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Herd, J.:
On August 12, 1978, Rodney Sutton, along with three others, abducted a man at a Goodland rest area. During a scuffle with the victim, Sutton’s gun discharged twice, one shot grazing the victim’s cheek and ear lobe. The victim escaped.
Sutton was later picked up in Las Vegas, Nevada. On August 31, 1978, he was charged in Sherman County District Court with aggravated kidnapping (K.S.A. 21-3421) and aggravated robbery (K.S.A. 21-3427). He was sixteen years old at the time.
On October 27, 1978, as a result of plea bargaining, the county attorney amended the information to charge Sutton with attempted murder pursuant to K.S.A. 21-3301 and K.S.A. 21-3401. Sutton pleaded guilty to the amended information.
On December 21, 1978, Sutton was sentenced to four to twenty years as provided by K.S.A. 21-4501(c). Judge Burr found the crime involved would fall under K.S.A. 1977 Supp. 21-4618, thereby creating a mandatory term of imprisonment of four years before Sutton would become eligible for parole.
Sutton brought this action under K.S.A. 60-1507, seeking to modify the sentence. A hearing was held on October 24, 1980, and Judge Burr denied the motion. Sutton filed this appeal.
At the time of Sutton’s sentencing, K.S.A. 1977 Supp. 21-4618 provided in pertinent part:
“Probation shall not be granted to any defendant who is convicted of the commission of any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime.”
The crime of murder is set out in K.S.A. 21-3401. Attempts are defined in K.S.A. 21-3301(1):
“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.”
Appellant argues that since only murder is defined in K.S.A. 21-3401, the crime of attempted murder is not “set out in article 34 of chapter 21 of the Kansas Statutes Annotated.” K.S.A. 1977 Supp. 21-4618. We agree.
The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. City of Salina v. Jaggers, 228 Kan. 155, 169, 612 P.2d 618 (1980); Johnson v. McArthur, 226 Kan. 128, 135, 596 P.2d 148 (1979); State v. Dumler, 221 Kan. 386, 389, 559 P.2d 798 (1977). When a statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. State v. Chance, 4 Kan. App. 2d 283, 287, 604 P.2d 756 (1980). Additionally, criminal statutes must be strictly construed against the State and in favor of the defendant. State v. Stuart & Jones, 223 Kan. 600, 607, 575 P.2d 559 (1978).
A synthesis of the foregoing rules leads us inevitably to our conclusion. First, the question of whether attempted murder should be covered by K.S.A. 1977 Supp. 21-4618 is not before us. Our task is only to determine whether the statute does in fact apply to the crime involved in the case at bar. We hold K.S.A. 1977 Supp. 21-4618 is plain and unambiguous. The intent of the legislature expressed therein is for that statute to apply only to article 34 crimes. Attempted murder is simply not an article 34 crime. Therefore, we hold K.S.A. 1977 Supp. 21-4618 was not applicable to attempts. Appellant’s sentence is so modified.
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Abbott, J.:
This is an action brought by the appellant, H & H Farms, Inc., (the purchaser of farmland) against appellees, Vern Hazlett and Farm & Ranch Realty, Inc., (a real estate broker and his agency). Appellant alleges fraudulent misrepresentation, mutual mistake of fact and unjust enrichment by the realtor, and seeks to recover actual and punitive damages. The realtor counterclaimed for malicious prosecution.
The trial court granted summary judgment against H & H Farms on its claims against appellees and against appellees on their counterclaim against H & H Farms. Both parties appeal. The issue presented by both is whether the trial judge erred in granting summary judgment.
This lawsuit arose as a result of the sale of a section of land in Thomas County, Kansas. The land was owned by Eula M. Miller, a resident of Ojus, Florida. Mrs. Miller is not a party to the lawsuit. Craig Hills (Hills), the secretary of and a shareholder in H & H Farms, wrote Mrs. Miller in March 1978, expressing an interest in purchasing the land and confirming a telephone offer of $550 an acre for it. He wrote Mrs. Miller a second letter in May 1978, informing her that the corporation was still interested in purchasing the section. Mrs. Miller indicated she would discuss selling the land when she returned to Kansas for harvest. On June 21, 1978, Mrs. Miller wrote Hills and informed him she was staying at her daughter’s home in Scottsbluff, Nebraska, and furnished Hills with her address. She also informed him that she had decided not to sell the land at auction, but would accept sealed bids instead, and told him she would advertise that fact in the Colby, Kansas, and Denver, Colorado, newspapers.
Vern Hazlett (Hazlett) read Mrs. Miller’s advertisements concerning sale of the land. He obtained her phone number in Nebraska and called her on June 26, 1978, in an attempt to secure a listing for Farm & Ranch Realty, Inc. (Farm & Ranch). Mrs. Miller stated she planned to sell the property herself by accepting sealed bids, and she refused to allow him to list the property. The following day, Hills submitted a bid in the amount of $725 per acre. He stated that he and his brother would like a chance to match the highest bid because they wanted the land very much. Mrs. Miller called Hills early in July concerning terms of any sale. She had by then received a bid from a third party for $750 an acre. Hills wrote Mrs. Miller on July 8, 1978, and offered to match the high bid, plus $5,000.
The first contact between Hills and Hazlett occurred on July 17, 1978, when Hills called Hazlett and during the conversation authorized Hazlett to offer a bid of $850 an acre. Hazlett called Mrs. Miller and told her he had a potential buyer who would pay $850 an acre. Although there is some dispute about the Hazlett-Miller telephone conversation, a fair interpretation is that Mrs. Miller was to net $850 an acre and she agreed to a sale on that basis. Hazlett called Craig Hills and stated that Mrs. Miller would not accept $850 an acre, but would accept $875. The extra $25 per acre was the exact amount of the real estate commission and would net $850 an acre to Mrs. Miller. Hills, as agent for H & H Farms, agreed to pay $875 per acre. Mrs. Miller then learned that the buyer was H & H Farms. A contract which Hazlett prepared that in part authorized the payment of a $15,000 real estate commission to Farm & Ranch was signed by Hills on behalf of H & H Farms. Mrs. Miller did not sign that contract, because she wanted a contract prepared by a Kansas lawyer. Two days after the oral agreement to sell the land, Mrs. Miller came to Kansas and subsequently a contract was prepared by her Kansas lawyer. The lawyer for H & H Farms examined the contract, and it was executed after a minor change not germane to the issue in this case was made. The contract specifically provided that Mrs. Miller was to pay a $15,000 commission to Farm & Ranch. H & H Farms complained to its lawyer about the commission prior to the contract’s having been delivered to Mrs. Miller, but went ahead and delivered it without complaint to either Mrs. Miller or Hazlett.
This lawsuit was filed by H & H Farms, seeking both actual and punitive damages for the alleged fraud of Hazlett and Farm & Ranch and claiming mutual mistake of fact, and claiming that Farm & Ranch was not the efficient procuring cause of the sale. A counterclaim was filed on the theory of malicious prosecution. This appeal followed the trial court’s granting of summary judgment against each party’s cause of action.
It is first argued that the trial court erred in granting summary judgment on the issue of fraudulent misrepresentation. Summary judgment is proper only if there are no genuine issues of material fact. A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist. Dugan v. First Nat’l Bank in Wichita, 227 Kan. 201, ¶¶ 1, 2, 606 P.2d 1009 (1980). An appellate court, in examining the validity of a motion for summary judgment, should read the record in the light most favorable to the party who defended against the motion. It should accept such party’s allegations as true, and it should give it the benefit of the doubt when its assertions conflict with those of the movant. Collier v. Operating Engineers Local Union No. 101, 228 Kan. 52, ¶ 2, 612 P.2d 150 (1980).
The essence of Hill’s theory of fraud revolves around the fact that Hazlett informed Hills that Mrs. Miller would sell the land for $875 an acre when it appears she was willing to sell for $850 an acre. Hills contends that Hazlett had a duty to communicate to him the fact that Mrs. Miller was willing to sell 600 acres for $850 an acre, and that the additional $25 an acre was tacked on to provide a commission to Farm & Ranch. The breach of this duty, Hills argues, amounted to fraudulent misrepresentation against H & H Farms for which it is entitled to recover the commission. Case law around the country is split on this issue. In Annot., 55 A.L.R.2d 342, 346, the case law on this point is summarized:
“The theory prevailing in some of the cases on this topic appears to be that if the real-estate agent or broker enters the transaction as agent of the vendor, the only duties resting upon the agent or broker are those which he owes to his principal, the vendor, and he has no legal duty whatever to the prospective or ultimate purchaser of the realty. Other courts, however, have considered that although, in this situation, the real-estate agent is primarily the agent of the vendor, he nevertheless is under certain legal duties to the prospective purchaser and does not stand exactly in the vendor’s shoes, in so far as representations concerning the vendor’s minimum price are concerned, and has the duty to truthfully communicate offers from the vendor to the prospective purchaser and offers from the prospective purchaser to the vendor and that such duties are owed to the prospective purchaser as well as to the vendor.
“As shown in the cited sections, the purchaser’s theory ordinarily has been that by falsely overstating the vendor’s minimum price and thereby inducing the purchaser to buy the property at the overstated price, the vendor’s agent or broker committed an actionable fraud against the purchaser. The courts are not agreed as to whether such misconduct is actionable fraud, as against the purchaser, under ordinary circumstances, nor, generally, as to what circumstances may suffice to present a case of actionable fraud in this general situation.”
In this case, H & H Farms knew prior to delivering the executed contract to Mrs. Miller that Hazlett was charging a real estate commission, the amount of the commission, and that Mrs. Miller was to pay the commission out of the sale price. H & H Farms discussed the commission with its lawyer and went ahead with the purchase. Hills testified the land was worth $875 an acre at the time of the sale.
