtue of such deed, before such claimant shall be let into possession, the full amount of all taxes paid on such lands, with all interest and costs as allowed by law up to the date of said tax deed, including the cost of such deed and the recording of the same, with interest on such amount at the rate of twelve per cent, per annum, and the further amount of taxes after the date of such deed, and interest thereon at the rate of twelve per cent, per annum.”
It is the contention of counsel for plaintiff in error, that as the tax deed, under which she claimed was declared void in this action, the trial court committed error in not' awarding her a judgment for the amount of taxes and costs paid in acquiring the tax deed and the taxes paid subsequently thereto, and in refusing her a lien upon the land for the same.
The principal ground of contention made by counsel for defendants in error is that plaintiff having brought a prior action in ejectment, and after judgment against her had been set aside under the statute and a new trial awarded, had dismissed her action, the dismissal of that action precluded plaintiff from maintaining this present action based on the same claim of title made in the prior action; and that, as plaintiff was precluded by such dismissal from maintaining an action for the recovery of the property by the disposition made of the prior case, of necessity the incidental right to recover taxes paid merged in the tax deed, and that taxes thereafter paid on the land were also precluded. In Deming v. Douglass, 60 Kan. 738, 57 Pac. 954, this court held :
“After a first trial in ejectment, the judgment was vacated on demand of defendant by notice on the jour nal, and the cause continued until the next term of court. The plaintiff dismissed the suit without prejudice. Within a year she commenced a new action against the same defendant for recovery of the same land. Held, that the last action cannot be maintained.”
As this point was not considered by the trial court nor called to the attention of this court in the determination of the validity of the tax deed under which plaintiff claimed title, but was for the first time called to the attention of the trial court and now first insisted upon in this court in this proceeding under the statute for judgment for taxes paid and a lien upon the land sold to secure payment, it might well be ruled that such claim comes too late. Plaintiff was defeated in the action for the recovery of the property, and the tax deed under which she claimed was adjudged void upon the merits of the action and not upon the ground that she had no standing in court to maintain the action. However, as the disposition of this question is not decisive of the case, we deem it unnecessary to pass upon the same. Upon other grounds, in our judgment, the action of the trial court must be upheld.
It will be remembered that defendant George L. Reid is in possession, claiming title derived from two tax deeds, one of 1878 and one of 1886. The record shows that plaintiff, a minor, in June, 1882, tendered the necessary money and offered to redeem from the sale of 1874 which ripened into-the tax deed of 1878, which offer was refused. But no offer to redeem from the sale of 1883 is shown. There has been no adjudication or determination of the validity of this tax deed or of the title under which defendants hold possession.
In the case of Board of Regents v. Linscott, 30 Kan. 240, 1 Pac. 81, it was held that “a tax deed vests an absolute estate in fee simple in the holder of the tax deed.” It is also held that “where different tax deeds for the same land are executed to different persons for the taxes of different years, the tax deed last executed for the taxes of the latest year will be paramount to the tax deed previously executed for the taxes of some previous year.” In the opinion it was said :
“But suppose the land was taxable in 1859, and that this deed to H. M. Robinson, executed April 4, 1864, was valid : still it could not be valid as against the plaintiff’s tax deed, which was executed June 14, 1880, for the taxes of 1867 — six years afterward. For where different tax deeds for the same land are executed to different persons for the taxes of different years, the tax deed last executed for the taxes of the latest year will be paramount to the tax deed previously executed for the taxes of some previous year.”
In the case of Case v. Frazier, 30 Kan. 343, 2 Pac. 519, it was said :
“The tax deed last executed for the taxes of the latest year is paramount to the tax deeds previously executed for the taxes of a previous year, and the tax deed of plaintiffs below wiped out the tax deeds of defendant below.”
' In the case of Harris v. Curran, 32 Kan. 580, 4 Pac. 1044, it was held :
“The defendants, however, claim that there are still other questions to be decided. They claim that their tax deed is good and entirely sufficient, without reference to any statute of limitations and without reference to the possession of the property by the defendants or their grantors. This is an important question ; for, if the defendants’ tax deed was perfectly good when executed, there is no necessity for any consideration of any of the other questions which either party may suppose to be possibly involved in this controversy. ‘The tax deed last executed for the taxes of the latest year will be paramount to the tax deed previously executed for the taxes of some previous year.’ ”
In the case of McFadden v. Golf, 32 Kan. 415, 4 Pac. 841, it was said :
“This disposes of the case; for a valid tax deed extinguishes and destroys all other titles and liens existing or based upon anything existing at the time of the levying of the taxes upon which the tax deed is founded.” (Black on Tax Tit. §420.)
The tax deed upon which defendants rest their title and under which possession is held is, by force of the statute (Gen. Stat. 1901, §7677), prima facie valid, and as in this case the record contains no showing to the contrary, it must be presumed to have conveyed to the holder thereof, and the defendants claiming thereunder, an absolute estate in fee simple. It must also be held that this tax deed divested plaintiff of all rights of every kind and nature in the property, and cut off and forever destroyed her right to claim any lien upon the property for taxes paid prior to the assessment of the taxes for the year 1883, notwithstanding the statutory provision above quoted upon which the proceeding is based. It does not apply in this case.
It follows that the action of the trial court in denying plaintiff a recovery for taxes paid must be affirmed. It is so ordered.
Dostbb., C.J., Jojajnston, Ellis, JJ., concurring.
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The opinion of the court was delivered by
Pollock, J. :
This action was brought by defendants in error, Albert Wynne and Nancy A. Wynne, against plaintiff in error, Virginia M. Johnson, the sole surviving executrix of the last will and testament of John P. Johnson, deceased, and the First National Bank of Cadiz, Ohio, to quiet title to a large tract of land in Rice county, as against the lien of a judgment held by the estate of John P. Johnson, deceased, and as against the lien of a judgment held by the bank, and for a decree canceling said judgments of record and satisfying the same.
The facts necessary to a determination of this controversy are : On the 19th day of June, 1893, John R. Johnson procured a judgment against Albert Wynne in the district court of Shawnee county in the sum of $1961.46 debt, and $27 costs of action. By the issuance of successive executions upon this judgment the same was kept in full force and effect. On the 26th day of March, 1898, an execution thereon was duly caused to be issued, filed and docketed in the office of the clerk of the district court of Rice county. On June 1, 1898, John P. Johnson died testate. Plaintiff in error and one Duncan McIntosh were, on the 6th day of June, 1898, duly appointed and qualified as executrix and executor of his last will. On the 17th day of February, 1900, no motion having been made nor suit brought to make the executrix and executor parties to this judgment, and Duncan McIntosh, executor, having died, leaving plaintiff in error the sole surviving executrix, this action was commenced. The prayer of the petition is that the title of the real estate described therein be quieted in plaintiffs, as against the apparent lien of said judgments ; that said judgments be canceled, and that the clerk of the court be ordered and directed to release, discharge and satisfy said judgments of record. To this petition plaintiff in error answered, and also filed her cross-petition alleging the rendition of the judgment, ¡the issuance of the executions thereon during the life of John P. Johnson, the death of John P. Johnson, her appointment and qualification as executrix under the will, and demanding that she be decreed the owner of said judgment by operation of law ; that the judgment be decreed alien upon the real estate described in the petition of plain tiffs, and a sale thereof ordered in satisfaction of such judgment. To this answer plaintiffs below demurred, which demurrer was sustained, and electing to stand upon her answer and cross-petition, judgment was entered in accordance with the prayer of the plaintiffs’ petition. The bank made default. This proceeding in error is brought to review the judgment rendered.
It is apparent from the above statement of facts that the proposition sought to be determined in this case arises upon the construction of the statutes in relation to revivor of actions and the making of new parties to judgments after the death of a party to an action or judgment. The real issue sought to be raised and determined by this court is whether the provision found in section 439 of the code (Gen. Stat. 1901, §4889), relating to the death of a party after judgment, and which reads, “If either or both parties die after judgment and before satisfaction thereof, their representatives, real or personal, or both, as the case may require, may be made parties to the same, in the same manner as is prescribed for reviving actions before judgment,” includes not only the form or method to be pursued in making the representatives parties to the judgment, but also the time limit of one year, as provided in section 434 (Gen. Stat. 1901, §4884) of the code, relating to revivor of 'actions upon the death of a party where the opposing party does not consent to an order of revivor.
However, as this case must be reversed upon the second assignment of error, we deem it best, in the px-esent condition of the record, notwithstanding recent decisions in cases somewhat akin in principle to the one at bar, to express no opinion upon the proposition stated.
In our view of the case, as presented by the record, plaintiffs below are not entitled to the relief sought. The contention of plaintiffs and the gist of the action made by the petition is, that as the personal representatives of the judgment creditor, John P. Johnson, were not made parties to the judgment within a year from the date of their appointment and qualification, the special statute of limitations, section 434 of the code, providing against the making of an order of revivor upon the death of a party to an action after the lapse of one year, is alike applicable to the making of new parties to a judgment upon the death of a judgment creditor. And that, as a consequence thereof, the judgment in this case became dead and the personal representative of the deceased is barred the right to enforce the judgment against the real estate in controversy; and as a necessary conclusion therefrom, that plaintiffs are entitled to a decree canceling the judgment of record. This does not by any means follow. For even should it be determined that the construction to be placed upon the statutes in regard to the making of parties to a judgment is as contended for by counsel for plaintiffs below, they would not be entitled to the relief sought in this action. It- has been many times decided by this court that a statute of limitations is a shield for defense, not a weapon of attack, and cannot be made the basis of a claim for affirmative relief. (Corlett v. Insurance Co., 60 Kan. 134, 55 Pac. 844; Burditt v. Burditt, 62 id. 576, 64 Pac. 77.) To paraphrase the. language of Mr. Justice Smith in the opinion in Thompson v. Greer, 62 Kan. 522, 64 Pac. 48, plaintiffs are not satisfied with protecting themselves with a. shield, but attack their adversaries with a sword.
Of necessity, it follows that the petition of plaintiff: was wholly insufficient as a basis upon which to build the claim to affirmative relief demanded in this action, and that in consequence thereof any answer thereto was sufficient, and that the action of the trial court in sustaining the demurrer and in granting the affirmative relief asked must be reversed. It being. the established practice in this state, sustainable upon principle as well as authority, that a demurrer lodged against a pleading searches the record, the demurrer in this case should have been carried back to the insufficient petition and sustained thereto. (The State, ex rel., v. Comm’rs of Pawnee Co., 12 Kan. 331; Stratton v. McCandless, 27 id. 299.)
Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.
Cunningham, Ellis, JJ., concurring.
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Error from Miami district court.
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Error from Russell distriot court.
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The opinion of the court was delivered by
Johnston, J.:
On June 22, 1900, Jessie Morrison cut the throat of Clara Wiley Castle with a razor, from the effect of which the latter died. A few days before the tragedy Clara Wiley was married to Olin Castle, and it is claimed that Jessie Morrison had been cor responding with and was greatly attached to him, and was led by jealousy to attack and kill her successful rival. She denied that she was moved by such motive, and claimed that, when making a call on the bride of a few days, the latter, who was jealous of Jessie, accused her of clandestinely meeting Mr. Castle several times and at different places, and of trying to lure him away from his wife ; that finally, in a fit of rage, Mrs. Castle attacked her with a razor, and in the struggle which followed defendant wrested thq razor from Mrs. Castle’s hand, and in self-defense inflicted the wounds which resulted in the latter’s death. About twenty cuts and gashes were made on Mrs. Castle, mostly on or near the throat. There was a deep cut on the back of the neck, several cuts on each side of the throat leading into a common breach, entirely severing the windpipe. At another place the windpipe was cut, and the esophagus was also cut in two places. Although she lived until July 10, 1900, she was unable to speak and could only communicate to others by signs and by writing. A prosecution for murder was instituted against Jessie Morrison, and the result was a conviction for manslaughter in the second degree. From this conviction she appeals, and alleges 155 assignments of error, many of which are without merit, and only a few of them will require special attention.
The objections mainly discussed by counsel are those made in the impaneling of the jury and in overruling the challenges of jurors. The impaneling of the jury was a difficult and tedious task, owing to the prominence of the parties, the pitiless and savage attack, which attracted general attention, and the fact that Mrs. Castle lived for several weeks when her head was almost severed from hei body. These and other circumstances made it a notorious case, and naturally wide publicity was given to the tragedy and its details. Many of .the jurors examined, and quite a number of those retained, had heard and read full accounts of the transaction and had formed or expressed, opinions as to the guilt or innocence of the defendant. For instance, S. L. Motter, who had heard and read of the circumstances and had discussed them with others, and who had read an account of the preliminary examination in the papers, and a full account of a previous trial, which included the evidence of the witnesses, the instructions of the court, and the arguments of counsel, stated first that an impression had been made on his mind, but that it was not so fixed and positive as would prevent his rendering a fair and impartial verdict. On cross-examination, however, he stated:
“Ques. Did any person in your presence express any opinion about the case — as to the merits of the case, as to the innocence or guilt of the defendant? Ans. Yes, sir.
££Q. Quite a number ? A. Yes, sir, several.
“ Q. Did you express any opinion as to the guilt or innocence of the defendant? A. Yes, sir.
££Q. Several times? A. Oh, I don’t know how often.
“Q. But you have several times? A. Yes, sir, I have.
“ Q. As to the guilt or innocence of the defendant ? A. Yes, sir.
“Q. And at the time you expressed that opinion you had an opinion — had formed an opinion as to the guilt or innocence of the defendant? A. Yes, sir.
££Q. I will ask you if you have that opinion now? A. Yes, sir.
“ Q. And until it is removed by evidence it will remain in your mind? A. Yes, sir.
“Q. And would require evidence to remove it? A. Yes, sir.
“ Q. Until it is removed by evidence, you would retain an opinion? A. Yes, sir.”
Upon redirect examination, he stated that the opinion he had was an impression and that he thought he could fairly try the case ; that he understood the difference between an impression and a fixed and positive opinion, but was unable to define it. He then said:
££Ques. Now, I will ask if you do not mean that it is such an opinion as could be changed by evidence? Ans. Yes, sir.
££Q. And that is your opinion or impression, is it? A. Yes, sir.
££ Q. And that is what you mean by saying it is not fixed and settled? A. I believe so.
£<Q. And so would require evidence to change it? A. Yes, sir.
££Q. And unless evidence is introduced to change it, you still would have that opinion? A. Yes, sir.”
Isaac Good was held to be qualified as a juror. Upon inquiry it developed that he had read an account of the evidence and the proceedings in court at former hearings and trials, from, which he had formed an opinion or impression, but it was not of a fixed or positive character. Upon further inquiry, he stated:
“ Ques. And in this case you did form more of an opinion than you ordinarily do from the newspaper reports, did you not? Ans. I did.
“Q. Have you ever expressed any opinion as to the guilt or innocence of the defendant, Jessie Morrison? A. I have.
“Q. Have you ever formed any opinion as to the guilt or innocence of the defendant, Jessie Morrison? A. Yes, sir.
“Q. Do you have that opinion now? A. Yes, sir ; I have that opinion now. i
“Q. Is it of such a fixed and positive character that it would require evidence to remove it? A. It would.”
Then, again:
“Ques. Prom what you heard and read, have you any opinion as to whether or not Jessie Morrison murdered Clara Wiley Castle? Ans. I have.
‘ ‘ Q. And it would require evidence to remove that opinion, would it? A. Yes, sir.”
In answer to other questions by the prosecution, he stated that the opinion which he had was not of a fixed or abiding character, and that his mind was open to a fair consideration of the testimony that, might be offered. j
The challenge of A. G. Lamb was. overruled. He, stated that he had formed an opinion, but that it was J not a positive one. He had heard persons describe the ¡ tragedy in a circumstantial way, had read full ac-; counts of the same in the papers, including reports of : the preliminary examination and of the previous trial, and had even been in the court-room and heard some of the witnesses testify. The inquiry was made:
“ Ques. Now, did you express any opinion as to the guilt or innocence of Miss Morrison ? Ans. Yes, sir.
“Q,. That opinion was formed from what you had heard of the evidence and what you had heard people tell of the evidence ? A. What I had heard and read ; not from the witnesses.
“Q. Have you formed any opinion as to whether Miss Morrison was guilty ? A. Yes, sir.
“Q. And you have that opinion now? A. Yes, sir.
“Q. Would it require evidence to remove it? A. Yes, sir.
“Q. Is it of such a fixed and positive character that it would remain in your mind until it is removed by evidence ? A. Yes, sir.”
*• He further stated that when a person was charged with an offense, and brought, to trial, he looked upon him as being guilty until he was proved innocent. When asked what he understood by a fixed and positive opinion, he stated that, if he saw the occurrence, it would be fixed ; that he was not sure he could keep the evidence which he had heard and read distinct from the evidence which he would hear on the trial, but that he did not think what he had formerly heard and read would influence him in the trial of the case. In further explanation, he stated that he thought he understood the difference between an impression and an opinion.
“Ques. What is your understanding of the difference? Ans. Opinion is what I think, I don’t know.
“Q. Opinion is what you think, but don’t know?
'A. Yes, sir.
J. “Q. What do you understand an impression is?
¡ A. Thakis a great deal the same.
“Q. In fact, in your mind there is no distinction between them? A. No, sir.”
E. R. McDaniels was called, and retained over objection, although he stated that he had formed an opinion from what he had heard and read of the occurrence. In answer to the county attorney, he stated that the opinion was such an one as he gets from reading the newspapers, and was really an impression ; that he could fairly try the case regardless of the opinion or impression entertained. Upon further inquiry, however, he stated that he had read full accounts of the occurrence and of the trials in the Kansas City and local papers, and that he had talked with others about the tragedy and the trials ; that he had heard others express opinions and had expressed an opinion himself as to the guilt of the defendant. In explaining the strength of his opinion and the difference between an impression and an opinion, he stated that to have a fixed and settled opinion a person must have seen an act done, while an impression would be what he got from reading or being told by others.
C. T. Marcum, who had learned the facts of the case from several sources, had an opinion as to the guilt of the defendant and had expressed it quite a number of times to others. When interrogated, he stated that it was only a slight opinion, but that until he heard evidence to remove it, it would remain on his mind, and that it would require substantial evidence to remove it.
O. M. Kramer, who had heard and read a full account of the testimony on former hearings, stated that he had formed an opinion as to the guilt of the defendant and still held it. He stated that the opinion could be removed by evidence, and that he was without prejudice against the defendant. He further stated that the arrest, preliminary examination and filing of an information against a person led him to .think that such person was guilty.
F. C. Simons, who. had heard and discussed the facts of the case, as well as read the testimony of witnesses giyen on former trials, stated that he had formed an opinion as to the guilt or innocence of the defendant; that he still had it, and that an account of the evidence given by witnesses made more of an impression on his mind than an ordinary newspaper report, but that he was without bias or prejudice against the defendant, and believed that he could render a fair and impartial verdict regardless of what he had heard and read and of the opinion he held.
G. W. Gibson had read a full report of the tragedy and trial in the papers and believed them to be true. He had discussed the details of the case to some extent with others and had read the testimony of the witnesses, the arguments of counsel and the instructions of the court in the papers, and he had expressed an opinion as to the guilt of Miss Morrison, which opinion he still had. He believed he could be governed by the evidence given on the witness-stand and that his mind was open to a fair and impartial consideration of the case.
R. E. Stevens was another juror who, like the others, had heard and read full accounts of the transaction and the trials, and who stated that he had an opinion as to the guilt of the defendant, but that it was such an opinion as would give way to the testimony of witnesses ; and in answer to the county attorney stated that he could fairly try the case and render an impartial verdict. -When inquiry was made as to the opinion which he held, he stated that he believed the accounts which he had read and heard to be true, and had no reason to change his mind since the hearing and reading of those accounts. Then this followed ::
“Ques. Mr. Stevens, this opinion or impression that you have, is it of such character that would be readily removed by the evidence that you would hear upon the witness-stand ? Ans. It would take evidence.
“Q. Read the question to him (and the question is reread to the juror). A. I don’t believe it would be very readily removed.
“Q,. Do you think your opinion is of a fixed and positive nature ? A. No, sir; it is not fixed and positive, but it would take strong evidence to remove it.”
The foregoing is a sample and, perhaps, the strongest, of the disqualifying testimony from jurors who were retained over the objections of the defendant. Others, whose disqualifications were substantially similar to those named, were held to be qualified. Under the rules established by the code and applied by former decisions, it must be held that the challenges to several of the jurors should have been sustained. As has been seen, the challenged jurors had heard and discussed the material facts of the case, had even read the evidence of witnesses and heard the arguments of counsel at former hearings and trials, and, knowing all the facts substantially as they would be presented again on the trial, they had formed and expressed opinions as to the guilt of the defendant, which they still entertained. These opinions, too, appear to have been of a settled and abiding character ¿ which necessarily influenced the juror entertaining them, and, under the rule in Kansas, disqualified them.
Unlike some of the states from which authorities are cited, we have a statute which expressly declares that “it shall be a good cause of challenge to a juror that he has formed or expressed an opinion on the is sue or any material fact to be tried.” Courts cannot ignore-this provision nor whittle it away by interpretation. A defendant cannot be compelled to accept a juror who has either formed or expressed a preconceived opinion as to the defendant’s guilt. It is true that an opinion of a juror upon a conceded fact does not disqualify him, and hence a belief that the defendant killed Mrs. Castle was not a good objection. A juror, however, who held or expressed a decided opinion as to whether the defendant was justified in killing the deceased or as to her guilt should have been excluded from the jury box. What, then, shall be deemed a disqualifying opinion ? It is not, as has been determined, a light and transient impression obtained from vague rumors or the reading of brief and partial newspaper reports, which in the nature of things would not close the mind of an unprejudiced man against testimony. (The State v. Medlicott, 9 Kan. 279; The State v. Treadwell, 54 id. 511, 38 Pac. 813; The State v. Thomas, 58 id. 806, 51 Pac. 228 ; The State v. Kornstett, 62 id. 221, 61 Pac. 805.) On the other hand, a strong impression or opinion, of a fixed and abiding character, based on information derived from witnesses or from those acquainted with the facts and deemed reliable, will disqualify, although the juror himself may think and state that he can fairly try the case. (The State v. Miller, 29 Kan. 43; The State v. Beatty, 45 id. 492, 25 Pac. 899 ; The State v. Snodgrass, 52 id. 174, 34 Pac. 750 ; The State v. Beuerman, 59 id. 586, 53 Pac. 874 ; The State v. Start, 60 id. 256, 56 Pac. 15 ; The State v. Otto, 61 id. 58, 58 Pac. 995.)
The fact that a juror may call an opinion an impression, or state that it will not affect his verdict, will not render him competent where it appears from the whole testimony that the impression has such fixedness and strength that it would probably influence his mind and verdict; nor will the fact that the opinion has been gained from newspapers necessarily take away the disqualification. The competency of the juror depends on the character and not the source of the opinion. Ordinarily rumors or newspaper reports are not accepted as conclusive, and an opinion formed from such source is usually contingent upon the truth or falsity of the reports, so that a juror can honestly say that he has no decided or abiding opinion. Whatever the source of information, if there is no conviction of the mind, an opinion unmixed with prejudice, which is wholly contingent upon the truth or falsity of the information and would yield readily to testimony, is no disqualification. Here, however, a reading of the examination of the objectionable jurors shows that their opinions were of a decided and enduring character, which would not yield readily to evidence, and which, as some of them declared, it would take strong evidence to remove. We are aware that it is not easy to obtain a jury to try a case marked with the atrocity and sensational features of this one ; but, however notorious the case may be, the defendant is entitled to be tried by a jury having the statutory qualifications — men who have not prejudged the case.
The facts in the case are not such as to induce a diligent search for errors nor to make slight errors seem to be important; but an examination of the record satisfies us that disqualified jurors were retained over the objection of the defendant. For this reason the verdict must be set aside.
Error is assigned on the admission of a paper on, which Mrs. Castle had written, “Jess Morrison killed. me.” The defendant and the deceased were alone in Mrs. Castle’s house when the cutting was done, and neighbors, hearing the cries of distress, broke into the house and found the defendant over the deceased, who was lying on the floor, her throat cut and hacked in a horrible manner, the deadly weapon lying beside her. She was bathed in blood, her windpipe severed, and consequently was speechless. While she lay in this condition, and within three to five minutes after the defendant had been pulled away from her, she motioned for pencil and paper, and when they were handed to her she wrote the- brief sentence above quoted. It was the first expression after the cutting, and was so closely connected with it and so spontaneous that it may be fairly regarded as part of the res gestas. Under the circumstances, the interval of time which elapsed between the cutting and the writing of the words is not an objection to its admission, nor does it place it among past occurrences or isolated utterances.
“ If declarations of a past occurrence are made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thoughts created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation and design, they will be admissible as part of the res gestas.” (21 A. & E. Encycl. of L. 101.)
1 The declaration by Mrs. Castle appears to have been voluntary and spontaneous, and so closely connected with it as to be really a part of the transaction, and to exclude the idea of fabrication.
For another reason no error was committed by admitting the declaration. That the defendant killed the deceased is a conceded fact, and even if it were no part of the res gestae, error could not have been predicated upon it.
The admission of the dying declaration of Mrs. Cas tie is made a ground of error. Although she .lived some time after the statement was signed, it is clear that it was made in the full belief and sense of impending death. She had been informed by the physicians and by her mother that the end was near, and the character and condition of her wounds admonished her that she was about to die. Evidently she possessed the mental qualifications to understand her condition and the purpose and effect of her declaration. It was true that it was written by another and partly elicited by questions, but these are not objections to its admission.' After it was written, she read it over carefully, and then asked for a pencil, with which she deliberately affixed her signature. The testimony indicates that the statement was fairly written, that she fully understood its contents when she signed it, and that it was signed when hope or expectation of recovery had been abandoned. No error was committed in its admission; but, for the error committed in the impaneling of the jury, the judgment of the district court must be reversed and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Dostjer, C. J. :
This was an action of ejectment to recover land which had descended to a minor • upon the death of her ancestor, but which had been wrongfully sold and conveyed by the minor’s guardian. Serena J. Jeakins, the owner of the land, died intestate, leaving as her heirs a husband and children. One of the latter was Clara A. Jeakins, a minor. The others were adults. Mrs. Permilly Scheel was appointed guardian of the property of the minor and thereafter maintained the ward at her expense. She purchased the interests of the adult heirs in the land, taking conveyances therefor in her own name. She procured from the probate court an order to sell the minor’s interest in payment of the cost of her main tenance, and she sold this interest at private sale to her husband, Carl Scheel; the sale was confirmed and the guardian’s deed approved. Some claims of fraud in. making the sale and of lack of full consideration for the land are made by counsel, but we do not take a view of the case which requires us to advert to them. We shall treat the sale as made on fair consideration and free from fraud in fact.
About three years after the guardian’s sale, Mrs. Scheel and her husband sold the entire tract to N. F. Frazier. The record of proceedings in the probate court did not disclose the relationship existing at the time of the guardian’s sale between Permilly Scheel, the guardian, and Carl Scheel, the purchaser, but Frazier knew they were then husband and wife. Besides, the deed he received from them recited their relationship, and the identity of names in that deed with those of the grantor and grantee in the guardian’s deed imparted a notice which is the equivalent of knowledge. (15 A. & E. Encycl. of L. [2d ed.] 918.) A purchaser of land is always chargeable with the knowledge of whatever facts are suggested by the recitals in his title papers. (Knowles v. Williams, 58 Kan. 221, 48 Pac. 856.)
Clara A. Jeakins brought ejectment against Frazier to recover her undivided interest in the land. Although the cause of action stated was not joined with one for partition, the defendant made no objection in the court below on .the ground of the irreclaimableness of undivided interests by cotenants. Upon the argument of the case in this court, counsel for Frazier disclaimed a desire to raise the question, and, therefore, we are not concerned with any doubts which may exist as to the right to maintain the action. Certain it is that objections to its maintenance, if any can be properly made, do not go to the jurisdiction of this court. Judgment went for plaintiff in the court below, and the defendant has prosecuted error.
The sole question in the case relates to the validity of the guardian’s sale and deed of the land of her ward to her husband, made, as before stated, upon fair consideration, and free from actual fraud. Are they valid ? If not, are they of the class denominated “void,” and, therefore, subject to collateral attack? Our judgment is that they are void, and their nullity, being known to Frazier, the purchaser, no title passed to him, and, therefore, the collateral action will lie.
Nothing in the law of fiduciary trusts is better settled than that the trustee shall not be allowed to advantage himself in dealings with the trust estate. He shall not be allowed to serve himself un- ,, . „ . , . , der the pretense oí serving his cestm que ° *t trust. The most usual way in which evasions of this salutary rule are attempted is in purchases of the trust estate by, or in the interest of, the trustee. That such purchases shall not be allowed the realization of their purpose is the universal holding of the courts, and a citation to the multitudinous decisions would encumber an opinion more than it would elucidate the rule. A large number of the cases are collected in the notes to Tyler v. Herring, 19 Am. St. Rep. 263 (67 Miss. 169, 6 South. 840) ; Tyler v. Sanborn, 15 Am. St. Rep. 97 (128 Ill. 136, 21 N. E. 193, 4 L. R. A. 218) ; Wilson v. Brookshire, 9 L. R. A. 792 (126 Ind. 497, 25 N. E. 131) ; and this court, in Webb v. Branner, 59 Kan. 190, 52 Pac. 429, recently added another to the list. Nor, in such cases, does the fact that the sale and purchase were bona fide and upon full consideration avail to constitute an exception to tlie rule. That was distinctly so declared in Webb v. Branner, supra, in which it was said :
“It was shown that a fair price was obtained for the lot, but there being a manifest conflict between the duties of the trustee and his personal interests, the courts, for the purpose of removing all opportunity for fraud, generally hold such transfers to be void, whether they appear to be fair or not.”
The above-quoted remarks imply that there maybe, perhaps, exceptions to the rule’, but we know of none. In fact, the main rule that a trustee may not profit himself out of the trust estate is no better settled than the subsidiary one that lack of fraud in the trustee’s dealings will not validate the transaction. The fiduciary relation of trustee and cestui que trust is one which does not call so much for rules to redress accomplished wrong as for rules to prevent its accomplishment. The one in question, therefore, is not intended to be merely remedial of wrong actually committed, but,'rather, to be preventive, or deterrent, in effect. The opportunities which are open to an unfaithful trustee to advantage himself out of the trust estate are so many and so tempting, and the condition of the beneficiary in the trust ordinarily so helpless and confiding, that the law gives warning in advance against all transactions out of which it is possible for the former to make gain at the expense of the latter. Hence, as was tersely and wisely said by Chief Justice Beasley, in Staats v. Bergen, 17 N. J. Eq. 554: “So jealous is the law upon this point, that a trustee may not put himself in a position in which to be honest must be a strain on him.”
Do the foregoing considerations apply to a sale by a guardian of the ward’s land to the guardian’s husband or wife, as the case may be ? We have no hesi tation in affirming that they do. It is true that the common-law fiction of the legal identity of the husband and wife and the very nearly.complete merger of the latter in the former does not now have recognition. In this state, as allowed by statute, the wife may contract with her husband. They may own separate estates free from any present claim of interest by one in the property of the other — that is, as against the other; but it is not true that, as to their respective possessions, they are strangers in such sense as to take a trustee’s sale by one to the other from out the operation of the rule in question. Upon the death of either of them, one-half of his or her property descends, under the statute, to the survivor, and under the statute neither one, without the other’s consent, can, by will, devise more than one-half his or her property. It is true the interest of the one in the property of the other is contingent and uncertain, and dependent upon survivorship. It is true that the interest of the one in the land of the other is not of the character of any of the estates known to the common law, but it nevertheless possesses the elements of property. This was distinctly so ruled in Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 254; and, on the strength of the quality of property attaching to the inchoate interest of a wife in her husband’s land, she was allowed in that case to maintin an action to prevent its fraudulent alienation.
However, over and beyond that property interest which husband and wife have in each other’s estate, and which possesses the element of pecuniary value, there is a larger consideration. It was well expressed by counsel for defendant in error, who said :
“The affection existing between husband and wife, the marital relation which in a sense makes them one, the implicit confidence which each must have in the other, their natural desire for each other’s material prosperity, the relation which enables one to derive and enjoy personal comfort and pleasure from the property of the other, independent of the question of direct or indirect ownership in such property, are all so well recognized in law and understood by all civilized people, that it would be arguing against the experience of centuries to contend that one would-not be interested in the welfare of the other, and do all that could be done to enhance the pecuniary interests of the other ; therefore, by reason of the relation, no guardian could be impartial in the sale to husband or wife of the property of the ward.”
In Tyler v. Sanborn, supra, the supreme court of Illinois, after adverting to the fact that under the statutes of their state husband and wife may contract with each other, that the wife may own property separate from the husband, but that each has contingent interests in the other’s property dependent on survivor-ship (the same being in such respects substantially like our statute), and after holding that such mutuality of interest forbade one to sell trust property to the other, further remarked :
“There is, moreover, apart from this pecuniary interest, an intimacy of relation and affection between husband and wife, and of mutual influence of the one upon the other for their common welfare and happiness, that is absolutely inconsistent with the idea that the husband can occupy a disinterested position as between his wife and a stranger in a business transaction. He may, by reason of his great integrity, be just in "such a transaction ; but unless his marital relations be perverted, he cannot feel disinterested — and it is precisely because of this feeling of interest that the law forbids that he shall act for himself in a transaction with his principal.
“ It is believed to be within general observation and experience that he who will violate a trust for his own pecuniary profit will not hesitate to do it, under like circumstances, for the pecuniary profit of his wife. In our opinion, the policy of the law equally prohibits the wife of the agent, as it does the agent himself, from taking title to the property which is the subject of his agency without the knowledge and express consent of the principal.”
One of the earliest cases on this particular question was Davoue v. Fanning, 2 Johns. Ch. 252. In that case, it appeared that an executor had sold the testator’s property to a person to be held by him in trust for the executor’s wife. Chancellor Kent held that the sale could not stand, because, as he said, “whether the trustee buys in for himself or his wife, the temptation to abuse is nearly the same.” In Dundas’s Appeal, 64 Pa. St. 325, it appeared that an executor had sold parf of the testator’s estate to his wife. The court said:
“We cannot doubt that a sale by a trustee to his own wife would be set aside on the application of the cestui que trust, not on the ground of coverture, but of her relationship to the trustee. It would be evidence of unfairness quite as much as if the sale were made to the trustee himself, and falls within the spirit of the rule which forbids his own purchase.”
However, in that case the sale was allowed to stand, because the court by previous order had permitted the wife to become a bidder. The making of such precedent order was admitted to be within the authority of the court, but it was said : “The power is a delicate one and should always be cautiously exercised, and the sale itself watched with jealousy.”
In Bassett v. Shoemaker, 46 N. J. Eq. 538, 20 Atl. 52, 19 Am. St. Rep. 435, it appeared that an executor had sold to his wife a farm of the testator. It was held that the sale should be set aside, as of course, upon the application of a cestui que trust. Among other things it was said :
“The exclusion of the wife as a purchaser, where the husband sells as'a trustee, is not so much for the reason that he may subsequently become entitled to some interest in her lands, as on account of the unity which exists between them in the marriage relation. The case falls clearly within the spirit of the principle which excludes the husband himself.”
There are other cases the decisions of which were more or less influenced by the considerations expressed in the foregoing quotations. (See Riddle & Parker v. Roll et al., 24 Ohio St. 572 ; The Rome Land, Company v. Eastman et al., 80 Ga. 683, 6 S. E. 586; Bachelor v. Korb, 58 Neb. 122, 78 N. W. 485, 76 Am. St. Rep. 70.)
Admit the separate legal status of husband and wife to be as absolute and clearly differentiated as their physical lives, there is yet, as a matter of fact, an identity of interests and affections between them which utterly precludes the idea of a trustee’s sale by one to the other being different in effect than a sale by the trustee to himself. To say that a husband acting in a fiduciary capacity in effecting a sale would be disposed, as against his wife, to diligence of effort in finding some one who would pay more for the trust estate than she would, is to fly in the face of nature itself and deny the experience of the ages. Nor can we conceive of any reason why it might be different in the case of a wife, were she the trustee negotiating the sale.
To the rule declared by us there is but- one opposing decision, so far as we are aware. It is Crawford, v. Gray, 131 Ind. 53, 30 N. E. 885. The sale in question in that case was made at public auction to the wife as the highest bidder, differing in that respect from the sale under consideration by us. The opinion fails to cite any cases in its support, and, if it can be considered as applicable to private sales by trustees, we have no hesitation in declaring it unsound in principle and opposed to all the authorities.
There may be exceptional circumstances justifying sales by trustees to their wives or husbands, or even to the trustee himself. It is said that the sale under consideration was one of the exceptional character. The wife owned all the other interests in the land and therefore could effect a better sale to her husband, as a cotenant to be, than to a stranger. The claim is a reasonable one, but for such cases the law ¡ias a practice which must be followed ; it is to apply to the court controlling the sale for leave to purchase. That was ruled in Dundas’s Appeal, supra, and Bassett v. Shoemaker, supra. In Michoud et al. v. Girod et al., 4 How. (U. S.) 503, 557, 11 L. Ed. 1076, one of the leading authorities on the subject of purchases by trustees at their own sales, the supreme court of the United States, considering the proper practice in such cases, ruled :
“It is, that when a trustee for one not suijuris sees that it is absolutely necessary that the estate must be sold, and he is ready to give more for it than any one else, that a bill should be filed, and he should apply to. the court, by motion, to let him be a purchaser This is the only way he can protect himself. There are cases in which the court will permit it.”
It is said, however, that the confirmation of the sale by the probate court was a judicial approval of it which put it in the category of res jvdicoda, and hence beyond collateral attack. J The law in this state does not give such an effect to a mere order of confirmation. The act concerning guardians and wards (Gen. Stat. 1901, § 3290) appropriates, as the rules governing guardian’s sales, those prescribed by the statute relating to sales made by executors and administrators. This latter -statute (Gen. Stat. 1901, §2937) reads as follows:
“And the court, after having carefully examined such return (the return of sale), and being satisfied that the sale has in all respects been legally made, shall confirm the sale, and order the executor or administrator to make a deed to the purchaser.”
The above-quoted statute does not differ in any substantial particular from the statute in relation to the confirmation of sales by the district court, as such statute existed prior to 1893. The civil code, section 458 (Gen. Stat. 1889, *|[4556) provided that
“If the court . . . shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has in all respects- been made in conformity to the provisions of this article, the court shall direct the clerk to make an entry on the journal that the court is satisfied with the legality of such sale, and an order that the officer make to the purchaser a deed for such lands and tenements.”
Whatever may be the law in other states, in this one it is settled that under the statute last quoted the order of the court confirming the sale becomes res judicata as to irregularities only and cures nothing of substance — certainly not, unless the matter of substance is exhibited on the face of the sale proceeding itself. This has been the uniform holding since Koehler v. Ball, 2 Kan. 161, 83 Am. Dec. 451. In De Jarnette v. Verner, 40 Kan. 224, 19 Pac. 666, it was ruled that
“Where a sheriff’s sale of real estate has been made, and the owner thereof moves to set aside the sale for the reason that the property was not sold for two- thirds of its appraised value, and for other reasons, and the motion is overruled by the court and the sale confirmed, he does not thereby waive his right to afterward treat the saleas void, or to sue the sheriff for any injury which he may have sustained by reason of such sale. By being a party to a motion to set aside or confirm a sheriff’s sale, which motion is decided against such party, he does not thereby and for the future waive or cure anything of substance, but only irregularities.”
We come now to the final question: Was the sale void in the sense that it was subject to collateral attack? Our judgment is that it was ; and inasmuch as its nullity was known to Frazier, the purchaser, no title passed to him, and therefore the collateral action will lie. We do not understand that courts by their use of the term “void” always mean that utter negativeness which is the equivalent of nonexistence, but they more often mean that which, relatively to persons, circumstances, conditions, or forms of action, may be treated as though it were non-existent. In this latter sense there is little distinction between it and the word “voidable.” Really, as often used in the law, there is an interchangeability of meaning between the two words. This is well pointed out in Ewell v. Daggs, 108 U. S. 148, 2 Sup. Ct. 408, 27 L. Ed. 682; Pearsoll v. Chapin, 44 Pa. St. 15 ; Kearney et al. v. Vaughn et al., 50 Mo. 287 ; Brown v. Brown, 50 N. H. 542. Therefore, in order to characterize the guardian’s sale and deed as “void,” in the sense in which that word is most frequently used in the law, it is not necessary to regard them as inexistent. They have a form of existence and, under certain circumstances, they may be allowed or may acquire the substance of existence. The plaintiff in this case might have ratified them by express act or deed; she might have estopped herself by some course of conduct to question their validity, or she might have allowed lapse of time to bar her right to recover on the score of their invalidity; but until, by ratification, estoppel, or limitation, she has given effect to them, she is privileged to treat them as void, and of no effect. As to her, they are void and of no effect, because they failed to pass the title to her land. In order to characterize an act or transaction as void, it is not necessary that it should be a nullity as to everybody and for all time and under all circumstances. If the act or transaction failed to deprive interested persons of their rights or titles, failed to confer them on some one else, the act or transaction is void as to such persons. If the act or transaction requires ratification, estoppel or limitation to transfer the right or title, it is void until the ratification has been made, the estoppel has occurred, or the time has elapsed, and even then the right or title does not pass by virtue of the original act or transaction, but passes by virtue of the ratification, or is founded on the estoppel, or is set at rest by the lapse of time.
The authorities seem to us strong and convincing that ejectment, although a collateral proceeding, will lie to recover a title claimed under a trustee’s sale to himself,-or in effect to himself, as in this case. In Den, ex dem. Obert v. Hammel, 3 Harr. (N. J.), 73, it appeared that an administrator had masked a purchase by himself under the form of a sale and conveyance to another. The transaction was attacked through ejectment by an heir of the estate. The court ruled that the sale was fraudulent in law and therefore void, and might be shown to be such in a law action without compelling the heir to go into equity. In McKay v. Williams, 67 Mich. 547, 35 N. W. 159, 11 Am. St. Rep. 597, it appeared that an attorney in fact had executed a deed to the land of his principal and on the same day took back from the grantee a deed to himself, and a few weeks thereafter conveyed the land to another. It was held that the deed by the attorney and the deed back to him were prima facie fraudulent and void on their face; that they did not show that title had passed; that they imparted notice to the subsequent purchaser, and that title could be recovered in ejectment. Many of the cases are reviewed in the opinion. In Winter v. Traux, 87 Mich. 324, 49 N. W. 604, 24 Am. St. Rep. 160, the same holding was made in a case identical in all its facts with McKay v. Williams, except that the sale was made by a guardian instead of an attorney in fact.
Now, in this case, as hereinbefore shown, the deed under which Frazier claimed showed on its face the relationship existing between Scheel, the guardian, and Scheel, the purchaser at her sale — that is, it contained a recital sufficient to charge him with notice. This was sufficient.
The judgment of the court below is affirmed.
Johnston, Smith, Greene, Ellis, Pollock, JJ., concurring.
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Appeal from Lincoln district court.
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The opinion of the court was delivered by
Mason, J.:
Laura Buckwalter brought this action seeking an injunction against public officers restraining the assessment and collection of a special street improvement tax upon city lots owned by her. The injunction was granted and the defendants appeal.
The plaintiff contended that the entire proposed tax was illegal upon various grounds, but her position was sustained by the trial court upon but one proposition — that the assessments" against the plaintiff’s lots were excessive by reason of including interest on the portion of the cost of the improvement apportioned to them from the date of the bonds delivered to the contractor in payment for the work, instead of from the time the bonds were actually issued to him.
The statute applicable to the matter contains these provisions, the clause relied upon by the plaintiff being printed in italics;
“Whenever the mayor and council may cause any street [to be improved in any of a number of ways specified] . . . they may, in their discretion, provide for the payment of the cost thereof by installments, instead of levying the entire tax or special assessment for such cost at one time; and for such cost they may issue internal-improvement bonds of the city, payable in ten equal installments of equal amounts each year, none of which bonds, nor any of the installments thereof, shall run longer than ten years, nor bear interest exceeding five per centum per annum. The credit of the city issuing such bonds shall be pledged for the payment thereof. Such bonds may be issued to the contractor constructing the improvement, in payment thereof, or the mayor and council may sell the same and pay the proceeds thereof to the contractor. Such bonds shall not be issued in amount in excess of the contract price of the work or improvement, except that the installment coupons shall include the interest on such installments to the maturity thereof. . . . Where improvement bonds are issued under this act for improvements the cost of which is by law, charged by special assessment against specific property, the mayor and council shall levy special assessments each year sufficient to redeem the installment of such bonds next thereafter maturing; but in computing the amount of special assessment to be levied against each lot or piece of land liable therefor, interest thereon shall be added at the rate provided in said bonds as issued by the city from the date of the issuance of said bonds until the maturity of the installment of bonds next thereafter maturing. Such special assessments shall be made upon the lots or pieces of land chargeable for the cost of such improvements respectively, and shall be levied and collected in the same manner as other taxes; but the assessed valuation fixed for such cost which is established for the first year’s assessment shall be retained for the special assessments for the succeeding installments of said bonds.” (Gen. Stat. 1915, § 1243; superseded in 1923 by R. S. 13-1018.)
“Whenever the mayor and council issue internal-improvement bonds to pay for the costs of any improvement the cost of which is chargeable against specific property . . . they shall apportion such cost by special assessments in installments, and the apportionment contained in the special-assessment ordinance shall hold good for all the installments that are to be collected from the specific property chargeable with the cost of said improvement. . . . The ordinance apportioning such cost may provide for the collection of two installments with not to exceed interest for two years, or one installment and interest for one year or more, at such rate aforesaid, in the first year in which such assessment is to be collected, if the bonds for such improvement and interest on the same mature in such manner as to require such levy. The last amount so certified shall contain the installment with the interest to the date of maturity of the last bond outsanding, which interest shall not be for more than one year.” (Gen. Stat. 1915, § 1244.)
The statute does not in terms require the bonds to be dated the day they are delivered and such arrangement would scarcely be practicable as such matters are usually conducted. (See 21 A. & E. Encyc. 58.) Some latitude in the matter is almost necessary in order to make allowances for uncertainties as to the time that different steps in the transaction may be completed. While the phrase “the date of the issuance of said bonds” does not strictly mean the same as “date of the said bonds” it may naturally be used in a general way in that sense, and we are of the opinion it was so intended by the legislature in this instance, such interpretation appearing to be in accordance with the apparent purpose of the statute when read as a whole.
“Under varying circumstances a question arises as to the date of the issue of bonds for the purpose of determining the validity of the power to issue, the regularity of the proceedings, or the rights of the purchaser. It may be laid down that as a general rule the date of delivery of the bonds by the municipality to the creditor or purchaser is to be regarded as the date of issue. But this meaning is not uniform and unvarying. It is always a question of the intention of the legislature to be derived from a consideration of the entire statute in which the term is used. It is true that no obligation is created upon a bond until it has been sold and delivered, but ‘issued’ as used in an act concerning municipal bonds is a relative term. It may mean executed {i.e., signed and sealed), under some circumstances, and delivered under others.” (2 Dillon on Municipal Corporations, § 902.)
In the situation here presented no hardship results to the taxpayer from computing the interest he is required to pay from the date borne by the bonds instead of from the date of their actual delivery. The contractor is paid by turning over to him bonds of an earlier date at a valuation which includes the accrued interest. Because the contractor is required to give credit for the accrued interest the amount of the principal of the bonds he receives is reduced just that much and therefore it is essential to a fair adjustment that the taxpayer shall raise a fund equal to the full amount due on the bonds according to their terms at the time of final pay ment. That policy is obvious from the language of the statute quoted. The contractor pays the interest to the time he receives the bond on the theory that he is going to get it back. He is denied the benefit of his contract if it is withheld. He is entitled to interest from the date' of the bond and his claim therefor is a proper charge against the improved property.
A careful consideration of the clause of the statute printed in italics will show that it was framed primarily to show the date to which the payment of interest is to extend, not the date at which it is to begin. If all bonds were drawn so as to fall due on December 20, and all taxes were promptly paid at that time, there would be no occasion for the clause in question. The situation it is designed to meet is this: Suppose the taxpayers against whose property the cost of the improvement is charged have paid in by December 20 the full amount of an installment of the charge, but the corresponding set of bonds are not due for three months. The bond holders cannot be required to forego the as yet unearned interest and turn in their bonds in exchange for the money on hand.. The money in the hands of the county treasurer will draw no interest for the benefit of those who paid it in, and it is necessary that provision shall be made for the additional three months’ interest. The purpose of the italicized clause is to supply this gap by adding the needed amount to what would otherwise be the assessment against the improved property and so requiring the owners to pay it. There is no essential unfairness in placing this additional burden on the taxpayer. It is due to the fact that the maturity of the obligation to pay taxes is necessarily fixed while that of the bonds as necessarily varies. The extent of the burden depends upon the period elapsing between the two maturities.
We conclude that it was proper the assessment should include interest from the date of the bonds.
The judgment is reversed and the cause remanded with directions to deny the injunction.
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The opinion of the court was delivered by
Johnston, C. J.:
A controversy arose between the county attorney and the county commissioners as to the right of the county attorney to receive and retain fees awarded to him by a justice of the peace in cases where automobiles were adjudged to be forfeited and sold and the fee of the county attorney was adjudged to be paid to him as part of the costs, out of the proceeds of the sale. To obtain a determination of the controversy the county attorney brought this action asking for a declaratory judgment sustaining his right to the fees. The judgment of the district court was adverse to his contention and he appeals.
His claim to the fees is based upon a section of the prohibitory liquor law which provides that the attorney-general, the county attorney or any citizen of the state may maintain an action in the name of the state to abate and enjoin a nuisance, and after providing for punishment for contempt for the violation of an injunction that may have been issued in the case, proceeds:
"In case judgment is rendered in favor of the plaintiff in any action brought under the provisions of this section, the court rendering the same shall also render judgment for a reasonable attorney’s fee in such action in favor of the plaintiff and against the defendants therein, which attorney’s fee shall be taxed and collected as other costs therein, and when collected paid to the attorney or attorneys of the plaintiff therein.” (R. S. 21-2131.)
Does the prosecution and forfeiture of .automobiles used in the transportation of intoxicating liquors entitle the county attorney to fees under this provision? Another provision of the prohibitory liquor law is that all automobiles, vehicles and other property used in the transportation or carrying of intoxicating liquors into this state or in carrying and transporting liquors from one place to another within the state are declared to be common nuisances. (R. S. 21-2162.)
The act authorizing the allowance of attorneys’ fees in nuisance cases and the taxing and collecting of the same as part of the costs was enacted in 1903 (Laws 1903, ch. 338, § 1), while the provision declaring automobiles and other vehicles used in the transportation of intoxicating liquors to be nuisances and providing for the destruction of the liquor, and the forfeiture and sale of the vehicles, was not enacted until 1919 (Laws 1919, ch. 217). The defendant contends that the later act is independent of the former, and that as the later one does not specifically provide for attorneys’ fees on the seizure and condemnation of an automobile, none can be taxed as costs. The later act provides that if automobiles or other vehicles used in the liquor traffic are found to be common nuisances, they shall be forfeited and sold and the proceeds paid into the treasury of the county for the support of the common schools, after paying out of the proceeds the costs of the action. We think the allowance of fees as costs of the action in the earlier act is general in its character and applicable to the common nuisances provided for in the later act. The first act is general and inclusive in its terms as to the abatement of common nuisances maintained in violation of the intoxicating-liquor laws. It provides for such nuisances as well as for enjoining them, and the provision for an allowance of an attorneys’ fee applies alike to both. The prohibitory liquor law should be considered as an entirety and the provision as to the abatement of liquor nuisances applicable to all devices in maintaining such nuisances, whether they are maintained in business houses, homes, outbuildings or in vehicles. The provisions are to be construed together as part of a plan of liquor legislation. (The State v. Storm, 74 Kan. 859, 86 Pac. 145.) It has been said that—
“The prohibitory law as it now stands is the result of more than twenty-five years’ growth. Amendments and changes have been made in its provisions as it seemed necessary to overcome the difficulties met with in its enforcement and to make it more efficient and effective. These various provisions taken together constitute the present prohibitory law of this state and are to be considered and construed as if the entire enactment had occurred at the same time.” (The State v. Jepson, 76 Kan. 644, 648, 92 Pac. 600. See, also, The State v. Berry, 103 Kan. 891, 176 Pac. 649.)
The act of 1919 added another feature to the nuisance provisions, and it is evident it was mainly enacted to provide that' automobiles and vehicles used in the transportation of intoxicating liquors should be condemned and sold instead of being destroyed. It was not necessary to repeat in that act all the procedure in nuisance cases in order to make them applicable to the disposition of vehicles maintained as nuisances. It is clear that the provision in the act of 1903 authorizing the attorney-general, county attorney, or any citizen of the county where such a nuisance is maintained, to bring an action in the name of the state to abate the nuisance, is applicable to the abatement of automobiles, and that these officers and citizens could maintain an action of abatement which would include the condemnation of an automobile used in the unlawful transportation of in toxicating liquors, although the later act authorizing them to do so is not repeated in the subsequent act. No reason is seen why the provision as to attorneys’ fees is not applicable to all nuisances of a similar character. In Breweries Co. v. Kansas City, 96 Kan. 731, 153 Pac. 523, involving an act authorizing any city to enjoin or abate nuisances, it was held that an action brought by the mayor and chief of police, as citizens of the county and in the name of the state, could be maintained and that the general provisions as to liquor nuisances were applicable. It was held that under that act the city could abate or enjoin a liquor nuisance operating within its limits. As to what constitutes a liquor nuisance subject to such abatement it was said:
“It is any place or thing in or out of which intoxicating liquors may be sold. It may be a railway train moving across the state. It may be a barrel in an alley. (The State v. Dykes, 83 Kan. 250, 111 Pac. 179.) It may be a wagon or any other vehicle moving from one part of a city to another. It is not necessary that the place be in a building or in any particular kind of structure. (The State v. Rabinowitz, 85 Kan. 841, 118 Pac. 1040.)” (p. 735.)