We view Wrench v. Von Schriltz, 108 Kan. 748, 197 Pac. 197 (1921), as somewhat analogous. In that case, a real estate agent, Dick Rich, had the’exclusive agency for the sale of a large amount of ranch land which he was to sell at any price he saw fit as long as he would net seven dollars per acre to the owners for the pastureland. Rich had also arranged with a Mr. W. W. Harvey to pay Harvey a commission for sales to any customers which Harvey sent in. Wrench, who had a card of introduction from Harvey, inquired of Rich about buying some of the land; as a result, defendant (an agent employed in Rich’s office) took Wrench to inspect the land and procured a written agreement wherein Wrench agreed to purchase the land at nine dollars per acre. When defendant notified Rich that he had made a sale, Rich informed defendant that it would be necessary to pay a commission to Harvey. Defendant then communicated with Harvey and found that $500 would be a satisfactory commission. Defendant then went to Wrench and told him that he would be obliged to pay $500 additional to get the land, at which time defendant and Wrench executed a new contract for $500 in addition to the nine dollars per acre originally agreed upon. Wrench later sued under a theory of fraud and misrepresentation to recover the $500 from the defendant. The Kansas Supreme Court ruled that even if it was assumed defendant in obtaining the additional $500 from Wrench had represented that it was the owner of the land instead of Rich who had raised the price $500, Wrench had no cause of action under the circumstances. Specifically, the court stated:
“The only dispute in the evidence on this cause of action was whether, as plaintiff testified, defendant told him it was the owners of the land who had raised the price or whether, as the defendant testified, he told plaintiff he had phoned to Mr. Rich and that Rich had raised the price $500, and that the land would cost plaintiff that much more. What possible purpose or motive the defendant could have for misrepresenting who it was that had raised the price, is not apparent. The difference between the two statements is hardly more than the difference between tweedle-dum and tweedle-dee, and under all the circumstances of this case could not amount to actionable fraud. How could it possibly concern the plaintiff whether he understood that it was the owners who raised the price or someone else who had control of the sale?” Wrench v. Schriltz, 108 Kan. at 750.
The record reflects that Hazlett was authorized to sell the property for Mrs. Miller at the time the statement was made to Craig Hills, and he had full knowledge of the material facts when he executed and delivered the contract as authorized agent for H & H Farms. The trial court did not err in granting summary judgment in favor of defendants on this issue.
Appellant next urges that there was a mutual mistake common to both H & H Farms and Mrs. Miller, and by reason of that mistake each of the parties entered into a contract at a price neither intended. We are of the opinion appellant’s argument is without merit. Appellant does not seek to rescind the contract; it seeks to reform the contract to exclude the paragraph providing that Mrs. Miller would pay Farm & Ranch a $15,000 real estate commission. Mrs. Miller is not a party to this action and thus is not claiming mutual mistake. She was fully aware of the contract provision for the payment of the commission; and although she expressed some displeasure of that paragraph and the amount being in the contract, she fully understood its meaning, executed the contract with full knowledge of its contents, and has not requested a rescission. In short, H & H Farms does not have a cause of action against Farm & Ranch to reform the contract, and the trial court did not err in granting summary judgment against H & H Farms on its second cause of action.
Appellant argues that Farm & Ranch was not entitled to a commission because Hazlett was not the efficient procuring cause of the sale and the sale would have occurred without his help.
There is no quarrel among the parties regarding the general rule applicable in this case; that to be entitled to a commission, a broker must establish that the broker has produced a buyer who is able, ready and willing to purchase on the proper terms or on terms acceptable to the principal and that the broker was the efficient procuring cause of a consummated deal. Winkelman v. Allen, 214 Kan. 22, 519 P.2d 1377 (1974). Mrs. Miller testified in her deposition as follows:
“Q. Well, then as a result of Mr. Hazlett’s call, he finally got you and Mr. Hill together, didn’t he; just yes or no.
“A. Yes.
“Q. And you benefited from that contract that Mr. Hazlett arranged, didn’t you?
“A. Yes.
“Q. And you accepted those benefits?
“A. Yes.”
Craig Hills also testified:
“Q. Well, you hadn’t been able to buy this property from Mrs. Miller despite all your efforts, had you?
“A. Up to the—
“Q. (interrupting) Up to the time Mr. Hazlett got into it, isn’t that right?
“A. Yes sir.
“Q. And as a result of his efforts, you were able to buy the property, weren’t you?
“A. I guess I’d have to say yes sir.”
Even if we were to agree that appellant is the real party in interest and has standing to challenge a real estate commission which it had no contractual obligation to pay, it would not benefit appellant; for the uncontroverted evidence by the seller and by an officer of the buyer company sufficiently establishes that Vern Hazlett was the procuring cause of the sale. The trial judge did not err in granting summary judgment to Farm & Ranch on this issue.
The elements of malicious prosecution in a civil proceeding were recently set out by the Supreme Court in Nelson v. Miller, 227 Kan. 271, 276, 607 P.2d 438 (1980):
“To maintain an action for malicious prosecution of a civil action the plaintiff must prove the following elements:
(a) That the defendant initiated, continued, or procured civil procedures against the plaintiff.
(b) That the defendant in so doing acted without probable cause.
(c) That the defendant acted with malice, that is he acted primarily for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.
(d) That the proceeding terminated in favor of the plaintiff.
(e) That the plaintiff sustained damages.”
Kansas law is well settled that one of the crucial elements of an action for wrongful use of civil proceedings is that the prior civil proceeding must have terminated in favor of the person against whom the prior civil action was brought, and that the action cannot be brought if the original action is still pending and undetermined. See Nelson v. Miller, 227 Kan. at 280; Harper v. Cox, 113 Kan. 357, 214 Pac. 775 (1923). Although Kansas courts have not ruled on the specific question of whether a malicious prosecution claim can be brought in a counterclaim, other courts have had opportunity to address the issue. Prosser on Torts § 120 n. 32 (4th ed. 1977) states the general rule that a plaintiff must prove the termination of former proceedings in his favor and that this requirement ordinarily makes the counterclaim for malicious prosecution in the original civil action premature. See American Salvage and Jobbing Co., Inc. v. Salomon, 295 So. 2d 710 (Fla. Dist. Ct. App. 1974); Metro Chrysler-Plymouth, Inc. v. Pearce, 121 Ga. App. 835, 175 S.E.2d 910 (1970); Peisner v. Detroit Free Press, 68 Mich. App. 360, 242 N.W.2d 775 (1976). Furthermore, a plaintiff’s cause of action for malicious prosecution does not accrue until the time for appeal has passed on the original action. See Rich v. Siegel, 7 Cal. App. 3d 465, 86 Cal.Rptr. 665 (1970).
A case with remarkably similar facts and precisely the same issue was recently decided by the Montana Supreme Court. In First Trust Co. of Montana v. McKenna, __ Mont. __, 614 P.2d 1027 (1980), the seller of a ranch brought an action against the real estate broker to recover a commission, and the broker counterclaimed against the seller for malicious prosecu tion. The trial court dismissed the broker’s counterclaim, and on appeal the Supreme Court affirmed the dismissal, stating:
“In actions for malicious prosecution the party bringing the action must prove that there has been a termination of proceedings. This rule has been stated as follows:
“ ‘. . . On the other hand, an action for malicious prosecution may not be asserted by way of cross-complaint or counterclaim in the original proceedings, prior to its termination, since it is essential that the original proceeding shall have been previously terminated in favor of the party bringing the malicious prosecution action. Hence a counterclaim purporting to set forth a cause of action in malicious prosecution is properly dismissed as premature. . . .’ (Emphasis added.) 52 Am. Jur. 2d, Malicious Prosecution § 14 at 195.
“In Bollinger v. Jarret (1965), 146 Mont. 355, 406 P.2d 834, this Court said:
“ ‘It is also contended that it was error for the court to render summary judgment against appellant-buyer’s counterclaim. The basis of the counterclaim was that the sellers’ action wrongfully injured the credit standing of the buyers. The only possible grounds for such a claim are libel and malicious prosecution, neither of which can be sustained here. . . . And malicious prosecution founded on a civil action is not the proper subject of a counterclaim since it requires proof of termination of the former proceeding in favor of the defendant therein. Baker v. Littman, 138 Cal. App. 2d 510, 292 P.2d 595; 54 C.J.S. Malicious Prosecution § 54, p. 1021.’ ” 614 P.2d 1032-33.
Hazlett argues that K.S.A. 60-218 allows a malicious prosecution action to be maintained as a counterclaim. Montana has, as has Kansas, adopted Fed. R. Civ. P. 18 (Mont. R. Civ. P. Rule 18, and K.S.A. 60-218). Thus, Montana was considering an identical statute and nearly identical issues. Other jurisdictions have held that it is premature to plead a claim for damages that arises from malicious prosecution before the final determination of that action is made. See Union Nat. Bank v. Universal-Cyclops Steel Corp., 103 F. Supp. 719, 720 (W.D. Pa. 1952), and cases cited therein. K.S.A. 60-218(b) and 60-213 do appear on their face to allow a defendant to file a counterclaim for malicious prosecution. We are of the opinion, however, that our Supreme Court has determined that a civil action for malicious prosecution cannot be maintained until the proceedings have terminated in favor of the party seeking the action, and that rule of law applies to either a petition or a counterclaim. We are aware of Stripling v. Star Lumber & Supply Co., Inc., 216 Kan. 507, 510, 532 P.2d 1101 (1975), wherein the Supreme Court considered a counterclaim for malicious prosecution. As we read that case, however, the issue presented in the case before us was neither presented nor considered there and we do not consider it as authority for defend ant’s position. We hold that a claim for malicious prosecution founded on a civil action is not the proper subject of a counterclaim since it requires proof of the termination of the former proceeding in favor of the defendant.
Affirmed.
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Abbott, J.:
This is a direct appeal by the defendant, Carl E. Miller, from his conviction of communicating a terroristic threat (K.S.A. 21-3419).
The charge arose as a result of defendant’s having burned a wooden cross on the driveway of the residence of Norman Manley, then an assistant county attorney for Butler County, Kansas. The sole issue presented on appeal is whether the trial court erred in overruling the defendant’s motion for a directed verdict of acquittal at the completion of the State’s evidence.
No verbal or written threats were made and no personal confrontation occurred at the time the cross was burned. Mr. and Mrs. Manley were not at home at the time, but their child and a teenage babysitter were. A neighbor observed two suspicious persons in a pickup truck parked near the Manley home. The neighbor left to go to the grocery store, and when he returned he noticed a fire on the Manleys’ concrete driveway. He investigated and saw that the burning object was a wooden cross that was laying flat on the driveway about fifteen feet from the garage and the Manley home. The record before us does not reveal the size of the cross, but it was small enough that one bucket of water put out the fire; and a police officer picked up the charred cross and placed it in the trunk of his police vehicle. Defendant was convicted on the strength of evidence from two witnesses who testified he told them that he had burned the cross on Manley’s driveway.