It therefore appears that a vehicle operated in the liquor traffic might have been abated as a nuisance before the passage of the act providing for the forfeiture and sale of an automobile used in transporting liquor. The general act specifically provides for attorneys’ fees in the statutory action brought for the abatement of such nuisances, and when an automobile is found to be a common nuisance and is abated through the condemnation-and-sale process, • it is within the power of the court making the order to allow such fees. The fact that a justice of the peace may not have authority to enjoin a nuisance does not militate against the power of that court to abate it. Holding that attorneys’ fees in such cases are allowable, it follows that the judgment must be reversed with the direction to enter judgment in favor of the plaintiff.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover damages for the wrongful attachment of personal property and to enjoin the sale of that property. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
This case turns on the jurisdiction of a justice of the peace to attach property in his county where the defendant is a resident of another county and is not served with summons, but is served by publication notice under section 61-408 of the Revised Statutes. That section reads:
“If the order of attachment is made to accompany the summons, a copy thereof and the summons shall be served upon the defendant in the usual manner for the service of summons, if the same can be done within the county; and when any property of the defendant has been taken under the order of attachment, and it shall appear that the summons issued in the action has not been and cannot be served on the defendant in the county in the manner prescribed by law, the justice of the peace shall continue the cause for a period not less than thirty or more than fifty days; whereupon the plaintiff shall proceed for three consecutive weeks to publish in some newspaper printed in the county, or if none be printed therein, then in some newspaper of general circulation in said county, a notice stating the names of the parties, the time when, by what justice of the peace, and for what sum said order was issued, and the time when the cause will be heard, and shall make proof of such publication to the justice; and thereupon said action shall be proceeded with the same as if said summons had been duly served.”
The plaintiff cites section 60-509, which provides that actions for the recovery of money must be brought in the county in which the defendant or some one of the defendants reside or may be summoned. The plaintiff also cites Ludvickson v. Bank, 105 Kan. 225, 182 Pac. 396, where it was held that garnishment proceedings before a justice of the peace were void in an action against a nonresident of the county where no service of summons had been made and the defendant has never been in the county. The decision in that case was based on the last part of section 61-429 of the Revised Statutes, which reads:
“No garnishee summons shall be issued in any case in which the defendant is a resident of the state of Kansas, unless the action be brought in the county in which the defendant at the time resides or wherein personal service of summons may be made upon him.”
That part of the statute was added in 1901, was an amendment to the old garnishment law, and was passed to prohibit a practice that had sprung up in this state of garnisheeing wages of railroad men in counties other than those of their residence. The amendment tends to show that previous thereto such practice in garnishment cases before a justice of the peace was considered valid.
Section 61-101 should be examined. It provides that:
“The jurisdiction of justices of the peace in civil actions shall be coextensive with the county wherein they may have been elected, and wherein they shall reside.”
That section does not prohibit a justice of the peace from entertaining an action commenced before him in his county against a person in another county, where property in the county of the residence of the justice of the peace is attached and brought within the jurisdiction of the court.
Section 60-509 is a part of the code of civil procedure and governs in all actions unless otherwise provided. Section 61-401 gives to justices of the peace power to issue orders of attachment, and sec tion 61-408 prescribes the manner in which the defendant must be notified,when his property is attached, and he cannot be served with summons in the county in which the property is situated. Section 60-509 gives the general rule; section 61-408 provides a rule for particular cases. If section 60-509 controls in all cases, including those before justices of the peace, it prevents such a proceeding as the questioned one; section 61-408 allows such a proceeding unless it is prohibited by section 60-509. Both statutes, so far as this case is concerned, have been in operation since 1868.
In 36 Cyc. 1151 it is said:
“Where there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but to the extent of any necessary repugnancy between them, the special will prevail over the general statute.”
In Cavlovic et al. v. Croatian Beneficiary Association, 117 Kan. 545, 548, 232 Pac. 598, this court said:
“Section 40-716 of the Revised Statutes and section 60-413 do not concern the same subject. One concerns the code of civil procedure and is general in its nature, covering all fields. The other concerns only fraternal beneficiary associations and societies, and is special or particular in nature. One rule of statutory construction is that where a statute of a general nature and one of a special or particular nature conflict, the latter should be followed. (36 Cyc. 1087; 25 R. C. L. 1010; The State v. Thomas, 74 Kan. 360, 370, 86 Pac. 499; Wilson v. Edwards County, 85 Kan. 422, 116 Pac. 614; Shortall v. Huype, 99 Kan. 639, 641, 162 Pac. 319.) Another rule of statutory construction is that where a later act of the legislature is in irreconcilable conflict with the former one, the later act will control. (Topeka v. McCabe, 79 Kan. 329, 99 Pac. 602; Hicks v. Davis, 97 Kan. 312, 318, 154 Pac. 1030; The State, ex rel., v. City of Wichita, 100 Kan. 399, 406, 164 Pac. 290.) If there is any conflict between section 40-716 and section 60-413, the former must prevail against the latter, because the former is special or particular in its nature and is the last expression of the legislature.”
Following this rule of statutory construction, section 61-408 gives to a justice of the peace jurisdiction to cause property in his county to be attached, where the defendant has property in that county, although he resides in another county and cannot be served with summons in the county in which the property is attached.
The judgment is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
The claim of Joseph Carl Fraundorfer under the soldiers’ compensation act was disallowed by the state board. On appeal the district court reversed the order of disallowance and allowed his claim. The board appeals.
The facts were substantially as follows: On May 3, 1923, the appellee made application for compensation, giving his address as 505 Twigg street,- Tampa, Fla. On April 3, 1924, a notice of disallowance was mailed to him at the address given. On April 11, the notice having been returned as unclaimed by the postal authorities, a letter was sent to the Wyandotte county board asking a better address. On April 30 the county board gave his address as 417 Y. M. C. A., Tampa, Fla., and on May 6 the state board sent him a second notice of such disallowance. On August 14 notice of appeal from such disallowance was filed by appellee in the district court. The compensation board filed a motion to dismiss. An affidavit filed by appellee stated that his application was disallowed during the month of August, 1924. His mother testified that she received a letter from him in August telling her that his claim had been disallowed. With this evidence before it, the district court found that the appeal was perfected within ninety days from the date of the disallowance by the state board. Appellee’s claim was allowed and judgment rendered thereon.
The appellant board contends that the trial court erred in finding that the claimant filed his appeal within ninety days from the date of disallowance. The appellee contends that this court cannot consider any alleged error assigned by the appellants, because no record is before this court covering the evidence submitted in the c'ourt below. The abstract filed sufficiently shows that no appeal was taken by the appellee from the order of disallowance within ninety days.
It is clear that the board made diligent efforts to notify the appellee of the disallowance of his claim. The first notice to him of disallowance of his claim was mailed on April 3. His appeal was not taken until August 14. The statute requires the appeal to be taken within ninety days. (R. S. 73-126.) Under the authority of Wilson v. Soldiers’ Compensation Board, ante, p. 165, 233 Pac. 1034, and Kinyon v. Soldiers’ Compensation Board, ante, p. 367, 234 Pac. 949, it must be held that the appellee’s appeal from the order of dis-allowance was filed too late.
The judgment is reversed with instructions to sustain the motion of the compensation board to dismiss appellee’s appeal from the order of disallowance.
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The opinion of the court was delivered by
Harvey, J.:
This is a suit for specific performance. It was tried to the court, who made findings of fact and conclusions of law and rendered judgment for plaintiff. The defendants have appealed.
The petition filed in June, 1923, alleges in substance that in March, 1922, plaintiff was the owner of 375 shares of the capital stock of the Great Northern Oil and Petroleum Company, and 125 shares of the capital stock of The Wapello Oil and Gas Company, each of the par value of $100; that defendants were the owners of certain described real property in Chanute; that plaintiff and defendant Will H. Wycoff entered into a parol agreement whereby defendants exchanged the real property owned] by them, subject to a $5,000 mortgage thereon, which plaintiff was to assume, and pay plaintiff $2,000 in cash for the shares of stock owned by, plaintiff; that the certificates of the shares of stock were to be held by plaintiff until the $2,000 was paid; that within sixty days from making the agreement the defendants vacated the real property and delivered possession thereof to plaintiff, but through inadvertence the plaintiff failed to require deed; that since the exchange of properties de fendants have exercised dominion and control over the stock transferred to them and have voted the same at a stockholders’ meeting and have received and accepted the benefits flowing from the ownership thereof, and the plaintiff has at all times been in possession and control of the real property with the knowledge and consent of defendants; that in March, 1923, plaintiff being indebted to one Robinson, made to him a quitclaim deed for the real property, and in June, 1923, plaintiff had an opportunity to sell the real property to one Bray, and that defendants executed a deed to the property at that time, subject, however, to a certain stipulation signed by plaintiff and defendants. This stipulation recites, in substance, that defendants have made a quitclaim deed to Robinson for the property in controversy, which was to be placed in escrow in a named bank under a contract for the sale of the property by Robinson to Bray; that if the sale of the property is not completed the deed should be returned to defendants, otherwise to be delivered to Bray. The sale to Bray was for $7,500 above the mortgage, which sum, less the taxes and expense of sale, was to be paid to defendants, and it contained this provision:
“It is understood that M. E. Eakin is making some claim to said property, and unless he makes some adjustment of said claim with Will H. Wycoff, or commences some legal proceedings to assert said claim within thirty days from the date hereof, he is to be considered as having waived all such claim to said property. If any legal proceedings are brought, then the disposition of said money by said John L. Robinson shall abide the decision of said controversy.”
This was accepted and agreed to by Robinson.
Plaintiff further avers that he had at all times been ready and willing to deliver the certificates of stock and they were tendered into court, and that defendants had refused to make a deed in accordance with the contract and refused to pay the $2,000 due plaintiff thereunder. The prayer was that the defendants be decreed to have no right in the fund impounded under the stipulation, that they be ordered to execute a deed to the property, and that plaintiff have judgment against them for $2,000.
The answer admitted the ownership of the properties in March, 1922, as alleged in the petition, but denied the other allegations of the petition; averred that the real property described in the petition was the homestead of defendants and there had been no joint consent for its alienation; alleged laches on the part of plaintiff; and that it would be equitable and unjust to enforce specific performance because of the decrease since March, 1922, of the value of the shares of stock and the increase in the value o£ the real property; and averred that defendants were entitled to the funds impounded by the stipulation. To this answer the plaintiff filed a general denial.
At the conclusion of the evidence the court made findings of fact as follows:
“1. Sometime in the month of March, 1922, in the city of Chanute, Neosho county, Kansas, the plaintiff, M. E. Eakin, and the defendant, Will H. Wycoff, entered into an oral agreement for the exchange of property, in which the defendant, Will H. Wycoff, was to transfer to M. E. Eakin the south thirty feet of lot 6 and the north thirty-five feet of lot 7, and the south thirty feet of lot 5, and the north twenty-five feet of lot 6, all in block 6, Allen’s addition to the city of Chanute, Kansas, subject to mortgage of $5,000, which Eakin assumed and agreed to pay, and to pay M. E. Eakin the sum of two thousand dollars, for all of which the said M. E. Eakin was to transfer to the said Will H. Wycoff three hundred and seventy-five shares of stock in the Great Northern Oil and Petroleum Company and one hundred and thirty-five shares of stock in the Wapello Oil and Gas Company.
“2. The real property above described owned at the time of said oral agreement by Will H. Wycoff and Maude Wycoff, his wife, was occupied by them as their homestead.
“3. On May 11, 1922, pursuant to said agreement, Will H. Wycoff and Maude Wycoff, his wife, moved out of said property and occupied rental property thereafter and never returned to their former residence to occupy the same. Two of the keys to the house were delivered to M. E. Eakin through the son of the plaintiff. The Wyeoffs never claimed any ownership or right of possession over said property from the time they left the same in pursuance of said contract until on or about the 10th day of May, 1923, when Will H. Wycoff by letter notified the plaintiff herein that the deal they had talked of fourteen months previous thereto was null and void.
“4. The plaintiff is a resident of Grove-City, Pennsylvania, and never did move into the property or rent the same. But during the months that intervened from the time of the said oral agreement in March, 1922, until the date on which Wycoff by letter attempted to call the deal off, the said plaintiff paid the taxes on said property for the years 1921 and 1922, and paid for the insurance on the garage on said described real estate. This insurance that was paid for on the garage was ordered during the month of May, 1922, by Wycoff, and the policy made out to Eakin at the request of the said Wycoff, and the premium on the same was paid by the plaintiff, Eakin. During said period said plaintiff paid the interest on the mortgage of five thousand which was existing on the real property and which was in existence at the time of the contract between the parties.
“5. During the period above stated the said Maude Wycoff, wife of the defendant Will H. Wycoff, was consenting and acquiescing in the agreement made between her husband and M. E. Eakin in March, 1922, to the real estate herein described. Her husband testified that he talked the matter over with her about the trade so that she knew about it and moved out of her home in pursuance thereof.
“6. On the 22d day of March, 1923, M. E. Eakin made a deed to the property to J. L. Robinson as security for a debt that he then owed him, and soon thereafter, during the month of April, 1923, Wycoff stated to said Robinson that he would make a deed to him, Robinson, and which had been requested by Eakin, but afterwards he refused to make such deed.
“7. The shares of stock of the two oil companies above mentioned which were to be transferred to Wycoff for the real property were never delivered until they were mailed to Wycoff by registered letter on the 13th day of June, 1923, which tender was refused by Wycoff.
“8. On the 7th day of May, 1923, M. E. Eakin mailed a letter to Wycoff to Grove City, Pennsylvania, which was received by him in which Eakin said that the Wapello stock was enclosed, but had not enclosed said stock, and on that same date M. E. Eakin mailed to Wycoff at Chanute, Kansas, the' Wapello shares of stock and Wycoff refused to take said letter out of the office and it was returned to the plaintiff. The letter first above referred to was received by Wycoff on the 10th day of May, 1923, and upon receipt of the same Wycoff immediately wrote a letter to Eakin stating to him that the deal was off. This was the first time that Eakin knew or had any notice from Wycoff that Wycoff would not close the deal.
“9. The condition as to title of all the property remained the same as before indicated until this action was brought, which was on the 20th day of June, 1923.
“10. On the 13th day of June, 1923, T. R. Evans, attorney for M. E. Eakin, plaintiff, tendered the shares of stock contemplated in the agreement, .by registered letter, to Will H. Wycoff at Chanute, Kansas, tendering him the shares of stock. The said stock was returned to said T. R. Evans by Jones & Wedell, attorneys for Wycoff, three days after said tender above indicated.
“11. At the time of the said oral contract between the parties it was agreed that Wycoff should pay two thousand dollars in addition to the real estate for the shares of stock above described. This amount never was paid, and there was no definite agreement as to when it should be paid at the time of the agreement. The plaintiff Eakin afterwards offered to take a note for the said amount, but it was never so done. The payment of the two thousand dollars was left the same as the other property, incomplete, as to the performance of that part of the contract.
“12. [This finding pertained to the making of the stipulation for the sale to Bray, as alleged.]”
And the following conclusions of law:
“1. As a matter of law, the court finds on the above facts that the plaintiff had the exclusive and continuous possession of said real property from the 11th day of May, 1922, at which time the defendant moved out of said property.
“2. The court finds there was a joint consent between Will H. Wycoff and Maude Wycoff, his wife, to alienate the homestead as provided in the said oral agreement between the plaintiff and the said defendant, Will H. Wycoff. “3. The plaintiff is entitled to specific performance of the contract, which should be granted, and judgment should be rendered in favor of the plaintiff and against the defendants for the sum of two thousand dollars and costs.
“Plaintiff is further entitled to a deed from the defendants to the south thirty feet of lot 5 and the north twenty feet of lot 6, block 6, Allen’s addition to the city of Chanute, Neosho county, Kansas, as prayed for in the petition, and is further entitled to the funds impounded by the contract set out in finding of fact number 12.”
Defendants moved the court to make additional findings of fact; this was denied. Defendants then moved to set aside findings of fact 3, 4, 5 and 9 as not being supported by the evidence and as being contrary to the evidence, and also to set aside conclusions of law numbers 1, 2 and 3 as not being supported by the facts and as being contrary to law. This motion was overruled.
Without summarizing the evidence, we deem it sufficient' to say that we have examined the evidence carefully and considered all appellants have said concerning it, and find it sufficient to support the respective findings made by the court.
Appellants contend (1) that the alleged oral contract is too indefinite, uncertain and vague to warrant a decree of specific performance ; (2) that the contract for the alienation of the homestead is void because it does not have the consent of Maude Wycoff, wife of W. H. Wycoff, and certainly not their joint consent as required by law; (3) that the contract in the instant case is void for the reason that it is in; violation of the statute of frauds, and that insufficient facts are proved to take it out of the statute; (4) that appellee is not in equity and in good conscience now entitled to a decree of specific performance on account of his laches; (5) appellee is in default himself, and is therefore not entitled to a decree of specific performance; and (6) that the decree of the court for specific performance is inequitable and unjust.
The uncertainty in the contract largely relied upon by appellants relates to the time of the 'payment of the $2,000. Plaintiff alleged that this was to be paid in cash. He testified: “Mr. Wycoff was to pay me $2,000 in money, . . . or to give me his note or take a little time. . . . He was to pay me at least in three months, or if not I was to give him a renewal time of three months.”
In Leis v. Sinclair, 67 Kan. 748, 74 Pac. 261, it was said:
“Ordinarily where there is a stipulation in an executory contract to do some act, and the time of performance is not specified, it is to be done within a reasonable time; and therefore the want of a stipulation to that effect does not necessarily render the contract void.” (Syl. ¶ 2.)
In Wilson v. Beaty, 211 S. W. 524 (Tex.), it was held:
“The certainty required in a contract which renders it subject to an action for specific performance is a reasonable certainty, and the equitable rule would not require a strained and unreasonable construction of the contract solely for the purpose of defeating the remedy and destroying the right.” (Syl. IT 4.)
“A contract is certain and definite in its terms if it leaves no reasonable doubt as to what the parties intended and no reasonable doubt of the specific thing equity is called upon to have performed.” (Syl. ¶ 3.)
In Caplan v. Buckner, 123 Md. 590, it was held:
“The agreement did not specify the time in which the mortgage for $1,000 was to be made payable, but that does not render the terms of the contract too indefinite within the rule referred to. In Triebert v. Burgess, 11 Md. 452, the court said: ‘Another objection to the contract is, that it cannot be specifically enforced, because it is too indefinite, inasmuch as no time is limited for the payment of the mortgage; and as the parties have agreed upon none the court cannot undertake to fix it. Such an objection is not a valid one. In Farrell v. Bean, 10 Md. 233, this court said: ‘When no particular time of payment is limited in a mortgage, it is to be paid in a reasonable time. And if payment is not so made, the mortgagee is entitled to a foreclosure.’ That case is cited and approved in Lawson v. Mullinix, 104 Md. 156, where the court held that when no time is fixed for the consummation of a contract a court of equity will require it to be consummated in a reasonable time. The mortgage which was prepared by the authority of the defendant to carry out the terms of the agreement in this case was made payable one year after date, and no objection was made to it on that account.” (p. 602.)
In Martin v. LaBoon, 116 S. C. 97, it was held:
“An oral contract for the sale of land held not too indefinite as to terms of payment in view of certain specific provisions, and the rule that, when no specific maturity date is fixed by contracts, payment will be presumed due within a reasonable time or on demand, so that such objection should not prevail, the contract being sufficiently definite in other respects.” (Syl. ¶ 4.)
In Luczak v. Mariove, 92 N. J. Eq. 377, it was held:
"Where necessary, in the absence of definite terms in the contract, the court will presume it to have been the intention of the parties that a mortgage to be made shall be made payable on demand, and also that the interest rate shall be the legal rate.
“The omission of a due date for a mortgage and the rate of interest thereon will not defeat specific performance of a contract.” (Syl. lf|f 3, 4.)
The time of payment in this case was reasonably definite, and in view of the authorities above cited and the transaction in this case as a whole it is not so uncertain as to preclude specific performance. It is also argued that the contract is uncertain as to the kind of deed to be given, but when that is not mentioned a deed with the usual covenants of warranty is presumed. (Putnam v. King, 96 Kan. 109, 150 Pac. 559.)
Appellants argue that there was not shown the joint consent of husband and wife necessary for the alienation of the homestead. The joint consent of husband and wife, when that relation exists, is necessary for the alienation of the homestead. Our constitution so provides (art. 15, § 9) and this court has repeatedly so held. (Morris v. Ward, 5 Kan. 239; Ott v. Sprague, 27 Kan. 620; Jenkins v. Simmons, 37 Kan. 496, 15 Pac. 522; Bank v. Duncan, 87 Kan. 610, 125 Pac. 76.) But the consent of the spouse in whom the title is not vested need not be in writing. (Dudley v. Shaw, 44 Kan. 683, 24 Pac. 1114; Matney v. Linn, 59 Kan. 613, 54 Pac. 668.) It may be shown by acts in pais. (Sullivan v. Wichita, 64 Kan. 539, 68 Pac. 55.) Probably no greater amount of evidence or more strict proof will be required than is deemed necessary to establish any other material fact. (Pilcher v. A. T. & S. F. Rld. Co., 38 Kan. 516, 16 Pac. 945.) It becomes a question of the extent and weight of the evidence. (Perrine v. Mayberry, 37 Kan. 258, 15 Pac. 172; Johnson v. Samuelson, 69 Kan. 263, 76 Pac. 867; Shay v. Bevis, 72 Kan. 208, 83 Pac. 202; Smith v. Kibbe, 104 Kan. 159, 178 Pac. 427; Ferguson v. Nuttleman, 110 Kan. 718, 205 Pac. 365.) This, in the first instance, is a question for the trial court to determine. We pass upon it only to see if there is some substantial evidence to sustain the conclusion reached. While in this case the evidence of the joint consent of the husband and wife is meager, we cannot say there is no substantial evidence to support the trial court’s finding.
Appellants contend that facts were not shown sufficient to take the case out of the statute of frauds. The court finds that defendants surrendered possession to plaintiff May 11, 1922, and never claimed any ownership or rights of possession thereafter until defendant attempted to call the deal off in May, 1923; that defendant gave plaintiff the keys to the house, and that plaintiff paid the taxes on the property for the years 1921 and 1922; that he paid the interest on the mortgage which he had assumed, and insurance upon the garage. In March, 1923, plaintiff made a deed for the property to secure a debt, and defendant, at the request of Robinson, agreed to make a deed, but later declined to do so. These matters were sufficient part performance to take the case out from under the statute of frauds and justify the court’s first conclusion of law. (Edwards v. Fry, 9 Kan. 417; Durham v. C. C. & M. Co., 22 Kan. 232, 247; Taylor v. Taylor, 79 Kan. 161, 99 Pac. 814; Smethers v. Lindsay, 89 Kan. 338, 131 Pac. 563; Witt v. Boothe, 98 Kan. 554, 158 Pac. 851; Hoppas v. Bremer, 114 Kan. 609, 220 Pac. 251.)
Appellants argue that plaintiff is not in equity and good conscience entitled to a decree of specific performance because of his laches; that he did nothing toward complying with his part of the contract from the time it was made in March, 1922, until May, 1923, after appellant notified him that the deal which they had discussed was off. What length of time will constitute such laches as to bar recovery in a suit of this character depends upon many circumstances and rests largely in the sound discretion of the chancellor. While there was some apparently unnecessary delay— neither party was hurrying things up to have the deal closed— there is not such delay that this court should say, as a matter of law, bars recovery.
It is argued that appellee is in default himself and therefore is not entitled to a decree of specific performance in this case. It is pointed out that the transfer of the certificates of stock was the sole consideration passing to appellants under the contract as claimed by appellee. Instead of getting his certificates of stock and transferring them to appellant, he delayed. Two months after the contract was .made he says he discovered that the certificates representing the shares of stock in one oil company were lost; then he said he would get duplicates, but he never made the necessary affidavit nor gave the bond which the officials of the company required before duplicates would be issued. In March, 1923, he found the lost certificates in the bank at which he did business at Chanute, but he' did not offer them to appellant until after appellant had called the deal off in May, 1923. This question is akin to the one last discussed, and was within the sound discretion of the court in view of all the facts and circumstances of the case.
Lastly it is argued that the decree of specific performance is inequitable and unjust in view of the change in values of the respective properties since the contract was made and before the decree was rendered. It is not claimed that the contract was inequitable when made, but that changed conditions later made it so. In 25 R. C. L. 225, the rule is thus stated:
“The hardship of a contract, like all its other qualities, must be Judged of at the time it was entered into, not by subsequent events, and the fact that a contract fair when made has become a hard one by the force of changing circumstances or subsequent events will not necessarily prevent its specific performance.”
Finding no error in the record the judgment of the court below is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The appeal was taken from an order of the district court disallowing compensation to a veteran of the world war. The compensation board denied compensation on the ground the applicant was not a resident of this state at the time he enlisted, and he appealed to the district court. At the commencement of the hearing in the district court, the applicant presented a motion for specific findings of fact and conclusions of law, stated by the applicant, and attached to the motion. Thereupon the court denied the motion, and no other motion for findings of fact was presented. Following the hearing, the court made the following statement of its findings and of its conclusion, of law:
“The court finds the issues herein in favor of the appellee and against the appellant, and finds that the said appellant was not a resident of the state of Kansas at the time of his enlistment in the army, and is not entitled to any benefits under the statutes of this state relating to compensation for veterans of the World War.”
It is assigned as error that the court refused to make findings of fact.
The court did not refuse to make findings of fact. The court declined to allow a motion that it make specific findings formulated by the applicant and tendered for signature on the dotted line. Thp proffered findings were not statements of those facts which determine residence, but consisted of recitals in minute detail of all the evidence which the applicant expected to produce at the hearing. Therefore the motion was properly denied. Prompt denial of the motion advised counsel for the applicant that, whatever the evidence might be, the court did not intend to adopt the findings appended to the motion. Counsel made no other request for findings, and the assignment of error is not well founded.
One of the grounds of the motion for new trial was that the decision was not supported by the evidence. The applicant registered for the draft at Anthony, Kan., where he was operating a tailoring and cleaning and pressing business, with equipment purchased by his father, who resided at Cherokee, Okla. At the time he registered the applicant sold the property pertaining to the business and went to Cherokee, Okla. Leaving his trunk and belongings at his father’s house, he then went to Oklahoma City to enlist. Not being able to enlist there, he went to Fort Sam Houston, Tex., where he did enlist. When he enlisted he gave Cherokee, Okla., as his residence, and when he was discharged he received travel pay to Cherokee, Okla. Shortly after returning from the army to Cherokee, Okla., he went into business there with his father. As a witness in his own behalf, he gave testimony to the effect that when he went to Anthony he intended to abide there permanently, and that when he left Anthony he intended to return and abide there permanently. He also gave an explanation for assigning Cherokee, Okla., as his residence when he enlisted. The credence to be given his testimony was a matter for the trial court, and this court is unable to say that the decision was not sustained by the evidence. .
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The appeals in these cases bring up for review action of the district .court in granting a new trial and in proceeding with the new trial while an appeal from the order granting it was pending.
Baxter, as landlord, sued Clark, as tenant, for six months’ rent at $40 per month and for possession of the leased premises. There was evidence that the rent had been increased from $30 to $35, and then to $40 per month, and that Clark was in arrears for six months at the,$40 rate. Clark counterclaimed, and prayed judgment for $296.07. His testimony was that the rent was $30 per month only, and that he had made repairs, which he had charged to Baxter. His authority to make repairs and charge them to Baxter was denied. The jury returned a verdict for Clark, and assessed the amount of his recovery at one dollar. Baxter filed a motion for new trial on the ground the verdict was not sustained by the evidence, and Clark filed a motion for judgment for $296.07 on the conflicting evidence, notwithstanding the verdict. It was not possible to reconcile the verdict with the evidence. Clark’s motion- amounted to nothing except to express dissatisfaction with the verdict, and the court was obliged to grant a new trial. Clark appealed. There is no shadow of merit in the appeal, and the judgment in case No. 25,792 is affirmed.
After the appeal was taken the district court assigned the case for trial. Clark applied to this court for an order directing the district court to suspend proceedings until the appeal could be heard. The application was denied, because it appeared the district court had granted a new trial pursuant to a motion for new trial which challenged the jury’s treatment of the evidence. When the case came on for hearing in the district court, Clark appeared specially and moved the court to suspend proceedings, on the ground the case was pending in this court. The motion was denied, and Clark stood on his special appearance and motion. Baxter waived a jury, proved her case, and judgment was rendered in her favor. Clark appealed.
The case was commenced before a justice of the peace and judgment was rendered for Baxter. When Clark appealed to the district court he gave an appeal bond, but when he appealed from the first judgment of the district court he gave no supersedeas bond. He says he had a judgment in his favor, but he is mistaken. The verdict in his favor was vacated by the order granting a new trial, and his appeal to this court did not stay further proceedings in the district court. His application to this court for a stay of proceedings was denied because the appeal was patently fruitless. The sole ground of his motion in the district court for suspension of proceedings there was that he had appealed. He made no showing that he would be prejudiced by immediate trial, and it was manifest that if Baxter’s action were well founded, she would be prejudiced by delay. Therefore the district court was well within the limits of its discretion in denying the motion.
Clark appeals from the judgment entered at the conclusion of the second trial. He filed no motion for a new trial, and is unable to point out any vice in the judgment itself. Therefore the judgment in case No. 25,814 is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment of conviction of rape, and urges, as a ground of error, that during the trial one of the jurors became ill, and after the cause had been submitted to the jury and it had retired to the jury room to consider the verdict, he became worse, was unable to withstand the argument and persuasion of the other jurors who desired to convict the defendant, and in order to be released from the jury room and go to his home for medical treatment, consented to a verdict of guilty, although he-believed the defendant was not guilty and desired to acquit him. That fact was shown to the court by an affidavit of the juror on the-hearing of the motion for a new trial, which was denied, at which time the court caused the following statement to be made a matter-of record:
“In connection with what is set forth in these affidavits [the juror’s wife-made an affidavit] relative to the physical condition of Juror Bodde, wish to state: Bodde informed the court Tuesday evening he was not feeling well; the-court made inquiry as to his physical condition on Wednesday morning, and. he stated to the court he was feeling better, At the adjournment hour at noon, before the jury was discharged at the noon hour, the court inquired as to how he was holding out physically, and the court recalls he stated he was getting along all right, and the court received no further complaint as to Bodde’s physical condition during the trial. The verdict will be sustained and the motion for a new trial will be denied.”
The trial was commenced on Monday and the verdict was returned on Thursday. The fact the juror was ill does not appear to have been communicated to the court in any way other than as indicated in what has been quoted. No one requested that the consideration o'f the verdict be suspended or postponed to allow time for the juror to recover from his illness.
The affidavit was presented for the purpose of impeaching the verdict. That could not be done. (The State v. Clark, 34 Kan. 289, 8 Pac. 528; The State v. Burwell, 34 Kan. 312; 8 Pac. 470; L. & W. Rly. Co. v. Anderson, 41 Kan. 528, 21 Pac. 588; The State v. Plum, 49 Kan. 679, 684, 31 Pac. 308; The State v. Keehn, 85 Kan. 765, 118 Pac. 851; The State v. Taylor, 90 Kan. 438, 446; 133 Pac. 861; Jones v. Webber, 111 Kan. 650, 652, 207 Pac. 837.)
The judgment is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
This is an original action in mandamus to compel the city commissioners of Arkansas City to provide facilities for the operation of a city court in accordance with the provisions of senate bill No. 504, passed by the legislature of 1925.'
The act purports to establish a court in the city of Arkansas City with civil and criminal jurisdiction, civil jurisdiction limited to actions for the recovery of money and specific personal property to the amount of $1,000. It provides for the election of a judge at a salary of $2,000 per annum, and an allowance of $50 per month, or so much thereof as, in the discretion of the judge, is necessary for and on account of clerk hire. It prescribes the procedure and details for the organization and maintenance of the court, and requires the city to furnish a court room and pay the necessary incidental expenses for its conduct.
The defendants contend that the act is in conflict with section 17, article 2 of the constitution, which reads:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.”
An agreed statement of facts recites:
That Arkansas City is a city of the second class with a population of approximately 14,000 inhabitants; that it is in the nineteenth judicial district, the population of the district being approximately 65,000 inhabitants; that Winfield, the county seat, is fourteen miles distant; that three terms of court are held each year in Cowley county; that approximately one-half the population of the county lives in and adjacent to Arkansas City; that the district court had on its trial docket at the beginning of the November, 1924, term, of court, 415 civil cases, of which 232 came from Arkansas City and immediate vicinity; that Arkansas City is in the southwest corner of the county five miles from the Sumner county line and three and one-half miles from the Oklahoma state line; that a large amount of litigation that arises in Arkansas City would be within the jurisdiction of the court created by the act in question ; that the state of the docket of the district court for November, 1924, is typical of the usual and ordinary business of that court.
A similar controversy was determined in The State v. Nation, 78 Kan. 394, 96 Pac. 659, which involved an act, the purpose of which was to establish a court of record in the city of Chanute. Similar arguments were made in support of that act as are made in the instant case to uphold the theory that a general law could not be made applicable. The court thought otherwise and determined that the act was void because repugnant to the provisions of the constitution.
The plaintiff, while admitting that some of the facts upon which the instant case is submitted áre identical with the facts discussed in the Chanute case, contends that there are other facts which differentiate it from that case. It is argued that because of certain peculiar conditions existing in Arkansas City a general law could not reasonably be made to apply. It was likewise insisted in the Chanute case that owing to the peculiar conditions existing in that city a general law could not be made applicable, but this court said in the opinion, “It is difficult to perceive why the reasons based upon the peculiarity of local conditions, if sufficient to uphold special legislation creating city courts, would not sustain special legislation upon other important affairs of local administration and government, among which are the establishment and maintenance of schools; but this court has decided that a special act establishing a high school for a particular county is invalid, as the end sought may be reached by a general law.” (p. 398.)
Similar matters were carefully and well considered in Anderson v. Cloud County, 77 Kan. 721, 95 Pac. 583, and The State, ex rel., v. Deming, 98 Kan. 420, 158 Pac. 34. (See, also, Gustafson v. McPherson County, 88 Kan. 335, 128 Pac. 186; Patrick v. Haskell County, 105 Kan. 153, 181 Pac. 611.)
We find nothing in the instant case to warrant a different conclusion from that reached in the cited cases.
The writ is denied.
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The opinion of the court was delivered by
Marshall, J.:
The defendant was convicted of having intoxicating liquor in his possession, and appeals.
The defendant was prosecuted on an amended information which was signed “Chas. H. Cory, deputy county attorney.” The defendant filed a verified plea in abatement which alleged;
“That Payne H. Ratner was the duly elected, qualified and acting county attorney of Labette county, Kansas, and was not sick, absent or derelict or otherwise disqualified, and is present in court on this the 7th day of October, a. d. 1924.”
The plea in abatement was denied. A jury was then impaneled. Objection to the introduction of evidence was made on the grounds stated in the plea in abatement. The objection was overruled. The only proposition urged by the defendant is that the deputy county attorney has no authority to sign an information' when the county attorney is not sick, absent, derelict or otherwise disqualified. The state argues that Chas. H. Cory was an assistant county attorney, appointed under the authority of section 28-105 of the Revised Statutes, which section in part reads:
“In counties having a population of less than 60,000 and more than 27,000, or having a city of the first class, or two or more cities of the second class each having a population of 3,500 or more, the county attorney, by and with the consent and approval of the county commissioners, may appoint an assistant county attorney, who shall receive a salary of $1,200 per annum. . . .”
That statute does not name the powers or duties of the assistant county attorney. There is nothing in the abstract, which is a joint one, to indicate that Charles H. Cory was an assistant county attorney. He describes himself as a deputy county attorney, and signed the information as such. It must be considered in this court as one signed by a deputy county attorney and not by an assistant county attorney. The question argued by the state is not presented by the record. The county attorney was present when the amended information was signed on October 7, 1924, and assisted in the trial of the case on that day.
The authority of a deputy county attorney to sign an information is found in section 19-706 of the Revised Statutes, which reads:
“The county attorney may appoint a deputy, who shall perform all the duties of such county attorney during his absence or sickness.”
The defendant does not show wherein he was prejudiced by the manner in which the information was signed, and the court does not perceive how he could have been prejudiced thereby. The information clearly charged the defendant with the offense of which he was convicted. To reverse the judgment on the grounds urged by the defendant, it would be necessary to disregard section 62-1718 and the seventh subdivision of section 62-1011 of the Revised Statutes.
Section 62-1718 reads:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
Part of section 62-1011 reads:
“No indictment or information may be quashed or set aside for any of the following defects:
“Seventh. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”
When the attention of the court was challenged to the irregularity in the information, the county attorney might very well have been required to sign it; but that irregularity is not sufficient to justify this court in reversing the judgment. (In re Gilson, 34 Kan. 641, 9 Pac. 763; The State v. Elliott, 110 Kan. 40, 202 Pac. 847; The State v. Henderson, 114 Kan. 724, 220 Pac. 293.)
In The State v. McCullough, 101 Kan. 52,165 Pac. 644, an information to which no prosecutor’s name was signed at all, but which concluded thus: “........................, county attorney,” was held good against a motion to quash, although the trial court afterwards per-mitted the information to be signed on the theory that it was a mere matter of form.
In The State v. Queen, 103 Kan. 632, 176 Pac. 111, the assistant attorney-general who commenced the prosecution failed to sign the information as prosecuting attorney. The defendant was convicted and appealed. This court upheld the judgment.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This action is one to recover on two promissory notes. Judgment was rendered in favor of the plaintiff and the defendant appeals.
The defense was that the notes, which had been given for certificates of shares in the Associated Mill and Elevator Company, had been procured by fraud and that the plaintiff had purchased them with knowledge and notice of that fraud.
Complaint is made of the following instruction:
“15. As heretofore instructed the possession of negotiable instrument properly indorsed, is prima jade evidence that the holder is the owner thereof, and that he acquired the same in good faith, for value, and in the usual course of business, before maturity without notice of any circumstance that would impeach its validity, and that he is entitled to recover upon it, and this prima jade case is not overthrown by matters which at best, do not more than create a suspicion.”
The defendant argues that the final clause in the instruction, “this ;prima facie case is not overthrown by matters which at best, do not more than create a suspicion,” cast on the defendant the burden of showing that the plaintiff had notice of the fraud.
In Gigoux v. Moore, 105. Kan. 361, 366, 184 Pac. 637, this court-said:
“Here, as in the case of notice of infirmity in the instrument or defect in title of the holder, bad faith is bad faith in fact, bad faith derived by inference of fact, as distinguished- from inference of law.. Here, as in case of notice of infirmity or defect in title, failure to use ordinary diligence in following up suggestive facts, or facts arousing suspicion, is not -sufficient [to defeat the note].” (See, also, Gigoux v. Henderson, 107 Kan. 325, 327; 190 Pac. 1092.)
This court has held that, in an action by the indorsee of a note which is shown to have been procured from the maker by the fraud of the payee, the burden is on the plaintiff to show that he procured the note in due course. (Ireland v. Shore, 91 Kan. 326, 137 Pac. 926; Schmidt v. Benedict, 104 Kan. 196, 197, 178 Pac. 444; Beachy v. Jones, 108 Kan. 236, 195 Pac. 184; Weisdanger v. Lind, 114 Kan. 523, 220 Pac. 263; Consolidated Motors Co. v. Urschel, 115 Kan. 147, 148, 222 Pac. 745.)
The instruction complained of should be read in connection with instructions numbered 13, 17 and 18. Instruction No. 17 reads as follows:
“The burden of proof in this case is first upon the plaintiff to show that he is the holder of the notes sued upon. This burden is established by defendant’s admission that plaintiff is the owner and holder of said notes. If fraud is established by the defendant by a preponderance of the evidence as alleged by defendant, then the burden is on the plaintiff to show it is a holder in due course, for value, before maturity, without notice as more fully instructed herein. You will consider the instructions as a whole, and not one or more instructions taken out and considered unconnected with the others. Give due weight to each instruction so as to harmonize them as a whole when taken together.”
It will be noticed that if fraud was established by the defendant, this instruction placed on the plaintiff the burden of proof that it was the holder in due course. It was not error to instruct, as given in instruction No. 15, that merely a suspicion of fraud created by the defendant’s evidence was not sufficient to overthrow the prima facie case, but,- as stated in instruction No. 17, that if the defendant established fraud by a preponderance of the evidence, the burden of proof was upon the plaintiff to show that it was a holder in due course without notice of the fraud. When all the instructions are considered together, it does not appear that there is any reversible error in instruction No. 15.
Complaint is made of the refusal of the court to .give the following instruction requested by the defendant:
“Gentlemen, of the jury you are instructed, that if you find from the evidence that the notes shed upon were obtained by - fraud, then proof of such fraud in obtaining said notes also establishes a prima facie ease that the bank had knowledge of such fraud at the time it acquired the'notes. And in case fraud in the inception of said notes has been established by a preponderance of the evidence you are justified in finding that the bank had knowledge of such fraud without any other evidence of such fact, unless you further find that the evidence introduced in this case, if any, tending to show that the bank did not have knowledge of such fraud, is sufficient to overcome such prima facie ease of notice and to satisfy your minds that at the time the bank acquired the notes it did not have knowledge of such fraud.”
An examination of the instructions reveals that the requested instruction, so far as correct, was in substance given by the court. The following language: “Proof of such fraud in obtaining said notes also establishes a prima facie case that the bank had knowledge of such fraud at the time it acquired the notes,” did not correctly state the law. Proof of fraud in procuring a signature to a note is not any evidence that the holder of the note had knowledge or notice of the fraud, although the holder must then show that he procured the note in due course. It is not error to refuse to give a requested instruction where it is substantially given in the general charge of the court. (Baugh v. Fist, 84 Kan. 740, 115 Pac. 551; Thompson v. Machine Co., 94 Kan. 453, 146 Pac. 1188; Berhenke v. Penfield, 94 Kan. 532, 146 Pac. 1187; Hayes v. Nutter, 98 Kan. 75, 157 Pac. 428; Murray v. Electric Co., 99 Kan. 507, 162 Pac. 1145; Cox v. Chase, 99 Kan. 740, 163 Pac. 184; Turner v. Railway Co., 106 Kan. 591, 189 Pac. 376.) If a requested instruction is partly good and partly bad, it is not error to refuse to give it. (Kansas Ins. Co. v. Berry, 8 Kan. 159; Dickson v. Randall, 19 Kan. 212, 215; The State v. Perkins, 112 Kan. 455, 210 Pac. 1091.)
The defendant complains of the submission of questions to the jury. We quote from the abstract as follows:
“The following special questions were, on request of the plaintiff, submitted to the jury, the 2nd, 3rd, and 4th being submitted over the objection of the defendant, the defendant excepting.
“1. Do you find that the plaintiff purchased the notes in question:
“(a) For value?
“(b) Before maturity?
“(c) In due course?
“(d) Without notice of infirmity?
“2. If you answer ‘No’ to (d) in question 1 then state what notice of such infirmity it had.
“3. If you answer ‘No’ to (d) in question 1 state fully the facts as to when, by whom, or in what manner such notice was imparted to the plaintiff.
“4. If you answer ‘No’ to (d) in question 1 then state fully of what such infirmity or infirmities consisted, and state fully the bad faith of the plaintiff?
“5. Prior to the time of the execution of the notes, was there an agreement or understanding between the plaintiff bank, through its cashier, Charles Hull, the agents Chryst and Hilton and the defendant, Fritz Brenneke, that immediately upon their execution the notes were to be taken by the plaintiff bank and certificates of deposit issued therefor to the company represented by said agents? Answer.
“6. If you answer question 5 yes, then answer this question: Were the notes, immediately after their execution, turned over to said agents and by them immediately delivered to said bank, in pursuance of said arrangement?
Answer. ................................................
Foreman.
“The above and foregoing questions were answered by the jury and signed by its foreman, as follows:
“(a), (b), (e), and (d) of questions 1 were each answered ‘Yes’; question 5 was answered ‘No’ and thq remainder were unanswered.”
The questions complained of, those numbered 2, 3, and 4, were not answered. Answers thereto were not required because of the answers to the first question submitted. It does not appear how the submission of the questions complained of injured the plaintiff.
Complaint is made of instructions No. 14 and No. 23, and the defendánt urges that by those instructions the court erroneously and “wholly eliminated from the consideration of the jury the issue as to whether the bank and its cashier, Charles Hull, assisted in the illegal sale of the stock for which these notes were given.” Those instructions were to the effect that the plaintiff, being a banking corporation organized under the laws of this state, had no authority to sell stocks or bonds and therefore was not responsible for any 'representation made by its cashier to.any purchaser who should buy stocks or bonds then being sold by other parties and that “the court permitted such evidence only as to determining the fact as to whether or not the plaintiff had notice or sufficient knowledge to amount to notice of the defect or infirmities in notes or title to the same, as to false or fraudulent representations of said association or its agents, if any were so made in procuring said notes . . . and only goes tp the question of notice, if any.” The court h^d permitted evidence to be introduced which attempted to prove that the cashier participated in and had knowledge of the fraud in procuring the notes for the purpose of proving notice to the bank.
The powers of banking corporations organized under the laws of this state are defined by statute. (R. S. 9-101.) That statute does not give to such banks any authority to buy or sell, or assist in the sale of, the stock or certificates of shares in mill and elevator companies or other corporations. In Discount Co. v. Bank, 101 Kan. 253, 166 Pac. 476, the court said:
“A bank cannot be held liable, for the unauthorized transactions of its officers unless it actually receives and retains the benefit of such transactions.” (See, also, 7 C. J. 561.)
It does not appear that the plaintiff bank received any benefit resulting from the fraud, if there was any, practiced on the defendant by those who procured the execution of the notes. If the plaintiff’s cashier made representations to the defendant concerning the purchase of the shares in the mill and elevator company, the plaintiff would not be liable unless it received no benefit therefrom. But, if the cashier had participated in the fraud, the bank would have had notice of that fraud and could not enforce the collection of the notes. Instruction No. 13 charged that “notice or knowledge, if any, of the cashier of the bank received by him while attending to his duties as cashier of such bank would be notice or .knowledge of the plaintiff.” However, under evidence sufficient to support the finding and under proper instructions concerning the matter, the jury found, in answer to a special question, that the bank did not have notice of any infirmity in the notes, which answer necessarily-included that the bank did not have notice of fraud in procuring the notes and that its cashier did not participate in any fraud that may have been practiced on the defendant.
Since the defendant is only defending and is not seeking to recover from the plaintiff on account of the alleged • fraud, the possible participation therein by the bank’s cashier was essential to the consideration of the jury only so far as necessary to determine whether the bank had notice or knowledge of any fraud that may have been practiced in procuring the execution of the notes. That matter was fully submitted to the jury by instructions numbered 13, 14, and 23.
The judgment is affirmed.
Harvey, J., dissenting.
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The opinion of the court was delivered by
Lockett, J.;
Defendant Joshua Kaiser appeals from his convictions for first-degree felony murder, aggravated kidnapping, aggravated robbery, and unlawful use of a weapon. Defendant claims (1) insufficiency of evidence; (2) error in jury instructions; (3) juror misconduct; (4) improper certification for prosecution as an adult; and (5) double jeopardy.
Kaiser, who was 17 years old at the time, was charged with aiding and abetting Jason Schaeffer in several offenses culminating in the shooting death of Tim Riley. The facts are largely undisputed and are based primarily on defendant’s statements to the police and the testimony of a witness.
Kaiser and Schaeffer were AWOL from a juvenile drug and alcohol treatment facility. During the early morning hours of March 1, 1993, Kaiser and Schaeffer left the house of a friend, T. J. Solis. In his statements to the police, Kaiser admitted that he and Schaeffer, who had an unloaded sawed-off .410 shotgun and two shells, left Solis’ house to steal a vehicle. Around 3 a.m. they observed Tim Riley start his car and then return to his house. Kaiser suggested they steal the car. Because Schaeffer was concerned Riley would call the police to report the car stolen, Schaeffer decided they should wait for Riley to return arid take him hostage. As they waited, Kaiser stated, he informed Schaeffer that he did not want to do it. As Kaiser started walking away, Riley came out of the house. Kaiser looked back and heard Schaeffer “cock” the gun and tell Riley that his friend had a .45 pistol. Riley was forced into the driver’s seat. As Kaiser continued to walk away, the car pulled up and Schaeffer told him to get into the front seat of the car. Schaeffer forced Riley into the trunk of the car, and Riley asked them to take care of the car.
Solis became aware they had returned to his house when Kaiser threw snowballs against a window. Solis went outside. Kaiser was sitting in the passenger seat of a car, and Schaeffer was in the driver’s seat. A shotgun that a friend had left at Solis’ house several days earlier was on the back seat. Schaeffer told Solis they had “jacked” a guy. Solis understood that to mean á carjacking. Schaeffer informed Solis that the owner of the car was in the trunk. Because Solis was skeptical, Schaeffer said toward the back of the car, “Are you all right back there, sir?” Solis was surprised by a voice responding from the trunk, “Yeah, I’m all right.” Schaeffer told Solis to get into the car, but Solis declined. Schaeffer drove away with Kaiser in the passenger seat and Riley in the trunk.
Five minutes after Schaeffer and Kaiser departed, Solis called the police and spoke to an officer. Solis told the officer that a person was in the trunk of a car. He gave the officer the make of the car and the license number. He informed the officer that Schaeffer and Kaiser would return to his house to pick up clothes that they had left at his house.
After leaving Solis’ house, Schaeffer and Kaiser drove to the country. Schaeffer suggested to Kaiser that they kill Riley. Kaiser said he told Schaeffer he was not killing anyone and requested Schaeffer to drop him off and allow him to walk home. Kaiser said he later told Schaeffer not to kill Riley.or he would get the hard 40, but Schaeffer ignored him. Schaeffer stopped the car, let Riley .out of the trunk, and told Riley to stand near a fence post with his back to him. Kaiser said he remained in the car with the window open, smoking a cigarette. Schaeffer asked Riley how the ride was, and Riley replied that it was a little bumpy. Schaeffer then shot Riley in the back of the head. After the shooting, Kaiser exited the car and walked to the body. Kaiser observed blood coming from Riley’s mouth and head. Schaeffer took Riley’s watch and ring. Kaiser indicated he felt sad and was in a daze.
Later, Solis again heard Kaiser throwing snowballs against a window. Solis notified the police by telephone that Schaeffer and Kaiser had returned. Solis met Kaiser at the back door of the house. Kaiser asked for clothes he and Schaeffer had left at the house, and Solis retrieved the clothes. Nothing was said about the man in the trunk of the car. Solis said that either Schaeffer or Kaiser told him that they were leaving for Texas. After Schaeffer and Kaiser drove away, Solis again telephoned the police.
The police located the car and a chase ensued, ending when the car crashed into a tree. After a foot chase, Kaiser and Schaeffer were apprehended hiding in a car several blocks from the scene of the crash. Kaiser gave audiotaped and videotaped statements. Kaiser stated to the police, “It was me or him [Riley], or both of us.” Kaiser did not inform the police that they had stopped at Solis’ house before taking Riley into the country. Kaiser later admitted that they had stopped at Solis’ house after Schaeffer killed Riley. Kaiser indicated to the police that Schaeffer was acting crazy. After giving the statements Kaiser directed the police to a field where Riley’s body was found. Riley had died of a single gunshot wound to the back of the head fired from a distance of less than 4 feet.
The State’s motion to waive juvenile jurisdiction was granted, and Kaiser was tried as an adult. The jury convicted Kaiser of unlawful use of a weapon, aggravated robbery, aggravated kidnapping, and felony murder based on the underlying crime of aggravated robbery. Kaiser was sentenced to life (murder), life (aggravated kidnapping), 15 years to life (aggravated robbery), and 1 to 5 years (unlawful use of a weapon). All sentences were imposed concurrently except the 15 to life sentence for aggravated robbery. Kaiser appeals.
SUFFICIENCY OF EVIDENCE
The defendant’s first claim is that there was insufficient evidence to support his convictions because the State’s evidence was that he was not involved in the crimes, but merely was present, and he was not an aider and abettor. He further claims the conviction was improperly based on speculation, conjecture, and suspicion. Because each claim is based on sufficiency of the evidence, we will analyze each claim separately and then review the evidence.
When the sufficiency of the evidence is challenged in a criminal case, an appellate court’s standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Timley, 255 Kan. 286, Syl. ¶ 13, 875 P.2d 242 (1994). This court will not reweigh the evidence; rather, it looks only to the evidence which supports the verdict. If the essential elements of the charge are sustained by any competent evidence, the conviction must stand. State v. Burton, 235 Kan. 472, Syl. ¶ 2, 681 P.2d 646 (1984).
One of Kaiser’s assertions to the jury was that he reasonably believed he would suffer the same fate as Riley if he did not act as Schaeffer demanded. Based on this testimony, the jury was instructed:
“Compulsion is a defense if the defendant acted under the compulsion or threat of imminent infliction of death or great bodily harm, and he reasonably believed that death or great bodily harm would have been inflicted upon him had he not acted as he did.
“Such a defense is not available to one who willfully or wantonly placed himself in a situation in which it was probable that he would have been subjected to compulsion or threat.”
After reviewing the evidence the jury found that Kaiser was not compelled by Schaeffer and had chosen to associate with Schaeffer in the deadly venture.
1. Evidence Contradicting Defendant’s Version
The defendant’s primary contention is that the State must accept as true his statements which the State introduced into evidence, unless the State affirmatively proves with other evidence an expía nation for how the incident occurred. The defendant points out that the State’s evidence, i.e., his statements to the police, shows that he was not involved in the crimes of which he was convicted. As authority for his claim that under the circumstances the State was bound by his exculpatory statement, Kaiser cites State v. Scott, 289 N.C. 712, 224 S.E.2d 185 (1976).
Scott involved a defendant charged in the shooting death of Wallace Jacobs. Jacobs’ wife, Eula Mae, was also charged in the shooting. The State did not believe Scott was the shooter and charged him as an aider and abettor of Eula Mae. The State presented Scott’s statement, "No, I didn’t,” when asked whether he killed Jacobs. The Scott court stated: “The State is bound by that statement unless other evidence casts doubt on its veracity or throws ‘a different light on the circumstances of the homicide.’ ” 289 N.C. at 719 (quoting State v. Hankerson, 288 N.C. 632, 637, 220 S.E.2d 575 [1975]). In Scott, there was no evidence impinging upon Scott’s denial that he killed Jacobs, so the case could not have been submitted to the jury on the theory that he did. The Scott court reviewed the record and found evidence of aiding and abetting insufficient and reversed the conviction. Conversely, the Hankerson court found evidence throwing a different light on the circumstances of the homicide sufficient to discount the exculpatory portions of the defendant’s confession.
Kaiser, relying on Scott, highlights his version of the evidence and asserts that the evidence introduced by the prosecution shows that he only intended to steal an unoccupied car and had refused to associate with Schaeffer’s later unlawful activity. He points out that after the attempted thefts of several cars, he refused to participate in the other crimes, sat passively in the stolen car, and tried to persuade Schaeffer to release Riley unharmed.
The defendant cites no Kansas cases to support his assertion that the State is bound by exculpatory statements of a defendant which are introduced at trial by the State. Kaiser’s assertion ignores that the jury is to determine the weight and credibility to be given to the testimony of each witness. Thus, even if there was no evidence contrary to Kaiser’s denial, the jury could find that his statements excusing his participation in the offenses were not credible or were entitled to little weight and could disregard those portions of his statements.
Next, the defendant stresses that his mere presence is insufficient to show beyond a reasonable doubt that he knowingly associated with the unlawful venture and participated in a way which indicated willful furtherance of the venture. He cites State v. Green, 237 Kan. 146, 697 P.2d 1305 (1985).
In Green, the State appealed from the dismissal of a complaint following the preliminary examination. The defendant rode to Lawrence with two friends for the purpose of driving around. They drove by a car dealer’s lot and then returned to steal new wheels and tires for the car. While the two friends removed the wheels and tires from a truck in the lot, the defendant drove away because he wanted nothing to do with the theft. Later the defendant returned to pick up his friends. He did not help load the tires into the car. The Green court affirmed the district court’s refusal to bind the defendant over for trial, stating that the evidence showed the defendant was nothing more than a “mere associate” of the principals and that there was not even circumstantial evidence to show that Green was willfully furthering the success of the criminal venture. 237 Kan. at 149.
Contrary to the findings in Green, here there is sufficient other evidence, in addition to the defendant’s statements, presented at trial to cast doubt on the defendant’s claim that he was merely present when the crimes were committed.
2. Aiding and Abetting
The defendant also argues that the fact he intended to steal an unoccupied car does not translate into an intent to commit the crimes of aggravated robbery, aggravated kidnapping, and murder.
K.S.A. 21-3205 sets forth the statutory liability for aiding and abetting:
“(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 the crime intended.”
The jury was instructed on this theory of liability.
To be convicted as an aider and abettor, “the law requires that the person knowingly associates with the unlawful venture and participates in a way which indicates that such person is furthering the success of the venture.” State v. Hobson, 234 Kan. 133, 138, 671 P.2d 1365 (1983). Mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is itself insufficient to establish guilt as an aider and abettor; however, when a person knowingly associates with the unlawful venture and participates in a way which indicates he or she willfully is furthering the success of the venture, such evidence of guilt is sufficient to go to the jury. State v. Dunn, 243 Kan. 414, 429, 758 P.2d 718 (1988).
Kaiser argues that K.S.A. 21-3205, which makes a .defendant liable for reasonably foreseeable crimes, assumes that the defendant aided and abetted the initial crime charged in the complaint. He reasons that an intent to commit theft differs from first-degree felony murder, aggravated kidnapping, aggravated robbery, and unlawful use of a weapon, the crimes of which he was charged and convicted. This argument is unpersuasive. The defendant not only manifested an intent to steal a car, he intended to steal the murder victim’s car. Under the facts, later set out, the jury was correcdy instructed on aiding and abetting and found Kaiser was responsible for the other crimes committed because they were reasonably foreseeable.
3. Speculation, Conjecture, and Suspicion
The defendant next argues that his convictions were based on speculation, conjecture, and suspicion. The defendant concludes that the State relied on speculation and the stacking of inference upon inference to prove.his intent to aid and abet Schaeffer in these crimes.
Kansas law does not permit a jury to find an element of a crime from inferences based only on inferences. In State v. Burton, 235 Kan. 472, Syl. ¶ 3, this court stated that presumptions and infer enees may be drawn only from facts established and presumption may not rest upon presumption or inference on inference. What is meant by this rule is that an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. After reviewing the evidence we find that any presumptions or inferences claimed by the defendant are either established facts or based on established facts. This claim has no merit.
4. The Evidence
Kaiser initiated the events by developing a plan with Schaeffer to steal a car. He knew Schaeffer was carrying a shotgun and shells. At times Kaiser had possession of the shotgun. When Schaeffer and the defendant observed Riley start his car, the defendant suggested taking that particular car. The defendant claimed he did not want to take a hostage, but the jury found this claim was not credible. The defendant accompanied Schaeffer in Rileys car after Schaeffer ordered Riley into the trunk of the car. The jury was also aware that Kaiser had several opportunities to report that Riley was in the trunk of the car. Kaiser was present when Schaeffer shot and killed Riley. The defendant’s footprints were near the body. Both times Kaiser and Schaeffer stopped at Solis’ house, the defendant exited the car but returned rather than leave Schaeffer.
Further, the defendant engaged the police in a foot chase after Schaeffer crashed Riley’s car into a tree. After the car crashed, the defendant was in no danger from Schaeffer and could havé then turned himself in to the police, but instead he ran away and hid in a car until he was found. In fact, the defendant had to be forced out of his hiding place by the use of a police dog. From these circumstances a reasonable factfinder could have determined that the defendant was a willing participant in the events despite his claim that he was an unwilling participant.
An appellate court will not reweigh the evidence or second-guess the jury’s determination of the credibility of witnesses. After reviewing the record we find that there was sufficient evidence, viewing the evidence in the light most favorable to the State, upon which a reasonable factfinder could conclude beyond a reasonable doubt that the defendánt was guilty of these offenses.
5. Possession of Firearm
The defendant' also claims the evidence did not show that he possessed the shotgun with intent to control and therefore was insufficient to sustain his conviction for únlawful use of a weapon. The defendant reasons that although he might have held the gun at times, Schaeffer was actually in control of the gun. The defendant cites State v. Flinchpaugh, 232 Kan. 831, 659 P.2d 208 (1983), where this court stated that possession of a controlled substance requires having control over the substance with knowledge of and the intent to have such control. 232 Kan. 831, Syl. ¶ 1.
The defendant’s reliance on Flinchpaugh is misplaced. K.S.A. 21-4201(a)(7) makes it a crime to possess or carry “a shotgun with a barrel less than 18 inches in length orkny other firearm designed to discharge or capable of discharging automatically more than once by single function of the trigger.” There is no requirement that the defendant inténd to permanently possess, carry; or control the weapon. The defendant had the gun, knew what it was, and intended to possess it! There was sufficient evidence upon which a reasonable factfinder could convict the defendant of the unlawful use of a weapon based upon the instructions.
WITHDRAWAL FROM CRIMINAL ACTIVITY
The defendant’s next claim is that withdrawal is a defense to subsequent criminal activity , of others. A defendant is entitled to have the jury instructed on his Or her theory of defense even if the evidence supporting the defense is slight. State v. Brown, 258 Kan. 374, 386, 904 P.2d 985 (1995); State v. Hunter, 241 Kan. 629, 646, 740 P.2d 559 (1987). None of the crimes of which the defendant has been convicted contain a statutory defense of withdrawal. The question is whether Kansas recognizes withdrawal from criminal activity as a nonstatutory defense. ■
The défendant patterned his requested instruction on withdrawal after PIK Crim. 3d 55.04, which states: “It is a defense to a charge of conspiracy that the defendant in good faith withdrew from the agreement and communicated the fact of such withdrawal to any party to the agreement before any party acted in furtherance of it.” This instruction paraphrases K.S.A. 21-3302(b), which permits withdrawal from the conspiracy if the withdrawal occurred before any overt act in furtherance of the conspiracy was committed. The defendant sought to change the language “to a charge of conspiracy” and instruct that “[i]t is a defense that the defendant in good faith withdrew” based on an uncharged conspiracy to commit a felony theft of an automobile. Kaiser argues that the conspiracy ended when Kaiser communicated his withdrawal to Schaeffer. Kaiser reasons that if he cannot be charged with conspiracy to commit the subsequent crime, he cannot be convicted of the subsequent crimes.
The State argued that withdrawal is a statutory defense only to a charge of conspiracy and that the instruction was not required because the crime of conspiracy was not charged in the complaint. The trial judge refused to instruct the jury on a general defense of withdrawal.
In determining this issue, it is necessary to understand the distinction between liability for crimes of another, K.S.A. 21-3205, and the crime of conspiracy, 21-3302. Under K.S.A. 21-3205 an individual is criminally responsible for a crime committed by another if that individual aids, abets, advises, hires, counsels, or procures (aids and abets) the other to commit the crime. In addition, the individual is also statutorily liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by him or her as a probable consequence of committing or attempting to commit the crime intended.
The crime of conspiracy, K.S.A. 21-3302, is an agreement with another person to commit a crime or to assist to commit a crime. The crime of conspiracy has a penalty set by the legislature. In addition, the legislature provided that no person may be convicted of the crime of conspiracy unless an overt act in furtherance of the conspiracy is alleged or proved to have been committed by the individual or by a coconspirator. The legislature provided a defense to the crime of conspiracy if the accused voluntarily and in good faith withdraws from the conspiracy, and communicates the fact of such withdrawal to one or more of the coconspirators, before any overt act in furtherance of the conspiracy has been committed by the accused or by a coconspirator.
As authority for his assertion that withdrawal is a valid defense to crimes of aiding and abetting, the defendant cites United States v. Lothian, 976 F.2d 1257 (9th Cir. 1992). In Lothian, the defendant was charged with and convicted of numerous counts of mail fraud, wire fraud, and interstate transportation of property obtained by fraud. The defendant and another person began an enterprise of soliciting investors in precious metals. The defendant participated in the scheme from May 1985 to December 1985, at which time he resigned to begin a new business venture. He rejoined the scheme after his new business failed. The defendant relied on a defense of withdrawal, claiming that he was not liable for crimes occurring during his absence.
The Lothian court recognized that withdrawal is traditionally a defense to crimes of complicity: conspiracy and aiding and abetting. Although Lothian was not charged with conspiracy or aiding and abetting, the court held the defense of withdrawal applicable under the facts of the case by finding that crimes of a mail or wire fraud scheme are akin to crimes of conspiracy. The court recognized that to withdraw from a crime of conspiracy, the defendant must either disavow the unlawful goal of the conspiracy; affirmatively act to defeat the purpose of the conspiracy; or take definite, decisive, and positive steps to show the defendant’s disassociation from the conspiracy. 976 F.2d at 1261. Further, the court recognized that though a defendant is hable for substantive crimes committed in furtherance of a conspiracy, the defense of withdrawal from the conspiracy is also a defense to the underlying substantive offenses. 976 F.2d at 1262.
The Lothian court recognized that the defendant had not been charged with conspiracy. However, the court noted that mail and wire fraud, are treated like conspiracy in several respects in that similar evidentiary and vicarious liability rules apply. The Ninth Circuit Lothian court noted that the Seventh Circuit had held withdrawal is not an available defense to substantive fraud charges, citing United States v. Read, 658 F.2d 1225 (7th Cir. 1981), but the Lothian court distinguished Read on the facts because in Read the withdrawal had no effect as the defendant had directed a key part of the scheme and the underlying substantive crimes were the inevitable consequences of the defendant’s actions. In Lothian, conversely, the court held that the defendant’s withdrawal negated the element of the use of the mails or wires where that use was not an inevitable consequence of the defendant’s participation prior to withdrawal. 976 F.2d at 1263. Thus, the court held that withdrawal was a defense to substantive crimes which occurred after the defendant voluntarily and affirmatively ceased his participation in December 1985 and which the prosecution did not prove were the inevitable consequence of actions taken by the defendant or his co-schemers prior to his departure. 976 F.2d at 1264.
Lothian is distinguishable from the case at bar. Under the Model Penal Code withdrawal is included in the Code as a defense to aiding and abetting. See Model Penal Code §2.06(6)(c) (1962). Under K.S.A. 21-3302(b) withdrawal is a defense to conspiracy, but there is no statutory defense of withdrawal to aiding and abetting or other crimes. See K.S.A. 21-3205.
Kansas appellate courts have not recognized withdrawal as a common-law or court-created defense to aiding and abetting. The issue of withdrawal as a defense has twice been addressed. In State v. Walters, 8 Kan. App. 2d 237, 655 P.2d 947 (1982), rev. denied 232 Kan. 876 (1983), the defendant claimed he was entitled to an instruction on the defense of withdrawal based on evidence that he did not know the other participants were going to commit a crime when he drove them to the area where the crimes occurred and that he did not return later to pick them up. The Walters court stated:
“There are no Kansas cases directly in point. We do note Kansas ‘borrowed’ K.S.A. 21-3205 [the aiding and abetting statute] from Minnesota. Kansas did not adopt subdivision 3 of Minn. Stat. Ann. § 609.05 (West 1964), which provides a defense if the defendant abandons his purpose and makes a reasonable effort to prevent the commission of the crime prior to its commission.” 8 Kan. App. 2d at 241.
The court concluded: “We express no opinion as to if, when or how one may withdraw from a crime and escape responsibility therefor, as we are of the opinion the record in this case would not support an instruction concerning withdrawal.” 8 Kan. App. 2d at 241-42.
The defense of withdrawal was recently addressed by this court in State v. Pratt, 255 Kan. 767, 876 P.2d 1390 (1994). The defendant actively participated with a co-participant in forcing two victims into an automobile. The defendant exited the vehicle because he was sick and/or he believed the co-participant was going to leave the state, which the defendant did not want to do. After the defendant exited the car, the co-participant attempted to rape one of the victims. The defendant contended he had withdrawn from the crime spree before the attempted rape occurred. Noting that the defendant cited no authority for his argument, the Pratt court said that People v. Brown, 26 Ill. 2d 308, 186 N.E.2d 321 (1962), had stated that withdrawal requires the communication of an intent to withdraw and that the withdrawal must be timely; i.e., “ ‘it must be possible for the trier of fact “to say that the accused had wholly and effectively detached himself from the criminal enterprise before the act with which he is charged is in the process of consummation or has become so inevitable that it cannot reasonably be stayed.” ’ ” 255 Kan. at 772. The Pratt court noted Brown stated that withdrawal may not be made effective from a felony murder when the transaction which leads to the felony murder has commenced. 255 Kan. at 772. The Pratt court, without acknowledging the defense of withdrawal, pointed out that the “[c]rimes [the defendant] had aided in starting in motion continued in his absence with the foreseeable result” and that there was no evidence the defendant exited the vehicle because he wanted no further involvement in the criminal activity. 255 Kan. at 773. The Pratt court concluded that an aider and abettor need not be physically present when the crime is committed and found that there was sufficient evidence to support the defendant’s attempted rape conviction.
First, we note that all crimes in Kansas are statutory. K.S.A. 21-3102 states:
“(1) No conduct constitutes a crime against the state of Kansas unless it is made criminal in this code or in another statute of this state, but where a crime is denounced by any statute of this state, but not defined, the definition of such crime at common law shall be applied.
“(2) Unless expressly stated otherwise, or the context otherwise requires, the provisions of this code apply to crimes created by statute other than in this code.”
In addition to statutorily defining the crimes, the legislature has set out the principles of criminal liability and specified the defenses to criminal liability. K.S.A. 21-3201 et seq. The specific defenses to criminal liability are not guilty; intoxication, K.S.A. 21-3208; compulsion, K.S.A. 21-3209; entrapment, K.S.A. 21-3210; and the use of force in defense of a person, dwelling, and property other than a dwelling. K.S.A. 21-3211, K.S.A. 21-3212 and K.S.A. 21-3213.
The Kansas Legislature has not enacted a defense of withdrawal from aiding and abetting. The trial court did not err in refusing to instruct the jury on withdrawal as a defense to the crimes of aggravated robbery, aggravated kidnapping, and felony murder.
JUROR MISCONDUCT
The defendant filed a motion for a new trial based on the affidavit of one of the jurors, Eugenia Tunley. Tunley’s affidavit stated that during jury deliberation she expressed her opinion to the other jurors that the defendant was not guilty of the charges. She stated that the other jurors made various statements as to her age (she was a teenager) and their desires to end the case quickly because of the upcoming holidays. Tunley’s affidavit also stated that she was told by the jurors “the majority rules” and that she had to change her position and could not state to the judge that it was not her verdict when the jury was polled. Tunley stated that as 5 p.m. on the last day of deliberations and the Christmas holiday grew nearer, she was pressured to change her vote so the other jurors would not have to return. Tunley stated that she voted guilty against her belief because of the pressure and coercion of the other jurors. Tunley stated that she subsequently felt bad about her vote and informed the defendant and his attorney of the pressure which resulted in changing her vote to guilty.
The defendant contended that Tunley’s verdict of guilty was the product of coercion by other jurors, and he filed a motion requesting that the trial court grant a new trial or recall the jurors for a hearing. The court refused to conduct an evidentiary hearing or recall the jurors because the claimed error delved impermissibly into the mental process of the jurors, K.S.A. 60-441, and Tunley had individually agreed to Kaiser’s guilt when the jury was polled.
A new trial will be granted only if required in the interest of justice. K.S.A. 22-3501(1). Juror misconduct is not grounds for a new trial unless it is shown to have substantially prejudiced the defendant’s rights. State v. Goseland, 256 Kan. 729, 735, 887 P.2d 1109 (1994); State v. Cady, 248 Kan. 743, 756, 811 P.2d 1130 (1991).
The procedure for and limitations on challenging the validity of a jury verdict are statutory. K.S.A. 60-444(a) states that a juror is not exempt “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..., except as expressly limited by K.S.A. 60-441.” K.S.A. 60-441 prohibits testimony concerning the mental processes of the jury: “Upon an inquiry as to the validity of a verdict ... 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 concerning the mental processes by which it was determined.”
Both K.S.A. 60-444(a) and K.S.A. 60-441 are implicated here. The information in Tunley’s affidavit concerning the statements made by other jurors is objective material about which testimony may be taken under K.S.A. 60-444(a) without controverting K.S.A. 60-441. The question is whether the information in Tunley’s affidavit and the effect these statements had on her verdict were prohibited by K.S.A. 60-441.
To support his claim that the juiy’s verdict could be challenged, the defendant relies on Saucedo v. Winger, 252 Kan. 718, 850 P.2d 908 (1992). In Saucedo, a medical malpractice case, two instances of alleged jury misconduct occurred. A juror informed the other jurors during deliberations that the plaintiff’s son could speak Spanish though he testified that he could not, and a juror stated that the uncle of the plaintiff’s deceased husband was a cocaine dealer and that it was possible the deceased died of a cocaine overdose. Based on the affidavits of three jurors admitting the miscon duct, plaintiff filed a motion to recall the jury. This court agreed with the trial judge that juror misconduct did occur during deliberations. 252 Kan. at 727-28. This court held that the misconduct substantially affected the right of the plaintiff to a fair trial because a juror introduced evidence on material issues of fact and remanded the case for a new trial. 252 Kan. at 733.
The defendant stresses the following language from Saucedo, 252 Kan. at 732:
“A review of the Kansas cases cited indicates the statutory prohibition against receipt of evidence to impeach a jury verdict by showing the mental process by which the verdict was determined does not apply where a party claims the constitutional right to a trial by jury has been violated by jury misconduct which has a substantial effect on the rights of that party.”
The defendant reasons that this statement permits jurors to testify concerning the mental processes by which the verdict was reached.
The fallacy in the defendant’s argument is that he ignores the concluding sentence of the quoted paragraph: “When the jury is recalled, a juror may be questioned or evidence received as to physical facts, conditions, or occurrences of a juror’s misconduct, either within or without the jury room, which were material to the issues being determined.” 252 Kan. at 732. This statement does no more than restate K.S.A. 60-444(a) concerning what testimony of jurors is admissible. Earlier in the opinion, the Saucedo court explicitly adhered to the prohibition of K.S.A. 60-441 against testimony concerning the effect of statements or events as influencing a juror to agree to the verdict or the mental processes by which the verdict was determined. 252 Kan. at 728. The court stated that a verdict may not be impeached by questions concerning a juror’s views or conclusions, the reasons for those views or the factors used in determining those conclusions, or what influences those views or the mental process in reaching such conclusions. 252 Kan. at 728-29. The court concluded: “Public policy forbids the questioning of a juror on these matters for a very obvious reason, i.e., there is no possible way to test the truth or veracity of the answers.” 252 Kan. at 729.
Here, the jury was instructed:
“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 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 made 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 made by the State, you should find the defendant guilty.” Instruction No. 9.
“When you retire to the jury room you will first select one of your members as foreman. He or she will preside over your deliberations, will speak for the jury in court, and will sign the verdict upon which you agree.
‘Tour verdict must be founded entirely upon the evidence admitted and the law as given in these instructions.
‘Tour agreement upon the verdict must be unanimous.” Instruction No. 16.
The jury was polled after the verdict was returned. Tunley responded: ‘Tes, it is,” when asked whether the verdict read by the court was her verdict.
In Crowley v. Ottken, 224 Kan. 27, 31, 578 P.2d 689 (1978), this court stated that “the mere fact a juror who joins in a verdict later professes to believe the defendant innocent is no basis for ordering a mistrial.” See State v. Mitchell, 234 Kan. 185, 191, 672 P.2d 1 (1983). The motion for a new trial here relates to Tunley’s mental process in determining the verdict and is prohibited by K.S.A. 60-441. Tunley agreed to the verdict, and her subsequent claim that she believed the defendant was innocent is not a basis for ordering a new trial now. Based upon the circumstances of this case, the trial court properly denied the defendant’s motion without recalling the other jurors.
PROSECUTION AS AN ADULT
The defendant next claims that the court erred in certifying him for prosecution as an adult.
The court may authorize prosecution as an adult of a juvenile who is 16 years old at the time of the offense if there is substantial evidence that the juvenile should be prosecuted as an adult. K.S.A. 38-1636(f)(3). The defendant was 17 years old at the time of these offenses, less than 3 months from his 18th birthday. The State filed a motion to waive juvenile jurisdiction pursuant to K.S.A. 38-1636.
K.S.A. 38-1636(e) sets forth eight factors which shall be considered in determining whether a juvenile should be prosecuted as an adult:
“(1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property greater weight being given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a delinquent or miscreant under the Kansas juvenile code or a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution.”
K.S.A. 38-1636(e) further states that “[t]he insufficiency of evidence pertaining to any one or more of the factors listed in this subsection shall not in and of itself be determinative of the issue.” Our standard of review is whether there is substantial evidence supporting the trial court’s decision. See K.S.A. 38-1636(f)(3); State v. Tran, 252 Kan. 494, 508, 847 P.2d 680 (1993).
The trial court held an extensive hearing on the State’s motion to waive juvenile jurisdiction. We note that the defendant’s attorney had been granted leave to arrange a psychological evaluation of the defendant for purposes of the waiver hearing. When he was unable to make arrangements for a qualified individual to evaluate Kaiser, the court ordered that Kaiser’s evaluation be conducted by Dr. William Logan, whom the State had selected for its evaluation. The defendant’s attorney did not object. The State called Dr. Logan to testify.
Dr. Logan testified that he evaluated the defendant. In reaching his conclusions, he relied on statements the defendant made to him when interviewed and on psychological and other records completed at the defendant’s various placements, including the Youth Center at Beloit, Phillipsburg Middle School, St. John’s Military Academy, Topeka State Hospital Screening Unit, the Youth Center at Atchison, and the Youth Center at Topeka (YCAT). Dr. Logan also considered police reports concerning the current offenses. Dr. Logan testified as to events the defendant self-reported.
Dr. Logan testified that the reports he reviewed generally confirmed the defendant’s self-report, with the additional information of an incident of sexual abuse. He testified as to the results of psychological testing conducted by various agencies and as to the defendant’s placements and the recommendations which led to those placements.
Based on his evaluation of the defendant, Dr. Logan diagnosed conduct disorder, group type, a disorder generally given to juveniles who engage in misbehavior, generally with peers, and an attention deficit, hyperactivity disorder based on the defendant’s history. Dr. Logan testified that the attention deficit disorder and hyperactivity created some personality deficits but would not necessarily affect the defendant’s capacity to be rehabilitated. Dr. Logan indicated that the defendant’s prior placements in programs did not result in a long-term benefit because he routinely had eloped from programs with less structure. He noted that the defendant had made some improvement while at YCAT, but deteriorated when the structure of the program lesseiíed, and he noted that the defendant’s longest placement had been for 6 or 7 months. Dr. Logan opined that the juvenile system in Kansas may have the capacity to provide the needed programs for the defendant, but historically the juvenile system has not provided it.
Dr. Logan opined that because of the defendant’s immaturity, the defendant required consistency in a placement over a period of several, at least 2, years; the defendant would also need consistent counseling, several times a week, by someone experienced in dealing with individuals like him. Dr. Logan felt it was possible that a placement until the age of 21 (around 2Vz years) could facilitate changes in the defendant “if he applied himself consistently, if he stayed in one facility, if he didn’t elope, if he made some conscious effort to avoid peers that were engaged in trouble.” Dr. Logan noted, however, that the defendant had not made such an effort in the past, though his current experiences might have changed him.
The State also presented the testimony of Dorothy Lewis, a social worker with the Department of Social and Rehabilitation Services (SRS). Ms. Lewis testified that she has been the defendant’s primary social worker since May 1987. She was familiar with his various placements and testified as to the reasons he was removed from various placements, including that he had completed the programs or purpose of the placement or that he had eloped from the facilities. The defendant’s counsel objected to this testimony due to hearsay and lack of foundation for the witness’ personal knowledge. The court noted that Ms. Lewis testified she had personal knowledge and indicated that the defendant’s counsel could inquire further on the basis for Ms. Lewis’ personal knowledge, which might affect the weight of Ms. Lewis’ testimony. The objection was made continuing. The defendant’s counsel also objected to testimony by Ms. Lewis concerning offenses, such as theft, which led to the defendant’s placements. The court overruled the objection based on the business records exception to the prohibition against hearsay. Ms. Lewis stated that she had made every effort available to her and her agency to rehabilitate the defendant. She testified that the only placement possible would be to attempt a referral to YCAT because no group home would accept the defendant and that she did not know of any program that could provide extensive counseling treatment.
On cross-examination, the defendant’s attorney questioned Ms. Lewis as to the basis of her personal knowledge of the defendant’s various placements. She testified that her knowledge was based on various telephone contacts with the administrators at the various facilities and on written progress and discharge reports prepared by the facilities. She did not know who at the facilities had prepared some of the reports; for some facilities she did know who had prepared the reports but did not know how the reports were compiled. Following this testimony, the defendant’s counsel renewed his objection on the basis of hearsay and requested that the court strike the testimony of Ms. Lewis. Counsel noted that the require ments for admitting business records had not been satisfied and that business records had not been offered into evidence or admitted. The judge overruled defendant’s objection to the social worker’s testimony and stated that it would give whatever probative value it deemed necessary or appropriate to the evidence.
Finally, the State presented the testimony of Dr. Leo Herrman, the program director at YCAT. Dr. Herrman testified that if the defendant were returned to YCAT, he would be exposed to the full array of rehabilitation programs available but that YCAT did not have anything to offer the defendant that the facility had not already offered him. Dr. Herrman also stated that YCAT was able to provide individual counseling but not extensive counseling (several times a week) by a therapist uninvolved in making management decisions about the defendant. Dr. Herrman pointed out that the treatment team would determine the appropriate program for the defendant if placed in YCAT. If placed at YCAT the team could recommend thrice-weekly individual psychotherapy, though Dr. Herrman doubted that recommendation would be made because intensive psychotherapy with conduct disorder has a very poor prognosis.
In addition to the testimony, two journal entries of prior adjudications of the defendant were admitted into evidence: a September 15, 1989, adjudication for misdemeanor theft of property and an April 23,- 1991, adjudication for felony theft of property and misdemeanor battery.
After the evidence had been submitted, the court discussed the factors specified in K.S.A. 38-1636(e) noting:
(1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult: The court noted that the allegations against the defendant were of significant and serious magnitude.
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner: The court noted that the allegations against the defendant indicated aggressive, violent, and premeditated actions. (The court noted that determining whether the defendant was an aider and abettor in the crimes was- not the purpose of the hearing.)
(3) Whether the offense was against a person' of against property: The court noted that the offenses were both ágainst a person and against property, and the offense resulted in the' death of a person.
(4) The number of offenses unadjudicated and pending: The court stated that the current complaint included four unadjudicated and pending charges.
(5) The previous history of the respondent, including whether the respondent had been adjudicated a delinquent or. miscreant and, if so, whether the offenses were against persons or property, and any other previous history of antisociál behavior or patterns of physical violence: The court noted prior adjudications for both felony and misdemeanor theft, and for battery. Further,,the testimony of Dr. Logan and his findings reflected a pattern of aggression,, by the defendant. • • .. . - • - v. h -.-
(6) The sophistication or mathring c>f the respondent as determined by the respondent’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult: The coürt‘ opined that this was a difficult category for this defendant: The court noted that the defendant had been a ward of the State for some-time and that the State had failed to meet his’needs and had-'not done a good job of providing the appropriate resources to meet-the needs of the defendant. The court also questioned the sophistication and maturity of the defendant. ’ ■ - ■
(7) Whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to.-the expiration of the court’s jurisdiction under the juvenile code: The court noted that it could commit the- defendant to a youth center until the age of 21 but that even if all things were at the optimum, the program “may” benefit the defendant, with no guárantees and not even a likelihood of benefit.
(8) Whether the interests .of the defendant or of-the. community would be- better served by criminal prosecution: The court noted that while die defendant’s position was that he would not be better served by criminal prosecution, the community would be better served by criminal prosecution.
Based on the totality of the circumstances, the court determined that the system had failed the defendant and that it did not have the capability at this point in time to rectify the prior mistakes made. The court further found that even if Dr. Logan’s recommendation for intensive psychotherapy were followed, the State lacked the resources to implement such a program for the defendant. The court granted the State’s motion to waive juvenile jurisdiction and certified the defendant for prosecution as an adult.
On appeal, the defendant raises three challenges to the court’s certification for adult prosecution.
1. Hearsay
First, the defendant complains that the court considered hearsay evidence in making its decision. The defendant points out that hearsay evidence is inadmissible in juvenile proceedings unless the evidence meets a specific hearsay exception under K.S.A. 60-460. See In the Matter of Mary P., 237 Kan. 456, 459, 701 P.2d 681 (1985). K.S.A. 38-1636(e) states that subject to the provisions of K.S.A. 38-1653, written reports and other materials relating to the respondent’s mental, physical, educational, and social history may be considered by the court. K.S.A. 38-1653 provides that the civil rules of evidence apply in all adjudicatory hearings and states that “[t]he judge presiding at the hearing shall not consider, read or rely upon any report not properly admitted according to rules of evidence.”
The defendant complains that the court permitted Ms. Lewis to testify concerning the defendant’s placements, his behavior, and the treatment decisions of the various facilities based on telephone contacts and sporadic reports from some of the facilities. The defendant points out that no records or reports were offered into the record as business records. The defendant argues that the business records exception did not apply to Ms. Lewis’ testimony. The defendant claims this violated his right to a fair proceeding and to cross-examine witnesses;
K.S.A. 60-460(m) states that writings offered are admissible “if the judge finds that (1) they were made in the regular course of a business at or about the time of the act, condition or event recorded and (2) the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness.” The defendant asserts there was no showing that the reports used by the social worker were made in the regular course of business at or about the time of the act or condition reported or that the source preparing the reports and the method and circumstances of preparation indicated trustworthiness. The defendant stresses that Ms. Lewis was permitted to testily concerning the defendant’s “patterns.” and her determination based on personal knowledge that SRS had done all it could and because SRS had no programs to offer the defendant, the only possible placement for him was YCAT.
The defendant is attempting to exclude the testimony of the primary social worker responsible for monitoring and supervising him while in SRS custody by focusing on the records and information used by the social worker to evaluate the defendant’s progress and the failures within the system. Even though the information used by the social worker was made in the regular course of business, the records were not being offered as memoranda or records of acts, conditions, or events to prove facts. Records may be used to refresh a witness’ recollection or memory even though the records were not prepared by the witness and even though the records are not admitted into evidence. See State v. Kelly, 19 Kan. App. 2d 625, Syl. ¶¶ 1, 2, 3, 874 P.2d 1208 (1994). Here, the records and information were used not to refresh Ms. Lewis’ memory while testifying but to show what information she had used to determine what programs and placements would be most beneficial to the defendant. It is the social worker’s conclusion and acts based on the information that are in question.
The records were available for the defendant to question. The social worker testified as to her actions and why she acted and was cross-examined by the defendant. The same rationale applies to Dr. Herrman’s testimony. The testimony of the social worker and the director of YCAT was not in violation of K.S.A. 38-1653, which prohibits the admission-of-hearsay testimony.
The defendant also complains that Dr. Logan’s testimony was based on reports and not oh facts personally perceived by him. Although the defendant admits that some of Dr. Logan’s information came from the defendant, the defendant asserts that “much” of the evaluation was based on the reports. After acknowledging that under the rules of evidence, an expert witness is allowed to state an opinion and the reasons therefore without first specifying the data upon which the opinion is based, the defendant stresses that “upon cross-examination the witness may be required to specify such data.” K.S.A. 60-458.
Dr. Logan adequately specified the data upon which his evaluation has based. His reliance on information prepared by other sources was appropriate. When an expert witness is required to specify the data upon which -the expert opinion is based, and that data includes statements made by a criminal defendant during a psychiatric evaluation, the defendant’s statements are not offered to prove the truth of the matter* asserted and thus are not hearsay. Rather, the defendant’s statements are part of the data perceived by or made known to the expert and meet the admissibility requirements of K.S.A. 60-456(b). State v. Humphrey, 252 Kan. 6, Syl. ¶ 5, 845 P.2d 592 (1992). The same is true for data obtained from other sources. The reports upon which Dr. Logan’s expert opinion was based were not offered into evidence and were not inadmissible hearsay.
2. Custody Beyond Age 21
The defendant claims that in evaluating factor (7), the judge failed to consider that a juvenile could be retained in custody beyond the age of 21. Factor (7) requires the court to consider whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction.
K.S.A. 38-1675 states that when a juvenile offender reaches the age of 21, the juvenile shall be discharged from any further obligation under the commitment. However, the defendant cites K.S.A.. 38-1676, which provides that if a juvenile offender has committed an act which would be a class A or B felony if committed by an adult, the county attorney and the court must be notified 30 days before the offender s release. The county attorney or the court on its own motion may request a hearing to determine if the juvenile should be retained in the custody of the Secretary of SRS. “Following the hearing if the court authorizes a dispositional order for the secretary to retain custody, the juvenile offender shall not be held in a state youth center for longer than the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which the juvenile offender has been adjudicated to have committed.” K.S.A. 38-1676(b).
In its evaluation of factor (7), the court mentioned that it could commit the defendant to a youth center until discharged according to law or until the age of 21. The court did not discuss whether K.S.A. 38-1676 would, at the time of defendant’s prospective release from custody, permit the court- to authorize continuing custody of the defendant.
- However, as .the State points out and contrary to the defendant’s assertions, the court’s evaluation of factor (7) turned not on the length of the defendant’s potential juvenile placement but rather on die lack of resources to rehabilitate the defendant in the juvenile system. The court recognized that the system had failed the defendant in the past and that even in optimum conditions the possibility of rehabilitation was not guaranteed or even likely. The fact that the court misstated the potential for continuing custody beyond the age of 21 does not require reversal of the court’s decision to waive juvenile jurisdiction.
3. Weighing the Factors
Finally, the defendant claims that the court’s decision to certify him for prosecution as an adult was not based on substantial competent evidence. As stated earlier, “[t]he insufficiency of evidence pertaining to any one or more of the factors listed in this subsection shall not in and of itself be determinative of the issue.” K.S.A. 38-1636(e). Our standard of review is whether there is substantial evidence supporting the trial court’s decision. See K.S.A. 38- 1636(f)(3); State v. Tran, 252 Kan. 494, 508, 847 P.2d 680 (1993). Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. State v. Ratley, 253 Kan. 394, 398, 855 P.2d 943 (1993).
A review of the evidence admitted at the waiver hearing reveals substantial evidence upon which a reasonable person could conclude that the defendant should be certified for prosecution as an adult. Although some evidence could be construed against adult certification, an appellate court will not reweigh the evidence. The court did not err in waiving juvenile jurisdiction and allowing the defendant to be prosecuted as an adult.
DOUBLE JEOPARDY
Finally, the defendant claims that the imposition of consecutive sentences for his convictions of first-degree murder and the underlying felony of aggravated robbery violates the prohibition against double jeopardy.
The defendant acknowledges that it is the well-established law in Kansas that multiple convictions and punishments for both felony murder and the underlying felony are not a violation of double jeopardy. See, e.g., State v. Gonzales, 245 Kan. 691, 702-07, 783 P.2d 1239 (1989); State v. Dunn, 243 Kan. 414, 431-33, 758 P.2d 718 (1988). Although the defendant contends that these cases were incorrectly decided, he makes no argument as to why the decisions were incorrect except to state that felony murder is not excepted from the principles of double jeopardy.
The defendant has shown no compelling reason for us to depart from this well-established law and find that these cases were wrongly decided. There was no double jeopardy violation here.
Affirmed.
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The opinion of the court was delivered by
Davis, J.:
This case is a workers compensation appeal. The claimant, Penny S. Gleason, appeals from a Workers Compensation Board (Board) decision that she did not prove functional impairment or permanent partial general disability. Three of the issues raised by the claimant challenge the findings and conclusions of the Board, and two issues deal with the constitutionality of the Workers Compensation Act, as amended by the legislature following our decision in Sedlak v. Dick, 256 Kan. 779, 887 P.2d 1119 (1995).
On September 20, 1989, while working within the scope of her employment as a licensed practical nurse for the Samaritan Home, the claimant was struck in the right shoulder/clavicular area by a patient. The claimant called the company doctor, Dr. Glenn O. Bair, who prescribed ibuprofen, pain medicine, and a muscle relaxen The claimant testified that she began feeling pain later in that day and called Dr. Bair again.
During her first appointment with Dr. Bair on September 22, 1989, the claimant reported a dull ache from her shoulder down the back of her arm. She continued to see Dr. Bair, who prescribed ibuprofen, Darvocet, and Flexeril and advised the claimant not to work. X-rays taken on October 2, 1989, of her cervical spine, right shoulder, and right elbow were found to be normal. Physical therapy was ordered by Dr. Bair.
Dr. Bair referred the claimant to Dr. Vinod N. Patel, a neurologist, who in turn administered an electromyogram which revealed an “[e]ntirely normal right upper extremity.” Dr. Bair also referred the claimant to Dr. C.J. Yoon, who after examination of the claimant described her range of motion and motor function to be normal. Dr. Yoon concluded that the claimant demonstrated upper trapezius muscle tenderness but that this condition was not severe. He suggested physical therapy on an outpatient basis, heat, ultrasound, and strengthening exercises prior to her returning to her job.
An MRI (magnetic resonance imaging) test was conducted on the claimant in November 1989, which revealed minimal bulging of the disc at C 5-6, but no disc herniation or significant stenosis. Dr. Patel reevaluated the claimant on November 14, 1989. Upon finding that her condition had significantly improved, he suggested avoidance of neck strain.
At the request of Dr. Bair, the claimant was again examined by Dr. Yoon. He conducted an EMG and nerve conduction study, which indicated a right C 5-6 radiculopathy. Dr. Yoon recommended physical therapy with cervical traction and a soft cervical collar. In January 1990, Dr. Yoon concluded that the claimant was not responding to conservative treatment and should be seen by a neurosurgeon.
An examination on February 20, 1990, by Dr. Craig H. Yorke, a neurosurgeon, confirmed a subtle disc bulge but this abnormality was not sufficient to explain the degree of discomfort the claimant claimed. Dr. Yorke found the claimant’s motor, sensory, and reflex examinations in the lower and upper extremities normal, normal range of motion in the cervical spine,' and no atrophy in the right deltoid muscle or right arm. He tested for thoracic outlet syndrome and found that while the radial pulse diminished in the claimant’s right arm, the symptoms were not reproduced. Dr. Yorke suggested that the claimant probably had thoracic outlet syndrome and that her best approach would be exercises to improve that syndrome.
The claimant was also sent to Dr. C.A. Lang, an anesthesiologist, who conducted a series of stellate ganglion blocks with the hope of easing the claimant’s pain. However, these treatments only resulted in temporary pain relief.
In September 1990, the claimant was seen by Dr. Philip E. Mills, who “saw no evidence of any neurological dysfunction.” The claimant had an MRI of her head in September 1990, the results of which were negative except for a nonspecific finding of a focal, small, nonspecific high intensity signal within the right lateral thalamus.
On November 6, 1990, the claimant was examined by Dr. Eric Hansen. He found the claimant had full range of motion without pain in her cervical spine and all four extremities; she had full strength throughout all four extremities and other aspects were within normal limits. Dr. Hansen ruled out reflex sympathetic dystrophy (RSD) and recommended a bone scan; if the bone scan was negative, he suggested the claimant proceed to a chronic pain program for 3 weeks. A bone scan was conducted in November 1990 to rule out RSD. The scan was negative, showing no evidence of RSD in the upper right extremity.
The claimant participated in the pain program in January 1991. The program was successful in reducing the claimant’s pain, and she was recommended for a work fitness program; she was agreeable to a work re-entry plan. The claimant told Dr Hansen that she intended to follow up with Dr. Bair on an evaluation for possible multiple sclerosis. Dr. Hansen counseled her that multiple sclerosis did not appear to be work-related with regard to her right shoulder injury and that she should participate in the work fitness program so that she could return to gainful employment. The claimant did not pursue the work fitness program while undergoing the evaluation for multiple sclerosis.
In January 1991, Dr. Bair referred the claimant to Dr. Frederick Wolfe, of Wichita, whom Dr. Bair described as one of the foremost authorities on fibromyalgia. Based upon his May 1991 examination, Dr. Wolfe concluded that the claimant had post-traumatic fibromyalgia but also concluded that the diagnosis was not necessarily exclusive in that it occurs with other pain syndromes. Dr. Wolfe suggested that the claimant receive an evaluation at a pain clinic and that further medical evaluations and tests would be unproductive.
However, Dr. Wolfe láter revised his diagnosis based upon further examination of the claimant! He found'that in a subsequent visit, the claimant no longer met the criteria for fibromyalgia. At the time of her second examination, the tender points used to diagnosis her condition of fibromyalgia had décreased from eleven to one.
In November 1991, the claimant underwent a psychiatric evaluation conducted by Dr. W.G. Phillips. Dr. Phillips noted that the claimant had a number of traumatic difficulties as a child. Dr. Phillips stated that the claimant’s physical symptoms appeared after a period of stress and showed a neurotic pattern of adjustment. He also found that she might have a problem of an addictive nature regarding addictive substances. Dr. Phillips wrote:
“She is utilizing somatic complaints to deal with her frustrations and is experiencing difficulty functioning in a constructive and/or successful manner. I feel that the injury she received at the nursing home was only incidental and not the etiology of her problems. If she is going to resolve these issues she will have to make á commitment to face the problems which she experienced for a number of years, discontinue all of the pain medications and accept the fact that she needs to return to some;type of gainful employment. It would not be in her best interest to continue to be disabled and to facilitate her effort to do this would not .be medically indicated and/or appropriate.”
The record of the claimant’s workers compensation claim also included depositions of the claimant, Dr. Phillips, Dr. Bair, Dr. Wolfe, Monty Longacre, a vocational rehabilitation specialist, two of the claimant’s family members, and a former co-worker of the claimant’s at the Samaritan Home. Longacre testified that based on reports of Dr. Bair, Dr. John Wertzberger, and other doctors, he did not think the claimant could work at all, even at a sedentary job, since she had never done so on a full-time basis before. The claimant’s relatives testified they had observed deterioration in her physical condition since the accident.
In an order dated January 7,1994, the Administrative Law Judge (ALJ) found the claimant suffered from either fibromyalgia syndrome or a hysterical emotional reaction to the accident due to a borderline personality disorder. The ALJ found the record supported the conclusion that the claimant suffered some component of both diagnoses. Because the claimant had not yet achieved maximum medical improvement, the ALJ found her temporarily totally disabled.
In an order of May 19, 1994, the Board found that while the claimant proved a temporary fibromyalgia condition, she failed to prove any permanent functional impairment. Accordingly, the Board awarded the claimant $28,773.45 based upon 115.54 weeks of temporary total compensation at $249.03 per week. The Board further concluded that the testimonies of Dr. Phillips and Dr. Wolfe were the more credible and that they both had indicated it would be in the claimant’s best interest to return to work: “Claimant is denied additional permanent partial disability compensation stemming from the September 20, 1989, injury.”
For her first three issues challenging the decision of the Board, the claimant contends: (1) The decision is not supported by substantial competent evidence; (2) the decision incorrectly applies the law dealing with psychological injuries; and (3) the decision erroneously excluded the testimony of a vocational expert under K.S.A. 44-519 by concluding that a nontestifying expert’s records and opinions could not be used by other experts in rendering their opinions.
(1) SUBSTANTIAL COMPETENT EVIDENCE
The 1993 amendments to the Workers Compensation Act specifically adopt the Kansas Act for Judicial Review and Civil En forcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., for workers compensation appeals. K.S.A. 1995 Supp. 44-556. The KJRA further states that such review shall be limited to questions of law. K.S.A. 1995 Supp. 44-556(a). The determination of whether the Board’s findings of fact are supported by substantial competent evidence is a question of law. Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 222-23, 885 P.2d 1261 (1994). “In workers compensation cases, 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.” [Citation omitted.]’ ” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 285, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
Three health care providers provided testimony by way of deposition on the issue of the claimant’s disability. Dr. Bair saw the claimant many times over a 2-year period, during which he referred her to a variety of specialists for testing and assistance in reaching a diagnosis and treatment. None of the tests, including x-rays, MRI’s, and bone scans, revealed a definite diagnosis. Dr. Bair finally referred the claimant to Dr. Wolfe for possible diagnosis of fibromyalgia since Dr. Bair himself had diagnosed this syndrome once before.
Dr. Wolfe found that the claimant had fibromyalgia, but later found she no longer met the criteria for that syndrome. Dr. Wolfe concluded that the claimant ought to return to work. Dr. Phillips, after his psychiatric examination of the claimant, concluded that her problems stemmed from her psychiatric condition and that she should discontinue her pain medications and return to gainful employment.
Consistent with its fact-finding powers, K.S.A. 1995 Supp. 44-556(a), the Board found the testimony of Dr. Phillips and Dr. Wolfe to be the more credible testimony than the testimony of Dr. Bair, which it found somewhat improbable. Thus, the Board concluded that the claimant “failed to prove . . . that she suffered any permanent functional impairment or any ongoing permanent work disability as a result of this incident.” (Emphasis added.) We conclude that the decision of the Board is supported by substantial competent evidence.
(2) PSYCHOLOGICAL INJURIES
The claimant argues that the Board erroneously denied her claim for compensation for the psychological injury.allegedly arising from the September 20, 1989, incident. Both parties agree, as did the Board, that the pertinent standard is:
“Where there has been a physical accident or trauma, and claimant’s disability is increased or prolonged by traumatic neurosis, conversion hysteria, or hysterical paralysis, the full disability including the effects of the neurosis is compensable.” Adamson v. Davis Moore Datsun, Inc., 19 Kan. App. 2d 301, Syl. ¶ 2, 868 P.2d 546 (1994).
However, the neurosis must be caused by the physical injury in order to establish a compensable claim.
“In order to establish a compensable claim for traumatic neurosis under the Kansas Workers Compensation Act, K.S.A. 44-501 et seq., the claimant must establish: (a) a work-related physical injury; (b) symptoms of the traumatic neurosis; and (c) that the neurosis is directly traceable to the physical injury.” Love v. McDonald’s Restaurant, 13 Kan. App. 2d 397, Syl., 771 P.2d 557, rev. denied 245 Kan. 784 (1989).
The Board denied the claimant’s request for compensation for the psychological injury and concluded:
“[I]n order to find either functional impairment or permanent partial general disability, credible evidence must be presented to prove claimant’s loss. As the more credible evidence shows that the claimant has suffered neither permanent functional impairment nor a work disability, claimant is not entitled to [an] additional award in this matter.”
The applicable standard of review is the substantial competent evidence test, in which the evidence is viewed in the light most favorable to the prevailing party. See Reeves v. Equipment Service Industries, Inc., 245 Kan. 165, 173, 777 P.2d 765 (1989). The crux of the Board’s decision regarding psychological injury is its underlying conclusion that the claimant “suffered [no] permanent functional impairment or any ongoing permanent work disability as a result of this incident.” (Emphasis added.) Traumatic neurosis is not compensable under the Workers Compensation Act absent a work-related physical injury. Followill v. Emerson Electric Co., 234 Kan. 791, 795-96, 674 P.2d 1050 (1984). Implicit in the conclusion of the Board is that the neurosis or psychological disability is not direcdy traceable to the physical injury. As noted above, the Board’s conclusion is supported by substantial competent evidence.
(3) EXPERT’S RECORDS AND OPINIONS
The only testimony regarding the claimant’s ability to obtain work in the open labor market and to earn a comparable wage was that of Monty Longacre, a vocational expert, who found the claimant to be 100% restricted in both her ability to earn a comparable wage and her ability to perform work in the open labor market. However, the Board concluded:
“Mr. Longacre’s opinion is based upon the medical reports of Dr. Glen O. Bair, which the Appeals Board has found less than credible, and upon the reports of Dr. John Wertzberger, whose medical records were never placed into evidence. (K.S.A. 44-519) As such, the opinion of Mr. Longacre will not be considered credible as Mr Longacre was not provided the medical records of Dr. Phillips or Dr. Wolfe in reaching his opinion regarding claimant’s work disability.”
The claimant argues that the Board erred in refusing to admit Longacre’s testimony, which was based on a medical report by Dr. Wertzberger, who did not testify and whose report was not admitted into evidence. The claimant challenges the Board’s application of the following provisions of K.S.A. 44-519:
“No report of any examination of any employee by a health care provider, as provided for in the workers compensation act and no certificate issued or given by the health care provider making such examination, shall bé competent evidence in any proceeding for the determining or collection of compensation unless supported by the testimony of such health care provider, if this testimony is admissible, and shall not be competent evidence in any case where testimony of such health care provider is not admissible.”
We need not resolve whether the provisions of K.S.A. 44-519 exclude Longacre’s report in this case. Once the Board concluded, based upon the medical evidence of record, that “the claimant has failed to prove by a preponderance of the credible evidence that she suffered any permanent functional impairment or any ongoing permanent work disability as a result of this incident” (emphasis added), the issue of “work disability” becomes irrelevant. As noted above, the conclusion of the Board that the claimant’s disability claims are of a temporary nature is supported by substantial competent evidence. Thus, her future ability to obtain work in the open labor market and to earn a comparable wage in the open labor market are immaterial.
The claimant raises two additional constitutional issues. She contends that (1) the legislature in reconstituting the Board usurped the power of the Supreme Court and (2) the 1993 amendment to K.S.A. 1992 Supp. 44-556, which elimináted judicial review by trial de novo in the district court, is unconstitutional.
(1) Whether the Legislature In Reconstituting the Board Usurped the Power of the Supreme Court
The claimant argues that the Board was without jurisdiction to review the decision of the ALJ because Section 5 of S.B. 59 is unconstitutional as a violation of separation of powers. In order to place this issue in context, a brief summary of recent legislative and judicial history is necessary.
In Sedlak v. Dick, 256 Kan. 779, 887 P.2d 1119 (1995), we held that the provisions of K.S.A. 44-555b, providing for the appointment of the Board’s members, was a constitutionally impermissible delegation of legislative authority. 256 Kan. at 803. The fatal flaw in the statute was that it gave the AFL-CIO and the Kansas Chamber of Commerce and Industry the absolute power to select Board members. 256 Kan. at 802. Upon declaring the Board unconstitutional, the Sedlak court ordered all claims pending before the Board or on appeal to this court to be transferred to the appropriate district court for further proceedings. 256 Kan. at 805-06. Sedlak was decided January 13, 1995.
The legislature quickly passed remedial legislation to cure the constitutional defects in the Board’s appointment process. Provisions in this legislation addressed pending cases:
“New Sec. 5. (a) Any workers compensation appeals which have been transferred from the workers compensation board to a district court or the director of workers compensation pursuant to the Kansas Supreme Court’s order in Sedlak v. Dick, case no. 70,792 (January 13, 1995) and have not been decided by the director or the district courts shall be transferred to the workers compensation board established under section 1 from the district court or the director on the effective date of this act.
“(b) Any workers compensation appeals which have been transferred from the court of appeals to the district courts pursuant to the Kansas Supreme Court’s order in Sedlak v. Dick, case no. 70,792 (January 13, 1995) and have not been decided by the district courts shall be transferred to the court of appeals on the effective date of this act.
“Sec. 7. This act shall take effect and be in force from and after its publication in the Kansas register.” S.B. 59 (L. 1995, ch. 1, §§ 5, 7).
S.B. 59 was published in the Kansas Register on January 26,1995. 14 Kan. Reg. 106 (1995). Section 5 is now.K.S.A. 1995 Supp. 44-556a.
The claimant initially filed a request for review of the ALJ’s decision with the Board on January 14, 1994. The Board issued an order on May 19,1994. The claimant filed an appeal with the Court of Appeals, No. 71,998, on June 14, 1994. The Kansas Supreme Court decided Sedlak on January 13, 1995, after the claimant’s appeal was pending before the Court of Appeals. A few days after Sedlak was decided, the Court of Appeals issued a stay of all appeals from the Board that were pending in the Court of Appeals in order for Sedlak to become final and to allow the legislature to pass remedial legislation. Less than 2 weeks later, on January 26, 1995, S.B. 59 became effective. After that, the Court of Appeals lifted the stay and set the pending cases, including the claimant’s case, on dockets without immediately transferring them to a district court.