Defendant argues that the State failed to prove a threat to commit violence; that, at best, all the State proved was an implied threat, the meaning of which is too ambiguous to support a criminal conviction for terroristic threat, as it would not fall within the narrowly defined class of threats suggested by the comment under section 211.3 of the American Law Institute Model Penal Code (1980). He further contends that there remains the question of what specific violent act is threatened by one who burns a cross in the yard of another.
This incident occurred at about 9:00 p.m. on December 2, 1978. Neither the Manleys’ daughter nor the babysitter was aware of the incident until the neighbor called to alert them. Norman Manley had known the defendant for four or five years, and had represented him on prior occasions. Manley had commenced prosecuting the defendant in October on several misdemeanor traffic charges and, preceding the cross-burning on December 2, Manley had indicated to the defendant that he was going to recommend a jail sentence. Defendant was upset about having to hire another lawyer; he became loud and belligerent, shoved his face into Manley’s, and forced Manley backward a couple of steps. Manley interpreted that act as an attitude problem rather than as a threat. On November 4 or 5, defendant went to Manley’s home and offered to “come up” with $500, which Manley could apply as a fine in any manner he saw fit, to dispose of the charges against defendant without his being required to serve time in jail. Manley replied that he would insist on a maximum jail sentence. Defendant began cursing and hollering, and Manley went back into his house and had no further contact with the defendant.
Manley testified he interpreted the cross-burning as a threat; that it said the defendant is capable of coming onto the property even during waking hours when traffic is about, when neighbors are on the streets, when the home is obviously occupied. It thus gives a message that cross-burners are capable of coming back later and doing something more serious.
As defendant points out and our research confirms, there are no reported cases considering whether a cross-burning amounts to a terroristic threat. Defendant argues that the State of Georgia has specifically included a provision in its terroristic threat statute (Ga. Code § 26-1307[b]) making it a terroristic threat to burn a cross with intent to terrorize another. Thus, he contends, it is clear that the uniform act does not include cross-burning as a terroristic act. We reject that argument for two reasons. The Georgia statute more closely follows the uniform act than does our Kansas statute, and the two statutes are capable of entirely different construction. In addition, the fact that the Georgia legislature felt it necessary to specifically single out one act as a terroristic threat does not in and of itself mean the act would not be under a statute that does not separately set it out.
K.S.A. 21-3419 provides that “a terroristic threat is any threat to commit violence communicated with intent to terrorize another, or to cause the evacuation of any building, place of assembly or facility of transportation, or in wanton disregard of the risk of causing such terror or evacuation.”
Our Supreme Court has previously considered the terroristic threat statute in three cases, two of which seem to shed some light on the question before us. In State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972), the Supreme Court considered an argument that the statute is vague and ambiguous, but determined it to be constitutional. Although we have some reservations concerning the constitutionality of the statute due to its vagueness in a number of areas, this court is duty-bound to follow the law as established by the Supreme Court of our state in the absence of some indication that it is departing from its previously expressed position. In any event, the defendant here does not challenge the constitutionality of the statute.
In Gunzelman, the words “threat” and “terrorize” as used in K.S.A. 21-3419 were defined respectively as “a communicated intent to inflict physical or other harm on any person or on property ... to reduce to terror by violence or threats, and terror means an extreme fear or fear that agitates body and mind.” As we view Gunzelman, the Supreme Court, by its definition of threat, is also defining the word “violence” or perhaps is including that definition in its adopted definition of threat. It is interesting to note that the Supreme Court cited with approval a federal case that upheld a portion of a terroristic threat statute imposing punishment upon any person who shall willfully prowl or travel or ride or walk through the country or town for the purpose of terrorizing any citizen. That statute is apparently aimed at preventing organizations such as the KKK from intimidating citizens by terror in some manner much less threatening than is now meant by the burning of a cross on the property of another.
In State v. Knight, 219 Kan. 863, 866, 549 P.2d 1397 (1976), the Supreme Court stated the general rule to be “a threat otherwise coming within the purview of a statute need not, unless the statute expressly so requires, be in any particular form or in any particular words, and it may be made by innuendo or suggestion, and need not be made directly to the intended victim.”
In State v. Howell & Taylor, 226 Kan. 511, 515, 601 P.2d 1141 (1979), the defendant argued that “threat” as defined in K.S.A. 1978 Supp. 21-3110(24) requires a communicated intent to inflict physical or other harm on any person or on property, and that “communicated intent” is restricted to verbal communication. The significance of defendant’s argument is that the definition for “threat” as used in the terroristic threat statute was also adopted from K.S.A. 1978 Supp. 21-3110(24). The Supreme Court rejected defendant’s argument, stating that the firing of a gun at the law enforcement officer “was a sufficient communicated intent to inflict physical harm to constitute a threat as defined by K.S.A. 1978 Supp. 21-3110(24).” Thus, we are of the opinion that a threat under K.S.A. 21-3419 is not limited to a written or oral threat but can be inferred from a physical act.
The question then arises whether the burning of a cross on the property of another can amount to a terroristic threat. The threat to commit violence must be communicated with the intent to terrorize another. The fact that the intent is to accomplish some result other than to terrorize is not sufficient, although it may well constitute another crime. It is the intent to terrorize another, i.e., the reaction desired by the communicator regardless of whether the threat is real or even capable of being carried out, that constitutes the offense. All circumstances surrounding the communication, including the relationship between the parties, must be considered in determining whether the communication in issue is a terroristic threat. State v. Porter, 384 A.2d 429, 432 (Me. 1978). We hold that the burning of a cross on the property of another is not per se a terroristic threat as prohibited by K.S.A. 21-3419, but the surrounding facts and the relationship of the parties involved may be such that a properly instructed jury could find that the burning of a cross on the property of another is the communication of a terroristic threat. We have examined the record and are of the opinion it contains sufficient evidence when viewed in the light most favorable to the prosecution to convince us that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
We would be justified in dismissing defendant’s appeal for another reason. Defendant appeals from the overruling of his motion for a directed verdict of acquittal at the completion of the State’s evidence. A defendant who presents evidence in his or her behalf, after the trial court has overruled a motion for acquittal at the close of the prosecution’s case, waives any error in the denial of the motion. State v. Blue, 225 Kan. 576, ¶ 1, 592 P.2d 897 (1979). Here the defendant introduced evidence. The record before us does not give any indication that the motion for acquittal was renewed after the close of all the evidence. If it was, that motion is reviewable (all evidence presented would be considered by the trial court and this court in ruling on the motion for acquittal). The State does not raise this issue, and we are reluctant to decide the case on a nonjurisdictional issue not raised or argued by the parties, thus we decline to decide the case on that basis.
Affirmed.
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Bullock, J.:
This is an appeal in a criminal action from a jury verdict finding Thurman J. Williams (defendant-appellant) guilty of involuntary manslaughter (K.S.A. 1980 Supp. 21-3404).
The facts surrounding this homicide are sketchy inasmuch as neither the defendant nor Mary Lou Ruffin, the only other witness to the event, took the stand. Defendant, shortly after the event, however, did make a statement to the police, which was admitted into evidence.
Apparently, on January 29, 1980, Williams was visiting his aunt, Mary Lou Ruffin, when an altercation erupted involving the two of them and the victim James Cunningham who was Ruffin’s common-law husband. According to Williams’ statement, he felt either his life or his aunt’s life was in danger. Williams said Cunningham argued with the aunt, shoved her aside, and came at him with a kitchen paring knife. At that point, Williams, who was lying on a bed in the living room, shot Cunningham with a sawed-off shotgun which was lying at the foot of the bed. The pathologist’s testimony offered at trial indicated Cunningham’s blood alcohol content was .24, well within the range of intoxication.
Although Williams was originally charged with second degree murder (K.S.A. 21-3402), that charge was amended to voluntary manslaughter (K.S.A. 21-3403) prior to trial. In a trial to a jury, the State called five police officers associated with the case, as well as the pathologist who performed the autopsy on Cunningham’s body; the defense called no witnesses. State’s witness Young testified there were blood spatters “within” the deceased’s hand which held the knife. From this testimony, the prosecutor argued to the jury that the deceased was unarmed at the time he was shot and that the paring knife had been placed in his hand afterwards. The jury returned a verdict finding Williams guilty of the included offense, involuntary manslaughter. Defendant moved for acquittal or, in the alternative, for a new trial. Both motions were denied.
Defendant filed a timely appeal, asserting the trial court erred in (1) instructing the jury on the “lesser included” offense of involuntary manslaughter, (2) giving an erroneous involuntary manslaughter instruction, (3) overruling defendant’s motion for acquittal, (4) not giving the requested instruction on circumstantial evidence, (5) admitting gruesome photographs, (6) refusing the defense request that the words “beyond a reasonable doubt” be added to Instruction No. 9, and (7) not granting a mistrial when the jury sent down a note stating that they could not reach a unanimous verdict.
Defendant advances two theories under which he contends the trial court erred in instructing the jury on the offense of involuntary manslaughter. The first is that involuntary manslaughter is not a “lesser included” offense of voluntary manslaughter inas much as the former requires proof of elements not present in the latter. Defendant’s statement of the test for determining whether any particular offense is a “lesser included” offense of another is correct. State v. Gregg, 226 Kan. 481, 482, 602 P.2d 85 (1979); State v. Arnold, 223 Kan. 715, 717, 576 P.2d 651 (1978). Applying this test to the offense of involuntary manslaughter, as compared with the offense of voluntary manslaughter, we concur with defendant that the former is not a “lesser included” offense of the latter. Thus, involuntary manslaughter is not an “included crime” under K.S.A. 21-3107(2)(d). This determination does not, however, conclude the inquiry. In State v. Gregory, 218 Kan. 180, 182, 542 P.2d 1051 (1975) it was held that involuntary manslaughter was an “included crime” of murder and thus properly submitted to the jury under K.S.A. 21-3107(2)(c) as “[a] lesser degree of the same crime.” In reaching this result, the court found that the reference in K.S.A. 21-3107(2)(a) to “the same crime” was to the generic crime of homicide. Accordingly, we hold that involuntary manslaughter, although not a “lesser included” offense of voluntary manslaughter, is nonetheless an “included crime” as a lesser degree of the same crime. In a case such as the one before us, where, as we shall shortly demonstrate, the evidence could well justify a conviction of the offense of involuntary manslaughter, it was not error to instruct on this included offense and, indeed, such was the absolute duty of the trial judge under K.S.A. 21-3107(3).
Defendant’s second theory is that the trial judge committed error in giving the instruction on involuntary manslaughter because there was no evidence before the jury of an unintentional killing. Defendant’s argument is essentially that he was guilty of voluntary manslaughter or not guilty of any crime.
K.S.A. 21-3107(3) provides:
“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, even though such instructions have not been requested or have been objected to.”
Kansas appellate courts have often stated that instructions on lesser included crimes are required only when there is evidence that could support a conviction of the lesser crime. State v. Prince, 227 Kan. 137, 140, 605 P.2d 563 (1980); State v. Gander, 220 Kan. 88, 89, 551 P.2d 797 (1976); State v. Ponds and Garrett, 218 Kan. 416, 421, 543 P.2d 967 (1975). In the typical case, the defendant invariably complains that an instruction on a lesser included offense was not given. In this instance, defendant claims prejudice because the instruction was given when, he claims, there was no evidence the killing was unintentional.
We view the evidence differently. Defendant admitted the killing, but contended he did it in self-defense. The only eyewitness evidence, defendant’s statement, contained no indication as to whether defendant intended the deceased’s death as a result of the shot fired from the sawed-off shotgun. On this state of the record, a jury might well have inferred an intent to kill from the use of the weapon chosen alone. It chose not to do so. Likewise, if the jury believed the prosecution argument that the deceased was unarmed when he was shot, or armed only with a tiny paring knife, the jury might well have inferred that although injury was intended, the killing was unintentional and that the shooting was a lawful act (self-defense) committed in an unlawful manner (with excessive force). Further, the jury could have inferred the killing, although unintentional, was the result of wanton conduct in conjunction with a misdemeanor (assault and battery), if it believed there was an affray but did not believe the defendant acted in self-defense. Such permissible factual inferences are clearly and solely the province of the jury. State v. Seelke, 221 Kan. 672, 680, 561 P.2d 869 (1977), teaches that under such circumstances the trial judge would have committed reversible error had he not given the involuntary manslaughter instruction. We find no error in giving the instruction under the facts of this case.
Defendant next contends that, even if the trial judge was correct in instructing on involuntary manslaughter, he gave an erroneous instruction.
Instruction No. 12 was given on involuntary manslaughter and reads:
“If you find the defendant is not guilty of voluntary manslaughter, then you shall consider if he is guilty of involuntary manslaughter.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant unintentionally killed James Cunningham;
“2. That it was done while in the commission of a lawful act in a wanton manner in that the defendant claims that he was acting in self-defense which is a lawful act, if it was done with a lawful intent.
“3. That this act occurred on or about the 29th day of January, 1980, in Wyandotte County, Kansas.
“As used in this instruction the word wanton means conduct done under circumstances that show a realization of the imminence of danger to the person of another and a reckless disregard or complete indifference and unconcern for the probable consequences of the conduct.” Emphasis added.
Defendant contends the italicized portion confused the jury. To substantiate that contention, he points to a question the jury had during deliberations about the difference between involuntary manslaughter and not guilty. Whatever the potential for confusion in the phrasing, we find the instruction does not correctly state the law regarding involuntary manslaughter.
Involuntary manslaughter is defined in K.S.A. 1980 Supp. 21-3404:
“Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. As used in this section, an ‘unlawful act’ is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state which statute or ordinance is enacted for the protection of human life or safety.”
The court in State v. Gregory, 218 Kan. 180, 542 P.2d 1051 (1975), paraphrased the statute to illustrate the interrelationship of the elements. The statute requires “(1) an unintentional killing without malice; and (2) that it occur while the defendant was either (a) committing some misdemeanor [now ‘wanton commission’] or (b) performing some lawful {i.e., not criminal) act in a manner which, in turn, was either (i) unlawful or (ii) wanton.” 218 Kan. at 183 (emphasis in original).
The instant action falls under alternative (2) (b), and the recent case of State v. Warren, 5 Kan. App. 2d 754, 624 P.2d 476, rev. denied 229 Kan. 671 (1981), supports defendant’s contention that the instruction in question was erroneous. In that case, a similar instruction was given which would have allowed the jury to find defendant had committed the lawful act of self-defense in a wanton manner. The court in Warren found wantonness “totally inconsistent with the concept of self-defense. One fending off an attack does not have a ‘reckless disregard’ or an ‘indifference and unconcern’ over consequences to the attacker — the victim intends to inflict injury on the attacker, and is legally justified in harboring that intent.” 5 Kan. App. 2d at 758. (Emphasis in original.) One can, however, as we have previously observed, use excessive force and render the lawful act of self-defense unlawful.
The Warren court distinguished “wanton” and “unlawful” when it explained that one can be guilty of involuntary manslaughter under such circumstances as we have before us by either acting in self-defense, but with excessive force, or by not acting in self-defense and in a wanton manner.
In the instant action, the court erroneously linked self-defense with wantonness and failed to instruct the jury that they could find defendant performed the lawful act of self-defense in an unlawful manner. Accordingly, this conviction must be reversed for a new trial on involuntary manslaughter.
Defendant also contends the trial court erred in overruling defendant’s motions for acquittal at the close of the State’s case and at the close of all the evidence. In State v. Gustin, 212 Kan. 475, Syl. ¶ 2, 510 P.2d 1290 (1973), this court stated a judgment of acquittal should be entered if the evidence is insufficient to sustain a conviction.
“A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.” 212 Kan. at Syl. ¶ 3. Followed in State v. Taylor, 225 Kan. 788, 792, 594 P.2d 211 (1979) and State v. Sanders, 225 Kan. 147, 151, 587 P.2d 893 (1978).
The jury had before it defendant’s statement in which he admitted the shooting and from which they could have found wanton conduct connected with a misdemeanor (disbelieving the self-defense contention) or excessive force used in self-defense, either of which would have supported a conviction of involuntary manslaughter. Arguably, the jury could also have found the killing intentional, which would have supported a conviction of voluntary manslaughter. On this state of the record, it was not error to overrule defendant’s motion.
Even though we find the conviction must be reversed, it is worthwhile to consider other of defendant’s contentions which are likely to recur on retrial.
We find no merit in defendant’s contention a separate instruction on circumstantial evidence should have been given. PIK Crim. 52.16 (1980 Supp.) recommends no separate instruction be given as to circumstantial evidence. The Comment cites State v. Wilkins, 215 Kan. 145, 523 P.2d 728 (1974), in which the supreme court held an instruction on circumstantial evidence is “unnecessary when a proper instruction on ‘reasonable doubt’ is given.” 215 Kan. at 156. PIK Crim. 52.02 was given verbatim in Instruction No. 9; we find such to be a proper instruction.
Defendant next contends error in admission of two gruesome photographs; the trial judge sustained the objection as to a third photograph. The color photographs admitted show, respectively, a close-up of the victim’s chest with a hole in the upper portion and the interior of the apartment before the body was removed. The photographs were used as aids to the testimony of the police officers and pathologist in showing the relationship of the victim to the room and the point of entry of the shot.
While this court does not countenance the wholesale admission of gruesome photographs which add nothing to the State’s case, State v. Clark, 218 Kan. 18, Syl. ¶ 2, 542 P.2d 291 (1975), gruesome photographs may be admitted when they show the nature and extent of wounds and other physical aspects of the crime. State v. Villa & Villa, 221 Kan. 653, 654-55, 561 P.2d 428 (1977); State v. Jones, 218 Kan. 720, 724, 545 P.2d 323 (1976); State v. Randol, 212 Kan. 461, 466-67, 513 P.2d 248 (1973).
The photographs in question are not gruesome other than in the fact they depict a dead body. There is very little blood and no disfigurement. Furthermore, resort to models or diagrams would have resulted in a cumbersome and less effective visual aid. The probative value of the photographs clearly outweighed any prejudice which flowed from their use. The court committed no error in admitting the photographs.
Finally, defendant contends the trial court erred in refusing to add the words “beyond a reasonable doubt” to Instruction No. 9 which was a verbatim restatement of PIK Crim. 52.02. We find no merit in this contention. The instruction has been approved on a number of occasions. See cases cited in State v. Curtis, 217 Kan. 717, 724, 538 P.2d 1383 (1975). The court did not err in giving the instruction as set out in PIK Crim. 52.02.
In light of our decision to reverse and remand this case, we find it unnecessary to address defendant’s contention that a mistrial should have been granted.
The judgment of the trial court is reversed and the case is remanded for a new trial on the remaining charge of involuntary manslaughter.
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Abbott, J.:
This appeal is from a judgment entered in an action by Unified School District No. 490, Butler County, Kansas (USD 490), for both actual and punitive damages, claiming the defendant The Celotex Corporation (Celotex) sold and Sunflower Roofing and Industries, Inc. (Sunflower), had installed a two-ply, built-up roofing system on the El Dorado High School building. USD 490 claimed recovery for fraud and breach of warranty. The jury returned a verdict in favor of USD 490 in the amount of $100,000 compensatory damages and $600,000 punitive damages. The compensatory damages were apportioned between Celotex and Sunflower, attributing $98,000 to Celotex and $2,000 to Sunflower. All of the $600,000 punitive damages award was assessed against Celotex. On the cross-claim of Sunflower against Celotex on a theory of fraud, the jury awarded Sunflower actual damages of $15,000 and punitive damages of $28,000. Celotex appeals from the judgment, alleging numerous errors.