On May 12, 1995, the Court of Appeals issued its decision in the claimant’s case, remanding the matter to the “new” Board created by S.B. 59 for review of the ALJ’s decision. Gleason v. Samaritan Home, No. 71,998, unpublished opinion filed May 12, 1995. In that case, the court stated:
“The status of this case is not precisely covered by the remedial legislation. It is not in a district court at this time, and it would not be sensible to transfer it there only to have it transferred back to this court. The constitutional issue was resolved in Sedlak, and the court found in that case that the Board’s rulings were invalid. The Board’s ruling in this case is therefore invalid, leaving nothing which can presently be resolved by this court. However, Gleason has prevailed on the constitutional challenges she has asserted and should be afforded some relief as a result.”
In other words, by the time the Court of Appeals addressed the claimant’s earlier appeal and similarly situated cases, the remedial legislation was in place. It made no sense to transfer those cases to a district court as directed in Sedlak, only to have them immediately transferred back again pursuant to S.B. 59. In the claimant’s case, the only Board-level decision that had been made at that point had been made by the unconstitutional “old” Board. Thus, in order for there to be a constitutionally valid decision for the Court of Appeals to review, there needed to be a decision made by the “new” Board. Accordingly, the Court of Appeals remanded die claimant’s case, and others, to the “new” Board for review of the respective ALJ orders.
SEPARATION OF POWERS
The claimant argues that “the Legislature had no power to overrule the Supreme Court’s order that all existing matters pending before the unconstitutional Appeals Board should be remanded to the district court.” By passing Section 5 of S.B. 59, which requires that such pending matters be transferred to the “new” Board, the claimant suggests that the legislature violated the doctrine of separation of powers.
The claimant’s argument mischaracterizes the procedural facts. This was not a case that was “transferred from the workers compensation board to the district court,” and then transferred to the new Board pursuant to Section 5(a) of the new legislation. It did not come before the new Board by virtue of S.B. 59. Rather, it came before the new Board by order of the Court of Appeals. However, to the extent that the claimant contends that the legislature undermined or interfered with the Sedlak decision by passage of S.B. 59, we will address the claimant’s separation of powers contention.
Recently, the Court of Appeals rejected a very similar separation of powers argument in Stuart v. Douglas County, 21 Kan. App. 2d 784, 907 P.2d 919 (1995), rev. denied 259 Kan. __ (1996). In Stuart, the claimant injured her elbow, for which the ALJ found a 65% permanent partial general disability. The Board upheld the disability rating but ruled that Stuart was an employee of the county, not the state. The county appealed to the Court of Appeals. By the time the case reached the Board level, it was reviewed by the “new” Board. The County argued to the Court of Appeals that the Board had lacked jurisdiction due to its failure to transfer the case to the district court, pursuant to Sedlak. The Court of Appeals rejected that argument, stating:
“[B]y the time the Board issued its order on February 13, 1995, the remedial legislation had cured the Board’s constitutional problems: The Board had jurisdiction, and its failure to transfer the case to a district court was harmless. The legislation would have required the case to be transferred right back to the Board.” 21 Kan. App. 2d at 787.
The sources and limitations of the federal and state government differ profoundly: “Federal legislative power derives solely from the federal Constitution; a state legislature is ‘ “free to act except as it is restricted by the state constitution.” ’ [Citations omitted.]” Sedlak, 256 Kan. at 791.
As to the doctrine of separation of powers, however, the Kansas Constitution is almost identical to the federal Constitution. State, ex rel., v. State Office Building Commission, 185 Kan. 563, 569-70, 345 P.2d 674 (1959). The doctrine of separation of powers is an inherent and integral element of the republican form of government and is expressly guaranteed to the states by the federal Constitution. State v. Mitchell, 234 Kan. 185, 193-94, 672 P.2d 1 (1983) (quoting Van Sickle v. Shanahan, 212 Kan. 426, 447, 511 P.2d 223 [1973]).
“Generally speaking, the legislative power is the power to make, amend, or repeal laws; executive power is the power to enforce the laws; and the judicial power is the power to interpret and apply the laws to actual controversies.” State ex. rel. Stephan v. Finney, 251 Kan. 559, Syl. ¶ 3, 836 P.2d 1169 (1992). Judicial power has also been defined 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.” Mitchell, 234 Kan. at 194.
In Board of Greenwood County Comm’rs v. Nadel, 228 Kan. 469, 618 P.2d 778 (1980), the appellant taxpayer challenged a change in the law that allowed county-level taxing authorities to bring appeals following decisions by the Board of Tax Appeals (BOTA) in favor of taxpayers. Prior to the change in the law, counties could not appeal BOTA orders that favored taxpayers to district court. In Nadel’s case, he paid taxes under protest, and BOTA decided he was due a refund. The county appealed to the district court, which applied the “old” law in effect at the time and dismissed the case. The county ultimately appealed the dismissal to the Supreme Court, where the trial court’s decision was initially affirmed. Then, the Supreme Court agreed to a rehearing. While the decision on rehearing was pending, the new law took effect. The Supreme Court applied the new law, which expressly applied retroactively, to reinstate the county’s appeal to the district court.
One of the issues raised by the taxpayer in Nadel was that the legislature’s enactment of the new law violated the separation of powers doctrine. Nadel argued that the legislature had interfered in the arena of judicial power. We disagreed, ruling:
“[T]he Kansas Constitution gives to the district and appellate courts jurisdiction to hear appeals, such as may be provided by law. The legislature, under constitutional provisions previously cited, has been given the power to grant, limit and withdraw the appellate jurisdiction to be exercised by the courts. [Citations omitted.]” 228 Kan. at 479.
Even more directly on point, we held:
“The legislature has full authority to establish procedural prerequisites to the exercise of jurisdiction by the district courts over administrative appeals.” 228 Kan. 469, Syl. ¶ 5.
The conclusion that the legislature may permissibly pass laws regulating judicial jurisdiction was further affirmed in State v. Mitchell, 234 Kan. 185. The Mitchell court specifically endorsed Nadel and said: “Jurisdiction is a legislative matter. The procedure conferring that jurisdiction is therefore also legislative.” 234 Kan. at 195.
The doctrine of separation of powers was not violated in this case by the legislature deciding the scope of appellate jurisdiction over administrative appeals. It is well within the legislative domain to set such rules to the extent that the legislature does not encroach onto the courts’ “traditional, independent decision-making power.” Mitchell, 234 Kan. at 195. The provisions of S.B. 59, which determine the appropriate forum for appealing the decisions of the ALJ in workers compensation cases (specifically those which had previously been subject to review by the unconstitutional “old” Board), do not exceed the constitutional powers of the legislature.
The claimant relies on Plaut v. Spendthrift Farm, Inc., 514 U.S. _, 131 L. Ed. 2d 328, 115 S. Ct. 1447 (1995). In Plant, the United States Supreme Court held that § 27A(b) of the Securities Exchange Act of 1934 was unconstitutional to the extent that it allowed reinstatement of cases that had been finally dismissed under the applicable statute of limitations prior to the enactment of § 27A(b). 131 L. Ed. 2d at 356.
The Plant Court stated:
“When a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly. [Citations omitted.] . .. . Having achieved finality . . ., a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.” 131 L. Ed. 2d at 347-48.
The claimant argues that S.B. 59 nullified the final order of the Sedlak decision. This argument fails for several reasons. As noted in Plant, a decision of an inferior court is not a final decision until the period for appeal has run and the case has not been appealed or the case has been appealed and finally adjudicated. 131 L. Ed. 2d at 347-48. See also Nadel, 228 Kan. at 473 (holding that there can be no vested right in an existing law which precludes the law’s change or repeal.) Cf., Resolution Trust Corp. v. Fleischer, 257 Kan. 360, 366, 892 P.2d 497 (1995) (indicating an exception to this rule for changes in. substantive law, whereas the present case involves procedural changes).
At the time that S.B. 59 became effective, the claimant’s appeal was still pending and was not a final decision. In fact, S.B. 59 expressly limits its application to cases that “have not been decided by the director or the district courts.” Thus, S.B. 59 did not nullify any final order of the judicial department. As noted in Plant, at every level, the court must decide according to law in existence at the time the decision is rendered. 131 L. Ed. 2d at 348.
The claimant argues that S.B. 59 nullified the effect of the remand order. As noted above, however, the remand order was not a final decision in those cases subject to the remand. Additionally, the remand order was the logical and necessary result of the Sedlak court finding the Board unconstitutional. The Board was unconstitutional and the cases had to be decided by some adjudicative body; the Sedlak court could not foresee whether the legislature would pass remedial legislation or what procedure that legislation might prescribe.
In passing S.B. 59, the legislature was addressing the problem recognized in Sedlak, not circumventing the Sedlak holding or subverting this court’s authority. The legislature did not attempt to controvert a particular judicial decision on a past controversy. See Nadel, 228 Kan. at 480.
Finally, this court has stated that the question of whether the old procedure or new procedure applies in a given workers compensation case is determined by the date “the order appealed” was entered, not the date of injury. Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, Syl. ¶ 3, 883 P.2d 1177 (1994). The Court of Appeals has correctly concluded that K.S.A. 1995 Supp. 44-556(c), which provides that orders entered prior to October 1, 1993, shall be reviewed under the old procedure and new procedures apply after October 1,1993, should be read to mean the date of the ALJ’s award (as opposed to a subsequent order by the Director or Board). University of Kansas v. Department of Human Resources, 20 Kan. App. 2d 354, 360, 887 P.2d 1147 (1995); McClure v. Rodricks, 20 Kan. App. 2d 102, Syl. ¶ 2, 883 P.2d 1228 (1994).
The ALJ’s order in this case was issued on January 7, 1994. As such, the new procedure applies, which prescribes an appeal to the new Board — the exact forum to which the Court of Appeals remanded this case and which ultimately heard this appeal. S.B. 59, § 5, which prescribes the appropriate forum for cases affected by the Sedlak decision, does not violate the doctrine of separation of powers.
(2) Whether the 1993 Amendment to K.S.A. 1992 Supp. 44-556 Which Eliminated Judicial Review by Trial De Novo in the District Court Is Unconstitutional.
The appellate court presumes a statute to be constitutional and resolves all doubts in favor of validity; a statute must clearly violate the constitution before it will be struck down. Sedlak, 256 Kan. at 793.
(a) Due Process
The claimant has not focused her argument on due process principles, but rather she emphasizes the alleged potential for improper political influence on the new Board. To understand the claimant’s concern, a brief review of the new process of selecting board members is helpful. In Sedlak, we declared the earlier act unconstitutional because it delegated absolute authority for the selection of Board members to two private organizations, the Kansas AFL-CIO and Kansas Chamber of Commerce and Industry. 256 Kan. 779, Syl. ¶ 4. Under the earlier law, the Secretary of Human Resources could only refuse their nominee if that person did not meet the selection requirements. The 1995 legislative amendments retain the nomination process by those two groups, but allow the Secretary to either appoint the committee’s nominee or reject the nomination and request another at his or her discretion. Under the amendments, the same board members chosen under the unconstitutional system remain in office. K.S.A. 1995 Supp. 44-555c(f)(l), (2).
The claimant’s main argument is:
“Under the current statute, the ultimate finder of fact in this and all other workers compensation cases is not an independent district court judge, elected or appointed by an open and impartial process, but a panel of political appointees (selected in secret by representatives of private trade groups, whom most Kansans have no voice in choosing) who have no permanency in office and no fixed salary, and who must periodically weather the displeasure of these two (2) mutually hostile trade groups in order to keep their jobs.”
The claimant cites to Alexander Hamilton in support of “the vital importance of preserving the independence of ultimate fact finders”.
“Basic elements of procedural due process of law are notice and an opportunity to be heard at a meaningful time in a meaningful manner.” Peck v. University Residence Committee, 248 Kan. 450, 467, 807 P.2d 652 (1991). The claimant does not expressly allege that she has not had adequate notice or the opportunity to be heard. In fact, the present law provides adequate notice and opportunity to be heard. See K.S.A. 44-523. Her due process argument is more in the nature of a policy argument that the threat of undue political influence deprives one of the opportunity to be heard in a meaningful manner.
The claimant would’have this court substitute its judgment on social policy for that of the legislature. We have directly addressed this argument in Samsel v. Wheeler Transport Services, Inc., 246 Kan 336, 357, 789 P.2d 541 (1990): “It [is] not within the province of this court to weigh the desirability of social or economic policy underlying a statute, or to weigh the beneficial results flowing from any particular legislative policy.”
We also stated:
“Our constitution does not make this court the critic of the legislature; rather, this court is the guardian of the constitution and every legislative act comes before us with a presumption of constitutionality. . . . In determining whether a statute is constitutional, courts must guard against substituting their views on economic or social policy for those of the legislature.” 246 Kan. at 348.
Implicit in the claimant’s argument is the notion that the claimant has a vested right in the previous appeal procedures and any potential workers compensation award. Rights are vested when the right to enjoyment, present or prospective, has become the property of a particular person as a present interest. Board of Greenwood County Comm’rs v. Nadel, 228 Kan. at 473. “[A] mere expectancy of future benefit, or a contingent interest in property founded on anticipated continuance of existing laws, does not constitute a vested right.” 228 Kan. at 473-74. This rule is particularly applicable to procedural changes in the law, such as this one. See Resolution Trust Corp. v. Fleischer, 257 Kan. at 366.
(b) Equal Protection
The claimant asserts without much support in her brief that the removal of de novo review from the district court is unconstitutional as a violation of equal protection.
The first step in an equal protection analysis is determining which level of scrutiny to apply to a statute which distinguishes between classes of individuals. Leiker v. Gafford, 245 Kan. 325, 362, 778 P.2d 823 (1989); see Bair v. Peck, 248 Kan. 824, 830, 811 P.2d 1176 (1991). Kansas courts have delineated three levels of scrutiny: (1) the rational basis test to determine whether a statutory classification bears some reasonable relationship to a valid legislative purpose; (2) the heightened scrutiny test to determine whether a statutoiy classification substantially furthers a legitimate legislative purpose; and (3) the strict scrutiny test to determine whether a statutoiy classification is necessary to serve some compelling State interest. Bair v. Peck, 248 Kan. at 830-31 (citing Farley v. Engelken, 241 Kan. 663, Syl. ¶¶ 3, 4, 5, 740 P.2d 1058 [1987]).
It is not clear from the claimant’s assertion how she believes the statutoiy amendments create different classes of parties. It appears she is arguing that the amendments create potential classes of workers compensation claimants: those who are subject to the preamended appeal procedures and those who are subject to the newly amended appeal procedures.
The equal protection clause does not prevent the legislature from treating different claims of parties differently; a legislative classification of a nonsuspect class will be upheld if the classification is rationally related to a legitimate legislative purpose. See Thompson v. KFB Ins. Co., 252 Kan. 1010, 1017-18, 850 P.2d 773 (1993).
The rational basis test has traditionally been applied where equal protection challenges have been brought against social and economic legislation. Statutory limitations on liability and recovery have been held to be social and economic legislation. Leiker v. Gafford, 245 Kan. at 363. The Workers Compensation Act, in addressing compensation available for injuries sustained by workers while acting within the scope of their employment, falls squarely within this category; as such, the reasonable basis test applies. The rational or reasonable basis test is violated only if the statutory classification rests on grounds wholly irrelevant to the achievement of the State’s legitimate objective. Leiker v. Gafford, 245 Kan. at 363.
Assuming, arguendo, that the removal of de novo review from the district court constitutes different classes of persons for purposes of an equal protection analysis, it may easily be concluded that the legislature’s chosen appeal procedures under the 1993 amendments are rationally related to its legitimate policy of “speedy adjustment of claims” under the Workers Compensation Act. Cain v. Zinc Co., 94 Kan. 679, 681, 146 Pac. 1165 (1915). The 1993 amendments to the Workers Compensation Act which removed de novo review from the district court of the ALJ’s order does not violate equal protection principles.
(c) Section 18 of the Kansas Constitution Bill of Rights
The claimant challenges the provision in the 1993 amendments to the Workers Compensation Act that eliminated de novo review of ALJ decisions from the district court. Instead, the new law gives an unsatisfied party the opportunity to appeal ALJ decisions to the Board. K.S.A. 1995 Supp. 44-551(b)(l). Orders of the Board are appealable to the Court of Appeals, and review is limited to questions of law. K.S.A. 1995 Supp. 44-556(a). Prior to the change, an ALJ’s decision was appealed to the Director, and the Director’s decision was appealed to the district court. The district court was expressly granted de novo review of the ALJ’s decision, although such review was limited to the record. K.S.A. 1992 Supp. 44-556(a).
The only argument under Section 18 of the Kansas Constitution Bill of Rights as reflected in respondent’s brief is that the legislature cannot abolish a right which existed at common law at the time of statehood (1861) unless it also provides an adequate substitute remedy for the right abolished. See Bair v. Peck, 248 Kan. at 839. Section 18 of the Kansas Constitution Bill of Rights provides: “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
In enacting its change to the Workers Compensation Act, the legislature properly exercised its legislative power to grant, limit, and withdraw appellate jurisdiction to be exercised by the courts. See Nadel, 228 Kan. at 479. Section 18 of the Kansas Bill of Rights is not implicated. While the legislature eliminated district court review procedures by its new enactment, it merely replaced such procedure by authorizing the Board “to review all decisions, findings, orders and awards of compensation of administrative law judges.” K.S.A. 44-555b(a). The Board’s members under the new act must possess the same qualifications as a district judge. We noted in Sedlak: “The concept of utilizing qualified Board members experienced in the workers compensation field has merit.” 256 Kan. at 802.
The right to a hearing and an opportunity to be heard has been preserved by the new enactment. Without question, the legislature is empowered to enact law relating to the scope of appellate jurisdiction over administrative appeals.
Affirmed.
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The opinion of the court was delivered by
Lockett, J.:
Defendant was convicted of numerous offenses, including two counts of first-degree murder; multiple counts of aggravated burglary, burglary, felony theft, misdemeanor theft, and criminal damage to property; and other offenses. Defendant timely appeals his convictions, claiming jury instruction errors, insufficient evidence, and double jeopardy violations.
Junction City, Kansas, experienced a series of residential burglaries between March 4 and April 30, 1993. The burglaries occurred at 16 different residences; 2 residences were burglarized more than once. The most serious crimes resulting from the series of burglaries were the first-degree murders of James Ashley and Mabel Price. The defendant was shot during an attempted burglary, arrested, and charged with the various offenses. In addition to the 2 counts of first-degree murder, defendant was convicted of 2 counts of aggravated robbery, 8 counts of aggravated burglary, 11 counts of burglary, 9 counts bf felony theft, 8 counts of misdemeanor theft, 16 counts of criminal damage to property, and 1 count each of conspiracy to commit aggravated burglary, attempted aggravated burglary, criminal trespass, unlawful possession of a firearm, possession of cocaine, and possession of drug paraphernalia.
The defendant’s trial lasted 2Vz weeks. During the trial, the defendant testified he had not committed the crimes charged but had occasionally remained outside a burglarized house while other individuals committed the crimes. The defendant explained to the jury how various items of stolen property happened to be in his possession. A detailed review of the evidence at trial is unnecessary; the discussion of the issues on appeal will set out the necessary facts.
Improper Jury Instruction
The home of James Ashley was burglarized on four separate occasions between March 26 and April 20, 1993. On April 25, Ashley’s home was burglarized a fifth time, property was taken, and he was killed. On April 29, 1993, Mabel Price’s home was burglarized, property was taken, and she was killed. The defendant was charged with two counts of first-degree premeditated murder and, in the alternative, first-degree felony murder based on the underlying crimes of aggravated robbery or aggravated burglary, in the deaths of Ashley and Price.
At the instructions conference, the defendant’s counsel objected to a jury instruction that all participants to an underlying felony are principals to a felony murder when death occurs. The court noted the defendant’s objection and gave the instruction, which stated: “All participants to an underlying felony are principals to a felony murder when death occurs. The rules of felony murder thus apply equally to all participants.” This instruction quotes State v. Chism, 243 Kan. 484, Syl. ¶ 5, 759 P.2d 105 (1988). The defendant concedes on appeal that the instruction is a correct statement of the law and that the evidence required the giving of the instruction. However, the defendant contends the instruction was defective because it did not specify the underlying crime for the felony murder and its elements; therefore, the instruction relieved the State of its burden of proof and denied the defendant due process of law.
In support of his argument on appeal, the defendant cites State v. Linn, 251 Kan. 797, 840 P.2d 1133 (1992). In Linn, the defendant was charged with aggravated burglary based on the underlying crime of “a felony or theft.” At trial, the defendant requested that the aggravated burglaiy instruction specify only theft as the underlying felony, but the State argued that the evidence was the defendant intended to commit the offenses of robbery, aggravated battery, and theft when he entered the dwelling. The aggravated burglary instruction given by the court stated that to find the defendant guilty, the jury must find the defendant entered or remained in a house “ 'with the intent to commit a felony or theft therein.’ ” 251 Kan. at 800. The specific felony intended was not set out. During deliberations, the jury asked the court to define “felony.” The court informed the jury that a felony is a crime for which punishment may be in excess of 1 year in a state penitentiary. On appeal, the defendant did not contend that the evidence was insufficient to find an intent to commit a theft, but argued that the jury’s request for the definition of “féloriy” indicated that it found him guilty based on an intent to commit an undefined felony rather than a theft; therefore, reversal of that conviction was required.
In determining that the defendant was deprived of his constitutional right to a fair trial, the Linn court stated:
“An instruction as to the offense of aggravated burglary is defective unless it specifies and sets out the statutory elements of the offense intended by an accused in making the unauthorized entry. Under the circumstances here, the trial judge’s failure to state the specific underlying felony or felonies and their elements prevented the jury from rendering a lawful verdict and was an error of constitutional magnitude depriving the defendant of a fair trial.” 251 Kan. at 802.
In an effort to apply the rationale of Linn to this case, the defendant isolates the portion of the contested instruction which mentions “participants to an underlying felony” and then points out that the instruction did not include the underlying felony or the elements of the underlying felony. He asserts fhat under the instruction given, the jury could have found him guilty of felony murder based on his admission of possessing property stolen from the homicide victims rather than based on the felonies contained in the judge’s instructions on felony murder and the verdict form.
Jury instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and if the jury could not reasonably have been misled by them, the instructions do not constitute reversible error even though they may be in some small way erroneous. State v. Johnson, 255 Kan. 252, Syl. ¶ 4, 874 P.2d 623 (1994).
We have reviewed the instructions and find that the defendant’s argument is meritless. The jury was instructed in other instructions as to the elements of felony murder. Two instructions related to the felony murders based on the underlying crime of aggravated robbeiy, and another two réláted to felony murder based on the underlying crime of aggravated burglary. The elements of aggravated robbeiy and aggravated burglary were set out in each of those instructions. Although the term “underlying felony” was not defined in the instruction contested here, the other felony-murder instructions required the jury to find that the killing of each victim “was done while in the commission of aggravated robbery [or aggravated burglary], a felony.” The jury would apply its common knowledge and understand that the term “underlying felony” related to the felonies specified in the felony-murder instructions and the term “participants” meant all persons involved in the underlying felony. Moreover, to convict the defendant of felony murder, the felony-murder instructions required the jury to find that the murder was committed during the commission of aggravated robbery or aggravated burglary. These instructions, and the accompanying verdict forms, did not allow the jury to convict the defendant of felony murder based on the underlying crime of possession of stolen property, as the defendant suggests.
Lesser Included Offense Instruction
The defendant next contends that the trial court erred in failing to instruct the jury on theft as a lesser included offense of the underlying felony of aggravated robbery as to the felony-murder charge. This court has recognized that the felony-murder doctrine is a distinct legal theory from the doctrine of lesser included offenses. See State v. Gonzales, 245 Kan. 691, 706, 783 P.2d 1239 (1989).
The defendant was charged with two counts of felony murder based on the underlying crime of aggravated robbery as alternatives to premeditated murder and to felony murder based on aggravated burglary in the deaths of Ashley and Price. The defendant argues that a lesser included offense of aggravated robbery is robbery and that theft is a lesser included offense of robbery; thus, theft is a lesser included offense of aggravated robbery as the basis for a felony-murder conviction. Based on this rationale, the defendant claims the judge was required to have included an instruction for theft as a lesser included offense of aggravated robbery.
K.S.A. 21-3107(3) requires the trial court to instruct the jury not only as to the crime charged but also as to all lesser included crimes of which the accused might be found guilty. This is an affirmative duty of the trial court and applies whether or not the defendant requests the instructions. State v. Bowman, 252 Kan. 883, 892, 850 P.2d 236 (1993). 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. However, instructions on lesser included crimes of felony murder are required only if evidence of the underlying felony is weak or inconclusive. Linn, 251 Kan. 797, Syl. ¶ 4.
At the time of the defendant’s crimes, the offense of first-degree felony murder was defined as “the killing of a human being committed . . . [i]n the perpetration of or attempt to perpetrate any felony.” K.S.A. 1992 Supp. 21-3401(a). To prove felony murder under this statute, the State must prove that the defendant committed a felony inherently dangerous to human life and that a death occurred during the commission of that felony. State v. Lashley, 233 Kan. 620, 631, 664 P.2d 1358 (1983); State v. Smith, 225 Kan. 796, 799, 594 P.2d 218 (1979).
The elements of the crime of aggravated robbery are set forth in K.S.A. 21-3427 (Ensley 1988): a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery. Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person. K.S.A. 21-3426 (Ensley 1988). Theft is defined as any of the following acts done with the intent to deprive the owner permanently of the possession, use, or benefit of the owner’s property: (a) obtaining or exerting unauthorized control over property; (b) obtaining by deception control over property; (c) obtaining by threat control over property; or (d) obtaining control over stolen property knowing the property to have been stolen by another. K.S.A. 21-3701 (Ensley 1988).
The defendant cites State v. Blockman, 255 Kan. 953, 956, 881 P.2d 561 (1994), as authority for his assertion that theft is a lesser included crime of aggravated robbery. However, Blockman established that not all types of theft are lesser offenses of robbery. In State v. Long, 234 Kan. 580, 675 P.2d 832 (1984), overruled on other grounds State v. Keeler, 238 Kan. 356, 365, 710 P.2d 1279 (1985), this court held that theft is an included crime of robbery. The method of theft in question there was under subsection (a) of 21-3701, obtaining or exerting unauthorized control over property. In Blockman, 255 Kan. 953, Syl. ¶ 1, this court reaffirmed that theft under 21-3701(a) is a lesser included offense of robbery. The Blockman court held, however, that unlike common-law larceny, codified at 21-3701(a), there can be a robbery without a theft by threat. Therefore, theft by threat under 21-3701(c) is not a lesser included offense of the crime of robber). 255 Kan. 953, Syl. ¶ 4, 961. See State v. Rader, 256 Kan. 364, Syl. ¶ 3, 885 P.2d 1222 (1994). The question of whether theft under 21-3701(b), obtaining by deception control over property, and 21-3701(d), obtaining control over' stolen property knowing the property to have been stolen by another, are lesser included offenses of robbery was not an issue in Blockman or Rader.
We note that the defendant at trial denied he was involved in the burglaries but admitted that he was subsequently in possession of property taken during the burglaries. See 21-3701(d) (obtaining control over stolen property knowing the property to have been stolen by another).
Regardless of whether the different methods of theft are lesser included offenses of robbery, in State v. Lashley, 233 Kan. 620, this court recognized that only two types of theft under 21-3701 are inherently dangerous and may constitute underlying felonies for a charge of felony murder. The Lashley court stated: “K.S.A. 21-3701 incorporates two sections that are, when viewed in the abstract, offenses that are inherently dangerous to human life: (1) theft by obtaining or exerting unauthorized control over property— K.S.A. 21-3701(a); and (2) theft by obtaining control over property by threat — K.S.A. 21-3701(c).” 233 Kan. at 633. See K.S.A. 21-3436(a)(8), specifying that felony theft under 21-3701(a) and (c) are inherently dangerous felonies. The Lashley court also stated: “[W]e wish to emphasize that.theft may be the underlying felony in a charge of felony murder only in cases where the discovery of the thief during the course of the theft results in the death of a person.” 233 Kan. at 634.
Lashley determined that theft under 21-3701(d), possession of stolen property, cannot support a conviction for felony murder because it is not an inherently dangerous felony. 233 Kan. at 633. In addition, this type of theft (obtaining control over stolen property knowing the property to have been stolen by another) requires that the control over the stolen property occur subsequent to the actual taking of the property. According to the defendant’s argument, he obtained control over the stolen property after another person stole the property, so the defendant’s own possession of the stolen property did not result in the death of a person; it would have been the other person’s taking of the property that resulted in the death. See Lashley, 233 Kan. at 634. The trial court did not err in failing to instruct the jury on theft by possessing stolen property as a lesser included offense of felony murder.
Insufficient Evidence
The defendant next asserts that the evidence of aggravated robbery was insufficient to convict him because there was no proof the victims were alive when their property was taken. The defendant concludes that if evidence of the underlying felony of aggravated robbery was insufficient, the convictions of first-degree felony murder are invalid. When the sufficiency of the 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, an appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Timley, 255 Kan. 286, Syl. ¶ 13, 875 P.2d 242 (1994).
The defendant argues that if the victims were dead before their property was-taken, the property was not taken from their presence and the crime of aggravated robbeiy could not have occurred. As a basis for this argument, the defendant cites cases where this court held that the crimes of aggravated kidnapping and rape require a living victim. See State v. Evans, 251 Kan. 132, 135, 834 P.2d 335 (1992); State v. Perkins, 248 Kan. 760, 771, 811 P.2d 1142 (1991). Evans and Perkins held that the crimes of kidnapping and rape required a living victim to protest the'improper use of his or her body by another. Using a similar rationale, State v. Kingsley, 252 Kan. 761, 780-81, 851 P.2d 370 (1993), held that the crime of aggravated arson requires that a living person be in the structure. The Kingsley court reached this conclusion not because the crime required the absence of consent of some person but because the policy behind elevating arson, a class C felony, to aggravated arson, a class B felony, was the risk to human life and safety, a risk present only if there was a living person in the structure. 252 Kan. at 781.
Aggravated robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person, committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery. K.S.A. 21-3426 (Ensley 1988); K.S.A. 21-3427 (Ensley 1988). Applying the rationale of Evans, Perkins, and Kingsley, we agree that the crime of aggravated robbery does require a living victim at the time of the commission of the crime, but the defendant is incorrect in asserting that the victim must be alive at the time the property is taken.
In State v. Myers, 230 Kan. 697, 640 P.2d 1245 (1982), the defendant was convicted of voluntary manslaughter, aggravated robbery, and arson. The defendant shot the victim and then returned several hours later to make sure the victim was dead. Upon returning to the location of the body, the defendant removed the victim’s wallet. 230 Kan. at 698. The defendant contended that the victim’s wallet was taken from him 3 hours after the victim was killed, so the property was not taken by force or threat of force and the elements of aggravated robbery had not been established. The Myers court rejected the defendant’s argument that the threat or force must be concurrent with the taking of the property. The court held:
“[U]nder factual circumstances where a defendant shoots his victim and later decides to take and remove the victim’s personal belongings, where the act of force and the taking of the property are so connected as to form a continuous chain of events so that the prior force makes it possible for the defendant to take the property from the victim’s body without resistance, that is sufficient for a conviction of the crime of robbery under K.S.A. 21-3426. Since the killing was accomplished with a dangerous weapon, a violation under K.S.A. 21-3427 [aggravated robbery] was established by the evidence.” 230 Kan. at 703-04.
See State v. Adam, 257 Kan. 693, 698, 896 P.2d 1022 (1995); State v. Patterson, 243 Kan. 262, 267, 755 P.2d 551 (1988).
The evidence shows that the defendant entered the homes with a dangerous weapon, a tire iron, and inflicted bodily harm with that tire iron after entering the residences. The force and bodily harm was inflicted either immediately before, during, or immediately after the robberies. Under the facts, the possibility that Ashley and Price were deceased by the time the taking was completed does not render the evidence of aggravated robbery insufficient. The taking of property was not an afterthought. Rather, the act of force and bodily harm and the taking of the property from Ashley and Price were part of a continuous chain of events.
Defendant’s argument is also flawed because in addition to being convicted of aggravated robbery, he was also convicted of aggravated burglary of the residences where the victims were murdered. Aggravated burglary is committed when one enters a dwelling where a human being is present to commit a felony or theft. K.S.A. 1992 Supp. 21-3716. The defendant does not dispute that Ashley and Price were killed by the burglars who took their property or that there .was sufficient evidence to support the crime of aggravated burglary based on the intent to commit the crime of theft at the time of entry. Because the defendant intended to commit the crime of theft at the time he entered a dwelling in which a human being was present, the intended theft was converted to a robbery.
The defendant’s convictions for the aggravated robberies of Ashley and Price were supported by sufficient evidence upon which a rational factfinder could have found him guilty of those crimes beyond a reasonable doubt. Because the convictions for aggravated robbery are affirmed, there is no need to address the corresponding argument that the first-degree felony-murder convictions are invalid.
Aiding and Abetting Instruction
The defendant next claims that the trial court erred in instructing the jury on aiding and abetting. The trial judge is required to instruct the jury after the close of evidence on such matters as in the judge’s opinion will assist the jury in considering the evidence presented. The judge is required to pass upon the objections to the instructions and shall either give each instruction as requested, or proposed, or refuse to do so. K.S.A. 22-3414(3).
The defendant’s counsel objected to the giving of an aiding and abetting instruction, claiming it relieved the State of its burden of proof. The trial judge noted there was testimony that two people were involved in committing several of the burglaries. The defendant’s counsel agreed, but asserted that although the instruction was a correct statement of the law, the sequence in which the instruction was given to the jury improperly overemphasized the instruction. Although the trial judge offered to change the sequence of the instructions, the defendant’s counsel declined the judge’s offer.
The jury was instructed:
“A person who, either before or during its 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 regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.”
This instruction follows the standard PIK instruction. It was given immediately following the jury instructions relating to the murder of Ashley. The defendant does not challenge the language of the instruction; rather, he claims that the evidence at trial precluded the giving of that instruction.
The defendant asserts on appeal that the only evidence another person was involved in the burglaries was the defendant’s statement to the police, and his testimony at trial, that he drove another person to one burglary and had been the driver during other burglaries.
Contrary to the defendant’s argument, however, we note other evidence that the defendant was involved in several of the burglaries with another person. Frank Thompson testified that the defendant asked him to assist in committing some burglaries, and Thompson agreed. Thompson testified that he acted as the lookout while the defendant entered the residences with a tire iron. Thompson also helped carry items out of the houses. In exchange for helping the defendant, Thompson received some of the stolen property. Further, there was evidence from the defendant’s own testimony that he was involved in at least one of the burglaries with another person. The defendant testified concerning count 68: “I was also at this location of this burglary, but I did not participate in the burglary, and. I received a cable converter box for giving John Thompson a ride to this burglary.” Although by this testimony the defendant denied participating in the burglary, he did admit to giving John Thompson a ride to the burglary.
Jury instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and if the jury could not reasonably have been misled by them, the instructions do not constitute reversible error even though they may be in some small way erroneous. State v. Johnson, 255 Kan. 252, Syl. ¶ 4, 874 P.2d 623 (1994). Although the defendant was charged as a principal, under the facts of this case the jury could find him guilty as an aider and abettor. Neither the giving of nor the sequence of the aiding and abetting instruction was error.
Double Jeopardy
The defendant acknowledges that the Kansas Legislature intended to allow conviction and punishment for both felony murder and the underlying felony, but he claims that the imposition of consecutive sentences for his convictions of first-degree murder and the underlying felonies violates the United States Constitution prohibition against double jeopardy. A violation of the prohibition against double jeopardy is a question of law, and this court’s review is de novo.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall be subject to be twice put in jeopardy of life or limb for the same offense. The Clause is enforceable against the states via the Fourteenth Amendment. North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Equivalent double jeopardy protection is found in Section 10 of the Kansas Constitution Bill of Rights. See State v. Cady, 254 Kan. 393, 396-97, 867 P.2d 270 (1994). The Double Jeopardy Clause shields persons from “(1) a second prosecution for the same offense after acquittal, (2) a sec ond prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” 254 Kan. at 396. At issue here is the third protection, that against multiple punishments for the same offense.
The defendant acknowledges that it is the well-established law in Kansas that multiple convictions and punishments for both felony murder and the underlying felony are not violations of double jeopardy. See, e.g., State v. Gonzales, 245 Kan. 691, 704 783 P.2d 1239 (1989) (underlying felony of attempted rape); State v. Dunn, 243 Kan. 414, 433, 758 P.2d 718 (1988) (underlying felonies of aggravated kidnapping and aggravated robbery).'The defendant contends, however, that these cases were incorrectly decided and requests this court to revisit the issue.
In Gonzales, 245 Kan. at 704, this court recognized that resolution of the double jeopardy issue depends on whether the Kansas Legislature intended to allow conviction and punishment for both felony murder and the underlying felony. The court held that the legislature, by not prohibiting the practice of multiple punishments for both felony murder and the underlying felony once it was aware of the practice, approved of the practice. 245 Kan. at 704-05. The Gonzales court also addressed an argument, similar to that of the defendant here, concerning the doctrine of lesser included offenses. The court stated:
“The flaw in defendant’s argument is that he fails to recognize the distinction between the ‘lesser included offense’ doctrine and the ‘felony-murder’ doctrine. Each is a separate theory of law. Each exists in a distinct legal pigeonhole. . . .
“The appropriate test to apply to the instant case is found in State v. Dunn, 243 Kan. at 432-33, where the court stated:
‘The constitutional prohibition against double jeopardy is directed to the identity of the offense and the act. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied when determining whether there are two offenses or only a single offense is whether each statutory provision requires proof of an element that the other does not. Where one statute [requires] proof of an element that the other does not, the crimes are not the same, even though proof of the separate crimes may substantially overlap.
We have held that the proper test for determining whether an underlying felony merges into a homicide is whether all the elements of the felony are present in die homicide and whether the felony is a lesser included offense of the homicide. If this is not true, then the felony must be a separate and distinct offense and the doctrine of merger does not apply. State v. Rueckert, 221 Kan. 727, 733, 561 P.2d 850 (1977). A more correct formulation of the proper test when considering merger is whether the elements of the underlying felony are so distinct from the homicide so as not to be an ingredient of the homicide. State v. Lashley, 233 Kan. 620, 631, 664 P.2d 1358 (1983).’ ” 245 Kan. at 706-07.
Gonzales and Dunn are not the only cases reaching this result. This court also concluded, following the Gonzales and Dunn analyses, that convictions for felony murder and the underlying felony did not violate double jeopardy in State v. Johnson, 258 Kan. 475, 905 P.2d 94 (1995) (aggravated kidnapping and aggravated robbery); State v. Butler, 257 Kan. 1043, 897 P.2d 1007 (1995), modified on other grounds 257 Kan. 1110, 916 P.2d 1 (1996) (aggravated robbery); State v. Swafford, 257 Kan. 1023, 897 P.2d 1027 (1995), modified on other grounds 257 Kan. 1091, 913 P.2d 196 (1996) (aggravated robbery); State v. Sutton, 256 Kan. 913, 889 P.2d 755 (1995) (aggravated kidnapping and aggravated robbery); State v. Bailey, 247 Kan. 330, 340, 799 P.2d 977 (1990), cert. denied 500 U.S. 920 (1991) (aggravated robbery); and State v. Pioletti, 246 Kan. 49, 785 P.2d 963 (1990) (aggravated kidnapping). The defendant has shown no compelling reason for us to depart from this well-established law and find that these cases were wrongly decided.
Affirmed.
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The opinion of the court was delivered by
Davis, J.:
On May 22, 1993, a disturbance took place at the Lansing Correctional Facility. Officer Mark Aveiy was killed and Officer Michael Bidatsch was severely beaten. A number of inmates were implicated. Several have been tried and convicted. We have handled several of those appeals. Andrew Green, Jr., an inmate at the Lansing facility, was also charged with and convicted of murder in the first degree and aggravated battery on a law enforcement officer. He appeals his conviction, raising numerous errors. One of the errors raised involves the sufficiency of evidence. We, therefore, recount the facts upon treatment of that error. We conclude that there is no reversible error and, for the reasons set forth below, affirm.
Preliminary Hearing
The defendant contends that his convictions must be reversed because he was not given a preliminary hearing within 10 days after his first appearance and because he was never given a preliminary hearing.
The defendant concedes that the statute setting a 10-day period for the holding of a preliminary hearing (K.S.A. 22-2902), is directory and not mandatory. See State v. Fink, 217 Kan. 671, Syl. ¶ 3, 538 P.2d 1390 (1975). Moreover, the defendant acknowledges that he was indicted by a grand jury but still claims he was entitled to his statutory right to a preliminary hearing. Very recently, we rejected this precise contention in the case of State v. Knighten, 260 Kan. 47, Syl. ¶¶ 4, 5, 917 P.2d 1324 (1996).
“The purpose of a preliminary examination is to afford the person arrested, as the result of a complaint, an opportunity to challenge the existence of probable cause for further detaining him or her. This right is purely statutory and is not required by the Constitution; therefore, it does not implicate due process.”
“K.S.A. 22-2902(1) provides a means for testing whether there is probable cause that a crime has been committed and whether the defendant committed the crime. This statute recognizes that once a grand jury indictment has been handed down, such a test has occurred. It matters little whether the grand jury indictment is handed down before or after the defendant is charged with the crime.Tn either case, a determination of probable cause has been made. The fact fhat'the indictment came after and not before the arrest and charge is not grounds for reversal.”
Speedy Trial
The defendant contends that he was . denied his statutory and constitutional right to a speedy trial because his trial was not commenced until 15 months after the complaint had been filed against him. The defendant was arraigned on November 12, 1993; trial commenced on November 14, 1994.
There is no merit to the defendant’s contention that he was denied his statutory right to a speedy trial. He had been convicted in Sedgwick County of seven count's of kidnapping and three counts of battery and was serving those sentences at the time of this incident, May 22, 1993. K.S.A. 22-3402(1) provides:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).” (Emphasis added.)
Because the defendant was being held for reasons other than the charges stemming from the May 22,1993, attack, his statutory right to speedy trial was not violated. See State v. Goss, 245 Kan. 189, 191, 777 P.2d 781 (1989).
The defendant also contends his constitutional right to a speedy trial was violated. He assigns 288 days out of a total of 427 days as attributable to the State in bringing the matter to trial. The leading case on this issue is Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). In Barker, the United States'Supreme Court adopted a four-prong case-by-case approach for determining whether any given defendant has been deprived of his or her right to a speedy trial (length of delay, reason for the delay, the defendant’s assertion of his or her right, and prejudice to the defendant). 407 U.S. at 530. This balancing test was adopted in Kansas in State v. Otero, 210 Kan. 530, 502 P.2d 763 (1972). However, our court later noted that if the length of delay was not presumptively prejudicial, then the other factors of the test need not be considered. State v. Goss, 245 Kan. at 193.
In Barker, a 5-year period of time was not in violation of the right to a speedy trial. In State v. Goss, this court found a delay of a little over a year between arrest and trial not clearly presumptively prejudicial, so the Barker/Otero test did not need to be applied. 245 Kan. at 193. In the present case, the delay in time between the defendant’s arraignment and trial was 1 year and 2 days. According to Goss, this length of delay is not presumptively prejudicial to the defendant, and we need not consider the other three. factors of the Barker/Otero test.
Nevertheless, the defendant claims prejudice by the delay because he alleges that three of his witnesses became unavailable because of the delay. It is true that two inmates were released because each of their sentences expired and a third was paroled to the State of Nebraska. However, the witnesses were available just as any witness would be available. The defendant never availed himself of the process to make such witnesses available. The State had no responsibility or power to hold these witnesses beyond their release or parole date. The defendant’s argument of prejudice is without merit.
Gang Membership Evidence
The defendant contends the trial court erred in allowing introduction of gang membership. He argues the evidence was highly prejudicial and requires reversal of his convictions. Within the context of a strikingly similar factual setting, we recently rejected the precise claim that the defendant now makes in our recent case of State v. Knighten, 260 Kan. at 54. We held that evidence of gang membership may be probative of witness bias:
“The probative value of evidence of gang membership as it pertains to witness bias is high. In United States v. Abel, 469 U.S. 45, 49, 83 L. Ed. 2d 450, 105 S. Ct. 465 (1984), the United States Supreme Court held that evidence of gang membership is probative of witness bias, and that ‘[p]roof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.’ 469 U.S. at 52.”
In this case, the State introduced evidence regarding gang membership through the testimony of Roger Bonner, investigator for the Lansing facility, in its case in chief and in rebuttal. The evidence of the defendant’s gang membership was not offered to show the defendant committed the crimes charged or that he had a propensity to commit such crimes. Rather, Bonner’s testimony was offered to show the defendant had lied in telling Sergeant H.R. Woodcock that he was not a gang member. In rebuttal, the State called Bonner back to the stand to impeach inmate Pool’s statement that “B.G.D.” was not a gang and his denial of knowledge as to whether the defendant was a member of “B.G.D.” In addition, Bonner’s testimony that Pool, a defense witness, and the defendant were considered to be members of the “B.G.D.” gang served to impeach Pool’s testimony. As we said in Knighten, “[sjimple friendship does not create the same inference of incentive to protect another person that is created by evidence of membership in the same gang.” 260 Kan. at 55.
Grand fury
The defendant contends that the grand jury was not properly impaneled. However, the State, with a supplemental addition to the record, demonstrated that it was properly summoned by an order of the majority of district judges for the First Judicial District in accord with K.S.A. 22-3001(1). The defendant also contends that the grand jury did not request the prosecuting attorney to attend and question witnesses in accord with K.S.A. 22-3007(1) and (2). Again, however, the record reflects that the county attorney was present and questioned witnesses with the approval of the grand jury.
Sufficiency of Evidence
The defendant contends that there was insufficient evidence for the jury to have found him guilty of either the murder of Avery or the aggravated battery of Bidatsch. He argues that only one of the witnesses, Byron Wash, testified to seeing the defendant strike Avery with a weight and that no witness positively identified him as having any part in the beating of Bidatsch.
When tibe sufficiency of the 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. State v. Knighten, 260 Kan. 47, Syl. ¶ 1; State v. Timley, 255 Kan. 286, Syl. ¶ 13, 875 P.2d 242 (1994).
A review of the record shows numerous witnesses who incriminated the defendant as to both crimes charged. Dr. Clark Anderson,. the pathologist performing the, autopsy on Avery, testified that Avery’s death was caused by multiple blunt traumatic injuries to the body, particularly the head, .and that the.blunt trauma was consistent with being hit by a weight plate and a pool ball. Dr. Anderson also testified that there was a boot print on Avery’s back.
, Officer Ronald Clark testified that he saw the defendant in the area where Avery was lying in a pool of blood.,
. Inmate Joe Campbell testified he heard , some inmates talking right before the crime, near the scene of the crime, and those inmates included the defendant and others who have been charged with the same crime. Campbell stated that during this conversation, an inmate named Clemons told Campbell, “We are getting ready to do this pussy.” Campbell heard Clemons encouraging the defendant to “Just do it,” to which the defendant replied, “Man, hold up and.I’ll do.it.” Campbell then saw the defendant pick up a 10-pound weight. Although Campbell also saw the defendant set it back down, Campbell then saw the defendant and inmate Travis Knighten, who has. also been charged with and convicted of these crimes, crawl over the stub wall and go towards the officers, with Knighten holding, a weight.
Another inmate, Claire Jobe, III, testified that he saw the defendant near the ice machine with a weight in his hand. Bidatsch testified that he was hit with a weight plate while he was standing near the ice machine.
Inmate Wash testified that he saw the defendant hit Avery in the back of the head with a weight plate while Avery was kneeling down. He also stated that he saw the defendant kicking Avery after Avery was face down on the floor. While they were in administrative segregation after the incident, Wash overheard the defendant singing, “Two to the head and another one dead.”
Sergeant Woodcock testified that, in his investigation immediately following the incident, inmate Campbell had said that other inmates were trying to get the defendant to attack the officers and that the defendant struck Avery.
Inmate Marquis Holmes, a witness for the defense, testified that the defendant was the initial person who attacked Bidatsch:
Bidatsch testified as to how he was attacked and beaten. Although he could identify some of the inmates who attacked him, he could not identify all of those who struck him among the 200-300 inmates in the recreational shack that day.
As the State points out in its brief, the evidence in this case is both direct and circumstantial. A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Smith, 245 Kan. 381, Syl. ¶ 7, 781 P.2d 666 (1989).
The defendant argues that because many of the stories given by the inmates are inconsistent with the testimony of Bidatsch and with the testimony of each other, they are not credible. The defendant also argues that the statements of inmates Wash and Jobe directly implicating him were not credible because both of those inmates had allegedly been suspects themselves until they gave statements implicating the defendant.
However, it is well established that this court does not pass on the credibility of witnesses or weigh conflicting evidence and all questions of credibility are resolved in favor of the State. State v. Van Winkle, 254 Kan. 214, 225, 864 P.2d 729 (1993). It was for the jury to decide the credibility of the witnesses, the weight to be given the evidence, and the reasonable inferences to be drawn from the evidence. See State v. Bowen, 254 Kan. 618, 631, 867 P.2d 1024 (1994). The jury in this case resolved the credibility of the witnesses in such a way as to find the defendant guilty beyond a reasonable doubt. The verdict is supported by the evidence, and we will not disturb it on appeal.
Admissibility of Evidence
The defendant contends the trial court erred in admitting into evidence a threatening letter received by inmate Wash. During the State’s direct examination of Wash, the court admitted the letter over defense counsel’s objection. The letter was written by an inmate named Brooks; there was no evidence that the defendant had any part in the writing or delivery of the letter.
The admissibility of evidence is governed by its relevancy to the issue in question. State v. Toney, 253 Kan. 651, 654, 862 P.2d 350 (1993). The exclusion of evidence is within the discretion of the trial court. State v. Toney, 253 Kan. at 654. The letter at issue intimidated Wash regarding his decision to testify at this trial. As such, it tends to show that Wash was not testifying for any personal benefit and actually was testifying at risk to himself. These circumstances are relevant as to Wash’s motive in testifying as well as to his credibility as a witness. According to K.S.A. 60-420, for the purpose of impairing or supporting the credibility of a witness, any party, including the party calling the witness, may examine the witness and introduce extrinsic evidence concerning any conduct by the witness and any other matter relevant to the issue of credibility. See State v. Franklin, 206 Kan. 527, 528, 479 P.2d 848 (1971); State v. Armstrong, 207 Kan. 681, 687, 486 P.2d 1322 (1971). The record contains no indication that the letter was offered for any other purpose. Therefore, the letter was probative and relevant and its admission was not error.
Aiding and Abetting Instruction
The defendant contends that the trial court erred by instructing the juiy, over objection, on aiding and abetting. The defendant acknowledges our decision in State v. Pennington, 254 Kan. 757, Syl. ¶ 4, 869 P.2d 624 (1994), wherein we stated:
“The State need not charge aiding and abetting in the charging document in order to pursue an aiding and abetting theory at trial. If, from the totality of the evidence, a jury reasonably could conclude that the defendant aided and abetted another in the commission of the crime, then it is appropriate to instruct the jury on aiding and abetting.”
However, the defendant contends there was no evidence to support the giving of an instruction on aiding and abetting.
A review of the evidence set forth above in discussing the defendant’s allegation of insufficiency of evidence establishes that a jury reasonably could conclude that the defendant aided and abetted another in the commission of the crimes. The trial court did not err in instructing the jury on aiding and abetting.
New Trial
Finally, the defendant contends he is entitled to a new trial by reason of all the errors raised above. Because those errors upon review lack merit, they provide no basis for a new trial.
Affirmed.
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The opinion of the court was delivered by
McFarland, C.J.:
William W. Harlin, Curtis Cox, and Gregory Chaney, inmates of Ellsworth Correctional Facility, violated prison rules and discipline was imposed in the form of disciplinary segregation, restriction of privileges, loss of good time, fines, or a combination thereof. Criminal charges were subsequently filed in the Ellsworth County District Court against the three individuals based upon the same incidents from which the disciplinary proceedings had arisen. The defendants filed motions to dismiss the criminal cases based upon claims they were violative of the Double Jeopardy Clauses of the United States and Kansas Constitutions. The district court granted the motions, and the State appeals therefrom.
The underlying facts may be summarized as follows.
William W. Harlin
On November 28, 1994, and March 17, 1995, Harlin struck a correctional officer on duty at the institution. In disciplinary proceedings, he was found guilty of battery (K.A.R. 44-12-324) and sentenced to the aggregate of 82 days’ segregation, 111 days’ restriction of privileges, and fined $50. Based upon these same incidents, two separate complaints were later filed in the district court, each charging Harlin with battery against a law enforcement officer, a violation of K.S.A. 21-3413(a)(2), a level 7 person felony. In one case, 94-CR-149, Judge Rohleder denied the motion to dismiss; in the other case, 95-CR-64, Judge Bennington granted the motion. Upon rehearing the motion to dismiss in No. 94-CR-149, Judge Bennington reversed Judge Rohleder’s earlier order and dismissed the case on grounds of double jeopardy.
Curtis Cox
On October 16, 1994, six balloons containing marijuana were taken from Cox’s wife, who was in the prison to visit Cox. Correspondence indicating Cox and his wife had developed a plan to deliver the marijuana to Cox had been previously intercepted. In disciplinary proceedings, Cox was found guilty of conspiring to introduce contraband into a penal institution, a violation of K.A.R. 44-12-1101 and K.A.R. 44-2-103. Cox was sentenced to 21 days’ segregation, 21 days’ restriction of privileges, and fined $10. He was later charged in the Ellsworth County District Court with one count, of solicitation to introduce contraband into a penal facility, a violation of K.S.A. 21-3826 and K.S.A. 21-3303, a level 9 nonperson felony, and one count of delivery of marijuana, a violation of K.S.A. 1995 Supp. 65-4163, a level 3 drug felony. The charges were dismissed on grounds of double jeopardy.
Gregory Chaney
On June 9, 1995, Gregory Chaney struck a correctional officer on duty in the Ellsworth Correctional Facility. In a disciplinary proceeding, Chaney was found guilty of battery, a violation of K.A.R. 44-12-324, and was sentenced to 28 days’ segregation, 21 days’ restriction of privileges, and the loss of 60 days of good-time credits. He was later charged in the Ellsworth County District Court with battery against a law enforcement officer, a violation of K.S.A. 21-3413, a level 7 person felony. The district court dismissed the charge on grounds of double jeopardy.
Standard of Review
The facts upon which the district court based its decision are uncontroverted. Where the facts are uncontroverted, a trial court decision that double jeopardy applies is subject to de novo review on appeal. In re C.M.J., 259 Kan. 854, 857, 915 P.2d 62 (1996).
Double Jeopardy Defined
We recently discussed double jeopardy in In re C.M.J., 259 Kan. at 857, stating:
“‘The Fifth Amendment Double Jeopardy Clause of the United States Constitution states: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The double jeopardy guaranty is enforceable against the states through the Fourteenth Amendment. North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Kansas also enforces an analogous double jeopardy clause in Section 10 of the Kansas Constitution Bill of Rights. It states: “No person shall ... be twice put in jeopardy for the same offense.” The double jeopardy protection guaranteed in the Kansas Constitution Bill of Rights is equivalent to the protection guaranteed in the United States Constitution. See State v. Cady, 254 Kan. 393, 396-97, 867 P.2d 270 (1994).’ [State v. Mertz, 258 Kan. 745, 749, 907 P.2d 847 (1995)].
“In Mertz, we summarized the scope of the double jeopardy protections:
‘The Double Jeopardy Clause of the United States Constitution provides three different types of protection for a person charged with a crime. Double jeopardy protection shields an accused from: (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.’ 258 Kan. 745, Syl. ¶ 3.”
Issue
The issue is broadly stated to be whether the Double Jeopardy Clause precludes the State from prosecuting an inmate who has previously been disciplined by prison authorities for the same conduct. The district court answered the question affirmatively and dismissed the charges. The actual issue is narrower. It is long-established law in Kansas that prison discipline imposed for violation of prison regulations does not bar subsequent prosecution under criminal laws for the same conduct. See Collins v. State, 215 Kan. 489, 524 P.2d 715 (1974), and State v. Williams, 208 Kan. 480, 493 P.2d 258 (1972). The issue before us may be more accurately stated as being whether two cases of the United States Supreme Court require the application of the Double Jeopardy Clause to bar the prosecution herein as held by the district court. These two cases are United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), and Montana Dept. of Rev. v. Kurth Ranch, 511 U.S. 767, 128 L. Ed. 2d 767, 114 S. Ct. 1937 (1994).
Discussion
This court has addressed the double jeopardy question in a variety of contexts since Kurth Ranch and Halper were decided. See In re C.M.J., 259 Kan. 854 (expelling a juvenile from school and adjudicating him as a juvenile offender for the same conduct do not constitute double jeopardy); State v. Jensen, 259 Kan. 781, 915 P.2d 109 (1996) (assessment and partial or complete satisfaction of tax and penalty under the Kansas Drug Tax Act do not bar subsequent criminal prosecution for drug possession); Mertz, 258 Kan. 745 (an administrative proceeding suspending a driver’s license does not bar subsequent criminal prosecution for driving under the influence of alcohol); State v. Gulledge, 257 Kan. 915, 896 P.2d 378 (1995) (assessment and payment of amounts owed under the Kansas Drag Tax Act do not constitute criminal punishment for double jeopardy purposes).
In this case, there is no question that the criminal prosecution and conviction would constitute “punishment” for the illegal acts allegedly committed within the correctional institution. Thus, the determinative issue is whether the preceding administrative disciplinary penalties constituted “punishment” under post-HalperKurth Ranch double jeopardy jurisprudence. If so, a criminal prosecution which occurs after the administrative disciplinary procedures would be “multiple punishment” for the same offense. See Mertz, 258 Kan. at 751-52.
In our recent treatment of the issue in Mertz, the defendant was arrested for driving under the influence of alcohol. While criminal charges were pending, defendant’s driver’s license was administratively suspended based on the same incident. Defendant filed a motion to dismiss in the criminal case alleging a violation of his rights under the double jeopardy clause. He contended that he had already been punished by the administrative suspension of his driver’s license. 258 Kan. at 747. Our analysis of Halper is helpful and will be quoted at some length as follows:
“The crux of the defendant’s argument is based on the definition of punishment in United States v. Halper, 490 U.S. at 448-49. In Halper, the defendant was convicted of collecting 65 false Medicare reimbursement claims. For this offense, the defendant was fined $5,000 and sentenced to prison. Later, the Government brought a civil action against the defendant, seeking $130,000 in civil penalties for the same offense. The Government’s actual damages were $585. The court held that the civil monetary sanction of $130,000 was disproportionate to the harm actually caused and that it qualified as ‘punishment.’ Since the defendant had already been criminally punished, the civil sanction constituted multiple punishment and violated double jeopardy.
“Halper states that in determining whether a sanction qualifies as ‘punishment,’ it is irrelevant whether a sanction is defined as a criminal or civil sanction. A civil sanction may constitute punishment if the sanction ‘serves the goals of punishment,’ such as retribution, and deterrence. 490 U.S. at 448. As Halper states:
‘[T]he determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty [which the sanction] may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment whén the sanction as applied in the individual case serves the goals of punishment.
‘These goals are familiar. We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. [Citation omitted.] . . . From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as abo serving either retributive or deterrent purposes, b punishment, as we have come to understand the term [expansive definition of punishment], [Citation omitted.] We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial but only as a deterrent or retribution [restrictive definition of punishment]. 490 U.S. at 448-49.
“According to Halper, the court must use common sense to determine if a civil proceeding has a retributive, deterrent, or remedial purpose. The court must determine the ‘purposes actually served by the sanction in question’ from an objective viewpoint and not from the subjective viewpoint of the defendant because ‘for the defendant even remedial sanctions carry the sting of punishment.’ 490 U.S. at 447 n.7. Finally, Halper points out that it is a rule for die rare case. 490 U.S. at 449.” 258 Kan. at 752-53.
Additionally, in Mertz, we held that Kurth Ranch, 128 L. Ed. 2d 767, did not apply. “In Kurth Ranch, the [drug] tax was found to be punishment not because of the Halper punitive purpose rule but because of several unusual features of the tax statute.” Mertz, 258 Kan. at 755. Kurth Ranch is no more applicable to the issue before us herein than it was in Mertz.
More recently, in In re C.M.J., we continued the double jeopardy discussion:
“Furthermore, a sanction is deemed to have a remedial purpose if it protects the public from harm. Even though it may appear to have punitive effects and might be interpreted as punishment, if it also can support a construction as remedial, it will not form the basis for a challenge on the grounds of double jeopardy. See Mertz, 258 Kan. 745, Syl. ¶¶ 8, 10.
“In short, a civil sanction may invoke double jeopardy protections as a form of ‘punishment’ only if it is grossly disproportional to legitimate State goals separate from those served by criminal prosecution. See Kurth Ranch, 128 L. Ed. 2d at 779, 781; Halper, 490 U.S. at 452. Neither the severity of the sanction nor the fact that it has a deterrent purpose automatically establishes that it is a form of punishment. See Kurth Ranch, 128 L. Ed. 2d at 779. Nor does the fact that the sanction has a punitive component invoke double jeopardy protection where the government’s remedial interests are tightly intertwined with its punitive interests. See U.S. v. Hernandez-Fundora, 49 F.3d 848, 852 (2d Cir. 1995) (remedial interest of maintaining order in a prison setting permits sanctions with punitive component, without being punishment for double jeopardy purposes). ‘[T]he fact that remedial concerns require “punishing” individuals for violent or other disruptive conduct [in an institutional setting] does not mean that the sanctions imposed constitute “punishment” for double jeopardy purposes.’ Hernandez-Fundora, 49 F.3d at 852.
“ ‘In Halper, the Supreme Court noted that “punishment serves the twin aims of retribution and deterrence.” Halper, 490 U.S. at 448, 109 S. Ct. 1901. However, the converse is not true: a deterrent purpose does not automatically mark a civil sanction as a form of punishment. Kurth Ranch, [511] U.S. at 767, 114 S. Ct. at 1946. General deterrence is the foremost and overriding goal of all laws, both civil and criminal, and transcends the nature of any sanction.’ Bae v. Shalala, 44 F.3d 489, 494 (7th Cir. 1995).” 259 Kan. at 859.
In Murphy v. Nelson, 260 Kan. 589, 921 P.2d 1225 (1996), we held that administrative segregation does not represent a significant and atypical hardship on the prisoner in relation to the ordinary incidents of prison life. However, we noted that disciplinary segregation was not at issue. In Amos v. Nelson, 260 Kan. 652, 923 P.2d 1014 (1996), we discussed judicial review of administrative and disciplinary segregation on claims of violation of due process.
We have not addressed the specific issue before us in the post Halper-Kurth Ranch context; however, a number of jurisdictions have and have unanimously rejected the application of double jeopardy in all but some rare extreme set of facts not before the court. See United States v. Galan, 82 F.3d 639 (5th Cir. 1996); Meeks v. McBride, 81 F.3d 717 (7th Cir. 1996); United States v. Brown, 59 F.3d 102 (9th Cir. 1995); United States v. Hernandez-Fundora, 58 F.3d 802 (2d Cir.), cert. denied 132 L. Ed. 2d 290 (1995); Garrity v. Fiedler, 41 F.3d 1150 (7th Cir. 1994), cert. denied 131 L. Ed. 2d 303 (1995); United States v. Newby, 11 F.3d 1143 (3d Cir. 1993), cert. denied 130 L. Ed. 2d 58 (1994); People v. Watson, 892 P.2d 388 (Colo. App. 1994); State v. Walker, 35 Conn. App. 431, 646 A.2d 209, rev. denied 231 Conn. 916 (1994); State v. McKenzie, 542 N.W.2d 616 (Minn. 1996); State v. Nelson, 275 Mont. 86, 910 P.2d 247 (1996); State v. Lynch, 248 Neb. 234, 533 N.W.2d 905 (1995); Hernandez v. State, 904 S.W.2d 808 (Tex. App. 1995); State v. Fonder, 162 Wis. 2d 591, 469 N.W.2d 922, cert. denied 502 U.S. 993 (1991).
Hernandez-Fundora, 58 F.3d 802, quoted favorably in In re C.M.J., 259 Kan. 854, is a representative example of how courts have addressed this issue in other jurisdictions. In Hemandez-Fundora, 'the defendant was involved in an altercation with another inmate. Following the incident, he was placed in disciplinary segregation for at least 45 days. Later, defendant was criminally charged with and convicted of assault. He moved to dismiss the criminal charges on the ground that the prosecution would violate his constitutional right not to be punished twice for the same offense. 58 F.3d at 805.
The Second Circuit Court of Appeals first noted the longstanding general rule in such cases:
“It is by now well settled that punishment’ imposed by prison authorities for infractions of prison regulations does not generally bar a subsequent criminal prosecution for the same conduct. See United States v. Rising, 867 F.2d 1255, 1259 (10th Cir. 1989) (‘administrative punishment imposed by prison officials does not render a subsequent judicial proceeding, criminal in nature, violative of the double jeopardy clause’) [collecting cases); Kerns v. Parratt, 672 F.2d 690, 691-92 (8th Cir. 1982) (per curiam) (‘[Administrative] proceedings [based upon violation of prison disciplinary rules] do not place an offender in jeopardy for purposes of the double jeopardy clause. It is well-settled that there is no bar to separate criminal prosecution. . . .’) (collecting cases); United States v. Stuckey, 441 F.2d 1104, 1105-06 (3d Cir.) (per curiam) (‘Administrative sanctions imposed by prison officials upon a prisoner following his apprehension in connection with the commission of a crime is not a bar to subsequent prosecution for the crime in á court of competent jurisdiction.’) (collecting cases), cert. denied, 404 U.S. 841, 92 S. Ct. 136, 30 L. Ed. 2d 76 (1971).” 58 F.3d at 806.
Hemandez-Fundora argued, as do the defendants here, that the United States Supreme Court’s decision in Halper changed this general mle. 58 F.3d at 806. However, the appellate court, not persuaded by this argument, both distinguished Halper on its facts and acknowledged its usefulness as a guide.
“Halper opined that the civil fine at issue in that case constituted punishment for double jeopardy purposes because of the ‘tremendous disparity’ between the civil penalty and the government’s actual damages, id. at 452, 109 S. Ct. at 1903-04, and concluded that a sanction that ‘may not fairly be classified as remedial, but only as a deterrent or retribution’ constitutes a punishment for double jeopardy purposes. Id. at 449, 109 S. Ct. at 1902. Punitive interests and remedial interests, however, are nowhere so tightly intertwined as in the prison setting, where the government’s remedial interest is to maintain order and to prevent violent altercations among a population of criminals. Accordingly, the mere fact that a sanction imposed by prison officials has a punitive component does not mean that the sanction constitutes ‘punishment’ for double jeopardy purposes.” 58 F.3d at 806.
Finding no need to distinguish between administrative segregation and disciplinary segregation in this context, the court also relied on the reasoning in Newby, 11 F.3d 1143, as follows:
“Newby reasoned that ‘prison disciplinary proceedingfs] . . . determine whether prison rules are broken and . . . maintain institutional order,’ and accordingly do not bar subsequent criminal prosecutions for the same conduct. Newby, 11 F.3d at 1145. We find this reasoning persuasive.
“In applying the teachings of Halper to this issue, Newby described the government’s remedial interest in the prison context as: ‘to encourage good conduct and to maintain order in the prison, given that the prison is a place where good order and discipline are paramount because of the concentration of convicted criminals.’ Id. Thus, the fact that remedial concerns require ‘punishing’individuals for violent or other disruptive conduct does not mean that the sanctions imposed constitute ‘punishment’ for double jeopardy purposes. Rather, as Newby concluded its discussion of this issue:
‘[A]s a general rule a prison disciplinary sanction does not bar subsequent criminal prosecution. The disciplinary sanctions imposed in this case are not so grossly disproportionate to the remedial goal of maintaining order and discipline in the prison as to constitute a punishment within the meaning of the Double Jeopardy Clause as interpreted in Halper.’ ” 58 F.3d at 806-07.
Hemandez-Fundora concluded that “subsequent prosecutions will be barred only in those exceedingly rare circumstances where the disciplinary sanction imposed is grossly disproportionate to the government’s interest in maintaining prison order and discipline.” 58 F.3d at 807. In Hernandez-Fundora’s case, 45 days of disciplinary segregation did not constitute punishment for double jeopardy purposes, and his arguments were rejected. 58 F.3d at 807.
These cases from other jurisdictions, and indeed the trial court herein, did not have the benefit of the recently decided United States Supreme Court decision of United States v. Ursery, 518 U.S. _, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996), filed on June 24, 1996. Ursery was convicted of manufacturing marijuana. On appeal, the Supreme Court considered whether the subsequent in rem forfeiture proceedings violated the Double Jeopardy Clause. The Court held that they did not. In doing so, the Court addressed arguments similar to those raised by defendants in this case: That Halper and Kurth Ranch, along with several other cases, had changed the way analysis should be conducted surrounding double jeopardy questions.
The Ursery Court rejected the Halper-Kurth Ranch argument as that argument is applied to double jeopardy and civil forfeitures. The Court stated:
“In sum, nothing in Halper [or] Kurth Ranch . . . purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause. Congress long has authorized the Government to bring parallel criminal proceedings and civil forfeiture proceedings, and this Court consistently has found civil forfeitures not to constitute punishment under the Double Jeopardy Clause. It would have been quite remarkable for this Court both to have held unconstitutional a well-established practice, and to have overruled a long line of precedent, without having even suggested that it was doing so. Halper dealt with in personam civil penalties under the Double Jeopardy Clause; Kurth Ranch with a tax proceeding under the Double Jeopardy Clause .... None of those cases dealt with the subject of this case: in rem civil forfeitures for purposes of the Double Jeopardy Clause.” 135 L. Ed. 2d at 567-68.
We recently applied the reasoning in Ursery to the Kansas Sex Offender Registration Act. State v. Myers, 260 Kan. 669, 683-85, 923 P.2d 1024 (1996). In that case, we noted that the United States Supreme Court had confined Halper “to the narrow context of its own facts: a civil penalty vastly disproportionate to the government’s damages and expenses.” 260 Kan. at 687.
The maximum penalties which could have been imposed against defendants here are restricted by regulation.
Inmates are subject to the administrative disciplinary procedure for violations of the code of conduct contained in K.A.R. 44-12-101 et seq.. This code addresses conduct ranging from personal cleanliness, tattoos, and body markings to assault and battery. The penalty for each offense depends on the seriousness of the offense. K.A.R. 44-12-1301 et seq. Class I offenses, for which these defendants were found guilty, include the following penalty provisions:
“(1) Disciplinary segregation, not to exceed 45 days;
“(2) loss of ‘good time credits,’ not to exceed six months;
“(3) extra work for up to two hours per day, not to exceed 30 days;
“(4) restriction to inmate’s own cell, not to exceed a period of 10 days;
“(5) restriction from privileges, not to exceed 60 days;
“(6) a fine, not to exceed $20.00;
“(7) restitution; or
“(8) an oral or written reprimand.” K.A.R. 44-12-1301(b).
“Good time credits” decrease the term of actual imprisonment “for good work and behavior over a period of time.” K.A.R. 44-6-101(a). The inmate must act in such a way “as to merit reduction of the term of actual imprisonment” in order to earn good time credits. K.A.R. 44-6-101(c). The disciplinary board may remove the good time credits from the inmate’s pool and reinstate the actual prison term under the procedures set out in K.A.R. 44-12-101 et seq. and K.A.R. 44-13-101 etseq.. K.A.R. 44-6-101(e).
Fines are another possible sanction under these procedures. “Fines shall be fairly and appropriately used. Fines shall not be used in such a way as to disrupt family support payments, tax payments or court-ordered restitution payments, or to interfere with the inmate’s ability to purchase basic hygiene items.” K.A.R. 44-12-1307. When an inmate is fined for a violation, the fine “may be collected immediately” (K.A.R. 44-13-610) and “shall be deposited in the inmate benefit fund.” K.A.R. 44-12-1305.
The regulations which govern prison disciplinary procedures herein and the actual discipline imposed clearly do not constitute a basis for the application of Halper and a determination that the prison discipline imposed rises to the level of punishment or multiple prosecution for double jeopardy purposes. Disciplinary rules and procedures are necessary for the control of dangerous and desperate individuals unwillingly confined in such institutions, in order to protect employees, inmates, and visitors, as well as the physical structure itself.
We conclude the district court erred when it held that the prosecution of the various criminal charges herein were barred as constituting double jeopardy by virtue of the prior disciplinary actions taken against the defendants under penal institution disciplinary regulations.
Reversed and remanded for further proceedings.
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The opinion of the court was delivered by
Six, J.:
This difficult case resolves the claim of defendant Kym Myers that the Kansas Sex Offender Registration Act (KSORA), K.S.A. 22-4901 et seq., as applied to him, violates the Ex Post Facto Clause of the United States Constitution. The determinative issue is whether KSORA constitutionally may be applied to Myers, whose offense was committed before April 14, 1994, the date KSORA took effect.
Myers was convicted in 1991 of one count of sexual battery, K.S.A. 21-3517 (Ensley 1988) and one count of rape, K.S.A. 21-3502 (Ensley 1988). The Court of Appeals reversed his convictions and remanded the case for a new trial in an unpublished opinion filed September 3, 1993. We affirmed the Court of Appeals. See State v. Myers, 255 Kan. 3, 872 P.2d 236 (1994). After remand, Myers pleaded no contest on August 15, 1994, to the aggravated sexual battery (K.S.A. 21-3518 [Ensley 1988]) of his 17-year-old victim, who was assisting her mother in cleaning Myers’ law office. Myers was ordered to be processed under KSORA as a “sex offender.” A KSORA sex offender is any person convicted of a named offense on or after July 1, 1993. Aggravated sexual battery is a named offense. K.S.A. 22-4902(a), (b)(9), and K.S.A. 22-4910. We note that if Myers’ 1991 convictions had been affirmed, he would not be subject to KSORA classification as a sex offender. After his plea in 1994, Myers filed a motion to eliminate the requirement of KSORA registration. He challenged the constitutionality of KSORA as ex post facto legislation violating Art. I, § 10 of the United States Constitution. Myers’ motion was denied, and he appealed. Our jurisdiction is under K.S.A. 20-3017. (We granted Myers’ motion to transfer to this court.)
We deny Myers’ ex post facto claim as to registration. The registration requirements of KSORA (K.S.A. 22-4904, K.S.A. 22-4906, and K.S.A. 22-4907) are remedial and thus constitutional. As applied to Myers, the public disclosure provision, K.S.A. 22-4909, imposes punishment in violation of the Ex Post Facto Clause. Myers is required to register under KSORA. However, his registration shall not be open to public inspection and shall not be subject to the provisions of the Kansas Open Records Act, K.S.A. 45-215 et seq.
Myers asserts, for the first time on appeal, two additional constitutional issues that were not argued before the district court, i.e., KSORA (1) constitutes cruel and unusual punishment and (2) violates due process guarantees. We do not reach these additional issues.
FACTS
Myers was sentenced to 2 to 5 years after his August 1994 no contest plea. He was given credit for time served in prison and was placed on probation for 1 year. Myers had no prior convictions. The district court ruled, over Myers’ objection, that KSORA applied.
Myers raised the ex post facto issue in his pro se brief supporting his motion to modify probation conditions to eliminate registration under KSORA:
"The defendant did thereafter register at the Johnson County Sheriff’s Office. Since that time the Defendant’s name and address have appeared both on television and in local newspapers naming him as a convicted sex offender. As a result of this the Defendant has been evicted from a rental unit occupied by his family, and is currently on the verge of being evicted and forced to leave his current residence.”
The Record Below
At the hearing in the district court, both sides agreed that Myers’ motion to eliminate the requirement to comply with KSORA presented a question of law and could be handled by oral argument. The judge responded: “Well, to me if we can handle it by argument and proffers through oral statement, unless you all have some evidence that you want to present on the other side....” After Myers’ attorney advanced the ex post facto argument and presented Myers’ pro se brief on that issue, Myers requested permission to address the court. The judge admonished him: “Well, Mr. Myers, I’ll allow you to speak: Reserve it to whatever legal matter in rebuttal that you might wish to make and that in addition to your brief.” Despite the admonishment, during his argument, Myers described his life as a registered sex offender:
“Now, [registration] has caused me more problems than going to prison. I was evicted from my mother’s apartment; left me virtually homeless. I had nowhere to go. I didn’t have anyone to rent to me. I didn’t know what to do. I had to go to a halfway house. I’ve been on television. I’ve been in — Overland Park publishes this every Friday.
“I can’t live like this and every morning I get up to look at the paper — I’m paranoid. I can’t take this. I’m about ready to crack, okay? I Uve with 12 other guys. They are about ready to kick me out on the street. I have no money. I don’t know what I’m going to do. At least in prison I knew I had a place to sleep. I would rather go back to prison. I can’t do this.”
Myers’ statements, which were not under oath, went beyond the restrictions that the judge imposed. The State neither objected to nor disputed the statements. The State did not request that Myers testify under oath. Both sides had agreed, and the judge specifically mentioned, that oral proffers could be made.
Although Myers did not specifically designate his statements concerning his housing difficulties as a proffer, under the circumstances, we view them as such. Myers’ statements about the consequences he suffered because of registration provide a sufficient record to consider the ex post facto issue.
DISCUSSION
The State asserts that KSORA is not an ex post facto law because it is neither punitive in nature or effect. According to the State, KSORA is a regulatory statute designed for the legitimate governmental goals of public safety and law enforcement assistance. The State claims that any stigma or ostracism faced by Myers in his personal or professional life is due not to registration and disclosure, but to his underlying conviction as a sex offender.
The Federal Statute
42 U.S.C. § 14071 (1994), the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program Act (the Act), was enacted as part of the federal Violent Crime Control and Law Enforcement Act of 1994. The Act encourages states to implement registration programs for sex offenders against children in order for the state to be eligible for certain federal funds for drug control. However, the Act does not require that states apply their sex-offender registration laws retroactively. The Act was amended May 17, 1996 (to be cited as Megan’s Law), authorizing disclosure for any purpose permitted under state law: A law en forcement agency “shall release relevant information that is necessary to protect the public concerning a specific person required to register.” Pub. L. No. 104-145, 110 Stat. 1345 (1996).
Sex Offeiider Registration Laws in Other States
A review of the laws of other states concerning sex offenders and their public disclosure provisions, if any, is helpful in considering the constitutionality of KSORA as applied to Myers. All 50 states have enacted sex offender registration laws of varying scope. For a listing of 50 states and their sex offender registration laws see People v. Ross, 169 Misc. 2d 308, 646 N.Y.S.2d 249 (N.Y. Sup. 1996).
Although the laws in a heavy majority of the states still require that the registry information be kept confidential and made available for use only by law enforcement agencies, some of the more recently enacted registration laws (such as in Iowa, North Carolina, and Vermont) show a trend toward limited public disclosure. For example, the Iowa and North Carolina statutes allow disclosure of registry information for a specifically requested name to the person making the request. Iowa Code Ann. § 692A.13(6) (West 1996 Supp.); N.C. Gen Stat. § 14-208.10(a) (1995 Supp.). In Vermont, when the newly enacted statute becomes effective on September 1, 1996, certain authorized employers can request registry information when necessaiy to protect the public. 1996 Vt. Laws P.A. 124, § 1 (to be codified at Vt. Stat. Ann. tit. 13, § 5402 [3]).
Many registration laws apply to persons committing sex offenses before the effective dates of the laws. See, e.g., Mich. Comp. Laws Ann. § 28.723 (West 1996 Supp.) (sex offenders convicted after October 1, 1995, or convicted on or before that date but on probation or parole or in jail on that date required to register).
In a few states, such as New Jersey and New York, the laws provide for community notification concerning certain registered sex offenders, depending on the risk level of the offender. See N.J. Stat. Ann. §§ 2C: 7-6, 7-8 (West 1995); N.Y. Correct. Law § 168-1(6) (McKinney 1996 Supp.). The New Jersey provisions apply to persons committing certain sex offenses whose conduct is characterized by compulsive, repetitive behavior, regardless of when the offenses were committed. N.J. Stat. Ann. § 2C: 7-2(b)(l) (West 1995). See Opinion of the Justices to the Senate, 423 Mass. 1201, 668 N.E.2d 738 (1996), in which the Supreme Judicial Court of Massachusetts answered questions concerning the constitutionality of pending S.B. 2276 proposing a sex offender community notification law modeled after New Jersey’s.
In Pennsylvania, the newly enacted community notification provisions expressly apply only to persons committing sex offenses after the effective date of the law, thus avoiding an ex post facto challenge. 42 Pa. Cons. Stat. Ann. § 9793 (1996 Supp.).
Myers points out that, besides the Kansas statute, only the Georgia and South Dakota statutes allow unrestricted public access to registrant information and South Dakota does not permit publication of the information. Ga. Code Ann. <§§ 42-9-44.1(e) (1994); S.D. Codified Laws Ann. § 1-27-1 (1996 Supp.); and S.D. Codified Laws Ann. § 22-22-40 (1996 Supp.). Also, Georgia’s statute applies only to child sex offenders, Ga. Code Ann. § 42-9-44.1(a) (1994), and South Dakota limits the offender’s duty to register to fewer crimes than does Kansas. S.D. Codified Laws Ann. § 22-22-30 (1996 Supp.). Myers contends he would not have been required to register under either the Georgia or South Dakota acts.
We observe that Illinois has enacted a child sex offender community notification law which became effective June 1, 1996. Ill. Comp. Stat. Ann. ch. 730, 152/101 et seq. (Smith-Hurd 1996 Supp.). That law provides for retroactive application, limited community notification, and public access to registry information on child sex offenders. Ill. Comp. Stat. Ann. ch. 730, 152/125(c) (Smith-Hurd 1996 Supp.).
Myers suggests that KSORA’s disclosure provision is the broadest in the country. The State characterizes KSORA, which allows public access as opposed to mandating dissemination of such information, as being in the “middle” regarding disclosure. We have found no other state’s disclosure statute to be broader than KSO-RA’s.
The Ex Post Facto Clause of the United States Constitution
Myers contends that KSORA is criminal in nature because it is punitive in both purpose and effect. Because KSORA is punitive, Myers reasons, its application to him is ex post facto and unconstitutional. Myers’ offense, occurred before April 14,1994, the date KSORA took effect. See L. 1994, ch. 107, § 10.
The constitutionality of a statute is a question of law; thus, we exercise an unlimited, de novo , standard of review. See State v. Mertz, 258 Kan. 745, 748, 907 P.2d 847 (1995).
We are mindful of the. frequently stated rules applied when a statute is questioned as unconstitutional:
“The constitutionality of a statute is presumed.. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt.” State v. Bryan, 259 Kan. 143, Syl. ¶ 1, 910 P.2d 212 (1996).
Our focus is upori the application of KSORA to Myers’ factual situation. Article I, Section 10, of the United States Constitution provides: “No State shall . ., pass any ... ex post facto Law.”
The Ex Post Facto Clause encompasses:
“1st. Every law that makes 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 makes 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.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648 (1798).
The Colder categories were rephrased in Beazell v. Ohio, 269 U.S. 167, 169-70, 70 L. Ed. 216, 46 S. Ct. 68 (1925):
“[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.” (Emphasis added.)
In Collins v. Youngblood, 497 U.S. 37, 50, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990), the Court re-adopted the Colder 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 Rring had broadened those categories to include any change which “alters the situation of á party to his disadvantage.” Our analysis in Myers’ case concerns whether KSORA “makes more burdensome the punishment for a crime, after its commission.” 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 (1981).
“These [including-the Ex Post Facto Clause] are towering constitutional provisions of great importance to individual dignity, freedom, and liberty.” John Doe v. Poritz, 142 N.J. 1, 43, 662 A.2d 367 (1995).
“James Madison emphasized their fundamental role in our Constitution:
‘Bills of attainer, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State Constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us nevertheless, that additional fences against these dangers ought not to be omitted. Very properly therefore have the Convention added this constitutional bulwark in favor of personal security and private rights.’
[The Federalist No. 44, at 301 (James Madison) (Jacob E. Cooke ed., 1961).]” 142 N.J. at 113 (Stein, J., dissenting).
The constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them. Collins, 497 U.S. at 41. In State v. Nunn, 244 Kan. 207, 219, 768 P.2d 268 (1989), wé applied the following two-step analysis prescribed in Graham, 450 U.S. at 29, for determining whether a statute is an ex post facto law: “ ‘For a criminal or penal law to be ex post facto, two elements must be present: the law “must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” [Citations omitted.]’ ”
The State concedes that the statute applies retroactively to Myers. Thus, we concentrate on the penal element of the ex post facto test as modified by Collins: Does KSORA impose punishment on Myers?
The Court in De Veau v. Braisted, 363 U.S. 144, 160, 4 L. Ed. 2d 1109, 80 S. Ct. 1146 (1960), held that a statute barring certain unions on the New York waterfront from collecting dues if any union officers or agents were ex-felons was not an ex post facto law, reasoning:
“The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation . . . .”
If the legislative intent of the statute is to punish, then the inquiry is ended. See Trop v. Dulles, 356 U.S. 86, 95-96, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958) (statute revoking citizenship for military desertion held invalid as cruel and unusual punishment).
We turn now to an examination of legislative intent.
Legislative Intent
The State concedes that KSORA contains no express statement of legislative intent or purpose. However, both parties have cited legislative history. Myers argues that the legislative history shows punitive intent. The State counters that the intent is regulatory. We agree with the State.
The Habitual Sex Offender Registration Act was first enacted in 1993 as K.S.A. 1993 Supp. 22-4901 et seq. L. 1993, ch. 253, § 17. It was amended in 1994 and renamed the “Sex Offender Registration Act” (KSORA). L. 1994, ch. 107, § 1. The 1993 version applied to “habitual sex offenders,” defined at K.S.A. 1993 Supp. 22-4902(a) as those convicted a “second or subsequent time” after the effective date of the act for a sexually violent crime. Myers, who had no previous conviction, would not be a sex offender required to register under the 1993 act.
K.S.A. 1993 Supp. 22-4909 provided:
“The statements or any other information required by this act shall not be open to inspection by the public and specifically are not subject to the provisions of the Kansas open records act, K.S.A. 45-215 etseq., and amendments thereto, nor may this data be obtained by any person other than a law enforcement officer or other individual as may be authorized specificalhj by law. (Emphasis added.)
KSORA defined “sex offender” as anyone convicted of a sexually violent crime after the effective date of the act. K.S.A. 22-4902(a). Although K.S.A. 22-4910 states that July 1, 1993, is the effective date, L. 1994, ch. 107, § 10 provides: “This act shall take effect and be in force from and after its publication in the Kansas register.” KSORA was published in the Kansas Register on April 14, 1994.
The offender is required to register within 15 days of coming into any county of residence or where temporarily domiciled more than 15 days. K.S.A. 22-4904. The offender is required to register for 10 years from the first conviction or release from confinement, and upon a second or subsequent conviction, for life. K.S.A. 22-4906. The most significant change was the elimination of confidentiality of the information required with registration.
K.S.A. 22-4909 provides:
“The statements or any other information required by this act shall be open to inspection in the sheriff’s office by the public and specifically are subject to the provisions of the Kansas open records act, K.S.A. 45-215 et seq., and amendments thereto.”
KSORA was passed in the wake of public outcry following the tragic July 1993 murder of Stephanie Schmidt by Donald Ray Gideon, a co-worker who had prior convictions for rape and aggravated sodomy. See State v. Gideon, 257 Kan. 591, 595-96, 614, 894 P.2d 850 (1995).
After the murder, Stephanie’s parents helped form an ad hoc task force which proposed legislation concerning sex offenders, including H.B. 2661 (which became KSORA). Several people from the task force testified before the House Committee on Judiciary in favor of H.B. 2661, as did the Attorney Genéral. Excerpts from the Minutes of the House Committee on Judiciary for January 26, 1994 show that the overriding concern behind H.B. 2661 was promotion of public safety with public access to information on the criminal history of released sex offenders.
“Our final work product is for Stephanie, but more importantly our work and the work of others will hopefully prevent future tragedies. ...
“These bills will make more information available to the public in order to help protect them from a class of criminal which is very likely to repeat and repeat its crimes.” Statement of Representative Gary Haulmark.
“It is up to you to take bold steps forward in the prevention and awareness required to save lives: lives like Stephanie’s . . . lives like your children’s and . . . fives of your families and the fives of all Kansans.
“Stephanie’s death was the second offense of her rapist/murderer. Now that she has been killed, the law says her assailant should register. Had he been registered in the first place, Stephanie might be alive today. . . .
“The two bills before you will make a difference. [The second bill, H.B. 2660, would have required probation officers to notify employers by mail if they have hired a sexually violent felon. H.B. 2660 was not enacted.] They will allow the living to take precautionary steps: to make decisions that would save their fives.” Statement of Stephanie’s mother, Peggy Schmidt.
“I would encourage you to pass these bills [H.B. 2660 and 2661] and to step forward boldly and proudly. Make these protective steps to help the public through awareness of any sex offender’s release; protective steps to promote the rights of employers to know who they are hiring, and protective steps that would hold the rights of public safety over and above the rights of convicted felons, murderers, and rapists.” Statement of Stephanie’s father, Gene Schmidt.
“Another problem with the current law is that the registration information is only open to law enforcement agencies, not the community. For it to be available to the public is an invasion of the criminals’ right to privacy. But isn’t it an invasion of rights when those criminals turn around and rape or murder innocent individuals?” Statement of Stephanie’s sister, Jeni Schmidt.
“The current law requires sex offenders to register only after the second offense. Countless studies have shown that more often than not a sex offender’s ‘first’ offense is actually just the first time he or she has been caught. Why give them yet another opportunity to cause more damage and destroy more fives?
“The registration information needs to be open to the public, not just to law enforcement agencies as it is under the current law. The purpose of the registration is to protect the public, but how can we do that if the public doesn’t have the right to know when a convicted offender is residing in their community — in fact may be their next door neighbor, or someone they work with?” Statement of Robert T. Stephan, Attorney General.
The Senate Committee on Judiciary also held hearings on H.B. 2661. Statements- similar to those made before the House Com mittee on Judiciary were presented. Minutes of Senate Committee on Judiciary, March 21, 1994.
A representative of the American Civil Liberties Union expressed constitutional concerns in opposing H.B. 2661 and H.B. 2660.
We conclude that the legislative history suggests a nonpunitive purpose — public safety'. However, our analysis does not end with our “public safety” conclusion. Even when the legislative intent behind the statute is nonpunitive, we should ask whether the “statutory scheme was so punitive either in purpose or effect as to negate that intention.” United States v. Ward, 448 U.S. 242, 248-49, 65 L. Ed. 2d 742, 100 S. Ct. 2636 (1980). “ *[0]nly the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground.’ ” 448 U.S. at 249 (quoting Flemming v. Nestor, 363 U.S. 603, 617, 4 L. Ed. 2d 1435, 80 S. Ct. 1367 [1960]). The legislation must be examined to determine if, in Myers’ situation, KSORA has a punitive effect sufficient to negate the nonpunitive purpose.
The Punitive/Nonpunitive Effect Review
In many cases involving ex post facto challenges to sex offender registration statutes, courts have applied the factors enumerated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963), to determine whether the statute’s effect is punitive. Mendoza-Martinez held that divesting American citizenship for draft evasion or military desertion was “punishment” and the procedural protections of the Fifth and Sixth Amendments applied. 372 U.S. at 167. The factors are:
“[1] [w]hether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment — retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned . . . .” 372 U.S. at 168-69.
See Doe v. Pataki, 919 F. Supp. 691, 700 (S.D.N.Y. 1996); Rowe v. Burton, 884 F. Supp. 1372, 1378 (D. Alaska 1994); State v. Noble, 171 Ariz. 171, 175, 829 P.2d 1217 (1992); State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995); State v. Ward, 123 Wash. 2d 488, 499, 869 P.2d 1062 (1994). Courts have applied the Mendoza-Martinez factors when the legislature has not indicated whether the statute is intended to be punitive or regulatory, Manning, 532 N.W.2d at 247, or when conclusive evidence of legislative intent is unavailable. Ward, 123 Wash. 2d at 500. The Mendoza-Martinez factors have been applied even when the statutory design was found to display a purpose to regulate and not to punish. Burton, 884 F. Supp. at 1377-78.
Other courts, in considering ex post facto challenges to sex offender registration statutes, have rejected the Mendoza-Martinez factor analysis. See Artway v. Attorney General of State of N.J., 81 F.3d 1235, 1262, reh. denied 83 F.3d 594 (3d Cir. 1996):
“Nevertheless, like the New Jersey Supreme Court in Doe v. Poritz, 142 N.J. at 63-73, 662 A.2d 367, we think it wise to heed the Supreme Court’s advice: Mendoza-Martinez is inapplicable outside the context of determining whether a proceeding is sufficiently criminal in nature to warrant criminal procedural protections of the.Fifth and Sixth Amendments. See Austin v. United States, 509 U.S. 602, 610 n.6, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993)].”
See also Opinion of the Justices, 423 Mass, at 1222 (“without some indication of the weight and priority of these [Mendoza-Martinez] factors, however, that test risks an unmanageable indefiniteness.”).
The New Jersey Supreme Court in John Doe concluded that the Mendoza-Martinez test was not relevant to an ex post-facto analysis. John Doe observed that the Mendoza-Martinez Court “nowhere suggested] that consideration of all of the factors together-is somehow the legally required method of resolving the issue” of whether a statute was penal or regulatory. 142 N.J. at 65. John Doe, after rejecting the Mendoza-Martinez factors, describes the method of determining “punitive impact”:
“We do not hold that legislative intent is the sole determinant of ‘punishment’ despite the dissent’s claim that we do. Obviously, what the Legislature does is as important as what it says. Characterization of a provision or sanction as punishment depends, as we have noted, not only on the legislative purpose but on the implementing provisions. If the implementing provisions go beyond that regula toiy purpose — if they are ‘excessive’ in fact — and have a punitive impact, punishment results, regardless of claimed regulatory intent. That is the central thrust of Austin [v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993),] and [Untied States v.] Halper[, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989),] and of our analysis in this opinion.” 142 N.J. at 75.
In resolving whether a statute has such a punitive impact as to make it punishment, the Artway court speaking through Judge Becker, in a scholarly analysis, synthesized several recent United States Supreme Court cases (California Dept. of Corrections v. Morales, 514 U.S. 499, 131 L. Ed. 2d 588, 115 S. Ct. 1597 [1995]; Montana Dept. of Rev. v. Kurth Ranch, 511 U.S. 767, 128 L. Ed. 2d 767, 114 S. Ct. 1937 [1994]; Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 [1993]; and Halper, 490 U.S. 435). 83 F.3d at 1254-61. The Third Circuit in Artway developed a three-prong test for declaring when a legislative act constitutes “punishment” for ex post facto and double jeopardy purposes: whether (1) the actual purpose of the law is punitive or remedial, (2) the objective purpose is punitive or remedial, and (3) its effect is sufficiently punitive. The objective purpose prong, in turn, had three subparts. Applying this three-prong test to New Jersey s sex offender registration law, known as Megan’s Law. Art-way determined that the registration requirements of the law did not violate the Ex Post Facto Clause or the Double Jeopardy Clause. 81 F.3d at 1264-67. The claims concerning the notification portion of the law were not ripe for review because Artway had left New Jersey and had yet not been classified as an offender subject to notification. 81 F.3d at 1246-53.
W.P. v. Poritz, 931 F. Supp. 1199 (D.N.J. 1996), addressed ex post facto and double jeopardy claims concerning the notification provisions in Megan’s Law. W.P. arose from a class action filed by New Jersey sex offender registrants who had been notified of their classifications as Tier II (moderate risk) or III (high risk) offenders for sex offenses committed before the effective date of the law. Upholding the notification provisions against those claims, W.P. followed the outlines of the test set forth in Artway, but noted that United States v. Ursery, 518 U.S. _, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996), decided after Artway, “alters the analysis to be employed in the case at bar.” W.P., 931 F. Supp. at 1207. The W.P. court said:
“Ursery expressly rejects the philosophical foundation of Artway: that a universal rule for the definition of ‘punishment’ can and should be derived through a ‘synthesis’ achieved from analyzing the Supreme Court’s recent decisions in Halper, Austin, Kurth Ranch and Morales. . . .
“The Supreme Court has now stated that Halper, Austin, Kurth Ranch, (by implication Morales), and now Ursery cannot be employed to establish a ‘synthesis’ that generates a universal analytical framework for defining ‘punishment’ in all cases.” 931 F. Supp. at 1208-09.
However, W.P. observed that certain considerations common to those cases should be employed in deciding whether the notification provisions imposed “punishment”:
“These common considerations are the expressed intent of the legislature as reflected in the legislation itself and the legislative history; the ‘purpose’ of that legislation, viewed objectively, particularly if that demonstrates a potential for a more punitive objective; a balancing of remedial and punitive goals; an analysis of how such laws have been considered historically, if diere is any clear historical analogue; and a review of the ‘effect’ of such legislation, if that effect is extreme or severe.” 931 F. Supp. at 1209.
W.P. noted further:
“What Ursery teaches us, however, is that such considerations may not be transformed into a rigid series of hurdles which must be surmounted, one after the other, before the legislation can survive an ex post facto or double jeopardy challenge. Rather this Court, in an analysis similar to that in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) (although the factors considered are not identical), must weigh these considerations in a less structured fashion to reach its decision.” 931 F. Supp. at 1209.
Because of the importance of Halper and Austin in the punitive/ nonpunitive analysis of sex offender registration and disclosure statutes advanced in John Doe and Artway, we turn to a review of Ursery. Ursery considered the Mendoza-Martinez factors in its double jeopardy analysis. In Ursery, the Court considered whether civil forfeiture proceedings under 21 U.S.C. § 881(a)(6) and (7) (1994) violated the Double Jeopardy Clause. The Court reviewed two cases. In the Sixth Circuit case, United States v. Ursery, 59 F.3d 568 (6th Cir. 1995), the government initiated civil forfeiture proceedings against Ursery’s house, alleging it had been used to facilitate illegal drug transactions. Ursery was later convicted of a drug charge. In U.S. v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. 1994), civil in rem proceedings were filed against certain items, including currency allegedly involved in a money laundering scheme and felonious drug transactions. The owners were later convicted on drug and money laundering charges, and forfeiture was granted against their property. The Sixth Circuit reversed Ursery’s conviction, and the Ninth Circuit in $405,089.23 reversed the forfeiture judgment, both courts relying on Halper and Austin. In a split decision (Justice Stevens dissenting; Justices Kennedy, Scalia, and Thomas concurring), the Supreme Court reversed, distinguishing Halper, Austin, and Kurth Ranch and relying instead upon United States v. One Assortment of 89 Firearms, 465 U.S. 354, 79 L. Ed. 2d 361, 104 S. Ct. 1099 (1984).
The Court observed that Halper considered whether a civil penalty constituted “punishment” for double jeopardy purposes. In Halper, a fine of $130,000 was sufficiently disproportionate to the government’s damages and expenses, estimated at $585, as to constitute a second punishment in violation of double jeopardy. 490 U.S. at 437, 452. The Ursery Court noted the historical distinction between civil forfeiture and civil penalties and that the balancing test used in Halper (value of the fine versus amount of the government’s damages) had never been applied in forfeiture cases. 116 S. Ct. at 2145.
The Ursery Court also distinguished Austin: .“The holding of Austin was limited to the Excessive Fines Clause of the Eighth Amendment, and we decline to import the analysis of Austin into our double jeopardy jurisprudence.” 116 S. Ct. at 2147. Kurth Ranch was distinguished because it dealt “with a tax proceeding under the Double Jeopardy Clause.” 116 S. Ct. at 2147.
After distinguishing Halper, Austin and Kurth Ranch, the Ursery Court stated: “[T]his Court consistently has found civil forfeitures not to constitute punishment under the Double Jeopardy Clause.” 116 S. Ct. at 2147. The Court then applied the two-part test used in 89 Firearms (taken from Ward, 448 U.S. at 248-49) to determine whether a forfeiture proceeding is civil or criminal in nature: •
“First, we ask whether Congress intended proceedings under 21 U.S.C. § 881, and 18 U.S.C. § 981, to be criminal or civil. Second, we turn to consider whether the proceedings are so punitive in fact as to ‘persuade us that the forfeiture proceeding^] may not legitimately be viewed as civil in nature,’ despite Congress’ intent. 89 Firearms, 465 U.S. at 366.” 116 S. Ct. at 2147.
Finding intent that the proceedings are civil, the Court in Ursery moved to the second stage and found little evidence “suggesting that forfeiture proceedings . . . are so punitive in form and effect as to render them criminal despite Congress’ intent to the contrary.” 116 S. Ct. at 2148.
Ursery then identified the nonpunitive goals of the forfeiture provisions (encouraging property owners not to permit their property to be used for illegal purposes; ensuring people do not profit from illegal acts). 116 S. Ct. at 2148-49. The Court ended its analysis with the following:
“Other considerations that we have found relevant to the question whether a proceeding is criminal also tend to support a conclusion that § 981(a)(1)(A) and §§ 881(a)(6) and (a)(7) are civil proceedings. See Ward, [448 U.S. at] 247-248, n. 7, 249 (listing relevant factors and noting that they are neither exhaustive nor dispositive).” 116 S. Ct. at 2149.
The cite to Ward refers specifically to the Mendoza-Martinez factors. The Court then discussed four of those factors, finding that (1) in rem. civil forfeiture has historically not been regarded as punishment; (2) the government need not demonstrate scienter to establish forfeiture; (3) though forfeiture may serve the purpose of deterrence, that purpose may serve civil as well as criminal goals; and (4) though the statutes are tied to criminal activity, this was not sufficient to render the statutes punitive. 116 S. Ct. at 2149. Ursery blunted deterrence as a factor pointing toward penal effect, at least in the forfeiture context.
Because Ursery was decided on the grounds that civil in rem forfeiture was determined not to impose punishment for double jeopardy purposes, the majority’s use of the two-part test from 89 Firearms (including the Mendoza-Martinez factors) for determining whether a proceeding is criminal in nature implies that the Mendoza-Martinez factors should be considered as part of the determination of whether punishment has been imposed. Ursery leaves open the question of whether that same test should be used as part of ex post facto analysis.
The majority in XJrsery labeled the sweeping language in Halper to the effect that “[a] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment” as dictum. Halper was confined to the narrow context of its own facts: a civil penalty vastly disproportionate to the govemménts damages and expenses. 116 S. Ct. at 2145, n.2.
The W.P. court read Ursery as changing the approach the Third Circuit used in Artway tó a less rigid one. The “considerations” used in W.P. to determine if the Megan’s Law notification provision imposed punishment, 931 F. Supp. at 1209, are similar to the two-part test in Ward, 89 Firearms, and Ursery, with a few of the Mendoza-Martinez factors added. Although often re-labeled, the Mendoza-Martinez factors continue to reappear in some form in ex post facto and double jeopardy analysis. Certain factors are given more weight in the analysis and others totally disregarded, depending on the context. We conclude that Ursery has endorsed the Mendoza-Martinez factors for consideration in the punitive/non-punitive effect analysis.
Ex Post Facto Challenges in Other jurisdictions
Sex offender registration and disclosure statutes have been constitutionally challenged, often on the grounds that such statutes are ex post facto laws. KSORA’s disclosure section, K.S.A. ,22-4909, appears to be the broadest provision to receive an ex post facto challenge. Neither the parties in this case nor our independent research have located a case upholding the constitutionality of a sex offender statute providing for unlimited public disclosure., Statutes held constitutional when challenged on ex post facto grounds have provided for: no public disclosure, see, e. g., Snyder v. State, 912 P.2d 1127, 1129 (Wyo. 1996) (Wyoming statute allows access only to those already authorized by law to receive criminal history information); limited disclosure, see, e.g., Noble, 171 Ariz. at 176 (in Arizona, information only available in statutorily specified circumstances where it serves regulatory purpose); or carefully tai lored community notification, see, e.g.,John Doe v. Poritz, 142 N.J. 1, 74, 662 A.2d 367 (1995) (New Jersey statute tailors scope of notification to offender’s risk level).
Of the sex offender registration laws that have successfully overcome ex post facto challenges, none have provided for unlimited public access to the registered sex offender information. See, e.g., Opinion of the Justices, 423 Mass, at 1227 (pending Massachusetts legislation proposing community notification law not facially punitive); John Doe, 142 N.J. at 73-75 (under New Jersey law, community notification appropriate only after a due process hearing involving judicial review determining thát the offender poses sufficient risk); State v. Costello, 138 N.H. 587, 590, 643 A.2d 531 (1994) (New Hampshire registered information kept confidential by authorities); Ward, 123 Wash. 2d at 502 (Washington law authorizes release of sex offender registration information to the public when necessary for public protection); People v. Starnes, 273 Ill. App. 3d 911, 653 N.E.2d 4 (1995) (Illinois child sex offender registration information kept confidential; Ill. Cons. Stat. Ann. ch. 730, 150/9 [Smith-Hurd 1996 Supp.]); Manning, 532 N.W.2d at 246 (Minnesota registered information kept private and used only for law enforcement purposes).
The Arizona sex offender registration act was upheld in Noble, 171 Ariz. 171. The Arizona Supreme Court reviewed two conflicting Court of Appeals panel decisions, after each panel had applied the Mendoza-Martinez factors to determine if the registration requirement was punishment. The Arizona registration requirements were similar to those in KSORA. See Ariz. Rev. Stat. Ann. § 13-3821 (1989). Although the law contained no notification provisions, it did provide for release of information concerning the registered sex offender’s record to
“noncriminal justice agencies for evaluating prospective employees, public officials, or volunteers; governmental licensing agencies for evaluating prospective licensees; prospective employers and volunteer youth-service agencies whose activities involve regular contact with minors; and the department of economic security and the superior court for determining the fitness of prospective custodians of juveniles.” 171 Ariz. at 176 n.8 (citing Ariz. Rev. Stat. Ann. § 41-1750[B][8], [9], (11], [13] [1992]).
Noble reasoned that registration did not impose any affirmative disability or restraint on the offender. Registration did not restrain or inhibit the offender’s movement- or activities, although it did make information available in “statutorily specified circumstances where it serves a clearly regulatory purpose.” 171 Ariz. at 176. Noble observed that registration has traditionally been viewed as punitive (referencing Nathaniel Hawthorne's The Scarlet Letter), but noted that the provisions ■limiting access to the information “dampen[ed] its stigmatic effect.” 171 Ariz. at 177. The registration requirement served a regulatory purpose by facilitating law enforcement and aiding in investigative work, and as applied to child sex offenders (because of more 'significant risk of' recidivism), was not excessive in relation to the noripunitive-purpose. 171 Ariz. at 177-78. Noble implies that if disclosure of the information had not been statutorily limited, it would be regarded as the kind of affirmative disability or restraint usually associated with criminal punishment. 171 Ariz. at 176. -
The constitutionality of the Washington sex offender registration and disclosure law also withstood an ex post facto challenge. Ward, 123 Wash. 2d 488. The appellants in Ward attacked the disclosure provisions, which provided that “[p]ublic agencies are authorized to release relevant and necessary information regarding sex offenders to the public when the release of the information is necessary for public protection.” 123 Wash. 2d at 502 (quoting Wash. Rev. Code § 4.24.550[1] [1994]). Ward noted thát existing law already provided for public disclosure of conviction information. 123 Wash. 2d at 501.
In interpreting the statutory disclosure provisions, Ward judicially imposed the following restrictions:
“We note that the statute [Wash. Rev. Code § 4.24.550(1)], on its face, requires the disclosing agency to have some evidence that the offender poses a threat to the community. Absent evidence of such a threat, disclosure-would serve no legitimate purpose. Therefore, we hold that, a public agency must, have some evidence of an offender’s future dangerousness, likelihood of reoffense, or threat to-the community, to justify disclosure to .the public in a given case. This statutory limit ensures that disclosure occurs to prevent future harm, not to punish past offenses. . \.