To understand the issues, it is necessary to give some background of the events that occurred prior to the planning of the new high school at El Dorado. Most of the background is found in the voluminous record (more than 2,000 pages, and in excess of 200 exhibits), and some was furnished at oral argument. Barrett Roofing Company (Barrett) was an established and well-respected manufacturer of roofing materials. At some unspecified time prior to this controversy, Barrett was purchased by Allied Chemical Corporation (Allied) and became the Barrett Division of Allied Chemical Corporation. The Barrett Division of Allied was not a separate corporation. In the late 1950’s or early 1960’s, the Barrett Division of Allied developed a two-ply, built-up roofing system. Prior to that development, the most commonly used built-up roofing system incorporated four plies of felt saturated with asphalt, which were applied in alternating layers. Each ply was mopped with hot asphalt and covered by a flood coat of hot asphalt into which gravel was embedded. Such a roof normally could be expected to give 20 years or more of satisfactory service. Allied referred to its new two-ply system as the Bond Ply system. When Allied began marketing the Bond Ply system in 1964, it advertised the system extensively as 1 + 1 = 4; i.e., that the two plies of Bond Ply equaled the conventional four-ply roof. The two-ply system was considerably more profitable to Allied than the existing four-ply roof system. The record reflects evidence that at least some experts of Allied were skeptical of the two-ply system prior to 1964, and that considerable difficulty was encountered with installed two-ply roofs, particularly in climates that experienced severe winter weather.
A number of significant events took place in 1967. At some point during the year, prior to August 31, 1967, Allied sold the Barrett Division to Celotex, a subsidiary of The Jim Walter Corporation. The sale was made pursuant to an agreement that Celotex assume all liabilities which the Barrett Division had as to previous sales. Following its purchase, most of the employees of the Barrett Division of Allied continued in the employment of Celotex. On March 21, 1966, USD 490 had employed The Shaver Partnership (Shaver) to provide architectural and engineering services for a new high school. Shaver then contracted with Prigmore & Allen, architects, for a portion of those services. Shaver specified the two-ply system for use on the high school roof. John Shaver testified he relied on representations of Celotex’s roofing specialists that the two-ply system was equal to or greater in strength and durability than the four-ply system. On May 4, 1967, USD 490 entered into a contract with Coonrod, Walz & Vollmer Construction Company, Inc. (Coonrod), whereby it agreed to construct the El Dorado High School building. Coonrod contracted with Sunflower to roof the high school building. The materials used in the roofing included adhesive, asphalt, insulation and roofing material manufactured and supplied by Celotex.
The high school was occupied by USD 490 in the fall of 1968, and leaks developed shortly thereafter. In 1970, the roofing material began to split. Considerable money and effort were expended in an attempt to correct the roofing problems, all without success. Experts were employed by the school district in May of 1975 to determine the cause of the roofing problems.
USD 490 commenced this action on September 9, 1976. Of the multitude of pleadings filed, the only filing dates material to this case relate to Sunflower’s cross-claim against Celotex. Sunflower filed an answer on October 13, 1976, to USD 490’s petition. The answer requested indemnity from Celotex if Sunflower should be determined to be liable to the school district. Sunflower next filed on May 19,1978, what is labeled a cross-claim against Celotex. As we read that pleading, it amounts to nothing more than a prayer for indemnity from Celotex. A pretrial order was filed on October 20, 1978, in which Sunflower alleged that Celotex engaged in a course of conduct designed to prevent Sunflower from receiving knowledge of defects in the roofing material. On January 5, 1979, seventeen days prior to trial, Sunflower filed a second amended cross-claim against Celotex for fraud and requested actual and punitive damages. Celotex answered, setting up the statute of limitations as a defense to the cross-claim. Further facts will be supplied as they become relevant to the discussion of the various issues raised on appeal. Celotex raises 26 separate issues, some of which are more than a single issue. We have consolidated a number of the issues, and those not specifically mentioned herein have been examined and found to be without merit.
Celotex argues that the claims of USD 490 and Sunflower are barred by the applicable statutes of limitation. The roof began leaking in 1968 almost simultaneously with occupancy of the building. A series of repairs began in 1969 and ran for almost ten years. Two separate statutes apply.
The statute of limitations applicable to a claim sounding in breach of warranty is found in K.S.A. 84-2-725, which provides:
“(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. . . .
“(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.”
The statute of limitations for claims arising out of fraud is found in K.S.A. 60-513(a), and provides in pertinent part:
“The following actions shall be brought within two (2) years:
“(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud is discovered.”
We conclude that the statute of limitations did not run against USD 490. Statutes of limitation do not run against the state when the action arises out of the performance of a governmental function. State ex rel. Schneider v. McAfee, 2 Kan. App. 2d 274, 275, 578 P.2d 281, rev. denied 225 Kan. 845 (1978); K.S.A. 60-521. The construction of a school building is incidental to and a part of the state’s overall duty to provide public education for the citizens of the state. 2 Kan. App. 2d at 276. The operation of a high school building by a school board is a governmental function. See Smith v. Board of Education, 204 Kan. 580, 584, 464 P.2d 571 (1970). Celotex argues that the reasoning behind Gorrell v. City of Parsons, 223 Kan. 645, 576 P.2d 616 (1978), should work to overrule decisions such as State ex rel. Schneider v. McAfee that have governmental immunity as their basis. We need not pass on the validity of this extended application of Gorrell in the case before us since Celotex raised this issue for the first time in its brief on appeal. Fleming v. Etherington, 227 Kan. 795, Syl. ¶ 7, 610 P.2d 592 (1980). In any event, Gorrell and Thome v. City of Newton, 229 Kan. 375, 624 P.2d 454 (1981), each held a municipality subject to suit for certain tortious acts committed during the performance of a government function but their reasoning does not extend to imposition of time limitations upon public bodies for the institution of actions.
Sunflower is in a vastly different position. It concedes that a cross-claim asserting an affirmative claim must be filed within the applicable period of the statute of limitations. See Belger Cartage Serv., Inc. v. Holland Constr. Co., 224 Kan. 320, 331-32, 582 P.2d 1111 (1978); Rochester American Ins. Co. v. Cassell Truck Lines, 195 Kan. 51, 402 P.2d 782 (1965). It alleges, however, that it could not have discovered the fraud that is the subject of the cross-claim until it began discovery in the case in 1978. It relies on K.S.A. 60-513(a)(3) and Wolf v. Brungardt, 215 Kan. 272, 524 P.2d 726 (1974), for its authority that a cause of action does not accrue for fraud until the fraud is discovered. In essence, Sunflower argues that fraudulent concealment by Celotex prevented it from learning of the fraud. A very similar argument was recently considered by the Kansas Supreme Court in Friends University v. W. R. Grace & Co., 227 Kan. 559, 564-65, 608 P.2d 936 (1980):
“Finally, Friends contends the failure of W. R. Grace to disclose the crawling of other roofs and the development of the Zonolite nail constituted fraudulent concealment which tolled the statute of limitations. Friends argues the company knew the roof was a total failure and should have disclosed said information. This doctrine is discussed in 51 Am. Jur. 2d, Limitation of Actions § 148, pp. 719-721, as follows:
“ ‘To constitute concealment of a cause of action within the general rule tolling the statute of limitations on that ground the concealment must be fraudulent or intentional and, in the absence of a fiduciary or confidential relationship, there must be something of an affirmative nature designated to prevent, and which does prevent, discovery of the cause of action. There must be some actual artifice to prevent knowledge of the fact, some affirmative act of concealment, or some misrepresentation to exclude suspicion and prevent injury.
“ ‘Although mere silence or failure to disclose may not in itself constitute fraudulent concealment, any statement, word, or act which tends to the suppression of the truth renders the concealment fraudulent. In such cases, by adding to the original fraud affirmative efforts to divert, mislead, or prevent discovery, a continuing character is given to the original act which deprives it of the protection of the statute until discovery. Where some affirmative act of concealment takes place, it is not material whether the concealment was previous or subsequent to the accruing of the cause of action. The question is whether there was a design to prevent the discovery of the facts which gave rise to the action, and whether the act operated as a means of concealment.
“ ‘There can be no concealment which will prevent the running of the statute of limitations where the cause of action is known to the plaintiff or there is a presumption of such knowledge. Where the defendant does not occupy a fiduciary or confidential relationship toward the plaintiff, neither affirmative nor passive conduct of the defendant will constitute such a concealment as to prevent the running of the statute of limitations, where through reasonable diligence on his part he could have learned of the existence of his cause of action. It has accordingly been held that the party seeking to toll the statute of limitations must explain why due diligence did not lead or could not have led to discovery of the facts and the cause of action.’
“In the case before us a new roof on a new building was leaking. The cause had to be defective design, materials, workmanship, or some combination thereof. At any time Friends could easily have obtained an expert opinion on the precise cause or causes for the leaking roof.
“We must conclude that the trial court did not err in granting summary judgment to defendants W. R. Grace & Co., and GAF Corporation on the ground the action was barred by the statute of limitations.” (Emphasis supplied.)
Here, also, a roof on a new building was leaking. Sunflower could have obtained an expert opinion on the cause or causes for the leaking roof at any time, and it appears that the rule in Friends University applies to Sunflower in this case. See also Grand Island School Dist. #2 v. Celotex Corp., 203 Neb. 559, 279 N.W.2d 603 (1979). In addition, USD 490 employed an expert to examine the roof in 1975 and he gave an opinion as to the cause of the leaks. Sunflower was then named a defendant by USD 490 in this lawsuit; the pleadings plainly set forth fraudulent misrepresentation or concealment on the part of Celotex. The cross-claim in question was not filed until January 1979. Even if a liberal construction would allow the cross-claim to relate back to the May 19, 1978, amended answer that is titled a cross-claim, the result would be the same. Sunflower had knowledge as early as 1968 that the roof was leaking. It was either improperly designed, or contained faulty material, or there was faulty workmanship on the part of Sunflower. As we view the Supreme Court’s decision in the Friends University case, its interpretation of K.S.A. 60-513(a)(3) requires some degree of diligence by any party claiming fraud, the exact degree to depend upon the facts of each case and the relationship of the parties. We thus are of the opinion, based on the record before us, that as a matter of law the statute of limitations had expired as to Sunflower’s claim for actual and punitive damages. Admittedly, Sunflower’s right to indemnity would not be barred by the statute of limitations (K.S.A. 60-213[d]); but the jury did not award damages to Sunflower on that basis and we are not directed to any instructions that were given or requested that would have allowed such an award. The judgment in favor of Sunflower and against Celotex in the amount of $15,000 actual and $28,000 punitive damages should be set aside and remanded to the district court with directions to enter judgment for Celotex on the basis that Sunflower’s claims are barred by the statute of limitations.