"... An agency must disclose only that information relevant to and necessary for counteracting the offender’s dangerousness.
“[T]he geographic scope of dissemination must rationally relate to the threat posed by the registered offender. . . . The scope of disclosure must relate to the scope of the danger. . . .
“[W]e leave to the appropriate agencies the specific decisions of whether, what, and where to disclose within the parameters outlined above.” 123 Wash. 2d at 503-04.
Ward, concluded that Washington’s disclosure provisions did not “alter the standard of punishment which existed under prior law,” finding “that the statutory limits on disclosure ensure that the potential burdens placed on registered offenders fit the threat posed to public safety.” 123 Wash. 2d at 50.4. The disclosure provision in KSORA contains no restrictions. Registration information is “open to inspection in the sheriff’s office by the public.” K.S.A. 22-4909.
The Supreme Court of New Hampshire upheld that state’s sex offender registration act from an ex post facto attack in Costello, 138 N.H. 587. The sex offender was required to register with the state police and to report a current address annually to the local law enforcement agency. The information is kept confidential within the law enforcement community. Costello held that the non-penal, or regulatory purpose of the legislation was “manifest” and that the punitive effect of registration was de minimis. 138 N.H. at 591.
In John Doe, 142 N.J. 1, the New Jersey Supreme Court found New Jersey’s Megan’s Law to be lacking in its original form but by the court’s crafting of a judicial review procedure, upheld the act against ex post facto, double jeopardy, bill of attainder, and cruel and unusual punishment attacks. John Doe determined that the registration and notification laws implicated a sex offender’s liberty interest in privacy and reputation and triggered due process rights. The fundamental fairness doctrine required a hearing and accompanying judicial review before statutory notification of the community for sex offenders identified as moderate and high risk (Tier II and Tier III). 142 N.J. at 107. John Doe interpreted the statute and judicially revised the Attorney General Guidelines on risk level assessment and notification to conform with the court’s notion of what was required to provide adequate due process. The court augmented its holding in a later order by specifically outlining the procedure to be followed in such review. John Doe acknowledged that the “basic attack on these laws is the alleged excessiveness of community notification.” 142 N.J. at 29.
State v. Babin, 637 So. 2d 814 (La. App. 1994), considered conditions of parole requiring Babin, a sex offender, to notify people within a 1-mile radius of his residence and the school district superintendent of Babiris conviction. He was also required to publish notice of his conviction twice within the official journal of the local governing authority, in compliance with legislation enacted after Babin committed the crimes. Without any analysis, the Babin court declared the notification requirements unconstitutional as ex post facto legislation. But see State v. Sorrell, 656 So. 2d 1045, 1048 (La. App. 1995) (Louisiana sex offender registration statute was not an ex post facto law as applied to a rapist convicted before enactment but paroled afterwards. Registration and notification requirements were imposed as a condition of parole, and the law in effect at the time of release should govern the terms of release.).
In State v. Manning, 532 N.W.2d 244 (Minn. App. 1995), the Court of Appeals of Minnesota determined that the Minnesota sex offender registration statute was not an ex post facto law. The registered information includes address, fingerprints, photograph, and other information required by the bureau of criminal apprehension, and such information is only to be used “for law enforcement purposes.” Minn. Stat. § 243.166 (1992 & 1993 Supps.). The Manning court determined that the statute did not impose an affirmative restraint or disability. Manning reasoned that registration is not historically regarded as punishment (noting that the registration information is confidential), the deterrent effect of registration is minimal, and the law has a nonpunitive purpose: to help police investigations. 532 N.W.2d at 248.
Although not an ex post facto case, the California Supreme Court determined in In re Reed, 33 Cal. 3d 914, 191 Cal. Rptr. 658, 663 P.2d 216 (1983), that registration was a form of punishment. The California sex offender registration statute was challenged as cruel and unusual punishment as applied to a misdemeanor offender convicted of soliciting “lewd or dissolute conduct” from an undercover officer in a public restroom. Under the statute, the misdemeanant was required to register for fife with the local police as a sex offender. The offender could petition-for release from the registration requirement, but there was no procedure for expungment of the initial-registration: The court first consulted-the Mendoza-Martinez factors and determined that the registration requirement was a form of punishment: The coürt then applied the three-part test of In re Lynch, 8 Cal. 3d 410, 105 Cal. Rptr. 217, 503 P.2d 921 (1972), and determined that the “punishment”-was “cruel or unusual” as applied to Reed. The court noted thát relatively minor conduct, such as a flirtation accompanied by touching done in a public place, could constitute an offense. Such an offender did not pose a grave threát to society, warranting permanent police surveillance.
Federal Cases
Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994), determined that plaintiff sex offenders were- likely to succeed on the merits On their ex post facto, challenge to.the Alaska registration law and granted a preliminary injunction to prevent public dissemination of sex offender information.. Burton held that Alaska’s act violated-the prohibition on ex post facto legislation, “because the law includes a provision providing for public dissemination of information concerning sex offenders whose, convictions ante-date the Registration Act.” 884 F. Supp. at 1380.-
In engaging in an ex post facto analysis, the Burton court first acknowledged that the “statutory design displays a purpose to regulate present circumstances, riot to punish.” 884 F. Supp. at 1377. Burton then considered the Mendoza-Martinez factors in determining whether the law had a punitive effect. Burton reasoned: (1) the public dissemination provisions, which would subject the registrants to “public stigma and ostracism: that would affect both their personal and professional lives,” imposed an affirmative disability or restraint, showing a punitive, effect;; (2) registration was not a “concept which this court perceiye[d], to be imbued by history with a punitive connotation”; (3) the act was premised upon “past know ingly wrongful conduct of the registrant,” and therefore the scienter factor was present, indicating punitive effect, although that factor was to be given only “light weight”; (4) while the registration requirement, by itself, may have imposed only a de minimis burden, the public disclosure mechanism could have both a deterrent and retributive effect; (5) little weight is given to the factor of whether the behavior to which the sanction applied was already a crime; and (6) the law had an alternative nonpunitive purpose, but the public dissemination feature of the law left open the possibility that the sanction may be excessive in relation to its legitimate non-punitive effect. 884 F. Supp. at 1378-79. Burton noted that in none of the other cases litigating the constitutionality of sex offender registration acts were the public dissemination provisions, if any, as broad as in Alaska’s law. 884 F. Supp. at 1380.
We note that the Alaska statute makes some information in a central registry confidential but allows for public disclosure under regulations to be adopted by the Department of Public Safety. 884 F. Supp. at 1376. KSORA’s disclosure provision appears broader, as none of the required information is confidential.
Artway v. Attorney General of State of N.J., 81 F.3d 1235 (3d Cir. 1996), as was Burton, was initiated by a motion for an emergency temporary injunction against enforcement of sex offender registration. The federal district court granted the motion in part, determining that the notification provision of New Jersey’s Megan’s Law was ex post facto legislation, although the registration provisions were upheld. The Third Circuit affirmed the federal district court as to the registration provisions but vacated the judgment as to the notification provisions, determining that the claims concerning those provisions were not ripe. 81 F.3d at 1242.
The New Jersey registration requirements are similar to those of other states, including Kansas. However, the New Jersey law provides for a procedure authorizing release of “relevant and necessary information concerning registrants when . . . necessary for public protection.” 81 F.3d at 1243. The local county prosecutor takes the registration information, consults with the county prosecutor of conviction, and, using a non-exclusive list of statutory factors and Attorney General’s Guidelines, makes a determination of the risk of reoffense for the registrant. A low risk offender is classified in Tier I, moderate risk in Tier II, and high risk in Tier III. Each tier requires different levels of notification. For Tier I, only law enforcement agencies likely to encounter the offender are notified. For Tier II, local schools, licensed day care centers and summer camps, and other community agencies and organizations involved in the care or supervision of children or support of battered women and rape victims are notified. For Tier III, members of the public likely to encounter the registrant are notified. Notification under Tiers II and III includes the registrant’s name, photograph, physical description, the offense, address, place of employment or schooling, and a description and license plate number of the registrant’s vehicle. The notification is also accompanied with a warning as to consequences of and criminal sanctions for acts of vandalism, threats, and assaults against a registrant. Tier II notice recipients are also informed that the information is not to be shared with the public and is to be used only to assist in protecting children.. battered women, or rape victims under their care. The Tier I registration provisions of Megan’s Law upheld in Artway limited disclosure to law enforcement agencies. The information is not open to the public. 81 F.3d at 1264. As previously mentioned, the Third Circuit in Artway did not address the constitutional claims concerning Tier II and III classifications and community notification.
Tier I registration is similar to the Kansas registration provision existing before KSORA. See K.S.A. 1993 Supp. 22-4909 (no public disclosure). Under K.S.A. 22-4907, the information a sex offender is required to provide upon registration is not as extensive as that required under the New Jersey law. However, K.S.A. 22-4907 was recently amended to significantly expand the list of required information. L. 1996, ch. 224, § 5.
W.P. v. Poritz, 931 F. Supp. 1199 (D.N.J. 1996), upheld the constitutionality of the notification provisions in Megan’s Law after applying the considerations previously discussed.
In Doe v. Pataki, 919 F. Supp. 691 (S.D.N.Y. 1996), the federal district court granted the class-action plaintiffs’ motion for prelim inary judgment against retroactive application of the notification provisions of New York’s version of Megan’s Law- (modeled after New Jersey’s law), but denied the motion as to the registration provisions. In determining that the public notification provisions were punitive, the court relied upon five of the Mendoza-Martinez factors, finding that the public notification provisions: (1) have traditionally been viewed as punitive; (2) serve a traditional punishment goal — deterrence; (3) impose an affirmative disability or restraint; (4) are triggered by behavior that is already a crime; and (5) have already led to excessively harsh results. 919 F. Supp. at 700-01.
Ex Post Facto Analysis of KSORA
We acknowledge the statements in Artway, 81 F.3d at 1262, and John Doe, 142 N.J. at 72-73, that the Mendoza-Martinez factors are not the test for resolution of the ex post facto issue. However, we also recognize that those factors have provided guidance to a number of state (e.g., Ward, Noble) and federal courts (W. P., Pataki, and Burton) in considering ex post facto challenges to sex offender registration legislation.
Because Ursery referenced the Mendoza-Martinez factors in its double jeopardy analysis, we believe those factors, to the extent they may be helpful, merit- consideration in evaluating Myers’ ex post facto claim. We do not apply the factors as a pass/fail test or in a checklist fashion. We believe that some add little, if anything, to the analysis, while others provide significant guidance. Discussed below are those factors that we believe should be emphasized in determining whether KSORA has a punitive effect sufficient to override its nonpunitive legislative purpose.
Affirmative Disability or Restraint
The KSORA registration requirement imposes no affirmative disability or restraint, because the offender’s movements within or without the community are not restricted. The act of registration is the only requirement. Although there may be discomfort in registration, Myers, who carries the burden under his claim that KSORA is unconstitutional, has furnished no evidence of punish ment flowing from registration alone. We hold that KSORA’s registration requirement does not impose punishment; thus, our ex post facto inquiry as to registration ends. However, we must also consider the provision in K.S.A. 22-4909 that the registered information is open to public inspection in the sheriff’s office. Although 22-4909 does not impose any affirmative dissemination requirements on the authorities, it imposes no restrictions on anyone who inspects the information. The information could be routinely published in the newspaper or otherwise voluntarily disseminated by anyone. The practical effect of such unrestricted dissemination could make it impossible for the offender to find housing or employment, We find that the KSORA public disclosure provision does impose an affirmative disability or restraint. Unrestricted public access to the registered information leaves open the possibility that the registered offender will be subjected to public stigma and ostracism.
Retribution and Deterrence
Registration has an obvious deterrent effect. A registered offender is more likely to think twice before committing another sex offense when the person knows that the local sheriff already has the offender’s name on a list. We acknowledge the statement in Ursery, 116 S. Ct. 2149, that “the purpose of deterrence ... may serve civil as well as criminal gods.” The stigma that will accompany public exposure of the registered information could be viewed as a form of retribution. We find that the KSORA public disclosure provision may have both a deterrent and retributive effect. However, the nonpunitive purpose of the statute cannot be accomplished without informing the public that a sex offender is in its midst. If the statute limited public disclosure to that necessary to protect the public, then its deterrent effect could be viewed as incidental to its nonpunitive purpose. Unlimited public access to the registry provides a deterrent or retributive effect that goes beyond such purpose.
Excessiveness
This is the key factor in our analysis. In other jurisdictions, for the sex offender registration laws found to be unconstitutional as ex post facto laws, the focus has been on the excessive scope of public disclosure of registered information. See, e.g., Pataki, 919 F. Supp. at 700-01; Burton, 884 F. Supp. at 1376.
KSORA places no restrictions on who is given access to the registered offender information or what that person does with the information. The print or broadcast media could make it a practice of publishing the list as often as they chose. Anyone could distribute leaflets containing the registered information anywhere and anytime. We observe that under K.S.A. 21-4006, it is a misdemeanor to maliciously expose a paroled or discharged person as having been charged with or convicted of a felony with the intent to interfere with such person’s employment or business. K.S.A. 21-4006 does not apply “to any person or organization who furnishes information about a person to another person or organization requesting the same.” However, the crime of “maliciously exposing a paroled or discharged person” does not address exposure of sex offender registration for any other purpose, such as interference with a sex offender’s housing situation. The unrestricted public access leaves open the probability that a registered sex offender could suffer the kind of public stigma and ostracism that concerned the Artway court, although KSORA does not provide for any affirmative notification.
“In particular, Artway argues that Megan’s Law is analogous to that most famous badge of punishment: the Scarlet Letter. There can be no outrage . . . against our common nature, — whatever be the delinquencies of the individual, — no outrage more flagrant than to forbid the culprit to hide his face for shame; as it was the essence of this punishment to do.’ Nathaniel Hawthorne, The Scarlet Letter 63-64 (Random House 1950) (1850). Like the Scarlet Letter, Artway contends, Megan’s Law results in public ostracism and opprobrium: it would subject him to potential vigilantism, impair his opportunities to work, and damage his abilities to develop and maintain stable relationships. In his submission, its ‘remedial’ purpose — to protect the public from him — seeks to brand him as an outcast. Such a shunning by one’s community is the essence of historical punishment, Artway contends.
"Artway’s argument has considerable force, but the notification issue is not before us. We evaluate only registration, and that provision bears little resemblance to the Scarlet Letter. Registration simply requires Artway to provide a package of information to local law enforcement; registration does not involve public notification. Without this public element, Artway’s analogy fails. The Scar let Letter and other punishments of ‘shame and ‘ignominy’ rely on the disgrace of an individual before his community. The act of registering with a discrete government entity, which is not authorized to release that information to the community at large (except in emergencies), cannot be compared to public humiliation.” 81 F.3d at 1265. (Emphasis added.)
We have acknowledged that merely having a criminal conviction in itself includes “not only the formal penalties and restrictions imposed by law but also collateral sanctions incidentally imposed by society.” State v. Miller, 214 Kan. 538, 542, 520 P.2d 1248 (1974) (statute authorizing annulment of conviction on application of defendant held constitutional). In Miller, we observed:
“ ‘[T]he record of a conviction for a serious crime is often a lifelong handicap. There are a dozen ways in which even a person who has reformed, never offended again, and constantly endeavored to lead an upright life may be prejudiced thereby. The stain on his reputation may at any time threaten his social standing or affect his job opportunities ....”’ 214 Kan. at 542 (citing United States v. Morgan, 346 U.S. 502, 519, 98 L. Ed. 248, 74 S. Ct. 247 [1954]).
The Court of Appeals relied on Miller in holding that a statute that retrospectively eliminated a right to have a prior conviction expunged altered the punishment in violation of the Ex Post Facto Clause. State v. Anderson, 12 Kan. App. 2d 342, 344-45, 744 P.2d 143 (1987).
“Sexually violent crime” is defined in KSORA as including the following sex-related felony crimes: rape, indecent liberties with a child, aggravated indecent liberties with a child, criminal sodomy, aggravated criminal sodomy, indecent solicitation of a child, aggravated indecent solicitation of a child, sexual exploitation of a child, aggravated sexual battery, a felony conviction under a prior law comparable to any of above crimes, a federal or other state felony conviction that would be a sexually violent crime in this state, an attempt, conspiracy or criminal solicitation of any of the above crimes, and “any act which at the time of sentencing for the offense has been determined beyond a reasonable doubt to have been sexually motivated.” K.S.A. 22-4902(b). Although all of the other categories are limited to felonies, the last category could apparently include any “sexually motivated” act resulting in an “offense.”
Several of the listed felonies include what otherwise might be viewed as voluntary sexual contact between two persons that is considered criminal because of the minority status of the victim and the fact that the victim is not married to the accused: indecent liberties with a child, K.S.A. 21-3503(a) (lewd touching or fondling or solicitation of same with a 14-15 year old); aggravated indecent liberties with a child, K.S.A. 21-3504(a)(l) (sexual intercourse with a 14-15 year old); criminal sodomy, K.S.A. 21-3505(a)(2) (sodomy with a 14-15 year old); indecent solicitation of a child, K.S.A. 21-3510(a) (soliciting a 14-15 year old to commit an unlawful sexual act, or persuading such person to enter a vehicle or building for such purpose). As an example, does every 18 year old (or 16 or 17 year old prosecuted as an adult) who has a voluntary sexual relationship with a 15 year old, is convicted of one of the above crimes, and is registered as a “sex offender” pose a sufficient risk of reoffense that the registered information should be subject to unrestricted public access?
K.S.A. 22-4908 does provide a mechanism whereby an already registered sex offender may petition the court for relief from the duty to continue registering. However, this does not address the concern of whether it is initially appropriate for the public to have access to the offender’s registered information. KSORA does not allow for any such individualized determination.
Whether we apply the New Jersey Supreme Court’s approach in John Doe, the three-prong analysis in Artway, the considerations listed in W.P., or the Mendoza-Martinez factors, we reach the same conclusion: For Myers, KSORA’s disclosure provision must be considered punishment. We hold that the legislative aim in the disclosure provision was not to punish and that retribution was not an intended purpose. However, we reason that the repercussions, despite how they may be justified, are great enough under the facts of this case to be considered punishment. The unrestricted public access given to the sex offender registry is excessive and goes beyond that necessary to promote public safety.
Because KSORA’s disclosure provision makes more burdensome the punishment for a crime after its commission, we conclude K. S.A. 22-4909, as applied to Myers, violates the constitutional prohibition against ex post facto laws.
We emphasize we are not balancing the rights of Myers or other sex offenders against the rights of his or their victims. What we are addressing is the right of every citizen, in this case, Myers, to test a claim of constitutional infringement arising from retroactive legislation. Regardless of legislative motivation, we have a duty to entertain such a claim when asserted and to resolve the tension between the positions of Myers and the State.
Public access to sex offender registration is a matter of legislative public policy. Although we defer to the legislature on policy matters, we must, however, exercise our duty of analysis when ex post facto claims impact legislative policy. Would-be sex offenders have been on notice since April 14, 1994, when KSORA became law, that if they commit certain crimes they will be subject to public disclosure under K.S.A. 22-4909. Myers, whose offense was committed before April 14, 1994, had no such notice. The significant date in an ex post facto analysis is the date of the offense, not the date of conviction. Weaver v. Graham, 450 U.S. 24, 30-31, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981). To avoid the ex post facto characterization, public access should be limited to those with a need to know the information for public safety purposes. This information should be used by those given access to it only for such purposes. As the law is written now, no such measures are in place for Myers.
Cruel and Unusual Punishment — Due Process
Myers contends that the disclosure aspect of KSORA constitutes cruel and unusual punishment. The Eighth Amendment to the United States Constitution, applicable to the states under the Fourteenth Amendment (see Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417 [1962]), provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Section 9 of the Kansas Constitution Bill of Rights prohibits infliction of cruel or unusual punishment. Myers also asserts that KSORA violates due process guar antees under the Fifth and Fourteenth Amendments to the United States Constitution.
As the State points out, Myers raises these two constitutional issues for the first time on appeal. When constitutional grounds are asserted for the first time on appeal, they are not properly before us for review. State v. Kaesontae, 260 Kan. 386, 920 P.2d 959 (1996); State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993).
Myers concedes that his cruel and unusual punishment argument was not raised below, but asserts that it fits within the first two of the following exceptions to the general rule:
“(1) Cases where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case;
(2) Questions raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and
(3) That a judgment of a trial court may be upheld on appeal even though that court may have relied on the wrong ground or assigned a wrong reason for its decision.” State v. Puckett, 230 Kan. 596, 598-99, 640 P.2d 1198 (1982).
We do not agree. Our reversal based on the ex post facto application of KSORA’s disclosure provision negates the substance of Myers’ reliance on Puckett.
Myers also contends that KSORA violates due process under the Fifth and Fourteenth Amendments to the United States Constitution because the term “rehabilitation” is unconstitutionally vague. K.S.A. 22-4908 provides for a hearing in which the sex offender may petition the court for relief from further registration upon a showing that offender is “rehabilitated.” Myers’ argument is in the abstract, because he has not petitioned for relief under 22-4908. His claim is unripe. See Artway, 81 F.3d at 1242. Myers’ due process claim is not within the Puckett exceptions. We refuse to consider this issue for the first time on appeal. No fundamental rights have been denied Myers under K.S.A. 22-4908.
Conclusion
We uphold the constitutionality of the registration requirement in KSORA. K.S.A. 22-4904; K.S.A. 22-4906, and K.S.A. 22-4907. The disclosure provision allowing public access to sex offender reg istered information, K.S.A. 22-4909, when applied to Myers, is unconstitutional punishment under the Ex Post Facto Clause. The unlimited public accessibility to the registered information and the lack of any initial individualized determination of the appropriateness and scope of disclosure is excessive, giving the law a punitive effect — notwithstanding its purpose, shown in the legislative history, to protect the public.
We affinn the district court, subject to the unconstitutionality of the K.S.A. 22-4909 disclosure provision as applied to Myers.
To prevent an ex post facto violation, each sheriff’s office shall adopt a record system that prevents public access or disclosure of the statements or any other information required by KSORA of any sex offender required to register whose offense occurred before April 14,1994. Any such statements or other information shall neither be open to the public nor subject to the provisions of the Kansas Open Records Act, K.S.A. 45-215 etseq.
Affirmed in part and reversed in part.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by Omar A. Valentine from his conviction for aggravated battery and the court’s imposition of an upward durational departure sentence.
The record leaves many unanswered questions. When the record is reviewed as we are required to view it, it reveals the following. In the early evening, the victim, Damon Ross, and a friend, Hemy Shaffer, left Ross’ home and were walking down the driveway toward Ross’ mother’s car. Suddenly, the defendant, Omar A. Valentine, came around the house with a gun and started yelling at Ross and Shaffer to get on the ground.
Valentine was not wearing a mask’and made no attempt to conceal his identity. Valentine had previously lived across the street from Ross. Valentine had frequently visited the Ross home and had joined the Ross family at meals in the Ross home. Ross recognized Valentine.
Upon hearing Valentine come around the house, Shaffer ducked and ran away. Valentine fired two shots at Shaffer’s head but missed Shaffer both times.
Then Valentine put the gun to Ross’ head and forced Ross to walk to the car. Valentine instructed Ross to get his keys out. Since Valentine had made no effort to conceal his identity and had attempted to shoot Shaffer in the head, Ross thought Valentine would kill him if he got in the car, so Ross attempted to escape.
When Ross tried to escape, Valentine shot him. The bullet struck Ross in the arm, knocking him to the ground. Ross attempted to get up, but Valentine fired three or four more shots at Ross, one of which severed Ross’ spine- and paralyzed him from the waist down. From the record, we cannot tell if any of the other bullets struck Ross, but there is some indication that Ross may have been struck by two other bullets while on the ground.
One week later, Shaffer (who in this case led a “charmed” life) parked at a curb. He remained seated in the car while he waited for a car to pass so he could exit from the driver s door. The car that was passing stopped beside Shaffer’s car and Shaffer observed Valentine in the passenger seat with a gun. Valentine opened fire. Some 20 to 30 shots were fired by Valentine and the.driver of the passing car before Shaffer exited the car. Every window in Shaffer’s vehicle was destroyed, and the car itself had many bullet holes in it. Shaffer was not hit, although the jacket he was wearing had bullet holes in it when the shooting stopped.
The jury found Valentine guilty of aggravated battery for the shooting of Ross, but the jury acquitted Valentine of aggravated assault based on the drive-by shooting at Shaffer. Before the defendant was sentenced for the aggravated battery conviction, the State filed a motion for the imposition of a durational departure sentence. Both parties agreed that the defendant had a criminal history of H, creating a presumptive guidelines sentence of 42 to 48 months in prison. At the sentencing, the court departed from the guidelines sentence, sentencing the defendant to 72 months in prison. The defendant appealed, and his appeal was transferred to this court.
The defendant was convicted of level 4 aggravated battery (K.S.A. 21-3414[a][l][A]). On appeal, Valentine contends the trial court erred in failing to instruct the jury on level 7 aggravated battery. K.S.A. 21-3414(a)(l)(B).
Level 4 aggravated battery requires “[intentionally causing great bodily harm” (emphasis supplied), K.S.A. 21-3414(a)(l)(A), whereas level 7 aggravated battery requires “intentionally causing bodily harm,” K.S.A. 3414(a)(1)(B). The defendant’s argument is that the question of whether “great bodily harm” or mere “bodily harm” occurred is a question of fact and should have been submitted to the jury.
The defendant did not request an instruction on a lesser included offense of level 4 aggravated battery, and the trial court did not instruct on a lesser included offense.
“Absent an instruction request, an appellate court may reverse on the failure to give a jury instruction only if the trial court’s failure to instruct was clearly erroneous. The failure to instruct is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.” State v. Shortey, 256 Kan. 166, 172, 884 P.2d 426 (1994).
Here, the failure to give a level 7 aggravated battery instruction was neither erroneous nor clearly erroneous.
A defendant has a right to an instruction and the trial court has a duty to instruct on a lesser included offense which is supported by substantial evidence. State v. Cummings, 242 Kan. 84, 91, 744 P.2d 858 (1987). “Where there is no substantial evidence applicable to the lesser degrees of the offense charged, and all the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degree of the offenses are not necessary.” Gibbons, 256 Kan. at 955.
In making his argument that a lesser included offense instruction for severity level 7 aggravated battery should have been given, the defendant relies on State v. Ochoa, 20 Kan. App. 2d 1014, 895 P.2d 198 (1995). This case found that severity level 7 aggravated battery is a lesser included offense of severity level 4 aggravated battery. 20 Kan. App. 2d at 1020.
In so holding, the Court of Appeals stated:
“[A] level 4 aggravated battery is proven by showing that defendant intentionally caused great bodily harm to the victim. It is difficult to envision how the State could prove a level 4 aggravated battery without necessarily proving a level 7 aggravated battery. A level 7 aggravated battery under 21-3414(a)(l)(B) is shown by proof that a defendant intentionally caused bodily harm to a victim with a deadly weapon or in any manner whereby great bodily harm, disfigurement, or death can be inflicted.
“It appears inescapable to us that in proving great bodily harm in a level 4 charge, the State must necessarily prove bodily harm. The only difference between a level 4 aggravated battery and a level 7 aggravated battery is whether defendant intended to inflict great bodily harm or disfigurement or merely intended to inflict bodily harm, but in a manner ‘whereby great bodily harm, disfigurement or death can be inflicted.’ In proving both charges, the State must prove that defendant intentionally inflicted bodily harm. In addition, in this case, the State’s evidence was that defendant intentionally inflicted bodily harm with a deadly weapon.
“In this case, the question of whether the bodily harm inflicted was great was a question for the jury. We reject the concept that the trial court may decide, in every case, as a matter of law whether the bodily harm inflicted was or was not great. In the instant matter, the victim certainly suffered bodily harm. He suffered a gunshot wound to the abdomen. Whether this was merely bodily harm or great bodily harm was a matter to be decided by the jury. The State, in attempting to prove that defendant intentionally inflicted great bodily harm, necessarily was required to prove that defendant intentionally inflicted bodily harm. We hold that proof of a level 4 aggravated battery necessarily proves a level 7 aggravated battery as defined by 21-3414(a)(l)(B). A level 7 aggravated battery is an included crime of a level 4 aggravated battery, and the trial court erred in failing to instruct the jury on the level 7 aggravated battery. The evidence in this case would support a conclusion that defendant intentionally inflicted great bodily harm on the victim with a deadly weapon or that defendant intentionally inflicted bodily harm on the victim with a deadly weapon. Whether the harm was great or not was a question of fact to be decided by the jury.’’ (Emphasis added.) 20 Kan. App. 2d 1019-20.
We disagree with the Court of Appeals. In Ochoa, the victim received a “through and through” bullet wound. The bullet entered the victim’s stomach and exited through his back without hitting any vital organs. A “through and through” bullet wound in the abdomen does not present a question of fact as to whether it is mere bodily harm or great bodily harm. This constitutes great bodily harm. See State v. Whitaker, 260 Kan. 85, 917 P.2d 859 (1996). There may be instances where a bullet wound is not “great” bodily harm when, for example, it grazes the skin, but' we cannot envision a “through and through” bullet wound, as occurred in Ochoa, that does not amount to great bodily harm. That part of Ochoa, inconsistent with this opinion, is disapproved. As such, we have no difficulty in finding that a bullet wound which severs the spinal cord and causes paralysis, a much worse wound than a through and through bullet wound, qualifies as great bodily injury as a matter of law. The trial court did not err when it did not give an instruction on level 7 aggravated battery. The defendant was either guilty of level 4 aggravated batteiy or not guilty.
The defendant next contends it was error for the trial court to impose an upward durational departure sentence. Prior to sentencing, the State filed a motion for an upward durational departure sentence, relying on a statutory factor set forth in K.S.A. 1993 Supp. 21-4716(b)(2)(B). The aggravating factor read:
“1. The defendant’s conduct during the commission of the current offense manifested excessive brutality to the victim in a manner not normally present in that offense.”
At the sentencing, the court departed from the guidelines sentence. The court departed upward and sentenced the defendant to 72 months in prison. In so departing, a discussion occurred at the sentencing hearing, and pertinent parts are set forth herein:
“THE COURT: Mr. Kaufman, argument on your motion, why do you feel that a departure upwards is appropriate in this case?
“MR. KAUFMAN: Because the typical aggravated battery doesn’t leave a person paraplegic for life. And when I look at the statutory factors, I think it’s [21-]4716, one that I . . . specifically cited to the Court is that the Defendant’s conduct in this crime manifested excessive brutality for a victim in a manner not normally present in that offense, and several'gunshot wounds to the back, leaving a victim paralyzed for fife is simply not a typical aggravated battery and so it’s my opinion that that’s a relevant statutoiy factor that justifies a departure upward.
“THE COURT: Is any of your allegations that this offense was committed in furtherance of some sense of organized criminal gang activity?
“MR. KAUFMAN: I thought about that but it would just be my words in Court and I wasn’t going to bring anybody in, and it would actually just be speculation and I didn’t think that was good enough, so I just ignored that factor.
'‘THE COURT: Okay. And when you’re talking about the excessive brutality, you are talking about the first two shots and then the defendant going over while the victim is laying down and shooting him—
“MR. KAUFMAN: That, Your Honor, and just the totality, because there was an aggravated kidnapping here as well. The fact that it wasn’t charged doesn’t dissuade me from letting the Court know that it was clearly the taking of, confining of Mr. Ross down the driveway at gunpoint. That in itself is somewhat brutal, the gun at the back of your head, I think that is logically cruel and then the- — as the Court’s just recited, the pumping of two bullets into the back as Mr. Ross then is sprawled on the ground. And I believe Mr. Ross’ testimony was that additional shots were fired, whether they hit him or not, there was no evidence before the Court. But this is just a brutal crime.
“THE COURT: . . . I think the evidence is clear that he was involved in that [the drive-by shooting]. I disagree with the jury [referring to the jury’s acquittal of the defendant in the aggravated assault charge] and the jury’s verdict of not guilty stands up, but it’s [the drive-by shooting/aggravated assault] still a factor that I’m going to consider.
[The court then asked the State whether the fact that the crime might be associated with organized gang activity was a reason to impose a departure sentence.]
“MR. KAUFMAN: I mean, Mr. Valentine’s moniker is Psycho and he has a Neighborhood Crips tattoo, I think it’s a car gig he has, I mean, I know that, beat officers and detectives have known this for a long time. I mean the fact that that didn’t come in before the jury or that there is no testimonial evidence before the Court, that doesn’t mean that it’s not true. I know that on his side he’s a banger; I don’t know what was going on on the other side. I mean, Mr. Ross and Mr. Shaffer simply were doing nothing other than walking out of Mr. Ross’ house who lives with his mother, so I know what his perspective is of heart; I don’t know why he did what he did, no doubt that he did it though.
“THE COURT: Okay. Mr. Jones, help the Court out, would you. I’m going to rely on your expertise and knowledge in this area.
“MR. JONES: Well, Your Honor, aggravated battery is divided into several severity levels; the most severe is where great bodily harm occurs and that’s a Severity Level IV penalty. I would argue to the Court that, yes, Mr. Ross is a paraplegic, but the statute doesn’t specifically say, doesn’t — make distinctions between bodily harm and great bodily harm and I would argue to the Court that because of that, Mr. Ross’ condition can’t be used as a factor to depart in the— in the sentence and I would point out to K.S.A. 21-4716(b)(13), if the factual aspect of the crime is statutorial of the crime, or is used to subclassify the crime on the crime severity level, and I would argue that it is, because we are talking about great bodily harm which is how the statute reads, that aspect of the current crime'of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime or conviction is significantly different from the usual criminal conduct captured by that aspect of the crime, and I would argue that it’s not.
“Aggravated battery is — I mean, that he was charged with and found guilty in Count One, specifically says great bodily harm. That’s what happened. And so I would say that on that basis, that you can’t find a substantial and compelling— you can’t even depart because of that. I would also, based on the other argument that you brought up, you know, we don’t have any evidence of gang activity hurting this — in this case. I can’t — -you—Mr. Ross has a tattoo and all that, but there is no evidence, it’s only a conjecture .that this was part of some organized gang activity. So, if you’re going to use that as a consideration to upwardly depart on the sentence, I would object there because it’s only a guess or speculation about what role gang activity had in this case.
“The Court’s brought up several other issues that weren’t included in Mr. Kaufman’s motion to depart. He only stated that the conduct was excessively brutal and I didn’t have any notice of any of the other factors that were going to be brought up today to give me time to prepare and answer those — those issues, and so I would object to any of those being used to depart, and this Court has the— has the option if it wants to notify the parties that it wants to depart and could have done that and stated what reasons that the Court felt were going to be considered in an upward departure, and so I’d kind of — if the Court chooses to depart, I would like some notice, I mean, based on its own feeling rather than the State’s motion, I’d like some notice and to have the reasons that the Court feels stated, so I can better prepare to make some argument. I’m feeling kind of ambushed here.
“THE COURT: . . . I’m going to sustain the Court’s (sic) motion to depart upward based on the brutality of the defendant’s acts, based ón the evidence brought out at trial. In particular, placing the gun to the victim’s head, taking him over to the car, have all the appearances of an assassination, and but for the victim’s attempts to escape, which resulted of course in his paralyze — being paralyzed and shot, he may not have even survived the ordeal. That is something that none of us will ever know.
“But I know the rest of the story and that’s enough for me to know that Mr. Valentine is a very dangerous individual, and the fact the Legislature has allowed him to get out in 48 months is their decision. Their range initially is 42 months to be lenient, 48 months if I really want to pound him. So, I’m, going to again sustain the motion based on the defendant’s conduct during the current offense manifested excessive brutality to a victim not normally present in that offense. I am not going to make a particular finding or additional aggravating factors because of Mr. Jones’ argument that he didn’t receive notice, so I’m not going to address any other factors. However, the record needs to be very clear that I am considering the totality of the factual events as this Court finds them to be, which would include Mr. Valentine’s being involved in a subsequent shooting of Mr. Shaffer.’’
The defendant appeals the departure sentence, contending that the notice of the aggravating factors was improper and that the court’s reliance on the aggravating factors themselves was improper.
The applicable standard of review was discussed in State v. Richardson, 20 Kan. App. 2d 932, Syl. ¶ 1, 901 P.2d 1 (1995), which states:
“In an appeal from a departure sentence, an appellate court must determine pursuant to K.S.A. 1993 Supp. 21-4721(d) whether the sentencing court’s findings of fact and reasons justifying departure (1) are' supported by substantial competent evidence and (2) constitute substantial and compelling reasons for departure as a matter of law. The applicable standard of review is keyed to the language of the statute: K.S.A. 1993 Supp. 21-4721(d)(l) requires an evidentiary test — are the facts stated by the sentencing court in justification of departure supported by the record? K.S.A. 1993 Supp. 21-4721(d)(2) requires a law test — are the reasons stated on the record for departure adequate to justify a sentence outside the presumptive sentence?”
In addition to the brutality factor argued by the State, the defendant contends that the court relied on other aggravating factors, not argued in the State’s motion, when it imposed the departure sentence. These additional aggravating factors included the severity of the harm which occurred, the lack of provocation, the fact that the crime was gang related, and the circumstances surrounding the alleged drive-by shooting of Shaffer. The defendant asserts that the court was in error to rely on these aggravating factors when it imposed the departure sentence because the defendant was not on notice that these factors would be considered grounds for departure. On the other hand, the State asserts that the court did not independently rely on these circumstances as aggravating factors. Instead, the court looked to these circumstances to determine whether the aggravating factor of excessive brutality existed.
The aggravating factor which the State cited in its motion to depart and which the defendant had notice of stated: “The defendant’s conduct during the commission of the current offense [i.e., 94 CR169] manifested excessive brutality to the victim in a manner not normally present in that offense.”
This factor only considers the excessive brutality of the aggravated battery offense. Thus, the court should not have considered the alleged drive-by shooting which occurred a week later to determine whether there was excessive brutality in the aggravated battery offense. It is clear that the court considered the alleged drive-by shooting incident in granting the departure sentence as the court stated, “I am considering . . . Mr. Valentine’s being involved in a subsequent shooting of Mr. Shaffer.” It is also clear that the court considered this as an additional aggravating factor justifying departure. The court should not have considered this separate event of the drive-by shooting in deciding whether excessive brutality existed for the aggravated battery offense. However, the other three .factors which the defendant contends were improperly relied upon as aggravating factors could have been used simply to determine whether the aggravating factor of excessive brutality existed.
Of the four additional considerations the court took into account when imposing a departure sentence beyond the excessive brutality factor (severity of harm caused, lack of provocation, gang affiliation, drive-by shooting), it is clear that at least one of these considerations — the drive-by shooting factor — was an independent aggra vating factor and not simply looked at to determine if the excessive brutality factor existed. It is also clear that the defendant was not given notice, prior to the sentencing hearing, that this aggravating factor of the drive-by shooting would be argued or used to impose a departure sentence. In addition, the defendant was acquitted of the drive-by shooting. The question now is whether lack of notice of this drive-by shooting aggravating factor and the use of this fact, even though the defendant was acquitted of the drive-by shooting, constitutes reversible error.
The defendant cites to K.S.A. 1993 Supp. 21-4718, contending that this statute requires that notice be provided to the defendant before any aggravating factor is used to impose a departure sentence. K.S.A. 1993 Supp. 21-4718 provides:
“(a)(1) Whenever a person is convicted of a felony, the court upon motion of either the defendant or the state, shall hold a hearing to consider imposition of a departure sentence. The hearing shall be scheduled so that the parties have adequate time to prepare and present arguments regarding the issues of departure sentencing. . . .
“(b) If the court decides to depart on its own volition, without a motion from the state or the defendant, the court must notify all parties of its intent and allow reasonable time for either party to respond if they request.”
The State points out that the applicable 1993 version of the statute does not specifically require the court or the State to give notice of the grounds of departure. However, the defendant points to K.S.A. 21-4718, which was amended in 1994 to read:
“(a)(1) Whenever a person is convicted of a felony, the court upon motion of either the defendant or the state, shall hold a hearing to consider imposition of a departure sentence. The motion shall state the type of departure sought and the reasons and factors relied upon. The hearing shall be scheduled so that the parties have adequate time to prepare and present arguments regarding the issues of departure sentencing. . . .
“(b) If the court decides to depart on its own volition, without a motion from the state or the defendant, the court must notify all parties of its intent and allow reasonable time for either party to respond if they request. The notice shall state the type of departure intended by the court and the reasons and factors relied upon.” (Emphasis added.)
The defendant acknowledges that this 1994 amendment is not directly applicable to his case. However, the defendant points to State v. Gideon, 257 Kan. 591, 894 P.2d 850 (1995). In Gideon, the 1993 guidelines were effective, as they are in this case, but the court still required a district court to provide advance notice to a defendant of all aggravating factors which might be used to enhance the sentence if they are not cited in the State’s motion to depart.
In Gideon, the State filed a motion for imposition of a departure sentence. The court imposed an upward durational departure. In so departing, the court relied on the aggravating factor of the defendant’s “future dangerousness,” a factor not cited in the State’s motion. The defendant argued that the court was required to give prior notice of the court’s intent to depart based on this factor. Noting the 1994 amendment to 21-4718(b), which requires notice of aggravating factors that a district court intends to rely on in departing, this court agreed. The court stated that “it is error to use a factor for upward departure of a sentence that the defendant has not received notice of until presented at the sentencing hearing.” 257 Kan. at 620.
However, the Gideon court found the fact that the defendant did not have notice of the future dangerousness factor prior to the sentencing hearing was not reversible error. The error was not reversible because the defendant did not proffer any argument on appeal that he would have argued at the sentencing hearing to refute the aggravating factor if he had been provided prior notice of the aggravating factor.
Here, the other aggravating factor of excessive brutality which the defendant had notice of and the court relied on in imposing the departure sentence independently justifies the departure, without considering the drive-by shooting factor. Thus, the error is harmless. The court’s review of the departure sentence, based on the single excessive brutality factor, is limited to whether the “court’s findings of facts and reasons justifying a departure: (1) Are supported by tire evidence in the record; and (2) constitute substantial and compelling reasons for departure.” K.S.A. 1993 Supp. 21-4721(d).
In finding that the aggravating factor of excessive brutality existed and justified departure, the court pointed to the following evidence in the record: the manner of shooting in which the defendant placed the gun to the victim’s head, forcing the victim over to the car as if it were an assassination, the continued shooting of the victim once he was injured, the subsequent shooting resulting in paralysis, and the lack of provocation by the victim.
The defendant contends that the evidence in the record regarding the manner of the shooting does not support a finding of excessive brutality. The defendant admits that the record indicates that he surprised the victim; that without provocation, he put a gun to the victim’s head; and that he forced the victim over to his car as if to attempt an assassination. In addition, the record indicates that the victim feared he was going to be killed because he knew the defendant, who was not wearing a mask; thus, the victim tried to escape. In so doing, he was shot by the defendant and knocked to the ground. While the victim was injured on the ground and still trying to escape, the defendant fired several more shots at the victim. The victim realized he was paralyzed and thought he was going to die. The victim was unarmed, and nothing in the record gives any explanation for shooting the victim. Apparently no motive existed to shoot the victim, other than the fact that the defendant intended to kill the victim.
Despite this evidence in the record, the defendant contends that this shooing was not an excessively brutal form of aggravated battery. In fact, the defendant contends a shooting may never qualify as an excessively brutal form of aggravated batteiy. In making this contention, the defendant tries to analogize a finding of excessive brutality in committing an aggravated battery to a finding of committing murder in a particularly heinous, atrocious, or cruel manner under the hard 40 statute. The defendant points out that under the hard 40 statute, deaths caused by shootings are not typically considered deaths which occur in a particularly heinous, atrocious, or cruel manner. Citing State v. Willis, 254 Kan. 119, 130, 864 P.2d 1198 (1993), as authority, the defendant argues that a crime is committed in an especially heinous, atrocious, or cruel manner when the victim suffers “serious mental anguish,” such as uncer tainty about his or her fate, or the victim suffers “serious physical abuse” before death. Using this language as a definition of excessive brutality, the defendant contends that there is no evidence in the record to support a finding that the victim suffered serious mental anguish or serious physical abuse above and beyond a typical aggravated battery committed by a shooting.
The State contends that the defendant’s analogy between an excessively brutal aggravated batteiy and a heinous, atrocious, or cruel murder is not appropriate. According to the State, if the legislature wished to incorporate the case law defining the terms “heinous, atrocious, or cruel” into the “excessive brutality” aggravating factor, then the legislature simply would have used the terms “heinous, atrocious, or cruel” instead of the term “excessive brutality” in listing the aggravating factor.
We agree. There is no reason to believe these terms are related or have similar definitions. Nor do we mean to imply that all shooting deaths are not especially heinous, atrocious, or cruel. A heinous, atrocious, or cruel murder allowed a defendant to be imprisoned for 40 years without parole, the harshest sentence in Kansas at the time it was enacted, while a finding of “excessive brutality” simply allows a court to depart from the defendant’s presumptive guidelines sentence by up to two times the maximum presumptive imprisonment term. See K.S.A. 1993 Supp. 21-4716(b)(2)(B); K.S.A. 1993 Supp. 21-4719(b)(2).
The defendant’s conduct during the commission of the offense manifested excessive brutality to the victim in a manner not normally present in the offense of aggravated battery. This crime went beyond a typical aggravated batteiy.
The defendant also contends that the aggravating factor of excessive brutality is not supported by the evidence because the court improperly relied on the extent of the victim’s injury and the crime’s apparent connection to organized crime in deciding that this factor existed. These arguments are irrelevant because this aggravating factor of excessive brutality is independently supported by evidence in the record regarding the manner in which the shooting occurred without looking to the extent of the injury or the crime’s connection to organized crime. We do not mean to imply, however, that the trial court erred in relying on these factors when it imposed the departure sentence. The district court’s finding of facts and reason justifying departure — that the manner in which the crime was committed was excessively brutal — is supported by the evidence. See K.S.A. 1993 Supp. 21-4721(d)(l).
The next question is whether the aggravating factor of excessive brutality constitutes a substantial and compelling reason for departure. See K.S.A. 1993 Supp. 21-4721(d)(2). In K.S.A. 1993 Supp. 21-4716(b)(2)(B), the legislature specifically listed as an aggravating factor the fact that the defendant’s conduct during the commission of the current offense manifested excessive brutality to the victim in a manner not normally present in that offense. The legislature made it clear that excessive brutality is an aggravating factor which may be considered in determining whether substantial and compelling reasons exist for departure. Thus, this one aggravating factor of excessive brutality constitutes a substantial and compelling reason for departure. See State v. Duke, 256 Kan. 703, 721, 887 P.2d 110 (1994) (finding that just one aggravating factor is enough to conclude that a murder was committed in an especially heinous, atrocious, or cruel manner and impose the hard 40 sentence.) The trial court’s findings of facts and reasons justifying departure are supported by evidence in the record and constitute a substantial and compelling reason for departure. The trial court’s decision to impose an upward durational departure sentence is affirmed.
Affirmed.
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The opinion of the court was delivered by
Allegrucci, J.:
This case involves conflicts law and statutes of limitations. Heirs and representatives of the estate of Harold Goldsmith, who was killed in the crash of a Leaijet aircraft in Colorado, seek wrongful death and survival damages. They filed a timely petition in state court in Kansas and voluntarily dismissed it more than 2 years after Goldsmith’s death. Within 6 months of the dismissal, they refiled in United States District Court, claiming diversity jurisdiction. On the ground that the diversity action was time barred by Colorado’s statute of limitations, summary judgment was entered against them by the United States District Court for the District of Kansas. An appeal was taken.
This case is before us on questions certified by the United States Court of Appeals for the Tenth Circuit under the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. Following the filing of briefs and oral argument, Circuit Judge David M. Ebel certified to this court the following questions:
1. Whether the Kansas borrowing statute, K.S.A. 60-516, borrows the foreign state’s saving statute so as to preempt the Kansas saving statute.
2. Whether the Kansas saving statute, K.S.A. 60-518, saves wrongful death actions.
3. Whether the Kansas saving statute saves actions that the Kansas borrowing statute otherwise would bar.
The facts are set out in the certification order as follows:
“On February 13, 1991, a Leaijet aircraft crashed during landing near Aspen, Colorado, killing everyone aboard including Harold Goldsmith (the ‘decedent’). Representatives of decedent’s estate filed a survival action against Leaijet in Kansas state court on February 11, 1993 (the ‘first action’), captioned Berkowitz v. Learjet, No. 93C55. The plaintiffs voluntarily dismissed that action on June 9, 1993. These representatives, along with the decedent’s wife and three children, then brought a diversity action on November 30,1993, in U.S. District Court for the District of Kansas, seeking wrongful death and survival damages (the ‘second action’). This Certification arises out of the second action. None of the plaintiffs are Kansas residents. Leaijet’s principal place of business is in Kansas.
“Leaijet filed a summaiy judgment motion, arguing that the second action was untimely under the statutes of limitations of both Kansas and Colorado, both of which limit the period when a party may bring a wrongful death action to two years. Kan. Stat. Ann. § 60-513(5); Colo. Rev. Stat. § 13-80-102. In response, plaintiffs argued that the Kansas saving statute, Kan. Stat. Ann. § 60-518, extended the time within which they could bring the second action. The Kansas saving statute provides that when an action is dismissed for a reason other than the merits after the statute of limitations lapses, the plaintiff may commence a new action within six months from the dismissal. Id.
“Leaijet responded that the Kansas borrowing statute, Kan. Stat. Ann. § 60-516, nonetheless prevented plaintiffs from maintaining the second action regardless of the saving statute. The borrowing statute bars a resident of a state other than Kansas from maintaining an action in Kansas when the laws of the state where the cause of action arose would bar the same action. Id. Here, the cause of action arises in Colorado and Colorado law would have barred plaintiffs from bringing an action in Colorado at the time they brought the second action in Kansas. Colorado’s savings statute extends the Colorado statute of limitations only ninety days after the dismissal of the original action and is applicable only when the first action be dismissed for lack of jurisdiction or improper venue. See Colo. Rev. Stat. §13-80-111. Plaintiffs fail both requirements.
“Leaijet further argued that Kansas Supreme Court precedent directiy bars courts from applying the Kansas saving statute to wrongful death causes of actions. See Rodman v. Missouri Pac. Ry. Co., 70 P. 642, 644 (Kan. 1902). Plaintiffs responded that the state legislature’s decision in 1963 to sever the limitations period for wrongful death claims from the action’s substantive statutory requirements and to relocate that provision among the statutory provisions addressing other statute of limitations provisions indicate that Rodman no longer remains valid law. Plaintiffs also refer to more recent Kansas cases suggesting that the saving statute applies to wrongful death claims.
“The district court granted Learjet’s motion for summary judgment, accepting its arguments that both the effect of the Kansas borrowing statute and the Rodman precedent barred the second action.”
The federal district court, in entering summary judgment in favor of Learjet, concluded that the rule of Rodman v. Railway Co., 65 Kan. 645, 70 Pac. 642 (1902), that the Kansas saving statute does not apply to wrongful death claims, barred the second action. It also concluded that the Kansas borrowing statute incorporates Colorado’s saving statute, thus precluding application of the Kansas saving statute. The Colorado saving statute, which is more restrictive than that of Kansas, will not save the second action. Finally, the district court concluded that the Kansas saving statute would not revive the time-barred action because the Kansas borrowing statute is more specific than, and therefore governs over, the Kansas saving statute.
Question No. 1
Whether the Kansas borrowing statute, K.S.A. 60-516, borrows the foreign state’s saving statute so as to preempt the Kansas saving statute.
In ruling on Leaijet’s motion for summary judgment in the present case, the United States District Court for the District of Kansas applied Kansas’ limitations laws. Because the action arose in Colorado, Kansas’ borrowing statute was considered. Iri the view of the district court, the Kansas borrowing statute incorporated all aspects of the limitations law of Colorado to the preclusion of the Kansas saving statute. In its certification, the Tenth Circuit Court of Appeals directed to this court a question of the scope of the borrowing statute’s operation. The Court of Appeals stated: “A threshold issue in this case is whether the Kansas borrowing statute would borrow not only the Colorado statute of limitations, but also the Colorado saving statute as well, thereby precluding the operation of the Kansas saving statute.”
The pertinent and arguably pertinent limitations laws of Kansas and Colorado are quoted here: The basic statutes of limitations of both states limit the period in which a wrongful death action may be initiated to 2 years from the death. K.S.A. 60-513(a)(5) provides: “(a) The following actions shall be brought within two years: ... (5) An action for wrongful death.” Colo. Rev. Stat. § 13-80-102(l)(d) (1987) provides: “(1) The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within two years after the cause of action accrues, and not thereafter: . . . (d) All actions for wrongful death.” The Kansas borrowing statute provides:
“Where the cause of action has arisen in another state or country and by the laws of the state or country where the cause of action arose an action cannot be maintained thereon by reason of lapse of time, no action can be maintained thereon in this state except in favor of one who is a resident of this'state and who has held the cause of action from the time it accrued.” K.S.A. 60-516.
The Kansas saving statute provides:
“If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.” K.S.A. 60-518.
The'Colorado saving statute provides, in part:
“(1) If an action is commenced Within' the period allowed by this article and is terminated because of lack of jurisdiction or- improper venue, the plaintiff .. . .■ may commence a new action upon the same cause of action within ninety days after the .termination of, the original action or, within the period otherwise allowed by this article, whichever is later .......
“(2) This section shall be applicable to all actions which are first commenced in á federal court as well as'those first commenced in the courts of Colorado of of any other státe.”- Colo. Rev. Stat. § 13-80-111 (1987).
The. Colorado, .borrowing statute provides:
"• “If a cause of action arises, in another state or territoiy or in’ a foreign country and, by the laws thereof, an action thereon cannot be maintained in that state, territory, or foreign countiy by reason of lapse of time, the cause of action shall not be maintained in this state.” Colo. Rev. Stat., § 13-80-110 (1987).
Decision of the federal district court. According to the federal district court; because Goldsmith-died in Colorado, Kansas’ borrowing statute is “the most relevant portion of'Kansas law.” Under the borrowing statute) K.S.A. 60-516; an action time barred in Colorado is barred in Kansas. Because the-present action was filed more than 2 years after Goldsmith’s death, it is untimely under Colorado’s statute of limitatiOns.'Because the heirs’ timely first action was voluntarily dismissed and because it was refiled more than 90 days after dismissal, the Colorado saving statute would not save this.action. ■ ; •
In the federal district court, the heirs argued that the Kansas saving statute applied rather than' the'Colorado saving statute: Their rationale'was that “a'borrowing statute such as K.S.A. 60-516 will not incorporate a foreign jurisdiction’s savings provisions.” The federal district court rejected the argument as follows:
“The latest decisions have uniformly indicated that the borrowing statute effectively borrows -the entire corpus of the limitations law of the foreign jurisdiction, including any savings provisions. See Graham v. Ferguson, 593 F.2d 764 (6th Cir. 1979); Conner v. Spencer, 304 F.2d 485 (9th Cir. 1962); Master Mortgage Investment Fund v. American Nat’l Fire Ins., 151 B.R., 513 (Bankr. W.D. Mo. 1993); Thompson v. Crawford, 833 S.W.2d 868, 872 (Mo. 1992); Knieriemen v. Bache Halsey Stuart Shields, Inc., 427 N.Y.S.2d 10, app. dismissed, 50 N.Y.2d 1021 (1980); Frombach v. Gilbert Associates, Inc., 236 A.2d 363 (Del. 1967), cert. denied 391 U.S, 906 (1968).”
Close examination of the cited authorities indicates that the federal district court’s statement is too sweeping and the cases are distinguishable from the present case.
In Graham v. Ferguson, 593 F.2d 764 (6th Cir. 1979), suit was timely filed in Texas by Texas citizens against Michigan citizens, seeking damages for personal injuries resulting from an automobile accident which occurred in Tennessee in November 1971. It was dismissed in December 1973 for lack of personal jurisdiction. Summary judgment was entered against plaintiffs in the subsequent suit, which was filed in federal district court in Michigan in January 1974. The Sixth Circuit Court of Appeals affirmed. 593 F.2d at 765.
The Tennessee saving statute, which would give a 1-year grace period after dismissal of the first action in which a second action could be filed, would have saved the action filed by the Texas plaintiffs in Michigan. The Tennessee saving statute, however, was not applied on the ground that it would not be “invoked by the filing of a suit in another state where there is no basis for personal jurisdiction over the defendants.” 593 F.2d at 766. The authorities cited, however, stand for the broader proposition that filing of a suit in one state does not invoke another state’s saving statute. See, e.g., Sigler v. Youngblood Truck Lines, Inc., 149 F. Supp. 61 (E.D. Tenn. 1957).
In the present case, the first action was-filed in Kansas, the state in which Leaijet’s principal place of business is located. Because there was a basis for personal jurisdiction of Leaijet, the rationale stated in Graham has no application here. In the present case, both the first and second suits were filed in Kansas. Thus, under the rule for which the district court and the Court of Appeals cited authority, application of Colorado’s limitations laws to this second action would not include application of Colorado’s saving statute, Colo. Rev. Stat. § 13-80-111.
In Conner v. Spencer, 304 F.2d 485 (9th Cir. 1962), personal injuries were sustained by the Conners in a 1955 automobile accident in Idaho, where all parties then resided. Before they filed suit in federal district court in Oregon in 1960, the Conners had moved to that state. The action was barred by Oregon’s 2-year statute of limitations. The Oregon borrowing statute was essentially identical to that of Kansas, barring suit in Oregon if the action would be barred in Idaho. In addition to its 2-year statute of limitations for personal injury actions, Idaho had a tolling provision which might have extended the limitations period to the advantage of the Conners. The Court of Appeals, however, refused to consider Idaho’s tolling provision because its effect would have been to lengthen the period of limitations in the forum, Oregon. The court held that result would not serve the purpose of the borrowing statute, which was said to be to bar the action in the forum if it would be barred where the cause of action arose. 304 F.2d at 487.
“Thus the statute of limitations of the forum provides an ultimate limitation upon the period within which suit may be brought in its courts, even though by operation of a tolling statute the period of limitations on the cause of action has not yet expired in the jurisdiction in which it accrued. [Citations omitted.]” 304 F.2d at 487.
The policy behind the rule that foreign limitations laws may not lengthen the period for suit in the forum is to confine actions to the period in which it is believed by the forum that it can administer substantial justice between the parties. 304 F.2d at 487.
Thompson by Thompson v. Crawford, 833 S.W.2d 868, 872 (Mo. 1992), states the rule that the Missouri borrowing statute applies any tolling provision as well as the statute of limitations of the state in which a cause of action arose. Tennessee, where the accident occurred, had no tolling provision for minors. The Tennessee rule was applied by the Missouri court to preclude any tolling of the Tennessee 1-year statute of limitations. As a result, a minor’s suit for the wrongful death of his mother was time barred before he was beyond infancy, even though under Missouri law his suit could have waited until he reached age 21. The trial court’s dismissal of the petition was affirmed. In the present case, we are not concerned with the tolling provisions of Colorado.
Frombach v. Gilbert Associates, Inc., 236 A.2d 363 (Del. 1967), cert. denied 391 U.S. 906 (1968), is the last of the cases cited by the federal district court as one of the “latest decisions” which uniformly stand for the rule that “the borrowing statute effectively borrows the entire corpus of the limitations law of the foreign ju risdiction, including any savings provisions.” Frombach, a Pennsylvania resident, sued Gilbert Associates, Inc., and another corporation for bodily injuries sustained in Pennsylvania in October 1963. The first action was brought in federal court in Delaware. Eventually, the other corporation was dismissed on stipulation, thus destroying diversity jurisdiction and leading to dismissal of the action in 1966, after the 2-year statutes of limitations of Delaware and Pennsylvania had expired. Frombach promptly filed suit in Delaware state court, and defendant sought dismissal on the ground that the suit was time barred. The trial court certified questions about the limitations period and conflict of laws to the Delaware Supreme Court. The first certified question was whether the Delaware saving statute would preserve the action. The Supreme Court assumed without deciding that the answer would be in the affirmative. 236 A.2d at 366.
The second question was stated as follows: “If such right of action is preserved by the Savings Statute, does the Delaware Borrowing Statute . . . bar the right of action if it arises out of a tort committed in a jurisdiction having a two-year tort Statute of Limitations but no applicable Savings Statute?” 236 A.2d at 364. Noting that the saving statute had become part of Delaware law in 1829 and that the borrowing statute was not enacted until 1947, the court stated: “Any inconsistency or conflict between those two sections would ordinarily be resolved in favor of the latter one, under the theory of implied amendment or partial repealer.” 236 A.2d at 365. The theory embraces the notion that the legislature would have been aware of the existing statute and could have excepted it if that were its intent. The court also observed that the purpose of the borrowing statute would be served if it were given prevalence over the saving statute: “ ‘It is ... an act to prevent “forum-shopping.” If a non-resident chooses to bring a foreign cause of action into Delaware for enforcement, he must bring the foreign statute of limitations along with him if the foreign statute prescribes a shorter time than the domestic statute.’ [Citation omitted.]” 236 A.2d at 365.
Frombach arguably is distinguished on both grounds for the decision — a rule of statutory construction which limits application of one provision by the terms of a later enactment and a policy of preventing forum shopping. The Kansas saving and borrowing statutes are contemporaries, and “the evils of forum-shopping” arguably are not present in this case. Moreover, Kansas is unlike Delaware in that Kansas is not the incorporation capital of western enterprise. Because so many companies which conduct nationwide business can be served in Delaware by virtue of incorporation there, Delaware courts probably find it in their interest to discourage nonresident litigants from filing suit; hence the Delaware court’s statement that Frombach, a nonresident litigant, would be required to bring his own state’s more restrictive limitations period with him. Kansas courts need not share the concern of Delaware courts in guarding against a torrent of litigation by nonresident plaintiffs against businesses incorporated in Kansas.
The Heirs’ Position. The heirs contend here that a recent decision of this court, See v. Hartley, 257 Kan. 813, 896 P.2d 1049 (1995), governs this question and makes the Kansas borrowing statute irrelevant. They point out that See had not been decided when the briefs were filed in the Tenth Circuit Court of Appeals and that they were unaware of it at the time of oral argument. For these reasons, See was not cited by the heirs in the federal court. Assuming that the federal Court of Appeals would not have been aware of a case not brought to its attention, the heirs assure this court that that is the reason the federal court certified the question even though it already had been settled by this court’s decision in See.
See was an interlocutory appeal in a medical malpractice action from the district court’s order denying the defendant doctor’s motion for summary judgment. See’s first action was timely filed. He voluntarily dismissed it and filed a second action within 6 months. In the meantime, more than 4 years had elapsed from the time of the medical procedure which gave rise to the action. K.S.A. 60-513(c) provides:
“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.”
Dr. Hartley argued that the 4-year period was inviolable, thus overcoming the saving statute. The court disagreed:
“The repose provisions of 60-513(c) are not applicable to defeat the savings clause of 60-518 when the initial action was timely filed, even though the second action is not filed until more than four years after the act which gave rise to the cause of action. .. .
“We conclude that once an action is timely filed under the provisions of a so-called ordinary statute of limitations or within the applicable time limitations of a repose statute, such as K.S.A. 60-513(b) or (c), the action is then subject to the savings provision of K.S.A. 60-518. . . . The first action, having been timely filed, was subject to the savings provision of K.S.A. 60-518, and therefore the second action was also timely and not barred by K.S.A. 60-5l3(c).” 257 Kan. at 822-23.
Although the borrowing statute, K.S.A. 60-516, was not a factor in the court’s decision in See, the heirs contend that See is fully controlling. They contend that the court’s words and reasoning require application of the Kansas saving statute to their second action because their first action was timely filed. The following words appear in See: “Once the action was timely filed within the provisions of our procedural statutes, plaintiff is entitled to all of the protections afforded any other timely filed civil action, including the savings provision of K.S.A. 60-518.” 257 Kan. at 821-22. The heirs’ first action was timely filed; hence, they presume entitlement to the protection of the saving statute. The reasoning in See included construing the language “and the time limited for [filing the action] shall have expired” in the saving statute to include any time limitation. 257 Kan. at 822. “Any time limitation” is broad enough to include the Colorado time limitation; hence, the heirs presume that the Kansas saving statute defeats the Kansas borrowing statute.
Learjet’s Position. Leaijet relies on the following cases for the fundamental proposition that a borrowing statute requires a trial court to apply all the foreign limitations laws, including specifically a foreign saving statute, to the preclusion of the forum’s saving statute: Graham, 593 F.2d 764; In re Master Mortg. Inv. Fund, Inc., 151 Bankr. 513 (W.D. Mo. 1993); Davis v. Liberty Mut. Ins. Co., 840 F. Supp. 90, 92 (E.D. Mo. 1993), rev'd on other grounds 55 F.3d 1365 (8th Cir. 1995); Penalosa Co-op Exchange v. A.S. Polonyi Co., 754 F. Supp. 722, 732-34 (W.D. Mo. 1991); and Frombach, 236 A.2d at 365-66.
Penalosa Co-op was decided a year before the Missouri Supreme Court overturned its earlier decisions in Thompson. Penalosa Coop filed tort claims against a broker which arose from the cooperative’s manager’s embezzling money which he used for his personal speculation in the commodities market. Penalosa Co-op first filed suit in state court in Kansas. It was removed to federal district court in Kansas and dismissed for lack of personal jurisdiction more than 2 years after the date on which injury allegedly was reasonably ascertainable. Within 6 months, plaintiff filed a second suit in federal district court in Missouri. 754 F. Supp. at 734. The reported opinion is an order denying the broker’s motion for summary judgment due to outstanding issues of fact involving due diligence and when injury was or should have been known. Questions of law which were settled in the order included applying the Missouri borrowing statute so that the Kansas statute of limitations would govern because Kansas was where the damage was first capable of ascertainment. 754 F. Supp. at 733. The federal district court also concluded that the Kansas saving statute would be applied. 754 F. Supp. at 734.
The cooperative’s cause of action would not have been barred under Missouri’s 5-year statute of limitations, but it would have been barred under Kansas’ 2-year statute of limitations without operation of the Kansas saving statute. The broker’s only argument about applicability of the Kansas saving statute which is germane to the present case was that it was “inapplicable because it has no 'extra-territorial [ejffect and, therefore, does not apply to “foreign” actions.’ ” 754 F. Supp. at 734. The authority cited by the broker, Jackson v. Oil & Gas Co., 115 Kan. 386, 222 Pac. 1114 (1924), does not support the proposition. The federal district court stated: “\Jackson] held that a forum’s savings statute does not apply when the earlier action is brought in some other state.” 754 F. Supp. at 734. Because the forum was Missouri and the cooperative sought to apply the Kansas saving statute to the action which it first brought in Kansas, the federal district court concluded that Jackson’s holding was inapplicable. In fact, in Jackson the Kansas court remarked on but did not reach the question whether a forum state’s saving statute would apply when the earlier action was brought in another state. The oil company argued that the Kansas saving statute “does not apply when the former action is brought in another state. This point appears to be well taken (Herron v. Miller, 220 Pac. 36 [Okla.]), though in view of the conclusion already reached, it is not necessary to pass upon it.” 115 Kan. at 391. Jackson’s personal injury action was dismissed on the ground that the Kansas saving statute did not apply because
“the regular two-year statute of limitations had not expired at the time the [first] action in Oklahoma was dismissed. . . . [H]ence the plaintiff had more than three months after the dismissal of the [first] action in Oklahoma to file an action in [Kansas] within the regular two-year statute of limitations.” 115 Kan. at 387.
Davis, 840 F. Supp. 90, involved tort claims filed in Missouri state court. All parties agreed that the applicable statute of limitations was the 2-year Iowa statute. Plaintiffs voluntarily dismissed the first action, refiled in Missouri after the limitations period had expired, and then the case was removed to federal court. The federal district court relied on the Missouri Supreme Court’s decision in Thompson in concluding that the Iowa saving statute would apply. Where the state court required “companion statutes which limit and restrict . . . operation” of a borrowed statute of limitations to be taken along with it, the federal court “conclude[d] that the same reasoning applies to borrowing another state’s savings provision along with its statute of limitations.” 840 F. Supp. at 92.
The opinion in Davis is an example of analytical confusion resulting from misconceptions in this convergence of limitations law and conflicts of laws. There, the court stated: “The parties agree and the Court concludes that Iowa’s two year statute of limitations for personal injury actions . . . applies.” 840 F. Supp. at 92. In this circumstance, Missouri’s borrowing statute would be irrelevant and there would be no question about which state’s saving statute applied. Iowa’s saving statute would be applicable because Iowa’s limitations laws were applicable irrespective of Missouri’s borrowing statute. The function of a borrowing statute is to override the otherwise controlling forum state’s statute of limitations where the statute of limitations of the state in which the cause of action arose would bar the action. In other words, the general rule is that the forum state’s statute of limitations is applied. Sun Oil Co. v. Wortman, 486 U.S. 717, 100 L. Ed. 2d 743, 108 S. Ct. 2117 (1988) (holding that neither the full faith and credit clause nor the due process clause prohibits Kansas, the forum state, from applying its own statute of limitations to claims that are governed by the substantive law of a foreign state). If, however, an action which would be timely under the forum-state statute of limitations would be time barred in the state in which the cause of action arose, the borrowing statute creates an exception to the general rule. If one starts from the premise that the foreign state’s statute of limitations applies, as the parties and the court did in .Davis, then the forum state’s borrowing statute never figures in the analysis. Thus, even though the court purportedly used the Missouri borrowing statute to give effect to the Iowa saving statute, in fact, it should have given effect to the Iowa saving statute without regard to the Missouri borrowing statute.
, Thus, Leaijet has brought to this court’s attention one case, Penalosa Co-op., which .supports the proposition that a borrowing statute requires a trial court to apply a foreign saving statute. The heirs would distinguish Penalosa Co-op from the present case on the ground that the cooperative’s first action was filed in Kansas and the second in Missouri. Here, both cases have been filed in Kansas. The distinction which the heirs urge this court to see is tied to a policy of discouraging forum shopping. In addition, two of the cases cited by the federal district court in its order granting summary judgment support similar propositions. Thompson precludes application of a tolling provision of the forum state where there is no counterpart among the laws of the state where the cause of action arose. Frombach precludes application of a saving provision of the forum state where there is no counterpart among the laws of the state where the cause of action arose.
Learjet contends that the heirs “are unable to point to even a single case in which a forum’s saving statute was held applicable even though a claim was barred by the forum’s borrowing statute.” In fact, the heirs cite several cases on point. In Fowler v. Herman, 200 Tenn. 201, 292 S.W.2d 11 (1956), the Tennessee Supreme Court held that an action for injuries sustained in an automobile accident in Alabama was not barred despite expiration of the Alabama limitations period. It reasoned that a Tennessee statute which saved an action “recommenced within one year from the failure to execute the summons originally sued out in time” trumped the Alabama statute of limitations which was relevant due to the operation of the Tennessee borrowing statute. 200 Tenn. at 204. According to the Tennessee court, the operation of the forum saving statute rendered “the expiration of the one year in Alabama . . . immaterial and irrelevant [so that it] had no effect upon the plaintiff’s rights which he had preserved in Tennessee.” 200 Tenn. at 205. In Wright v. New York Underwriters’ Ins. Co., 1 F. Supp. 663 (W.D. Mo. 1932), plaintiff sued in Missouri on a cause of action which arose in Kansas. The first action was instituted within a year but then was dismissed. When a new suit was filed in Missouri after the Kansas limitations period had expired, the insurance company argued that the Missouri borrowing statute precluded application of the Missouri saving statute. Relying on an Iowa decision, the court rejected the argument. 1 F. Supp. at 664. The heirs point out that this federal decision was followed in Missouri appellate court decisions.
An important variable seems to be where the first suit was filed. As previously mentioned, there is a line of cases holding that saving statutes do not apply to actions first filed elsewhere. In Graham, this was represented to be the majority view. Among the cases cited in Graham was Sigler v. Youngblood Truck Lines, 149 F. Supp. 61 (E.D. Tenn. 1957), a personal injury and property damage suit which arose out of a motor vehicle accident that occurred in Kentucky in September 1955. The Siglers, residents of Tennessee, first sued the trucking company in federal court in North Carolina in August 1956. In October 1956, they voluntarily dismissed that action and instituted the suit in federal court in Tennessee. The Sig lers argued that the Tennessee 1-year statute of limitations would not bar their action because the court in Tennessee would apply either the North Carolina saving statute or the Tennessee nonsuit (saving) statute. 149 F. Supp. at 63. In fact, the court concluded that none of the saving provisions of any of the. three involved states would apply to a suit commenced in Tennessee which had been preceded by a suit filed in North Carolina within the limitations period. The court noted that the Kentucky limitations period was 1 year and that its saving provision expressly limited its application to suits filed in Kentucky. 149 F. Supp. at 63-64. It concluded that the North Carolina saving statute would not apply “because the Tennessee statutes do not so provide and a foreign statute of this character does not have extra-territorial effect.” 149 F. Supp. at 65. And the court concluded that the words “If the action is commenced within the time limited by a rule or statute of limitation” of the Tennessee saving provision “have reference to actions commenced in Tennessee courts only.” 149 F. Supp. at 66. In dismissing the action, the court stated: “It is a matter of some consolation that the suits are not barred in the State of North Carolina where trials may be had on the merits.” 149 F. Supp. at 68.
Another case cited in Graham is Herron v. Miller, 96 Okla. 59, 220 Pac. 36 (1923). As noted by the federal Court of Appeals, in the 1924 case of Jackson v. Oil & Gas, this court seemed to express approval of the rule from Herron that precludes application of the saving statute unless the first suit was filed in the forum.
In a more recent case, Prince v. Leesona Corp., Inc., 720 F.2d 1166 (10th Cir. 1983), the Tenth Circuit Court of Appeals concluded that the trend had reversed. That court predicted that Kansas courts would apply the Kansas saving statute to actions filed first in other states. The federal court stated that “no significant policy would be advanced by holding such a statute inapplicable to actions originally filed in sister states.” 720 F.2d at 1169. This court still has not had occasion to consider the question. Here is what the federal Court of Appeals said in 1983:
“Although Kansas has not directly decided the issue, defendant cites the dictum of Jackson v. Prairie Oil & Gas, 115 Kan. 386, 391, 222 Pac. 1114, 1116 (1924), in which the Kansas Supreme Court noted that the rule of Herron v. Miller, 96 Okl. 59, 220 Pac. 36 (1923), appeared to be well taken. The rule of Herron — that the forum’s savings statute does not apply when the initial action is brought in another state — is the general rule among older cases. More recently, however, both circuit and state courts have split on the issue of whether savings statutes apply to suits originally filed in sister states.
"Absent compelling precedent from a state, we see no reason to follow old dicta when virtually every state has a savings statute and no significant policy would be advanced by holding such a statute inapplicable to actions originally filed in sister states. Defendant here was put on notice of the action in a timely manner and there was no more delay involved than if the action had been filed in the forum state and dismissed there for procedural reasons. Nor would holding that a savings statute is inapplicable to actions filed in sister states further any policy of the forum state to protect its citizens from discrimination by other states.” 720 F.2d at 1168-69.
Muzingo v. Vaught, 18 Kan. App. 2d 823, 859 P.2d 977 (1993), closely parallels the reasoning of Conner on this issue. In Muzingo, the Kansas Court of Appeals rejected the argument that the Kansas borrowing statute could be interpreted to enlarge the Kansas limitations period. Nearly 5 years after a boating accident in Missouri, the Muzingos sued Vaught in Kansas for property damage and personal injury. All parties were Kansas residents. The Kansas limitations period for the tort action was 2 years. The Muzingos contended that Missouri’s 5-year statute of limitations applied. They urged the Court of Appeals to interpret Kansas’ borrowing statute to borrow the Missouri statute of limitations. The Kansas Court of Appeals affirmed the dismissal of the action as barred by the Kansas statute of limitations.
Starting from the premise that the Kansas rule for limitation of actions is that the forum’s law governs, the Court of Appeals considered whether Missouri’s limitations period should be invoked by virtue of application of the Kansas borrowing statute. The Court of Appeals gave some background on borrowing statutes:
“A number of states have enacted statutoiy exceptions to the common-law rule that the forum applies its own statute of limitations to actions before it. These statutes are commonly referred to as ‘borrowing statutes,’ which to varying degrees change the common-law rule governing choice of the applicable statute of limitation. See Leflar, American Conflicts Law § 128, p. 256 (3d ed. 1977). Borrowing statutes attempt to promote uniformity of limitation periods and to discourage forum shopping by requiring the trial court to ‘borrow’ the statute of limitations of the jurisdiction that the legislature has determined bears the closest relationship to the action, usually the jurisdiction where the action arose. Miller v. Stauffer Chemical Co., 99 Idaho 299, Syl. ¶ 3, 581 P.2d 345 (1978).” 18 Kan. App. 2d at 825.
Before discussing the Muzingos’ theories, the Court of Appeals observed:
“At the outset, we question whether 60-516 applies to this action because, when filed, the action was not barred in Missouri. Therefore, one of the conditions precedent to the application of our borrowing statute has not been satisfied. See Driscoll, Some Reflections on the Kansas Borrowing Statute, 17 Kan. L. Rev. 437, 443 (1969) (‘Only when the court has decided that the borrowing statute is applicable should it look to the limitation law of a foreign jurisdiction’). As the Muzingos ignore this threshold question and argue their interpretation of 60-516 operates to save their action, we too will interpret the statute.” 18 Kan. App. 2d at 826.
The Court of Appeals held:
“K.S.A. 60-516 permits residents to file actions in this state which arise in foreign states, although the actions would be untimely filed in the foreign states. However, when filed in this state, the action must be timely filed under this state’s applicable statute of limitations. Another state’s statute may not be used to extend the Kansas limitations period — to make timely an action barred by Kansas law.” (Emphasis added.) 18 Kan. App. 2d 823, Syl. ¶ 5.
“As a general rule, statutes of limitations are procedural in nature. Where the statute sued upon creates the right and incorporates a limitation period for suit, the time restriction qualifies the right and becomes substantive in nature. Under this circumstance, the second exception to the common-law rule — that the forum applies its own statutes of limitations to actions before it — applies.” 18 Kan. App. 2d 823, Syl. ¶ 6.
For the rule that the borrowing statute was intended not to enlarge but in certain circumstances to shorten the period of limitation, the Court of Appeals cited Newell v. Harrison Engineering & Const. Corp., 149 Kan. 838, 841, 89 P.2d 869 (1939). 18 Kan. App. 2d at 826.
It is apparent from Conner and Muzingo that borrowing statutes typically permit the foreign limitations period to be borrowed only to the extent that it shortens the limitations period of the forum. In Conner, even though the applicable Idaho limitation was the 2-year statute of limitations extended by Idaho’s tolling provision, the tolling provision was given no effect because it would have length ened the period beyond that of the forium In Muzingo, the applicable Missouri statute of limitations was given no effect bécause it would have lengthened the period beyond that of the forum.' .
As noted by the heirs, See is a current expression of this court’s inclination to give effect to the saving statute over one of limitation. We find it controlling as to this question. We concluded in See
“that once -an action is timely filed under the provisions of a sd-called 'ordinary statute of limitations--or within-the applicable time limitations of a repose statute, such as K.S.A. 60-513(b) or (c), the action is then subject to the savings provision of K.S.A. 60-518.” 257 Kan. at'823. ' ' •••
Here, since.the cause of action arose in Colorado, K.S.A. 60-516 mandates-that we first determine if the action is time barred under thé Colorado statute of fimitations. As previously noted, the Colorado statute of fimitations is 2 years, the same as that of Kansas. Once it is determined that the action was not time barred in Colorado, diere is no, further need to look to Colorado .law. The first filing , being timely, Kansas jurisdiction attaches at that time; and the timeliness of the subsequent fifing is to be determined under the saving provision of'K.S.A. 60-518, not K-.S.A'. 60-516; The original fifing in the Kansas district coud, was, timely, úñdér both Colorado and Kansas statutory fimitations; thus, under K.S.Á.. 60-518, the second fifing in the United-.States District. Court was. also timely. Therefore, the answer-to Certified-Question- No.-1 is “no/’
Question. No. 2
Whether the Kansas saving statute, K.S.A. 60-518, sávés wrongfill death actions. .
In addition to accepting Learjet’s argument that the effect of the Kansas borrowing statute barred the second action, the federal district court granted defendant’s motion- for summary judgment on the ground that the second action was barred by the precedent of Rodman v. Railway Co., 65 Kan. 645, 70 Pac. 642 (1902). Because no right of action for damages for wrongful death existed at common law and the Kansas statute creating the right of action imposed the condition that an action be commenced within 2 years, the fimitations period was “unaffected” by the saving statute. 65 Kan. at 654. The court stated its -rule as follows:
“Section 422 of the civil code (Gen. Stat. 1901, § 4871) creates a right of action for damages for death by wrongful act which did not exist at common law and which does not obtain in the absence of such act. The limitation of two years prescribed in the act in which such action must be commenced is a condition imposed upon the exercise of the right of action granted, and this time is not extended by the pendency and dismissal of a former action, as provided in section 23 of the code (Gen. Stat. 1901, § 4451).” 65 Kan. 645, Syl. ¶ 2.
Since this court considered Rodman and Hodge v. Hodge, 191 Kan. 390, 381 P.2d 329 (1963), the legislature removed the limitations provision from the wrongful death statute and relocated it in Article 5, Limitations of Actions, of Chapter 60, Code of Civil Procedure, along with other limitations laws. As we have seen, the limitation period for an action for wrongful death is now included in K.S.A. 60-513(a)(5) among the actions which must be brought within 2 years. The wrongful death provisions now are located in Chapter 19, Wrongful Death Actions, of Chapter 60. No limitations period is stated in the wrongful death provisions. K.S.A. 60-1901 et seq.
The heirs contend that the legislature’s intent to subject wrongful death actions to the general limitations provisions, including the saving statute, is evident from its severing the limitations provision from the statute which created the right of action. Leaijet contends that the relocation is of no significance because it does not change the fact that the wrongful death statute(s) created the remedy and established the time in which a proceeding had to be commenced in order for relief to be available.
Examination of K.S.A. 60-501 and Gard’s commentary on the saving statute supports the view of the heirs. K.S.A. 60-501 provides: “The provisions of this article govern the limitation of time for commencing civil actions, except where a different limitation is specifically provided by statute.” The limitation for an action for wrongful death now is expressly included in Article 5 of Chapter 60; the limitation is no longer “specifically provided by [the] statute” which creates the right of action. After the 1963 relocation, Gard wrote with respect to K.S.A. 60-518:
“It has been held inapplicable to actions for wrongful death. Bowles v. Portelance, 145 K[an.] 940, 67 P.2d 419 [(1937)]. This was for the reason that the two- year provision in the death statute had been held to be a condition for the maintenance of the action for wrongful death and not a statute of limitation. Now that the two-year period of limitation under section 60-513 has been made expressly applicable to death cases a different result may be expected.” 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-518 (1979), Comment, p. 37.
Although the rule from Rodman has not been expressly overturned, there are several Kansas cases in which its demise seems to have been assumed by the court and the parties alike. As the heirs would have it, “[t]he saving statute’s application to death actions is so obvious that it has not been challenged.”
In Frost v. Hardin, 1 Kan. App. 2d 464, 571 P.2d 11 (1977), aff’d 224 Kan. 12, 577 P.2d 1172 (1978), the Court of Appeals considered the question whether a wrongful death action brought by decedent’s sons after they reached majority was barred by their mother’s earlier abortive action. The Court of Appeals concluded: “Defendants have a good statute of limitations defense against any claim by Mrs. Frost, but that does not bar these plaintiffs. They are given the right by statute to bring the action in their own names, and that right was preserved to them by statute during their respective minorities.” 1 Kan. App. 2d at 471. This court “approve[d] and adopt[ed] the opinion of the Kansas Court of Appeals as written.” 224 Kan. 12. Thus, this court adopted the view of the Court of Appeals that the minors’ tolling provision in K.S.A. 60-515(a) applied to preserve the sons’ claim. According to the heirs in the present case, this aspect of Frost confirms the statutory construction which they advocate “because, if the ‘tolling’ statute in Article 5 applies to death actions, there is no reason the savings statute also does not.” Leaijet’s only comment on Frost is that the reference to. the saving statute in the opinion “is pure dictum.” The heirs’ position, however, depends on the saving statute’s being analogous to the minors’ tolling provision rather than its being specifically mentioned.
In Beck v. Kansas Adult Authority, 241 Kan. 13, 735 P.2d 222 (1987), the court considered personal injury, wrongful death, and survival actions by the heirs of two victims and one of the witnesses to a shooting incident. The actions were timely filed in federal district court in Kansas, subsequently dismissed, and filed in state court within 6 months of the dismissal. After reciting this procedural history, the court stated: “Although more than two years elapsed between the time of the shooting and the commencement of these actions, they were timely filed. K.S.A. 60-518.” 241 Kan. at 15. Learjet categorizes this reference to the saving statute as “dictum,” not pure dictum.
Leaijet’s principal argument is that any discussion of Rodman and the 1963 revision of Kansas civil procedure provisions and subsequent Kansas, cases is irrelevant because the wrongful death right of action exercised by the heirs in the present case was created by Colorado statute rather than Kansas statute. It follows, according to Leaijet, that the real question is whether “the Kansas [saving] statute may properly revive a time-barred Colorado wrongful death claim, a cause of action which exists and is defined only by Colorado statute.”
Leaijet cites several cases for the proposition that Colorado’s saving statute does not apply to Colorado wrongful death claims. Rather than disputing the contention that these cases stand for the proposition asserted, the heirs, by ignoring the cited cases, seem to be indicating that the inquiry into application of the Colorado saving statute is irrelevant. We agree. That question is not before us, nor is it self-evident, as Learjet seems to assume, that examining cases involving the Colorado saving statute and the Colorado wrongful death statute would be useful for the purpose of determining whether this court should apply the Kansas saving statute to a wrongful death action which arose in Colorado.
In Rodman, this court held that the saving statute did not apply to a wrongful death action. It did so because the wrongful death action is a creature of statute and, as such, the 2-year limitation written into the statute was a condition of the action and must be strictly complied with. Although, generally, limitations on bringing an action are considered to be procedural, where the limitation is part of the statute creating the cause of action, the limitation becomes substantive, and the saving statutes do not apply. By removing the 2-year time limitation from the wrongful death statute and placing it in K.S.A. 60-513(a)(5), the basis for this court’s decision in Rodman no longer exists. Thus, we need not overrule Rodman, because it simply does not apply to the changed circumstances. K.S.A. 60-518 does apply to a wrongful death action, and we therefore answer Question No. 2 in the affirmative.
Question No. 3
Whether the Kansas saving statute saves actions which the Kansas borrowing statute otherwise would bar.
In the federal district court the heirs argued that “even if the borrowing statute applies to incorporate Colorado’s limited savings statute, the barred action would nonetheless be subject to revival under 60-518.” It was in connection to this argument of the heirs that the federal district court concluded that the Kansas borrowing statute would defeat the Kansas saving statute because it was the more specific. -
Here, the heirs suggest that the court’s task is to reconcile the borrowing and saving statutes so that they are consistent and harmonious. They also note that the saving statute, because remedial, “should be liberally construed, with a view of carrying into effect the purpose of the legislature.” Denton v. Atchison, 76 Kan. 89, 92, 90 Pac. 764 (1907). The heirs’ proposed method of reconciling the borrowing and saving statutes and giving effect to both is as follows: “[T]he borrowing statute applies to an action when it is first filed, and the saving statute applies to any action filed within six months of a voluntary dismissal.”
Our response to Question No. 1 essentially renders Question No. 3 moot. As we stated there, See is controlling, even though the borrowing statute was not under consideration. In See, we stated that the saving statute “ ‘is intended to give a party who within the proper time brought an action which was disposed of otherwise than upon the merits after the statute of limitations had run [6 months] of grace in which to reinstate his case and obtain a determination upon the merits.’ ” 257 Kan. at 822 (quoting Denton v. Atchison, 76 Kan. 89, 91, 90 Pac. 764 [1907]). In order to give effect to the purpose of the legislature in enacting the saving statute as well as the statute of repose, the court “conclude[d] that once an action is timely filed under the provisions of a so-called ordinary statute of limitations or within the applicable time limitations of a repose statute, . . . the action is then subject to the savings provision of K.S.A. 60-518.” 257 Kan. at 823. The court added: “The first action, having been timely filed, was subject to the savings provision of K.S.A. 60-518, and therefore the second action was also timely and not barred by [the statute of repose].” 257 Kan. at 823. In the present case, the first action, having been timely filed under both the Kansas and Colorado limitations laws, was subject to the Kansas saving statute, and therefore the second filing was also timely.K.S.A. 60-516, the borrowing statute, is not applicable to the second filing.
As noted in Muzingo, the borrowing statute operates only when the action would be time barred in the foreign state. Since the first filing was not time barred under Colorado fimitations, K.S.A. 60-516, the borrowing statute, performed its function and thereafter the Kansas saving statute would be applied if effective in the circumstances. Here, it was effective to save the action in the United States district court. Our conclusion that K.S.A. 60-516 does not apply to the subsequent filing in the United States district court renders Question No. 3 moot.
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The opinion of the court was delivered by
Burch, J.:
McCleery presented to the probate court a claim against the Dudley estate. The claim was disallowed, and McCleery appealed to the district court. The district court held allowance or disallowance of the claim was premature while a certain action in the district court, numbered 31,420, remains undetermined. Mc-Cleery appeals.
Dudley was assignee of a judgment in favor of Adam Becker against the McCleery Lumber Company, T. F. McCleery, and others. Pursuant to an agreement, Dudley released McCleery’s land from lien of the judgment, except for the sum of $4,300. McCleery sold a tract of land, and the purchaser retained $4,300 of the price as indemnity against the lien. On April 9, 1920/ tKe money was paid to Dudley on the following conditions, embodied in a written contract between Dudley and McCleery:
“To hold said money until the debts of said McCleery Lumber Company, except the claim of said T. F. McCleery against said company, are paid from the assets of said McCleery Lumber Company, or otherwise. That upon the payment of said debts against said McCleery Lumber Company, as aforesaid, except said claim of said T. F. McCleery, said sum of $4,300 to then be paid to said T. F. McCleery-. And said Guilford Dudley further agrees to pay to said T. F. McCleery, during the time he shall hold said $4,300, interest on the same at the rate of six per cent per annum, payable semiannually. . . . It being understood between the parties hereto that this agreement is made for the purpose of releasing said land from said judgment and substituting said sum. of $4,300, in lieu of said land, as security for the payment of said Becker judgment under the conditions hereinbefore stated.”
On October 9, 1920, the following instruments were executed by Dudley and McCleery:
“In the District Court op Shawnee County, Kansas.
“Adam Becker, Plaintiff, v. The McCleery Lumber Company, T. F. McCleery, et ah, Defendants.
“I the undersigned, Guilford Dudley, owner and holder of the judgment recovered by the plaintiff in the above-entitled action by assignment to me, hereby release the defendant, T. F. McCleery, from any personal liability by reason of said judgment against him. But it is understood that this release in no way affects said judgment as to any other judgment debtor herein.
“Dated this- day of October, 1920. Guilford Dudley.”
“The undersigned, T. F. McCleery, hereby agrees that in consideration of releasing him from any personal liability on account of the judgment in the case of Adam Becker v. The McCleery Lumber Company et al., that any claim that he had against the assets of said The McCleery Lumber Company shall be inferior and subordinate to the judgment lien thereon.
“Dated this-day of October, 1920. . T. F. McCleery."
Dudley died on March 28, 1923. The claim presented to the probate court was for the $4,300 which Dudley had received and held pursuant to the contract of April 9,- 1920, and upon which he had paid semiannual interest up to October 9, 1922. The issues in action No. 31,420 involved amount of indebtedness, amount of assets, and priority of claims upon assets of the lumber company.
McCleery says the contract of April 9, 1920, states as plainly as possible that the $4,300 was substituted in lieu of his land as security for payment of the Becker judgment, which is true. The contract adds, however, “under the conditions hereinbefore stated,” and those conditions must be considered. The Becker judgment ran against the lumber company as well as against McCleery, and the agreement states as plainly as possible that the $4,300 was to be held by Dudley until the debts of the lumber company were paid from its assets or otherwise, and that on payment of the lumber company's debts the money was to be returned. MeCleery says the money was held as security for the Becker judgment. That interpretation of the instrument may be accepted. The money was held, however, as security for payment of the Becker judgment against the lumber company. The instrument signed by Dudley on October 9, 1920, merely released MeCleery from personal liability by reason of the judgment “against him.” It had no effect on the security which Mc-Cleery had put up for discharge of the lumber company’s liability.
Some evidence was introduced regarding the situation and circumstances of the parties at the time the instrument of October 9, 1920, was executed, as indicative of intention. This evidence was enlarged to include an oral communication to Dudley of McCleery’s insistence that the business of the lumber company be speedily closed, and on oral statement by Dudley of willingness to release MeCleery from personal liability, which led to preparation of the writing. 'When prepared, the writing extended to nothing beyond what has been stated.
The deposit gave rise to a present liability on Dudley’s part to pay interest, and to a contingent liability to return the money when the lumber company's debts were paid. The assets of the lumber company consisted of certain shares of corporate stock, upon which dividends were not paid, and the affairs of the lumber company were not being promptly settled. The deposit was an asset of MeCleery not available to him until the lumber company’s debts were paid; and because his money was tied up, he was demanding that case No. 31,420 be pushed to final disposition. If it was the intention of both parties to the agreement of October 9,1920, that upon execution of the instrument, the contract of April 9,1920, was to be superseded, MeCleery was to have his money back at once, and Dudley’s liabilities respecting the deposit were to cease at once, it is strange the instrument did not state the simple facts; that the parties should go on just as before, MeCleery doing without the money, and Dudley keeping it and paying interest upon it, and that MeCleery should wait to recover money which became due him in October, 1920, -until after Dudley died, in March, 1923. Upon the whole, therefore, consideration of extrinsic matters tends to strengthen rather than to impeach the district court’s interpretation of the relations of the parties, and its judgment is affirmed.
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The opinion of the court was delivered’ by
Mason, J.:
A joint school district brought this proceeding in mandamus to require the county superintendent and county commissioners to disorganize an adjoining school district (No. 53 of Saline county), and attach its territory to the plaintiff, because of its failure for two successive years to maintain a school for seven months. An alternative writ was issued, to which an answer was filed. The case was submitted on an agreed statement, and judgment was rendered for the defendants, from which the plaintiff appeals.
The defendants urge and the district court held that the plaintiff has no standing to maintain the proceeding. The case is not one brought against a de facto municipality to obtain a judgment declaring it void or ordering its dissolution — a proceeding maintainable only by the state. Its purpose, however, is to compel officers to perform a public duty, and if any plaintiff other than the state may maintain it, it must be one having a peculiar interest in the matter — an interest different from that arising from being a member of the community affected. The only interest the present plaintiff asserts grows out of the fact that it would be benefited through the disorganization of the district by the accession of additional territory, whereby the amount of its school taxes would be increased. The manifest purpose of the provision of the statute for the disorganization of school districts which fail to maintain schools is to promote the efficiency of the state’s educational machinery by affording adequate school privileges to the residents of such districts. An increase in the tax roll of an adjoining district is.no part of the end sought. The circumstance that the plaintiff would be incidentally benefited in that way does not in our judgment give it such a special interest in the matter as to enable it to invoke the action of a court to bring about the change.
The district court also found generally for the defendants, and we think the judgment in their favor on the merits was justified by the facts. District No. 53 failed to maintain a school for the school years of 1920-’21 and 1921-’22; that is from the close of the term in April, 1920, to the beginning of the term in September, 1922. School was maintained, however, for eight months, beginning on the first Monday of September, 1922. When the present action was begun (May 23, 1923) the statute then in effect directed a district to be disorganized when for two successive years it should fail to maintain a school (Laws 1921, ch. 228, § 1); but the legislature had already provided for a statutory change, effective December 27, 1923, making a failure for three successive years to hold school a prerequisite to such disorganization (R. S. 72-818). Whether or not the superintendent and county commissioners might legally disorganize a school district for a past delinquency after it had resumed the maintenance of a school and after the legislature had added another year to the period of cessation required to bring about a disorganization, we think a court is at all events abundantly justified in the exercise of a sound discretion in refusing to compel such action by mandamus. (The State, ex rel., v. Thomas County, 116 Kan. 285, 226 Pac. 745.)
The judgment is affirmed.
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The opinion of the court was delivered by •
Marshall, J.:
On June 28, 1923, W. E. Simmons sued L. W. Vawter to recover $2,300, the balance of the purchase price of real property sold by Simmons to Vawter. Garnishment proceedings were instituted, and Leonard F. Vawter was garnished on June 28, 1923. Charles R. Waltmire intervened in the garnishment proceeding and claimed the funds garnished had been assigned to him. On March 27, 1924, L. W. Vawter was adjudged a bankrupt, and J. E. Whitmer was appointed trustee in bankruptcy. The petition in bankruptcy was filed on March 21, 1924. J. E. Whitmer, as trustee, was made a party to the action, and on May 21, 1924, entered her appearance, and on September 24, 1924, filed an answer, in which she claimed that any money owing from Leonard F. Vawter to L. W. Vawter was a part of the bankrupt estate, and afterward asked that Leonard F. Vawter be directed to pay such money into court for the trustee. Judgment was rendered in favor of the plaintiff against L. W. Vawter for $2,300. An order was made directing Leonard F. Vawter to pay the amount due from him to L. W. Vawter into court to satisfy the judgment in favor of the plaintiff. The motion of Charles R. Waltmire to have that money paid into court for his benefit was denied. The application of J. E. Whitmer to have the money paid into court by Leonard F. Vawter and then paid over to the trustee in bankruptcy was also denied. L. W. Vawter appealed from the judgment in favor of Simmons; that appeal is case No. 25,645 in this court. Charles R. Waltmire appealed from the judgment denying his motion to have the money paid into court for his benefit; that appeal is case No. 26,160 in this court. J. E. Whitmer appealed from a judgment denying her application to have the money paid into court for the benefit of the estate in bankruptcy; that appeal became case No. 26,417 in this court.
By stipulation in this court, J. E. Whitmer, as trustee in bankruptcy, has been substituted as appellant in place of the defendant, L. W. Vawter, in case No. 25,645. No brief has been filed by L. W. Vawter. The validity of the judgment in favor of the plaintiff and against L. W. Vawter is not now questioned.
The claim of Charles R. Waltmire is based on a contract for the sale of land by L. W. Vawter and his wife to Leonard F. Vawter, by which the latter agreed to pay the former the sum of $5,100 in cash for the land and to pay a mortgage of $1,900 against a part of the land. The contract contained the following provision:
“Party of the first part [L. W. Vawter] agrees to pay all taxes that are now a lien against his land; also to pay Chas. R. Waltmire in full for note of $1,500, said note being signed by himself and Mary E. Vawter, from the proceeds of this sale.”
Charles R. Waltmire contends that this provision of the contract-constituted an assignment to him: of enough of the proceeds of the sale to pay his $1,500 note. The purchaser, Leonard F. Yawter, had not agreed to pay Charles R. Waltmire. The seller stipulated that he would pay the note made by him to Charles R. Waltmire out of the proceeds arising from the sale of this land. L. W. Yawter agreed to pay the debt owing by him out of his own money. There was nothing to indicate an assignment to Waltmire of any part of the proceeds arising from the sale. Waltmire had no right of action against Leonard E. Vawter, because he had not agreed to pay Walt-mire anything. L. W. Vawter, the vendor of the real property, had not agreed that his vendee, Leonard F. Vawter, might take a part of the purchase price of the land and apply it on the note previously made to Charles R. Waltmire. The contract did not constitute an assignment to Charles R. Waltmire of any part of the claim of L. W. Vawter against Leonard F. Vawter. There having been no assignment, Waltmire’s claim to the proceeds must fail.
The appointment of J. E. Whitmer as trustee in bankruptcy for L. W. Vawter, and the substitution of the trustee for L. W. Vawter in the appeal of the latter, places all his rights in the hands of the trustee. After that substitution and after the failure of the contention of Charles R. Waltmire, the claim of the trustee became adverse to that of the plaintiff, who claimed by virtue of the garnishment, while the trustee claimed under the bankruptcy proceeding. Which is paramount?
The pertinent statute of the bankruptcy law, as found in the U. S. Compiled Statutes of 1918, Compact Edition, section 9651, subdivision F, in part reads:
“That all levies, judgments, attachments or other liens obtained through legal proceedings against a person who is insolvent at any time within four months prior to the filing of a petition in bankruptcy against him shall be deemed null and void in case he is adjudged a bankrupt.”
That statute does not exclude liens obtained by statutory proceedings more than four months prior to the filing of the petition in bankruptcy. In the present action the garnishment lien attached more than eight months before the petition in bankruptcy was filed. It follows that as between the plaintiff and the trustee, the lien of the plaintiff is paramount to the claim of the trustee.
The court, in denying the application of J. E. Whitmer to have the money owing by Leonard F. Vawter to L. W. Vawter paid into court for the trustee, held that she was “not entitled to an order requiring Leonard F. Vawter to pay money into court to be paid to said trustee, but said trustee must bring an independent suit to recover the balance due and the interest.” Attention is called to the nature of the present action. It is one by W. E. Simmons against L. W. Vawter to recover the balance of the purchase price of real estate. Leonard F. Vawter was garnished. There is no statutory authority for adjudicating, in this action, any controversy between L. W. Vawter and Leonard F. Vawter concerning the indebtedness from the latter to the former.
Three statutes, sections 60-948, 60-950 and 60-956 of the Revised Statutes, should be noticed. Section 60-948 reads:
“The answer of the garnishee shall in all cases be conclusive of the truth of the facts therein stated, unless the plaintiff shall within twenty days serve upon the garnishee a notice in writing that he elects to take issue on his answer; in which case the issue shall stand for trial as a civil action, in which the affidavit on the part of the plaintiff shall be deemed the petition, and the garnishee’s affidavit the answer thereto. The plaintiff may in all cases move the court, upon the answer of the garnishee, and of the defendant, if he shall also answer, for such judgment as he shall be entitled to thereon, but any such judgment shall be no bar beyond the facts stated in such answer.”
Section 60-950 reads:
“The defendant may in all cases, by answer duly verified, to be served within twenty days from the service of the garnishee summons on him, defend the proceedings against any garnishee, upon the ground that the indebtedness of the garnishee, or any property held by him, is exempt from execution against such defendant, or for any other reason is not liable to garnishment; or upon any ground upon which a garnishee might defend the same; and may participate in the trial of any issue between the plaintiff and garnishee for the protection of his interests. And the garnishee may, at his option, defend the principal action for the defendant, if the latter does not, but shall be under no obligations so to do.”
Section 60-956 reads:
“No action shall be commenced by the defendant or his assignee against a garnishee upon any claim or demand liable to garnishment, or to recover any property garnished, or execution be issued upon a judgment in favor of defendant against such garnishee subsequent to the service of the garnishee summons upon him, until the termination of the garnishee action; and if an action shall have been commenced or an execution issued, it shall be stayed by the court or a judge thereof, upon the garnishee’s application; except that, upon cause shown, the court or a judge may by order permit the commence naent of such an action, or the issue of an execution, or the further prosecution of one stayed.”
These statutes contemplate that controversies between a defendant and a garnishee concerning what may be owing by the garnishee to the defendant cannot be finally litigated in the action in which the garnishment proceeding is instituted, but shall be determined in an independent action brought for that purpose. L. W. Vawter would not have been entitled to an order in this action directing the garnishee to pay into court the remainder left after discharging the claim of the plaintiff, because L. W. Vawter must look to Leonard F. Vawter for the payment of that remainder and cannot ask the court to assist in collecting it until the matter has been adjudicated. The trustee had no greater rights than L. W. Vawter.
The judgments are affirmed.
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The opinion of the court was delivered by
Burch, J.:
This action, like the action in Wheat Growers Association v. Loehr, post, page 248, was one for an injunction to restrain a member of the association from disposing of his wheat crop to a chattel mortgagee, and to recover stipulated damages for wheat disposed of contrary to the member’s marketing agreement with the association. Judgment was rendered for defendant, and plaintiff appeals.
The member delivered all his 1922 crop of wheat to a chattel mortgagee, and is liable to the association for the stipulated damages provided for in his contract. The member also delivered part of his 1923 crop to a chattel mortgagee, who took his mortgage with knowledge of the member’s contract with the association. At the commencement of suit the member was about to deliver the remainder of the crop to the chattel mortgagee. The member is liable to the association for the stipulated damages for the portion of the crop delivered, and the association is entitled to an injunction preventing him from delivering the remainder of the crop to the chattel mortgagee, together with judgment for the items of expense provided for in subdivision “c” of paragraph 18 of the marketing agreement.
The court found that the member is a tenant farmer. It is not material whether he is owner or tenant of land. He is a wheat-grower who is not living up to his marketing agreement with the association. In the light of results, it may not have been best for him to join the association, but no one has a higher interest in freedom to contract, and in the inviolability of a valid contract when made, than a tenant farmer of small means.
The judgment of the district court is reversed, and the cause is remanded with direction to proceed in accordance with this opinion.
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The opinion of the court was delivered by
Johnston, C. J.:
Squire E. Teas recovered a judgment for $2,500 upon an accident policy from the Cloverleaf Life and Casualty Company, and defendant appeals.
By reason of an accident the plaintiff suffered the loss of a hand, and when proof of loss was made the defendant admitted liability to the extent of $1,875, but contended that under the classifications of the policy, the hazardous occupation insured against, and the rates applicable to such occupations, the plaintiff was entitled to no more than the premiums paid would have purchased at the prescribed rates. In the application the plaintiff represented that he was a manager and bookkeeper of an oil company. That occupation placed the insured in class “A,” and according to the manual measuring rates required the payment of only $9 per quarter. For those engaged in filling stations selling and handling gasoline the rate was higher, and under the terms of the policy the insured belonged in class “B,” for which the rate was $12 per quarter.
In his testimony plaintiff stated that he did not say anything about his work of testing gasoline or of handling and selling it to customers at the filling station. He said the agent of the insurance company did not ask for detailed statements as to the work which he did, but he admitted that he was about the filling station selling gas to customers every day, and that he tested and measured gasoline in tanks. This part of his .work was not mentioned when the insurance was taken, and when he was asked the question, “What are the duties of your occupation?” his answer was, “Manager and bookkeeper.” This answer entitled him to be given a class “A” rate, and his insurance was based on that classification. The policy upon which the action was brought contained, a provision which is called “standard provision one,” which provides:
“This policy includes the indorsements and attached papers, if any, and contains the entire contract of insurance except as it may be modified by the company’s classification of risks and premium rates in the event that the insured is injured or contracts sickness after having changed his occupation to one classified by the company as more hazardous than that stated in the policy, or while he is doing any act or thing pertaining to any occupation so classified, except ordinary duties about his residence or while engaged in recreation, in which event the company will pay only such portion of the indemnities provided in the policy as the premium paid would have purchased at the rate, but within the limits so fixed by the company for such more hazardous occupation.”
On the policy a rider was pasted, which recited:
“Rider attached to and made a part of the pro rata clause of this policy. It is hereby agreed that the pro rata clause of this policy shall not apply in any case that may arise under this policy for death or dismemberment.”
The trial court held that the rider in effect modified the contract in such a way as to take out the stipulations as to classifications and rates therefor in the policy, holding that the rider applied to classifications and rates for dismemberment like that sustained by the plaintiff, and upon that interpretation directed a verdict in favor of the plaintiff for the full amount of the insurance.
What is the pro rata clause of the policy and to what provision does the rider apply? Although the provisions of the policy other than the rider are known as standard provisions in general use, no authorities have been cited as to what constitutes the pro rata clause of such policies. An examination of the policy shows that the only clause therein relating to prorating is standard provision seventeen, which states:
“If the insured shall carry with another company, corporation, association or society other insurance covering the same loss without giving notice in writing to the company, then and in that case the company shall be liable for only such portion of the indemnity promised as the said indemnity bears to the total amount of like indemnity in all policies covering such loss, and for the return of such part of the premium paid as shall exceed the pro rata for the indemnity thus determined.”