Celotex next argues that it cannot be held liable for the misconduct of the Barrett Division of Allied and points out that the two-ply roof was developed and advertised by Barrett. Celotex further argues that it did not acquire Barrett until after the architect had relied on advertising and specifications furnished by Barrett and on representations made by Barrett’s salesmen. Although that argument is interesting, we cannot consider it; our answer is simply that Celotex did not raise that defense in the trial court, but tried the case on the theory that it was liable for Barrett’s actions. The case was also argued to the jury on that theory. Having failed to raise the issue and having tried the case on the theory that it was liable for Barrett’s actions, we are of the opinion Celotex waived that defense. K.S.A. 60-208(c); 5 Wright and Miller, Federal Practice and Procedure: Civil § 1278 (1969).
At oral argument, counsel for Celotex informed this court that at one time Celotex thought it was liable for any damages, actual or punitive, resulting from the conduct of the Barrett Division of Allied. Celotex no longer takes that position, but it comes too late for Celotex to benefit in this case. We acknowledge that there could arise a factual situation in which public policy is so strong that the court would not enforce a judgment in contravention of that public policy. Here, however, the conduct of the defense throughout the pleading and trial stages was that Celotex sold the material involved and so was subject to both actual and punitive damages. As a result, the school district wasted little time presenting evidence in several areas in which it obviously would have spent more time and effort if Celotex had raised the defense at trial that it now relies on.
Celotex next argues that public policy prohibits the assessment of punitive damages against a large interstate mass-marketer. It reasons that a mass-marketer of a product should not be subjected to a multiplicity of punitive damage verdicts in various jurisdictions when the alleged misconduct does not give rise to damages different in kind and degree from those suffered by all other users affected by the product. For authority on this point, Celotex cites Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir. 1967), in which the trial court struck down a punitive damage award of $100,000 to a person who had developed cataracts as a result of the defendant drug company’s fraudulent marketing practices. That case outlines some potential drawbacks to extending the punitive damage remedy to products liability litigation: (1) The inequity of punishing the innocent shareholders of a manufacturer for the misdeeds of its low-level employees; (2) the probability that a manufacturer will insure against the risk of punitive damage assessments, and the deterrent value of the remedy will thus be removed; and (3) the risk that a manufacturer may be excessively punished or perhaps even bánkrupted by multiple punitive damage verdicts in various jurisdictions for marketing a single defective product.
While Roginsky certainly provides some support for Celotex’s position, it is by no means dispositive of the issue. Alternative solutions exist that allow punitive damages to be awarded in a products liability situation without running into the problems that were anticipated in Roginsky. See Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1258 (1976). Restatement (Second) of Torts § 908(c) (1979) states in relevant part:
“Another factor that may affect the amount of punitive damages is the existence of multiple claims by numerous persons affected by the wrongdoer’s conduct. It seems appropriate to take into consideration both the punitive damages that have been awarded in prior suits and those that may be granted in the future, with greater weight being given to the prior awards. In a class action involving all claims, full assessment of the punitive damages can be made.”
In Will v. Hughes, 172 Kan. 45, 238 P.2d 478 (1951), the Kansas Supreme Court stated that a defendant has the right to consideration of any mitigating circumstances that might operate to reduce punitive damages without wholly defeating them (Syl. ¶ 10). See Cantrell v. R. D. Werner Co., 226 Kan. 681, 686, 602 P.2d 1326 (1979); Henderson v. Hassur, 225 Kan. 678, 694, 594 P.2d 650 (1979). As USD 490 points out in its brief, Celotex had available numerous witnesses who for the purpose of mitigating the punitive damages here might have testified about the cases going on across the country with similar claims of punitive damages. Celotex, however, for tactical reasons, chose not to present such evidence to the jury. Although a considerable number of cases are pending, so far as we know only one punitive damage award against Celotex has been reviewed and affirmed by an appellate court as of this time (Campus Sweater and Sportswear Co. v. M. B. Kahn Constr. Co., et al., [4th Cir.] No. 79-1724, decided February 26, 1981 [unpublished]). Based on the record before us, we do not find error on this issue.
Celotex presents the novel argument that the imposition of punitive damages against Celotex, an interstate mass-marketer, violates its constitutional guarantee of due process, its right to protection against double jeopardy, and subjects it to cruel and unusual punishment. The imposition of punitive damage awards, although penal in nature, does not approach the severity of criminal sanctions and does not demand the same safeguards as do criminal prosecutions. See Comment, Criminal Safeguards and the Punitive Damages Defendant, 34 Univ. Chicago L. Rev. 408 (1967).
In arguing that successive punitive damage verdicts subject it to cruel and unusual punishment, Celotex relies upon the suggestion in a concurring opinion by United States Supreme Court Justice Frankfurter that the Eighth Amendment could protect against multiple civil penalties. See U.S. ex rel. Marcus v. Hess, 317 U.S. 537, 556, 87 L.Ed. 443, 63 S.Ct. 379 (1943). The United States Supreme Court, however, has recently ruled that the Eighth Amendment is generally limited to challenging conditions of a criminal sentence. See Ingraham v. Wright, 430 U.S. 651, 51 L.Ed.2d 711, 97 S.Ct. 1401 (1977). In our opinion, the Eighth Amendment does not apply to the facts before us.
Celotex argues that the $600,000 punitive damage award is excessive. The appellate scope of review in testing the excessiveness of an award of punitive damages is well settled. In the recent case of Cantrell v. R. D. Werner Co., 226 Kan. at 686, the Kansas Supreme Court, in following Henderson v. Hassur, 225 Kan. 678, repeated these rules:
“ ‘The law establishes no fixed ratio between actual and exemplary damages by which to determine excessiveness. In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. . . .’
“Where a charge of excessive verdict is based on passion or prejudice of the jury, but is supported solely by the size of the verdict the trial court will not be reversed for not ordering a new trial, and no remittitur will be ordered unless the amount of the verdict in light of the evidence shocks the conscience of the appellate court.”
Here, the evidence shows a calculated nationwide course of conduct. During the time the two-ply roofing system was on the market, Celotex realized enormous profits. Celotex consented to an instruction to the jury that its net worth was $538 million plus. If an individual worth $100,000 were assessed punitive damages on the same ratio as those awarded in the case against Celotex, the amount awarded would be only cents more than $111. We are unable to say the size of the verdict shocks the conscience of this court.
Celotex also raises another novel argument — that a public entity should not be entitled to recover punitive damages. It offers no real reason why this should be the case, and cites no meaningful authority to support its position. The general rule is that ordinarily a political corporation can avail itself of any legal remedy or any form of action that would be open to a private suitor under similar circumstances. State v. Keach, 145 Kan. 403, 406, 65 P.2d 598 (1937). Furthermore, punitive damages are imposed not because of any special merit in the injured party’s case but to punish the wrongdoer for malicious, vindictive or willful and wanton invasion of the injured party’s rights, the purpose being to restrain and deter others from the commission of like wrongs. Cantrell v. R. D. Werner Co., 226 Kan. at 686. Since the purpose of assessing punitive damages is unrelated to the status of USD 490, Celotex’s argument is without merit.
Celotex next argues that actionable fraud may not exist without privity of contract. It contends that the architects and contractors are independent contractors, thus representations made to them cannot be considered as having been made to the school district. A similar argument was made and rejected by the Kansas Supreme Court in Griffith v. Byers Construction Co., 212 Kan. 65, 510 P.2d 198 (1973). Syl. ¶ 3 of that opinion states:
“One who makes a fraudulent misrepresentation or concealment is subject to liability for pecuniary loss to the persons or class of persons whom he intends or has reason to expect to act or to refrain from an action in reliance upon the misrepresentation or concealment.”
Griffith specifically held that liability for misrepresentation is not necessarily limited by the doctrine of privity. In this case, USD 490 reasonably could have been expected to act or refrain from acting in reliance upon Celotex’s representations. In addition, the architect testified he was acting as agent for the school district.
Celotex also argues that the jury erred in finding that defendant’s actions constituted fraud. Our scope of review is limited.
The Kansas Supreme Court stated in Cantrell v. R. D. Werner Co., 226 Kan. at 684:
“It has long been the rule when the verdict is attacked for insufficiency of the evidence, ‘the duty of the appellate court extends only to a search of the record for the purpose of determining whether there is any competent substantial evidence to support the findings. The appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the light most favorable to the party prevailing below.’ ”
In Miles v. Love, 1 Kan. App. 2d 630, 631, 573 P.2d 622, rev. denied 225 Kan. 845 (1977), this court held:
“The existence of fraud is ordinarily a question of fact. [Cite omitted.] As such, the extent of this court’s review is limited to determining whether the trial court’s finding is supported by competent evidence when that evidence is weighed in the manner most favorable to supporting the trial court’s determination.”
Kansas has previously determined that a manufacturer has a duty to warn customers of latent defects in its product. See Jones v. Hittle Service, Inc., 219 Kan. 627, 549 P.2d 1383 (1976); Steele v. Rapp, 183 Kan. 371, 327 P.2d 1053 (1958). Not only did Celotex fail to warn USD 490 of the strength and durability limitations of its product, the record contains evidence that it misrepresented the quality of the product. The evidence shows that Celotex continued to use the advertising slogan “1 + 1 = 4” even as proof began to pour in that in many respects the roof did not meet that description. Further, Celotex failed to instruct its own salesmen on the drawbacks and limitations of the two-ply roof, which conduct insured that the ultimate consumer would not be informed. Though there is conflicting evidence on all of these points, it is not the function of the appellate court to reweigh the evidence. Numerous witnesses testified at trial that Celotex represented to them that the two-ply roof was the functional equivalent of the four-ply roof, and that it would have a useful life of twenty years. This touting of the product, even with knowledge of its failures, amounts to a calculated misrepresentation. See Independent Sch. Dist. No. 181 v. The Celotex Corp., 309 Minn. 310, 244 N.W.2d 264 (1976). The evidence is sufficient to infer that Celotex knew of its product’s limitations, yet Celotex continued to sell it because of its profitability. It also establishes that Celotex engaged in fraudulent misconduct in representing that the roof had a given longevity, even though knowing it did not, and in further failing to warn consumers of the product’s limitations. The Kansas Supreme Court has upheld a punitive damage award for very similar conduct in Cantrell v. R. D. Werner Co., 226 Kan. at 686-87:
“In the case at bar the jury awarded plaintiff $18,500 in punitive damages. There was evidence that in at least five prior instances the front rails of ladders of the same model as the one used by plaintiff and manufactured by Werner had collapsed in the same manner. There was also evidence that Werner had made design changes in order to strengthen the rails of the ladder by adding additional braces, that Underwriters Laboratories was withdrawing its certification unless corrective measures were taken, that defendant had notice of the ladder’s weaknesses many months prior to the manufacture of the ladder in question, yet continued to manufacture and market the ladder even after corrective designs and measures had been determined and agreed upon with Underwriters. There was adequate evidence from which the jury might have found a reckless disregard of plaintiff’s rights and the amount of the award for punitive damages does not shock the conscience of this court.”
Having examined the voluminous record, we conclude that substantial competent evidence exists in the record to support a jury verdict against Celotex based on a finding of fraud.
Celotex next argues that the trial court erred in admitting evidence of other Celotex roof failures around the country, including documents relating to incidents that occurred after the sale of the roofing material in this case. The evidence of prior roof failures was not introduced by plaintiff to show that the two-ply roof of the El Dorado High School was defective, nor was it used to indicate that the causes of the problems on previous roofs were related to the causes of the problems on the El Dorado High School roof. The actual purpose of the introduction of these documents was to prove Celotex’s knowledge of the defect that gave rise to the duty to warn. As to USD 490’s breach of warranty and fraud theories of recovery, the evidence of prior complaints was also relevant to show Celotex’s state of mind insofar as its representation is concerned and to prove Celotex’s knowledge of its truth or falsity or its reckless disregard of its truth or falsity.
In civil actions, a trial court has wide discretion whether to admit evidence of similar acts or occurrences as proof that a particular act was done or a certain incident occurred, and its ruling thereon will not be disturbed on appeal absent a showing of abuse of discretion. Frame, Administrator v. Bauman, 202 Kan. 461, Syl. ¶ 3, 449 P.2d 525 (1969). In actions involving fraud, evidence of the same or similar fraudulent misrepresentations made to other than the party is competent and relevant for the purposes of establishing the elements of knowledge, motive and intent to defraud. K.S.A. 60-455. Culp v. Bloss, 203 Kan. 714, Syl. ¶ 3, 457 P.2d 154 (1969); Hubin v. Shira, 1 Kan. App. 2d 203, 563 P.2d 1079 (1977). It was essential to the school district’s fraud case here to show the notice to Celotex of the deficiencies of the product and Celotex’s continued fraudulent misrepresentation in light of its knowledge of the product’s weaknesses. Although Celotex makes much of the fact in its brief that the roofs and roofing problems in the other cases were dissimilar, all of the complaints introduced were about two-ply roofs. We also note that internal memoranda of Celotex made reference to the fault of the two-ply roof, regardless of how the problems were manifested. We are of the opinion that evidence of past roof failures was admissible, and although Celotex complains bitterly about the prejudice resulting from the admission of this evidence, it did not request a limiting instruction. Furthermore, in the trial of a civil action in which the claim for relief is based on allegations of fraud, great latitude is ordinarily allowed in the introduction of evidence. Brakefield v. Shelton, 76 Kan. 451, Syl. ¶ 3, 92 Pac. 709 (1907).
Evidence relating to events subsequent to the alleged fraudulent act is not per se inadmissible. In Minx v. Mitchell, 42 Kan. 688, 692, 22 Pac. 709 (1889), the Kansas Supreme Court stated:
“In cases of this character, where fraud is alleged, it is always permissible to prove every act of the party charged, connected in any way with the subject-matter of the fraud, and sometimes the subsequent action of the party more clearly demonstrates the fraudulent intent than any or all of the circumstances that occurred prior to or at the particular time of the transaction that is alleged to be fraudulent.”
The admission of the documentary evidence concerning roof failures occurring after the sale of the Celotex two-ply roof to USD 490 is jústified for at least two other reasons. First, the documents were material to the question of Celotex’s recklessness in placing its product on the market and touting its virtues. Second, USD 490 sought damages in this case for breach of an express warranty of future performance. As USD 490 states in its brief, such a breach by its very nature would occur subsequent to the date of sale, and it logically follows that proof in this regard must be admissible subject to the trial judge’s authority to refuse its admission under circumstances that are not present here.
Although evidence of the type admitted in this case is somewhat prejudicial, we are of the opinion the trial judge did not abuse his discretion in allowing the evidence, especially in light of Celotex’s not having seen fit to request limiting instructions, which fact weighs heavily against its claim of prejudice.
Celotex contends the trial court erred in refusing to change venue from Butler County to an adjacent county, basing its contention on the fact that USD 490 is financially supported by the tax dollars of the residents of Butler County who would have a financial interest in the outcome of the litigation. USD 490 concedes that three of the jurors here resided in the school district, and one of the three had a child enrolled in the school. Apparently the other nine jurors lived outside the boundaries of the school district.
K.S.A. 60-609 provides for a change of venue when “it shall be made to appear that a fair and impartial trial cannot be had in the county where the suit is pending.” The allowance or refusal of an application for change of venue rests largely within the discretion of the trial court. Fredricks v. Foltz, 221 Kan. 28, 33, 557 P.2d 1252 (1976). One who claims abuse of discretion has the burden of proving that contention and, when reasonable persons could differ as to the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion. McColm v. Stegman, 3 Kan. App. 2d 416, Syl. ¶ 2, 596 P.2d 167 (1979).
That the potential jurors were from Butler County did not automatically disqualify them to act as jurors. The Kansas Supreme Court has addressed a similar taxpayer-juror qualification issue in Ridglea, Inc. v. Unified School District, 206 Kan. 111, 113, 476 P.2d 601 (1970), holding:
“As a practical matter, there is good reason for holding that taxpayers of a taxing unit involved in a lawsuit are not automatically disqualified from serving as jurors. We are told that approximately eighty-five percent of the inhabitants of Saline County reside within the boundaries of Unified School District No. 305. Undoubtedly, there are other areas of Kansas where a school district encompasses all or the major portion of a county. To hold that taxpayers of a school district are absolutely disqualified as jurors in an action against the district would lead to a strange and illogical result, necessitating a change of venue in many instances.”
The interest a taxpayer shares with the whole community can generally be regarded as too remote and minute to overbalance his innate sense of justice and fairness to all parties concerned. See Commonwealth v. Brown, 147 Mass. 585, 18 N.E. 587 (1888); Annot., 81 A.L.R.2d 708 § 7; 47 Am. Jur. 2d, Jury § 292.
In this case there is no evidence the trial court abused its discretion. Counsel for Celotex examined the jury at length at voir dire concerning any potential for prejudice or bias and passed the jury for cause. We are unable to say the trial judge abused his discretion when he refused to grant a change of venue.
Celotex also complains about the school district’s closing argument. It did not object to this allegedly prejudicial comment at trial and thus the issue will not be considered on appeal. Smith v. Blakey, Administrator, 213 Kan. 91, 515 P.2d 1062 (1973).
Celotex argues that the trial court erred by failing to instruct the jury that the school district had a duty to prove the product was defective at the time it left Celotex’s control, but in our opinion that does not amount to reversible error. The only theory on which the jury could have awarded punitive damages was fraud. The jury was properly instructed on fraud and must be presumed to have returned its verdict based on fraud. Thus, it was not essential for the jury to have found a breach of implied warranty to return a verdict for the school district. Even if the jury had determined that Celotex breached an implied warranty, such a finding would have amounted to mere surplusage. So even though it appears the jury should have been instructed as requested by Celotex (Farmers Ins. Co. v. Smith, 219 Kan. 680, 549 P.2d 1026 [1976]), failure to do so amounts to no more than harmless error. In some circumstances, failure to properly instruct on one theory might taint a verdict sufficiently to amount to reversible error. In this case, however, we see no taint.
Celotex asserts that the trial court erred in refusing to submit to the jury its cross-claim against Sunflower. The cross-claim essentially sought indemnity if Celotex should be found liable to USD 490 for negligence. At trial, the court ruled the school district’s claim against Celotex for negligence would not be submitted to the jury. The jury’s verdict rendered against Celotex in favor of USD 490 was limited to the remaining causes of action in warranty and fraud. Since Celotex could not be found liable for negligence, its cross-claim seeking indemnity from Sunflower in the event it was found guilty of negligence was properly dismissed by the trial court.
It is also argued that the trial court erroneously prohibited Celotex from using a manual on built-up roofing systems in its cross-examination of plaintiff’s expert witness. The determination of reliability requisite to admission into evidence of a learned treatise rests in the sound discretion of the trial court. In Zimmer v. State, 206 Kan. 304, 309, 477 P.2d 971 (1970), the Kansas Supreme Court stated:
“Mere publication does not ipso facto render a work admissible as independent substantive evidence. Such a work becomes admissible when a proper foundation has been laid — establishment of its reliability either by means of judicial notice being taken or the attestation of an expert witness. . . . We hold the deter mination of reliability requisite to admission into evidence of learned treatises rests in the sound discretion of the trial court.” (Emphasis supplied.)
The school district’s expert witness testified at trial that the manual was not necessarily authoritative and was not necessarily well-founded. It also appears from the record that Celotex did cross-examine in the areas in which it wished to use the book. Having reviewed the applicable testimony, the proffers, and the trial judge’s reasoning, we are unable to say the trial judge abused his discretion by not allowing the use of the book in the cross-examination of the expert witness.
Celotex also complains that the trial court erred in restricting the examination of several expert witnesses. It first complains that the trial court erred in restricting its examination of its own expert, Ronald Wells, a licensed consulting engineer.
An expert witness must have skill or experience in the matter to which the subject relates. In re Central Kansas Electric Coop., Inc., 224 Kan. 308, 319, 582 P.2d 228 (1978). In considering whether to admit the opinion of an expert witness, the trial court is to consider the education, training, experience and knowledge of the witness. Nunez v. Wilson, 211 Kan. 443, 445, 507 P.2d 329 (1973). The qualifications of an expert witness and the admissibility of his testimony are within the sound discretion of the trial judge. Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978). A trial court has wide discretion in determining whether it will receive opinion evidence. An abuse of discretion must be found in order to reverse the trial court on the admission of expert testimony. Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, Syl. ¶ 3, 607 P.2d 1339 (1980).