It is evident that the rider applies only to this provision of the policy. It is stipulated in that clause that if the insured is carrying policies with other insurers covering the same loss, such loss should be prorated among all the insurers, so that the defendant-company should only be liable for such proportion of the loss as the indemnity promised bears to the total indemnity of a like kind in all the policies covering that loss, and in such a case the defendant was required to return the insurer the pro rata portion of the premium paid. The effect of the rider is that the provision as to prorating, where there is other insurance, does not apply in case of death or dismemberment. Nothing contained in the policy indicates that there was to be a prorating of classifications nor that the insured was to receive more insurance than was covered by the premiums paid. Since there was but one pro rata provision in the policy, and by its terms the rider was to apply to no other, it follows that the intention was that there should be no prorating except under provision seventeen, and that there can be no prorating under it in cases of death or dismemberment. The rider did not affect the provisions that the policy was issued in consideration of the statements and agreements contained in the application, neither did it affect the stipulation that the insurance was based on the rates paid, all of which became a part of the contract of the parties, nor did it nullify the provision that the defendant should be liable for only such portion of the indemnity as the premium paid for at the classification rate when the insured was doing more hazardous acts or things than was enumerated in the classification in which he was placed and for which premiums were paid.
We conclude that the court was in error in the interpretation of the policy and in directing a verdict for the entire amount named in the policy. There was testimony tending to show that in the application for insurance the plaintiff had not answered the questions correctly and that under the terms of the policy he was entitled to no more than the premiums paid would purchase, for the kinds of work in which he was engaged; at least there was evidence sufficient on this line to take the case to the jury.
Error is also assigned on the rendition of the judgment requiring payment in a lump sum instead of monthly installments. One of the provisions of the policy does provide for installment payments in certain cases, but in view of the fact that the defendant acknowledged its liability for $1,875 of the amount as adjudged, and raised no question as to that feature of the judgment on the motion for a new trial, and the further fact that standard provision number nine of the policy was that “All indemnity provided in this policy for loss, other than that of time on account of disability, will be paid within sixty days after receipt of due proof,” we are of opinion that the defendant is not entitled to raise that question at this time and that it cannot now be made a ground for reversal.
For error in directing a verdict, the judgment is reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
Mason, J.:
This action was brought upon a money judgment rendered in another state. The only defense interposed was a cross demand for money had and received. No evidence in behalf of the defendants was offered at the trial, but they asked a continuance on the ground that one of them was sick and the other (her husband) was required to be in attendance upon her. Complaint is made of the overruling of that motion and a motion for a new trial, and a motion to set aside the ruling on the latter motion. These matters were determined upon conflicting evidence, part of which was oral, and we see no ground for interfering with the decision of the trial court.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to subject the amount to be paid for the purchase of a homestead to the payment of the debts of one who owned and occupied the homestead at the time of his death.
A. B. Saffell, the owner, died on September 3, 1915, and left surviving him four children. His wife had died two years before his death. At his death there were claims against him and the funds in the hands of the administrator were insufficient to pay them. The children were minors when he died and two of them, Eugene and Minerva, were quite young and for a time were taken and cared for by relatives in another state. In March, 1921, the minors through their guardian applied to the probate court for a sale of the homestead, it being represented that both of the minors were without means except their interest in the land, that money was necessary to obtain an education, that Minerva was suffering with a disease of the eyes and was in need of medical treatment, and that a brother was suffering from tuberculosis and needed money to help restore his health. Upon this application the probate court ordered a sale of the land, after an appraisement, for an amount which should not be less than three-fourths of the appraised value. A sale was made to C. C. Ijames at the price of $5,500. He paid $2,000 of the price in cash, and the balance, $3,500, was secured by a mortgage on the premises sold. Possession of the farm was given to Ijames upon the turning over of the money and mortgage and execution of the deed by the Saffell heirs.
There was a contention that there had been an abandonment of the homestead. It is true that there was a considerable period when the younger children were absent from the homestead and part of the time by the older ones, but the trial court on the whole testimony found against the administrator on this issue. The absence of the infants was due to the fact that there was no one on the farm to care for them after their parents died. Relinquishment or abandonment of homestead rights by infants cannot be lightly imputed to them. There is nothing to show that either the guardian or the infants intended to relinquish homestead rights; nothing to show that there was not an intention to repossess it or reclaim the rights by the children or by their guardian. In the nature of things they were taken away without any legal consent as to an abandonment of the homestead and necessarily their absence was temporary. They did return in 1920.
“A mere temporary absence although it may be prolonged for months or years is not sufficient to divest the homestead rights and the fact that the premises were rented during the temporary absence is not of itself sufficient to destroy the homestead right.” (Shirack v. Shirack, 44 Kan. 653, 24 Pac. 1107.)
In another litigation between the administrator, Sage, and the guardian of the minor children, it was said:
“The daughter was thirteen years old at the time of the trial. Shortly after her mother’s death she was taken to the home, in New Jersey, of her uncle, the plaintiff, who kept her until about six months before the trial, since which time she has been with another uncle, in Ohio. The record is entirely silent concerning any plans for the future that have been made for her, or that she has made for herself. The fair inference is that her stay with her uncles was in pursuance of a mere temporary arrangement. It is clear that at one time she was a resident upon the farm in question. There is no evidence having any reasonable tendency to show that she has ever acquired a permanent domicile elsewhere, and until that is done, her legal residence remains where it was once established.” (Hicks v. Sage, 104 Kan. 723, 727, 180 Pac. 780.)
In that case the homestead right was upheld and it was found that the temporary absence did not constitute an abandonment nor affect their rights to hold the homestead exempt from their father’s debts. (Koehler v. Gray, 102 Kan. 878, 172 Pac. 25.) The evidence in the present case appears to be sufficient to uphold the finding of the trial court.
The remaining question is whether the purchaser took the property free from the debts of the father. That question was determined in Dayton v. Donart, 22 Kan. 256, 270. In'that case there was a sale of property while it was still occupied as a homestead and it wras held that:
“If the property or any interest therein is sold and conveyed while the property is still occupied as a homestead by the widow and anyone or more of the minor children, the title to such property or interest passes to the purchaser free from all debts, except prior incumbrances given by the intestate and wife, or grantor and wife or husband, and taxes, and debts for purchase-money and improvements, although the property may afterward be abandoned as a homestead by the widow and children.” (Syl. If 2.)
Following this authority it must be held that the purchaser took the property free from the indebtedness against the estate.
Judgment affirmed.
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The opinion of the court was delivered by
Harvey, J.:
When this case was here before (116 Kan. 154, 225 Pac. 746) it was decided:
“In a suit for separate maintenance, the court made an order for the defendant to pay a specified sum for temporary alimony and suit money by a day certain. Upon a hearing for contempt for. nonpayment it was shown that defendant had property which, if sold, would bring enough, or nearly enough, to pay the sum due. Defendant offered to sell the property, or permit it to be sold, for that purpose. Held, it was error to commit him for contempt until the sum was paid. The property should have been sold, under order of the court if necessary, and the proceeds applied upon the sum due.” (Syl. If 2.)
Pending the former appeal there was a second citation for contempt at which a showing was made substantially as upon the hearing of the first citation, with the exception that some additional articles of farm machinery were named as owned by defendant. The defendant offered to sell his property or permit it to be sold and turn the money into court for the plaintiff. The court found the defendant guilty of contempt in not having made the payments due under the previous order up to the time of hearing, and sentenced him to be confined in the county jail for a term of one year and until the costs were paid. Had the former decision of the court been available to the trial court at the time of this sentence it is reasonable to presume that the order would not have been made.
The judgment is reversed with directions to set aside the order of commitment.
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The opinion of the court was delivered by
Burch, J.:
The action was one to set aside a default judgment. Plaintiffs were defeated, and appeal.
The petition alleged the default was taken contrary to an agreement that nothing should be done in the case pending negotiations looking to a settlement. There was conflicting evidence bearing on the issue thus tendered, and the finding implied by the judgment is conclusive. In the course of the trial it became apparent the proposed ground for opening the default might not be established, and plaintiffs were permitted to contest the judgment on the theory it was void.
C. W. McLaughlin and McGrew Bros., a partnership composed of George W. McGrew and Homer A. McGrew, purchased an addition to the city of Kansas City, called Kerwood, which had been platted by the owner, Kerr. Title was taken, for convenience, in the name of an investment company, which, by agreement, conveyed to George W. McGrew. The addition was subject to a mortgage for $3,000 given by Kerr. McLaughlin and the McGi*ews assumed the mortgage as part of the purchase price, the remainder of which was paid in cash. In July, 1909, McLaughlin and the McGrews executed an instrument which, after reciting purchase of the property and conveyance to the investment company and then to George W. McGrew, read as follows:
“Now therefore, it is hereby agreed by and between the said parties, and the said George W. McGrew does hereby make known, admit and declare, that said above-described real estate was purchased by and for all of said parties as above stated; and the purchase money therefor paid and assumed by said parties as above set out; and that each of said parties are entitled to and are owners of said described real estate in the proportions above set out; that is to say, the said McGrew Bros, an equal undivided one-half thereof, the said C. W. McLaughlin an equal undivided one-half thereof; and said title of Kerwood is now held in trust for all of said parties,' respectively, in the proportions above stated.
“It is hereby further agreed that McGrew Bros, are to have the exclusive sale of said addition, and are to receive a commission of ten (10) per cent for sales in said addition; and that said parties above named are to share the expense of handling said addition.
“McGrew Bros, hereby agree to pay over unto the said C. W. McLaughlin one-half of all proceeds arising from the sale of said described real estate or any portion thereof, less ten (10) per cent commissions and less one-half of the expense of handling the addition.’-’
The parties operated under this instrument until August, 1912, when the unsold lots of t-he addition were divided between McLaughlin and George W. McGrew, who had succeeded to the interest of McGrew Bros. Title to the lots set off to McLaughlin was taken in his wife’s name, but he was in fact owner. In handling the property, houses were erected and rented, lots were sold, and money was received and expended. The accounts of the parties became involved, and but one settlement was effected. Another settlement was partially completed when the unsold lots were divided, but was never concluded, and McGrew commenced the action in which the default judgment was rendered. The petition alleged that when the amount due on the mortgage had been reduced to $227.33, McGrew paid that sum to the mortgagee, and took an assignment of the note and mortgage. It was further alleged that, aside from the final payment, McGrew paid more than his proportion of the mortgage indebtedness, the overpayment being due in part to a pleaded mistake in the first settlement. The amount stated to be due McGrew from McLaughlin on account of these items was $660.95, and subrogation to rights of the mortgagee was claimed. The prayer was for judgment against McLaughlin for $660.95 and interest, for a first) lien on the lots deeded to Mrs. McLaughlin, for foreclosure of the mortgage, and for sale of the McLaughlin lots to satisfy the lien. The court found generally" for McGrew, found the sum prayed for was due from McLaughlin, found that on account of the mortgage McGrew had a first lien on the lots, and rendered judgment according to the prayer of the petition. By a mistake, which has been corrected, the money judgment was extended to include Mrs. McLaughlin, who, as holder of the record title, was made a party to the suit.
The McLaughlins assert the default judgment was void, for a number of reasons. It is said that McGrew and McLaughlin were partners, not tenants in common; that when McGrew paid the balance due on the note, the note was discharged, and the assignment of the note and mortgage was nugatory; that McGrew was not entitled to subrogation; that in no event could McGrew have subrogation beyond the amount of the final payment on the note; and that, whatever the rights of McGrew against McLaughlin, no lien could be imposed on the McLaughlin lots. It is not necessary to discuss soundness of these contentions. The court in which the action was brought was a court of general jurisdiction, vested with power to adjudicate controversies of the character indicated by the contentions. The McLaughlins were personally served with summons. The petition contained a statement of facts and a prayer which challenged attention of the court to its merits. Judicial action on the petition was invoked, and the court was obliged to make a decision. Jurisdiction to decide was the same whether the Mc-Laughlins appeared or defaulted, and whether the court decided for or against them. Assuming that under well-settled principles of law McGrew was not entitled to the relief granted him, the judgment was merely erroneous, not void, and was conclusive upon the parties unless corrected by appeal.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to set aside consent to a will. "The defendants prevailed, and plaintiff appeals.
The grounds upon which plaintiff sought to have her consent set .aside were that at the time of the execution of the will, May 4, 1907, she was, and ever since has been, blind and unable either to read or write; that the will was never read to her nor in her presence, nor its contents made known to her until after the death of her husband; that she at no time, either knowingly or advisedly, ■consented to its terms; that if her name appeared to such consent, it was not'knowingly signed or executed by her; that she at all times expected and desired the widow’s share of her husband’s estate provided by law, in the event of his death. She asked that her alleged ■consent be set aside and that she be permitted to make her election, .as the widow, under the law.
The facts are well stated in the court’s findings, which read:
“1. The court finds: That about the year 1876, the plaintiff, then Mary A. .Drake, a widow, and Louis C. Rightmire, a widower, were united in marriage in Knox county, Ohio. That each had been previously married, and Louis C. ‘Rightmire had four children by such former marriage, viz., Milton Rightmire, ■James Rightmire, Emma Townsend and Porter Rightmire, defendants; and plaintiff had two children by said former marriage, viz., Challes Drake and "Edgar Drake; all of said children being minors at the time of said marriage •except Milton Rightmire.
“2. That at the time of the marriage of said parties the said Louis C. Rightmire owned a farm in the state of Ohio and the plaintiff owned a oneLhalf interest in a farm in Pottawatomie county of 120 acres, and her said sons, Charles and Edgar, owning the other half thereof, the same coming to them by descent, and that the plaintiff at the time of said marriage also had some personal property, the amount of which is not disclosed by the evidence. That after said marriage the said Louis C. Rightmire also received from his father certain money, the amount of which is not disclosed by the evidence.
“3. That in the year 1878 the parties removed from the state of Ohio to the state of Kansas and occupied the 120 acres of land owned by the plaintiff and her children. The said Louis C. Rightmire while living on said land used the same as if it was his own, no accounting being made to the owners thereof, and that by the combined efforts and frugality of the parties, both being industrious, the property in controversy was accumulated.
“4. That a short time after removing to the state of Kansas the two Drake children each inherited the sum of $500, which was taken possession of by the said Louis C. Rightmire, and by him used until after the marriage of Edgar Drake, when the whole sum of money so received was paid to the said Edgar Drake, the said Charles Drake having in the meantime died a minor.
“4%. That during the time plaintiff’s land was occupied by her and her husband, Louis C. Rightmire made improvements upon said land, and prior to the execution of the will in controversy said land was deeded to the son of plaintiff, Edgar Drake, without consideration.
“.5. About the year 1905 the testator, Louis C. Rightmire, and plaintiff left the farm and moved to Wamego, purchasing the residence mentioned in the will as devised to her son, Edgar Drake, where they resided until the death of her husband, on January 21, 1923.
“6. That the defendant, Pointer Rightmire, removed to the farm of Louis C. Rightmire and made his home thereon until the death of his father, the testator, and during such time he gave his father one-half of thé proceeds of the farm and pasture land.
“7. That after the removal of the said Louis C. Rightmire and his wife to Wamego, the eyesight of both of them began to fail and continued to grow worse, until at the date of the death of the said Louis C. Rightmire both he and his wife were practically blind. That in 1907, at the time of the execution of the will in controversy, the eyesight of the plaintiff, Maiy Rightmire, had so failed that she could only discern large objects. That the parties had a great deal of affection for each other, and with their common affliction their delight was in each other.
“8. That on or prior to the 4th day of May, 1907, one B. H. Tracy, an attorney in Wamego, was engaged (but the evidence does not disclose by whom) to draw the last will and testament of the said Louis C. Rightmire; that after the will was written or copied by the stenographer of B. H. Tracy, viz., Mabel Townsend, she took the same to the residence of the testator and the plaintiff, where the same was signed by the said Louis C. Rightmire, and the consent thereto executed by the plaintiff making her mark thereto, all in the presence of said Mabel Townsend and one F. E. Rowles; that at said time the will was not read or explained, the testator merely saying, ‘We had as well sign this up (the will); we are all here.’ B. H. Tracy, who drew said will, died before the said Louis C. Rightmire.
“9. That after the execution of the will as stated in the preceding finding,. the witness Rowles remained at the home of the testator and the plaintiff for a short visit, they being old friends, and during such time the provisions of the will that had just been executed were discussed by the three of them, the plaintiff saying, among other things, that ‘they had left it the way they wanted it fixed, . . . and if I had fixed the property'! would have done it that way.’ That the plaintiff never saw said will again until after the death of said testator, but upon various occasions and upon numerous times stated the material contents of the will of her said husband to divers persons, and that she at all times knew that she was entitled by law to one-half of the property of her husband upon his decease, and from the circumstances surrounding the drawing and the execution of said will and the conduct of the plaintiff, the court finds that the plaintiff knew and understood the contents and provisions of the will of the testator and knowingly and voluntarily executed her consent thereto, though she repeatedly testified that she had no knowledge of said will until after the death of her said husband.
“10. At the date of the death of the testator the plaintiff was eighty-five or eighty-six years of age, blind and helpless and quite enfeebled, and after the death of her said husband, stated that the defendant, Porter Rightmire, was going to take care of her, and she knew she would be taken care of.
“11. That the will in controversy was duly admitted to probate by the probate court of Pottawatomie county, Kansas, and the consent of the will admitted and approved by the court.
“12. The court finds for the defendants, Porter Rightmire and Milton Rightmire, as executors of the estate of Louis C. Rightmire, and as to . each of them individually, against the plaintiff.”
The plaintiff complains that she was not permitted to testify tt> the negative proposition that she did not knowingly execute the consent to the will, and that the court predicated its final judgment against her on the theory that no competent evidence had been introduced by her, impeaching the consent; therefore the rejection of the evidence was prejudicial to her rights.
While we find that answers to certain questions asked the plaintiff touching this point of the controversy were excluded, there was sufficient evidence received from her to show, beyond question, that she denied having any knowledge of the provisions of the will; that its provisions were not explained to her; that she never heard the will read before the death of her husband, and that no one informed her of the execution of the will and its contents on the day of its execution; that she did not recall signing the consent to the will and did not hear of it until after her husband’s death. The rejected evidence covered substantially the same ground as other evidence which was admitted and considered by the court. We are of opinion that the excluded evidence would have been cumulative only, and if ad mitted would not have affected the findings of the court. There was other testimony.
Mrs. Jack Finlinson testified:
“Q. Did you see your grandmother, Mary Rightmire, sign the will. . . .? A. Yes.
“Q. At whose request, if you know, did she sign or make her mark thereon? A. My grandfather asked her to sign.
“Q. At that time did she ask any question regarding what the will contained? A. No.
“Q. Did she say anything when your grandfather asked her to sign the will? A. No.
"Q. When you went over there, you went over for the purpose of signing this will? A. Yes.
“Q. Your grandmother knew, did she not, that you were there for that purpose? A. I presume that she did.
“Q. She was of sound mind at that time, was she not? A. Presumably.
“Q. And her intellect was quite as active as any one of her age would be, was it not, at that time? A. Yes.”
F. E. Rowles testified:
“Q. I will ask you if at the time you saw Mary Rightmire there and saw her make her mark? A. Yes.
"Q. Was that made in your presence? A. Yes.
“Q. And in the presence of Mabel Townsend? A. All of us.”
“A. They were all talking about the will, and Mr. and Mrs. Rightmire said they had fixed their property.
“The Court: State what Mr. Rightmire said and what Mrs. Rightmire said.
"A. Louis C. Rightmire said they fixed the property as they wanted it left. He said the house and lots in town were left to Ed. Mrs. Rightmire said the farm went to Ed — the Drake property. Mr. Rightmire said the house and lots there went to Ed and some money, did not state how much money; and the land, the other property, went to the Rightmire children. Mrs. Rightmire said they had left it the way they wanted it fixed and Ed shared in the Rightmire property and got the Drake property in addition, and I said if I had fixed the property I would have done it that way.”
Other evidence need not be quoted. We conclude it was sufficient to support the findings of the court.
The will was executed in 1907. By its terms Milton Rightmire was given a quarter of land valued at $7,000, which was charged with a payment to Emma Townsend of $3,500. Milton was also chargeable with paying to the plaintiff, Mary A. Rightmire, the sum of $200 a year during her lifetime. Porter Rightmire was given three quarters of land as his share of the property, but was chargeable with making certain payments to others. He was to give James Rightmire, his brother, $3,500, and to Edgar Drake, plaintiff’s son, $1,500. He was also chargeable by the terms of the will of making payment of $200 a year to Mary A. Rightmire during her lifetime.
The will further provided for the erection of a suitable tombstone, and all necessary expenses of administration to be paid out of his personal property, and if any was left it was to go to Porter Right-mire. It was further provided in the will that Porter Rightmire was to pay at the death of Mary Rightmire, if she survived Lewis C. Rightmire, all the expenses of her last illness and of her funeral and for the erecting at her grave of a suitable tombstone. Porter Right-mire paid the expenses of the last sickness and funeral of Lewis C. Rightmire, amounting to $700. Edgar Drake received lots Nos. 644, 645, and the north 40 feet of lot 646 in the original townsite of Wamego, also all of her property in Wamego, by deed, of the value of $2,500. In addition to that he is to receive $1,500 from Porter Rightmire. Edgar Drake received more from the estate of Lewis C. Rightmire than any of the children of the deceased, except Porter, and in addition, all of his mother’s estate. A controversy between the children of the plaintiff and the children of her deceased husband appears to have been the basis of the present action. It was brought by Edgar Drake, who was vested with a power of attorney executed by the plaintiff a few nights after her husband’s death.
The following evidence illuminates the situation.
Mrs. Maronde: “They had grandmother (plaintiff) sign a paper. Edgar Drake, Mr. Challis and Gene Klinginsmith were present. . . '. After they were gone she said she did not know what she had signed and wanted me to telephone for Porter Rightmire.”
Mrs. Porter Rightmire: “We got a telephone (message) and went down to the home of Mary Rightmire. . . . Porter asked her if Challis, Klinginsmith and Drake had been there, and she said ‘yes.’ She said she did not know what she had signed. She wanted Porter to get the paper and bring it back to her. He was to get the paper in the morning.”
Porter Rightmire: “On that night she told me she did not know what she had signed. She wanted me to find out what it was, and I went to Edgar and he read it to me. It was a power of attorney. I asked him to take it to his mother and read it to her.”
Mrs. Mary Rightmire: “I do not remember the night of January 31, 1923, when Challis and two others came there and I signed a paper. I do not remember of Mrs. Maronde asking Porter Rightmire to come down and find out what I had signed.”
“Q. Do you say now you did not say anything that night? A. No.
(It was admitted that paper signed that night was the power of attorney.)
“Q: Then you did not sign that paper? A. No.
“Q. You have talked to the attorneys about this suit, have you not? A. Not that I know of.
“Q. You have talked to Edgar Drake about it, have you not? A. If 1 talked to anyone I would talk to him.
“Q. Did you talk to him any about it? A. I never thought there would be any lawsuit.
“Q. You did not want to bring a lawsuit? A. No.”
At the time of the trial the plaintiff was eighty-six years old. It is not improbable that her memory may not have been as good as when the will was executed, fifteen years before. There was no showing that her husband intended to deceive her. The will was drawn by a lawyer friend of the family. . He dictated it to a daughter of one of the defendants. It is not claimed that he in any manner violated their trust and confidence. The evidence discloses no concealment in the execution of the will. Her husband signed the will, as she, in the presence of the various witnesses, signed the consent. The circumstances justify the conclusion that she and her husband had talked over the matter involved and understood what they were doing. The trial court considered all the circumstances, saw the witnesses and heard their testimony. The various assignments of error need not be discussed in detail. All have been considered, but we find nothing to justify any other conclusion than that reached by the trial court, or that would justify a reversal.
The judgment is affirmed.
Johnston, C. Jo., not sitting.
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The opinion of the court was delivered by
Mason, J.:
T. L. Youmans, the proprietor of the telephone exchange at Osawatomie, has a building in which supplies and equipment are kept, and which stands upon lots owned by another. He undertook to move the building across the alley and place it upon his own property. He was arrested upon a charge of violating a city ordinance relating to fire limits. He brought this action to enjoin the city authorities from interfering with him in moving the building. A permanent injunction was granted, and the defendants appeal.
The building is twenty-eight feet long and fourteen feet wide, with corrugated iron on the sides and roof. The ordinance was not violated by maintaining it in its original position, which was within the fire limits, as is also the place to which the plaintiff undertook to move it.
The title of the ordinance is:
“An ordinance fixing the fire limits of the city of Osawatomie, providing for the kind of buildings that may be erected, placed within or moved upon or into said limits, and providing a penalty for the violation thereof.”
Its first section reads:
“That there shall not be placed, erected or moved upon the premises or parcels of land hereinafter in this ordinance described, any building of any kind except such building be built and constructed of brick, stone, concrete, cement blocks, steel, iron or other fireproof materials, and with fireproof roof.”
Osawatomie is a city of the second class, and the scope of the ordinance can be no broader than is indicated by its title. (R. S. 14-106.) The body of the ordinance in forbidding wooden buildings to be placed, erected or moved upon “the premises or parcels of land” described as forming the restricted district known as the fire limits, uses language which might be interpreted as covering the placing of a building upon a particular lot or block, or moving it thereon. But the natural reading of the part of the title referring to buildings “placed within or moved upon or into said limits” appears to confine its application to buildings brought into the territory bounded by the fire limit from the outside.
We agree with the trial court that in view of the title of the ordinance, the phrase “moved upon” is to be construed as referring to a moving’from a place outside the fire limits to a place within them; not to a moving from one place to another, both being inside the fire limits. The ordinance is penal and some strictness of construction is proper. Of course the actual intent of the body passing the ordinance, as indicated by the language employed, including that of the title, is what is to be sought. But we think if it had been the intention to prohibit the shifting about of a building within the fire limits that purpose would have been plainly expressed. An ordinance forbidding any wooden building to be erected “or placed” within fire limits has been held to forbid the removal of such a building from one point to another, both within the limits. (Griffin v. City of Gloversville, 73 N. Y. Supp. 684, 687.) And it has been held that an ordinance forbidding the erection of a wooden building within fire limits is violated by moving such a building from one point to another within the limits. (Wadleigh v. Gilman & al., 12 Maine 403; Eureka City v. Wilson, 15 Utah 67.) The present case, however, may be differentiated from the two last cited, for here the ordinance does not employ one general word which might by a liberal construction be regarded as including any process which caused a wooden building to stand where none stood before; it goes expressly into the matter of moving, forbidding (as we interpret it) a removal from beyond the limits to within Them, thereby covering the field' of removal, and leaving no room to imply a prohibition against a shifting of position wholly within the boundary of the restricted district. Moreover, in the Utah case the appeal conferred no authority to review the interpretation put on the ordinance by the trial court. In Connecticut it is held that a removal taking place wholly within the fire limits is not an “erection.” In Kaufman v. Stein, 138 Ind. 49, the Connecticut cases to that effect are cited, and the court adds that the weight of authorities supports the Connecticut ruling. (See, also, City of Cleveland v. Lenze, 27 Ohio St. 383, 387, 390; 2 Dillon on Municipal Corporations, §727, note 3, and text.)
The second section of the ordinance reads:
“That all alterations or changes in the frame or other combustible buildings now constructed and situated within and upon the premises and tracts of ground described in section 1 of this ordinance, by enlarging or altering the said buildings in any manner, shall be deemed a violation of section 1 of this ordinance: Provided, That repairs on any frame building now within the limits prescribed in section 1 of this ordinance may be made by written permission of the city commissioners being first secured to make such repairs: And provided further, That before permission to make such repairs shall be granted by the city commissioners the party desiring to make such repairs shall file with the commissioners a written petition setting forth clearly and in full the repairs to be so made.”
The mere removal of a building from one place to another is not in our judgment an alteration or change in it by enlarging it or altering it, within the meaning of the language quoted; nor does it constitute the making of repairs upon the building.
Following the arrest of the plaintiff for the violation of the ordinance, he was found guilty by the police judge, and appealed to the district court, where he was again convicted. At the time the present case was heard his motion for a new trial in the criminal case was still pending. The defendants suggest that both the facts and the law in the present case are thereby settled. The two cases have much in common, but are not brought upon the same cause of action, and the principle of res judicata does not apply. The judgment enjoins the defendants from interfering with the plaintiff’s moving the building, but contains an express provision that it is not to prevent the city from prosecuting to a final determination the action begun in the police court.
The defendants argue that no showing was made that they had threatened to interfere with the removal in any other way than by the prosecution referred to, and therefore the court was not justified in granting the injunction. The contention has some technical force. The plaintiff, however, testified that (seemingly after his arrest) the city officials threatened him with prosecution if he persisted in his attempt at removing the building. Moreover, the case has been fully tried upon oral evidence, and the defendants are asserting that the plaintiff has no right to remove his building as he has planned. We think the court was warranted in deciding the case upon the merits of the controversy on that point. That no actual injustice results is indicated by a specific finding that the fire hazard would not be increased by the removal.
The judgment is affirmed.
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It Is Therefore Ordered that J.O. Biggs be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of J.O. Biggs from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to re spondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1995 Kan. Ct. R. Annot. 222).
Dated this 8th of August, 1996.
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
Sheila Paida sued John Leach, her former husband and custodial parent of their two children, under the Protection from Abuse Act (Act), K.S.A. 60-3101 et seq., seeking an order which would protect the children from abuse by Leach. The district court found no evidence of abuse and dismissed the petition. The district court also reaffirmed the order which placed the children in Leach’s custody. Paida. appealed. The case was transferred from the Court of Appeals to this court pursuant to K.S.A. 20-3018(c).
In this case a hearing was conducted at which Sheila Paida, John Leach (Leach), Jennifer Leach, and John Leach, Jr., (John) testified about an incident which occurred on May 23, 1995. Paida and Leach were married from 1978 to 1984. By the time of the alleged incident, the residential custody of their children, Jennifer and John, had been changed several times. They lived with Leach from 1992 until April 1995. In April, they began, living with Paida when Jennifer told a school counselor that Leach had been abusive. On May 18, shortly before the incident at issue, residential custody of the children had been restored to Leach by order of the court. At the time of the incident, John was 13 years old and Jennifer was 15 years old.
John testified that the incident began after Leach refused to let him stay overnight with a friend. Leach had driven his son to school to play basketball with friends, but they found no one at the school. On the drive home, the son asked to spend the night at his friend’s house. Leach refused to give permission. John described the argument that followed and that led to Leach’s grabbing John’s arms and twisting them behind his back, “[H]e just started pulling my arms up and started pulling it out of the socket.” At that point, Jennifer entered the fray:
"Then my sister came out of the shower and said, “What are you doing to my brother?’ ‘Go to your room.’ That’s what he told her. Then he let go of me once. Then he got me back in the arm lock and then he started in on my sister. Started throwing her in the walls and shoved soap in her mouth, cut her lip. Then she went to her bedroom and she was laying on the bed and my dad just took her arm and yanked her off of the bed. And I was standing in the comer like he told me to do. And I was just standing there crying. And he said, ‘Oh, stop your whining.’ Then the phone rang. He picked it up and started talking .... We just walked out the door to the neighbor’s house.”
Jennifer gave the following account of the incident:
“Something happened between my brother and my dad earlier, and I had no idea what was going on. He got home and I got in the shower and I heard yelling and like hitting walls, so I got out of the shower as fast as I could, put some clothes on, went outside and I saw my dad holding my brother with my brother’s arms behind his back with this part of his arm up to his head, his head pulled back with his hand. I said, “What are you doing?’ Then I got pushed into the wall of the bathroom. And I said, Wait a minute, what are you doing?’ Then I kind of got loud with him and we went back and forth with cussing at each other. . . .
“I called him an asshole. I told him I hated him. And I told him that he pissed me off. And I said it repeatedly, repeatedly. I was sent to my room. I went to my room. I laid down on my bed and he was — I couldn’t really — I couldn’t see what was going on between him and my brother, but I heard my brother yelling at him. He came in my room and started yelling at me about telling me I was worthless, I was a liar, I was manipulative, and he called me a manipulative bitch. He kept cussing at me. Then he took a bar of soap and pulled me off of my bed onto the floor and forced it into my mouth. And I- cut my lips up from my braces. And I said, ‘Are you happy? Are you proud of what you’re doing to me?’ Somewhere in this time he said, Well, I’m going to make your life a living hell while you’re here.’ And I went to the bathroom. I was spitting blood into the sink. And I went to use the rest room and I shut the door. He came in there. He said, What are you doing?’ I said, ‘I’m going to the rest room.’ He said, Tou have three seconds to get your ass out here and go into your room.’ I said, Well, I would like to use the rest room first.’ He said, ‘Go ahead.’ I said, ‘Not with you standing there.’ He said, ‘You have no privacy anymore.’ So I went into my room. He came in there and he started taking my things I needed like my alarm clock, my hair brush, my curling iron, and he put it in the living room where he was sitting. At this time my brother and him were still getting into it and I came out there and I started yelling at him to leave my brother alone. Then something happened with my brother hitting him — because my dad smacked him — in the stomach or something, I’m not for sure about that, but I know my brother hit him. He kicked him in the shin. The telephone had rang and it was for my dad. And me and my brother were in our separate rooms. He was talking on the phone. I went into John’s room, I said, ‘Let’s go.’ He put on his shoes and we ran across the street and we called the police and our mom. They showed up, Med-Act showed up, checked my brother out and said he had a sprained shoulder. He told me to do something to my lips like keep ice on it and stuff.”
Leach gave a slightly different version of his encounter with Jennifer:
‘Well, he started making these gestures like this . . . like making punches and I was dodging, I was, you know, trying to move. He started laughing. He says, ‘You’re afraid, aren’t you?’ And I said, ‘No, I’m not afraid, but it’s normal to dodge.’ I was starting to get upset myself. And he kept this on. And I stopped him from doing it, I grabbed a hold of him and I grabbed his arm, I pulled it around behind him with my arm across his chest, not around his neck, and he said, ‘Okay, I will settle down.’ At that time Jennifer come out of the bathroom and she was just in an uproar, she was screaming and she started the profanity and she said, ‘John you don’t have to do what he says.’ And I said, ‘Jenny, go to your room.’ She wouldn’t listen. I said, ‘Jenny, go to your room.’ I grabbed her arm and headed her towards her room, got her in the room, shut the door. She immediately opened the door. I shut the door, she opened the door. I said, ‘Jenny, stay in your room.’ She got into more profanity by calling me a MF bastard and MF asshole at the top of her lungs. This went on. I said, ‘I’m going to wash your mouth out with soap if you don’t quit this. I’m going to wash your mouth out with soap.’ She didn’t stop, so I went into the bathroom and got a small piece of soap and I put it in her mouth. And it only got worse. Then John was in an uproar. And I went over and I sat in the chair, I just sat there. And John is threatening with, I’m going to kill you. I’m going to have — Mike is going to do this, Mike is going to do that. And Jenny is going on, it only got worse. And I just sat there. And I got on the telephone, a sponsor of mine called, I don’t know, I can’t figure that out that he called at that time, and they walked out of the house. And I just stayed there and talked on the phone and waited for the police to come. I knew they were coming.”
Asked if he saw any blood in Jennifer s mouth after he put the soap in it, Leach testified: “I recall some on a tissue or something, but she was spitting — I mean, she was just spitting on the floor, she was spitting in the bathroom, she was just spitting everywhere at her leisure.” In response to the question whether he saw any blood in the bathroom, he said: “Just a little where she was spitting, it was reddish.”
The police were called from a neighbor’s house where Jennifer and John went when they left Leach’s house. Officer Kegin talked to them at the neighbor’s house.
Jennifer told him that, when she refused to quit cussing, Leach shoved a bar of soap into her mouth. She said he cut her mouth and made it bleed. Officer Kegin took a look at Jennifer’s mouth. He reported:
“She had a paper towel up to her mouth. The paper towel I saw didn’t have any blood on it that I could see. I looked in her mouth and she did have braces. I couldn’t see any cuts, large cuts, in her mouth. I didn’t see any blood coming from her mouth at the time.”
John was holding his arm when Officer Kegin spoke to him. John said that he had started an argument with his father, who threw him into a wall several times and then injured his arm by twisting it behind him. Officer Kegin did not see any injuries on John.
“[0]n the chance that there was some kind of personal injury or something,” Officer Kegin called Med-Act to check the children. He was present when they were'examined. According, to Officer Kegin, “they said they didn’t really see anything on either child that was apparent that they could actually see- any injuries that could be seen.” •
After considering the testimony and the-report of Domestic Court Services staff, the district court dismissed the Protection from Abuse Act petition “on the finding of the Court that abuse as defined in K.S.A. 60-3012 did not occur.” The district court also ordered that its order of May 18, 1995, which Returned custody of both children immediately to their father, remain in effect.
Paida first argues that the district court arbitrarily disregarded undisputed evidence of abuse. The Act provides civil injunctive relief for victims of domestic violence. Under the Act, a parent may seek relief on behalf of his or her minor children by filing a petition which alleges abuse by a person with whom the child resides. K.S.A. 60-3104(a). Abuse is defined in part as
“the occurrence of one or more of the following acts between persons who reside together . , :
(a) Willfully attempting to' cause bodily injury, or willfully or wantonly causing bodily injuiy. ’•
(b) Willfully placing, by physical threat, ’another in fear of imminent’ bodily injury.” K.S.A. 60-3102(a) and (b).
The Act requires the district court to conduct a hearing “at which the plaintiff must prove the allegation of abuse by a preponderance of the evidence and the defendant shall have an opportunity to present evidence on the defendant’s behalf.” K.S.A. 60-3106(a). Although the legislation was enacted in 1979, the parties cite-no reported decisions, interpreting it, and we are unable to find any. .
Paida disputes the district court’s determination that no abuse occurred. The Act defines abuse as willfully or wantonly causing bodily injury. She asserts that willfulness is shown by. Leaqh’s admittedly “expending] effort to force the soap into Jennifer’s mouth as she struggled.” She contends that bodily injury is established by evidence that Jennifer’s mouth bled. Thus, the argument continues, relief was warranted because Leach was not putting soap in Jennifer’s mouth by accident and Jennifer’s lips bled from contact with her braces. In other words, Paida’s theoiy- is that injunctive relief is warranted if the abuser was acting willfully and the victim sustained bodily injury, whether or not the alleged abuser willfully or wantonly caused bodily injury.
Willful conduct and wanton conduct are defined in PIK Civ. 2d 3.03 and 3.02. In Folks v. Kansas Power & Light Co., 243 Kan. 57, 74, 755 P.2d 1319 (1988), the court approved the following definitions: “An act performed with a designed purpose or intent on the part of a person to do wrong or to cause an injury to another is a willful act.” PIK Civ. 2d 3.03. “An act performed with a realization of the imminence of danger and a reckless disregard or complete indifference to the probable consequences of the act is a wanton act.” PIK Civ. 2d 3.02. Incorporating these definitions into the definition of abuse in the Act, we see that willfully causing bodily injury is synonymous with intending to and succeeding in causing bodily injury. It is not the same as accidentally inflicting injury while intentionally performing some action. We also see that wantonly causing bodily injury does not require an element of intentional wrongdoing. See 243 Kan. at 74.
The theory under which relief was sought in the present case was not that Leach put a bar of soap in Jennifer’s mouth in order to cause bodily injury. Instead, the allegation is that he caused bodily injury by putting a bar of soap in her mouth. There is no allegation in this case that Leach willfully attempted to cause bodily injury to either of the children. Thus, if abuse occurred, it must be based upon Leach’s “wantonly causing bodily injury.”
Wanton conduct without resulting bodily injury is not a basis for injunctive relief under the Act. K.S.A. 60-3102(a). Paida contends that the evidence established that Jennifer suffered bodily injury within the meaning of the statute. According to Paida, “[i]t is axiomatic that bleeding is not a natural bodily function wfiich occurs in the absence of force or trauma being applied. But more importantly, even though a bodily injury can occur without the letting of blood, bleeding cannot occur without an injury.” She provides no medical evidence to this effect, and it is an over-generalization that deserves little, if any, credence.
At the hearing, Jennifer was asked whether she sought medical attention for the injury which resulted from Leach’s attemp to put the soap in her mouth. She gave the following testimony:
“A. When Med-Act came, they looked at me. They told me it should be fine and all that really happened was my braces cut my lip and it ripped it. I had a rip up here and down here. I wasn’t really that bad, to tell you the truth, it was mostly my brother’s shoulder.
“Q. Was any medical attention sought for his shoulder?
“A. They put like an ice pack on it. They asked him if he wanted to go to the hospital. My brother said he didn’t want to go because he didn’t feel like it, is what he said. And so they went ahead and left. They told him to keep ice on it for so many days, so many hours.
“Q. Do you know whether or not your mother ever took him to the doctor or anything?
“A. I don’t — he quit talking about it about two days later. We were going to give him time to see how he was doing. And two days, three days, later he was fine . . . .”
Paida refers to the basis for the trial court’s dismissing her petition as a negative finding. The court uses the term to indicate that the plaintiff, in this case Paida, did not sustain the burden of proof. The significance of this finding for the purpose of appellate review has been stated 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 bias, passion or prejudice the finding of the trial judge 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.’ Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, Syl. ¶ 5, 548 P.2d 719 (1976).” Mohr v. State Bank of Stanley, 244 Kan. 555, 567-68, 770 P.2d 466 (1989).
Paida contends that the district court disregarded undisputed evidence that Jennifer suffered bodily injury when Leach put a bar of soap in her mouth. The undisputed evidence is that Jennifer produced some blood from her mouth, that the amount was small, and that there was no sign of bleeding when the police arrived. Jennifer testified, “I was not that bad, to tell you the truth, it was mostly my brother’s shoulder.” On appeal, there has been no argument propounded that John sustained bodily injury as a result of Leach’s twisting his arm behind his back. Paida treats the evidence about Jennifer’s mouth as if it were self-evident that it constitutes bodily injury. She contends that this undisputed evidence, as to Jennifer, constitutes abuse as a matter of law and, thus, the trial court arbitrarily disregarded it.
The Act does not contain a definition of bodily injury. The Act was patterned after a Pennsylvania law. Gottlieb & Johnson, Reform in Kansas Domestic Violence Legislation, 31 Kan. L. Rev. 527, 558 (1983). “Abuse” is defined in the Pennsylvania counterpart as including one household member “intentionally, knowingly or recklessly causing bodily injury” to another. 23 Pa. Cons. Stat. § 6102(a)(1) (1995 Supp.). Bodily injury is not defined in the Pennsylvania act, but § 6102(b) provides that undefined terms “shall have the meaning given to them in 18 Pa. C.S. (relating to crimes and offenses).” 18 Pa. Cons. Stat. § 2301 (1990) defines “bodily injury” as “[i]mpairment of physical condition or substantial pain.” It is noted in the Official Comment to § 2301 that “[t]his section is derived from Section 210.0 of the Model Penal Code.” 18 Pa. Cons. Stat. Ann. §§101 to 2700 (Purdon 1995 Supp.).
Our criminal code does not contain a definition of bodily injury. A conviction of aggravated kidnapping requires that bodily harm be inflicted upon the person kidnapped. K.S.A. 21-3421. In State v. Royal, 234 Kan. 218, 222, 670 P.2d 1337 (1983), we said:
“The State offered evidence that Ms. Harper sustained injuries. Reduced to one basic issue, the question is whether her injuries constituted ‘bodily harm’ as a matter of law. We discussed bodily harm in State v. Taylor, 217 Kan. 706, 713-15, 538 P.2d 1375 (1975), and we later quoted that discussion at length with approval in State v. Sanders, 225 Kan. 156, 158-59, 587 P.2d 906 (1978). Bodily harm has been defined as any touching of the victim against the victim’s will, with physical force, in an intentional, hostile and aggravated manner, or the projecting of such force against the victim by the kidnapper. State v. Taylor, 217 Kan. at 714. This definition was developed from a California case and, as we noted in Taylor, the California court has significantly narrowed the definition of ‘bodily harm’ and now recognizes that some ‘trivial’ injuries, likely to result from any forcible kidnapping by the veiy nature of the act, do not constitute ‘bodily harm’ as that term is used in the aggravated kidnapping statute. Only unnecessary acts of violence upon the victim and those occurring after the initial abduction constitute ‘bodily harm.’ See Taylor at page 714 and People v. Schoenfeld, 111 Cal. App. 3d 671, 168 Cal. Rptr. 762 (1980). In the latter case, the California court held as a matter of law that minor cuts sustained by one of the victims during a successful escape effort, a scraped knee of one of the victims sustained while climbing down a ladder, and nosebleeds, fainting and stomach distress sustained by other victims did not constitute bodily harm.”
Webster’s New Twentieth Century' Dictionary of the English Language 944 (2d ed. 1973) defines injury as “physical harm or damage to a person [or] property-” Black’s Law Dictionary 786 (6th ed. 1990) defines bodily injury as “[p]hysical pain, illness or any impairment of physical condition. ‘Serious bodily injury’ means bodily injury which creates a substantial risk of death or which causes serious,' permanéñt disfigurement, or protracted loss or impairment of the function of any bodily member Or organ.” We do not know why the legislature used the term “bodily injury” rather than “bodily harm” in the Act. The parties provide no assistance in this regard. Wé assume it was because that term was used in the Pennsylvania act. However, since the terms appear to be synonymous, we do not attach any significance to the use of “injury” rather than “harm.” - ' .
■ It is Raida’s position that the legislature has defined abuse so that “if discipline in any form causes bodily injury, it is a form of discipline which- merits an order of protection in favor of the victim.” The legislature defined abuse in the context of the Act and focused on protecting spouses. There undoubtedly are instances when discipline of children escalates into domestic violence which would warrant relief under the Act, but discipline of children is not the chief evil at which the Act was aimed. The principal purpose of the legislation was to provide relief for battered spouses or cohabitants. Gottlieb & Johnson, 31 Kan. L. Rev. at 558-59. The discipline of children and the abuse of spouses share littie common ground. Because these disparate family interactions fall under the same legislative enactment, the trial court can and should determine in light of • all the circumstances in ■ each individual case whether the plaintiff has shown abuse by a preponderance of the evidence. Those circumstances will include the age of the alleged victim and his or her relationship to the alleged abuser. Neither reason nor the limits clearly expressed by the legislature in the Act permits a trial court judge to overlook the infliction of bodily injury. However, the Act is not intended to dictate acceptable parental discipline or unnecessarily interfere in the parent/child relationship absent a clear need to protect the child. The State’s intrusion should be limited to injunctive relief where parental 'conduct causes more than minor or inconsequential injury to the child. Such a construction of the term “bodily injury” will prevent misuse or misapplication of the Act. Paida certainly has a point in arguing that it would be undesirable to have each judge freely imposing his or her own morality, own concept of what is acceptable, own notions of child rearing, or own standards for male-female relationships on the circumstances of the litigants. Contrary to her contention, however, defining bodily injury to exclude trivial or minor consequences and require either substantial pain or impairment of physical condition would lessen the potential for the exercise of unbridled trial court discretion. We conclude that bodily injury under the Act requires a finding of substantial physical pain or an impairment of physical condition.
In the circumstances of this case, the district court did not arbitrarily disregard undisputed evidence in reaching its determination that abuse had not been shown. It was alleged that Leach’s putting the bar of soap in Jennifer’s mouth caused bodily injury to her. There is no evidence of pain, certainly not substantial pain, nor is there any evidence of impairment of Jennifer’s physical condition. Thus, no bodily injury within the meaning of the Act, as we interpret it, was shown. We need not, therefore, determine whether Leach’s conduct was wanton.
Paida also claims the trial court’s finding of no abuse was due to bias, passion, or prejudice. Testimony related to the protection from abuse petition was heard by the trial court on July 6 and July 11,1995. At the end of the hearing on July 11, the trial court judge made extensive comments on the evidence and the circumstances of the parties. He concluded his remarks as follows:
“I am entering a journal entry and filing it here in open court at this time that for the reasons that I have stated in this hearing I am dismissing the Protection from Abuse Act claim and restoring the prior order of the Court as. set forth in the journal entry of May 18th, which grants custody of both children to Mr. Leach. I am going to give to counsel for both of the parties two copies of this order, which is filed as of this moment and is an effective order as of this time.”
The complete text of the order follows:
“On May 18, 995, July 6, 1995, and July 11, 1995, this Court held evidentiary hearing in this case and in Case No. 95C4568. These cases were consolidated by the Court in its Order of May 18,1995. After consideration of all of the evidence presented, including the report of Domestic Court Services staff prepared pursuant to this Court’s orders of April 18, 1995, and April 27, 1995, and K.S.A. 60-1615, the Court enters the following orders:
“1. The Protection from Abuse Act petition is dismissed on the finding of the Court that abuse as defined in K.S.A. 60-3102 did not occur.
“2. The Court’s custody orders as set forth in its Order of May 18,1995, remain in full force .and effect.
“IT IS SO ORDERED.”
Counsel for Paida asked, “You had this typed up before the close of evidence and the closing argument; is that correct?” This colloquy followed:
“THE COURT: The document has been filed by me and signed by me following your closing argument. Certainly, judges are free to have draft opinions ready. I did have a draft opinion ready and I have now entered it for the reasons that I have stated on the record of this hearing.
“MR. LAURANS: So it’s not your position that you were predisposed to this order by having it typed prior to the end of evidence today or my closing argument?
“THE COURT: You may file any motion that you believe is appropriate. You may file any notice of appeal that you believe is appropriate. The record is clear. I have stated on the record that I had a draft document that I prepared during this hearing and had typed up in case I decided to issue it. I have made that decision. I have now entered that order and filed it with the court here as of 6:41 p.m. this evening. It is now an order of the Court.
“MR. LAURANS: May I inquire of the Court if you also prepared a draft to the contrary in case you were persuaded the other way, or is this the only draft the Court prepared?
“THE COURT: You may not inquire as of that. Draft Court opinions are not a matter of public record, they are matters for the Court to consider. The only thing that is for you to consider are the rulings that I make on the record of the proceeding. My personal notes are not a public file and my draft opinions are not a public file. And I will not discuss that matter further. You are free to raise any matter you wish with any motion.”
Paida relies on Ex Parte Nelson, 251 Mo. 63, 157 S.W. 794 (1913), for the proposition that the district court’s drafting the order before hearing all the evidence requires reversal of the order denying recusal, vacation of the July 11 order dismissing the petition for protection from abuse, and remand for retrial before a different judge. Paida represents that Nelson is “virtually indistin guishable from the case at bar.” We do not agree and find her reliance on Ex Parte Nelson is misplaced. William R. Nelson owned and published the Kansas City Star newspaper. He instituted a proceeding by habeas corpus seeking to be released from custody ordered by Jackson County Circuit Judge Guthrie upon his adjudging Nelson guilty of contempt of court for publishing a contemptuous article. Judge Guthrie set Nelson’s punishment at one day in the county jail. The article falsely reported about attorney fee rulings made by Judge Guthrie in a divorce case. The Missouri Supreme Court unanimously concluded that publication of the article was contemptuous of the court and the presiding judge. 251 Mo. at 84. As a matter of law, therefore, Nelson’s intent and malice were presumed as a matter of law. 251 Mo. at 88. Notwithstanding his guilt, Nelson argued that he should be released because he was tried and found guilty “without an opportunity to introduce any evidence, or otherwise to be heard therein.” 251 Mo. at 99. In fact, that is precisely what had happened. After scheduling trial of the matter for February 1, Judge Guthrie wrote his opinion and order on January 31. Then when the parties appeared in court on the morning of February 1, Judge Guthrie, with the following words, refused to permit the introduction of any evidence: “ Well, I think they [the facts connected with the writing of the entire article] are in a way immaterial . . . and consuming time unnecessarily.” 251 Mo. at 101. Making clear that the question before it was not the materiality of the excluded evidence, the Missouri Supreme Court ordered that Nelson should be discharged on the ground that he was condemned without a hearing in violation of the constitutional guarantee of due process. 251 Mo. at 103-06.
Nelson is distinguishable from the present case on the obvious ground that Nelson was prevented from presenting any evidence: There is no contention that Paida was prevented from presenting evidence. In addition to refusing absolutely to hear any evidence, Judge Guthrie had written in the previously prepared opinion “that he knew ‘no testimony could be offered in the remotest way tending to prove the truth of the article.’ ” 251 Mo. at 102.
Here, as in Nelson, the presiding judge had prepared his order before all the evidence was in. Here, however, it is undisputed that Paida had presented all of her evidence before Judge Leben drafted his order.
With regard to precisely when the order was prepared, Paida asserts that a brief interruption of John’s testimony was “the last opportunity for Judge Leben to have drafted the Journal Entry prior to the end of the case.” In fact, the transcript of the July 11 hearing shows that a brief recess was taken after John’s testimony. The brief interruption in John’s testimony occurred after he finished testifying about the May 23 incident and only shortly before his examination was turned over to Leach’s counsel. That brief recess coincided with the close of Paida’s evidence. The only witness who testified after the recess was Leach. Leach testified on his own behalf, as respondent to the protection from abuse petition filed by Paida. His direct examination was conducted by the attorney who represented him, and he was cross-examined by counsel for Paida. The witnesses clearly were testifying on behalf of one party or the other, and Leach’s testimony in his own behalf was the only testimony which was given after the recess. In other words, Paida’s case was closed before the recess. Even if her assertion that the order was prepared during the brief interruption in John’s testimony is credited, it is accurate to say that Paida’s case with regard to the May 23 incident was closed by that time. Thus, her complaint is that the order was prepared after her evidence with regard to the central incident was concluded but before Leach testified. That is far different from a complaint that she was not permitted to present her evidence, particularly since Paida has the burden to prove that the alleged abuse occurred. The better practice for the district court would be to prepare the order only after the close of all the evidence. Simple common sense would dictate that to be the case, for appearance’s sake if for no other reason. In the circumstances of this case, however, the timing of the district court’s preparation of the order, although it may have conveyed the wrong impression, does not signal bias, passion, or prejudice which would require reversal.
Affirmed.
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