In our opinion, the trial court did not abuse its discretion when it refused to allow Wells to testify in this case as to his opinion of the cause of the failure of the roof. This case was Wells’s first evaluation involving built-up roofing. The first time he had ever heard of two-ply roofing was in June 1978 when he spoke with counsel for Celotex. He testified at trial that he had never been engaged in construction business that related in any way to the field of built-up roofing.
Celotex also complains it was not allowed to cross-examine USD 490’s expert witnesses McGraw and Stafford regarding the failure of other roofs, specifically in relation to Sunflower’s role in the building of those roofs. While this argument may have some merit, Celotex fails to show this court precisely where in the 2,000-page record objections were made, and it also fails to show any proffer of the testimonial evidence these witnesses would have provided had they been examined as Celotex intended. We thus decline to find error.
We have examined a number of other arguments by Celotex and find they were not properly preserved for appeal purposes; or they involved questions of fact that the jury had decided adversely to Celotex, and the record contains substantial competent evidence to support the jury’s findings. We have considered Celotex’s claims of error, both singularly and in conjunction with each other, and do not find reversible error.
The judgment in favor of USD 490 against Celotex for both punitive and actual damages is affirmed. The judgment in favor of USD 490 against Sunflower for actual damages is affirmed. The judgment in favor of Sunflower against Celotex is reversed and remanded with directions to enter judgment for Celotex.
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Parks, J.:
Plaintiff Kenneth I. Speer brought this action to recover damages for conversion of personal property. The trial court entered judgment for $16,641 actual damages and $1,500 punitive damages against defendant City of Dodge City and $555 actual damages against defendant James Kemper. Both defendants appeal.
In May 1978, the governing body of Dodge City sought to clean up a vacant lot owned by Everett Kemper and his son, James. The City passed a resolution attempting to condemn personal property on the land and to compel its repair or removal as unsafe or dangerous. The personal property consisted of house moving equipment and three old motor vehicles previously used by Everett Kemper in his house moving business. Most of the machinery was inoperable although it had considerable salvage value.
The City acknowledges that the condemnation proceeding was attempted without proper statutory authority and was ineffective. Nevertheless, in July 1978, it began removing and destroying the equipment over the objections of Everett Kemper. James Kemper consented to the City’s removal of the property, although he had no interest in the equipment. He also knew his father had sold some of the equipment but he did not know to whom or what property had been sold.
During the removal process undertaken by the City, it was learned that in July 1976, Everett Kemper had sold the three vehicles and house moving equipment to Kenneth Speer with the understanding that Speer could store the items on Kemper’s land. The City contacted Speer by mail and instructed him to remove his property and then continued to remove or destroy the remaining items. Speer filed a claim against the City and subsequently filed this conversion action against both Dodge City and James Kemper.
Shortly thereafter, Everett Kemper died and James sold the old tools and furniture he found in his father’s house. Among the property sold were several Simplex house moving jacks which had been included in the property sold to Speer.
James Kemper and the City were found liable for the conversion of Speer’s personal property and both defendants appeal.
We turn first to the arguments of the City. Dodge City contends that it should not have been liable for conversion because it had no knowledge of Speer’s ownership of the property. A conversion is an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another. Temmen v. Kent-Brown Chev. Co., 227 Kan. 45, Syl. 2, 605 P.2d 95 (1980). The intent required is simply to use or dispose of the goods, and the knowledge or ignorance of the actor as to their ownership has no influence in deciding the question of conversion. Nelson v. Hy-Grade Construction & Materials, Inc., 215 Kan. 631, 634, 527 P.2d 1059 (1974). Since knowledge of the converted property’s ownership is not an element of the tort, the City’s argument concerning constructive knowledge and its elements is without merit.
Additionally, the City acknowledges that it proceeded under an inappropriate ordinance in attempting to clean up the Kemper property, thus its actions may not be justified as a lawful exercise of police power.
Relying on Melton v. Prickett, 203 Kan. 501, 456 P.2d 34 (1969) and K.S.A. 8-135, the City contends that because the motor vehicles were sold without certificates of title, the sales were unlawful and void. The vehicles involved here are of a type classified as non-highway vehicles under K.S.A. 8-197(b)(2). These vehicles are exempt from registration under K.S.A. 1980 Supp. 8-135 although their transfer must be accompanied by a non-highway certificate of title. K.S.A. 1980 Supp. 8-198. Transfer or sale of a non-highway vehicle without such a certificate is a misdemeanor, but only the seller is subject to criminal prosecution. K.S.A. 1980 Supp. 8-199. This statute is thus significantly different from K.S.A. 1980 Supp. 8-135(c)(7) which makes the sale of a motor vehicle without a certificate of title illegal and which subjects both the seller and the buyer to criminal prosecution. K.S.A. 1980 Supp. 8-199 does not render the sale itself void as is evidenced by subsection (d) which indicates that sales tax must still be paid on the sale even though the seller has transferred title without a certificate. We therefore conclude that the seller’s allegedly unlawful conduct in transferring these vehicles does not provide the City with a defense to the conversion.
The City’s final argument is that the trial court erred in imposing punitive damages against it. In McHugh v. City of Wichita, 1 Kan. App. 2d 180, Syl. ¶ 2, 563 P.2d 497, rev. denied 223 Kan. clxxi (1977), this court held that absent legislative pronouncement to the contrary, municipalities are not liable for punitive damages. Supportive of the holding in McHugh is Newport v. Fact Concerts, Inc., __ U.S. __, 69 L.Ed.2d 616, 101 S.Ct. 2748 (1981), in which the United States Supreme Court decided that the city’s failure to object to the charge at trial did not foreclose the Court’s review of the punitive damage issue and held that a municipality is immune from punitive damages. The Court went on to say that considerations of public policy do not support exposing a municipality to punitive damages for the malicious or reckless conduct of its officials. Neither the retributive nor the deterrent objectives of punitive damages would be significantly advanced by holding municipalities liable for such damages. In view of McHugh and Newport, we hold that the trial court erred in awarding the $1,500 judgment for punitive damages against the City.
We turn now to the issues raised in Kemper’s appeal. Initially, Kemper argues that the trial court should have dismissed the claim against him because the petition did not allege a sufficient interference with the plaintiff’s ownership to constitute a conversion. It is true that a mere assertion of ownership of personal property without some actual interference with the owner’s right of possession, does not constitute a conversion of the property. Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, Syl. ¶ 5, 552 P.2d 917 (1976). However, in pleading a matter, all that is required by statute to state a sufficient claim for relief is to give (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which the pleader deems himself to be entitled. K.S.A. 60-208. See Kennedy v. City of Sawyer, 228 Kan. 439, 447, 618 P.2d 788 (1980). The amended petition alleged interference with the ownership of plaintiff’s property when it stated that Kemper, without authority, advised the City that the property could be removed and that as a result of such advice the City removed and destroyed the property. Liberally construed, the amended petition stated a claim for conversion against Kemper and the City.
Kemper also claims that the variance between the initial charge of facilitating the City’s conversion and the ultimate finding that Kemper personally converted property was a fatal flaw in the proceedings. The evidence concerning the Simplex jacks was elicited without objection by Kemper. The testimony revealed that Speer had purchased the jacks from the elder Kemper and that James Kemper had sold them after his father’s death. No motion was made to amend the pleadings to conform to this proof of affirmative conversion although the finding of the court was that a conversion took place.
K.S.A. 60-215(b) provides that when issues not raised in the pleadings are tried with the express or implied consent of the parties, the pleadings will be regarded in support of the judgment entered, as having been amended to conform to the proof providing no injustice or disadvantage is thereby occasioned to the opposing party. Schreppel v. Campbell Sixty-six Express, Inc., 201 Kan. 448, Syl. ¶ 3, 441 P.2d 881 (1968). See also Kiser v. Gilmore, 2 Kan. App. 2d 683, 689, 587 P.2d 911 (1978), rev. denied 225 Kan. 844 (1979). In view of his failure to object to the evidence concerning the jacks, Kemper cannot be said to have been prejudiced or disadvantaged. We conclude that the pleadings have been enlarged by consent of the parties and are regarded as amended to conform to the proof.
Next, Kemper complains that the contract for sale between Speer and his father was unenforceable because it was not in writing and that, thus, the court should not have recognized Speer as the owner of the jacks. The statute of frauds concerns only the parties to a contract and their privies, and the fact that the contract must be in writing in order to be enforceable as between the parties is of no concern to a third party and cannot be invoked by him for his benefit. Powell v. Powell, 172 Kan. 267, 270, 239 P.2d 974 (1952). Accordingly, this complaint is without merit.
Kemper finally argues that there was insufficient evidence of a taking to constitute conversion. Clearly, the evidence that Kemper sold property owned by another established a sufficient exercise of control to support the court’s finding. We conclude that this argument must also fail.
Judgment is affirmed as to the award of $16,641 actual damages against the defendant City and actual damages of $555 against defendant Kemper. Judgment is reversed as to the award of punitive damages against the City of Dodge City.
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Fromme, J.:
Plaintiff Arthur P. Peasley filed the present case against TeleCheck of Kansas, Inc., based on three claims. The first claim was brought under the Fair Credit Reporting Act, K.S.A. 50-701 et seq., the second was under the Fair Debt Collection Practices Act, 15 U.S.C.A. § 1692 et seq. (1981), and the third was a common law claim for relief based on wrongful debt collection practices. The district court sustained a summary judgment in favor of the defendant and against the plaintiff on all three claims. Plaintiff appeals and we will examine each of these three claims in the order above mentioned.
The Fair Credit Reporting Act (FCRA) was enacted and became effective in Kansas January 1, 1974. Since that time the appellate courts of this state have had little or no occasion to consider the Act. The only reported case in which the act was discussed is Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 320, 532 P.2d 1263 (1975). Consideration of the Kansas FCRA in that case was limited. The court merely determined that furnishing credit reports in response to a court order issued by a court having proper jurisdiction would not subject a person to civil penalties under the Act.
The purpose of this Act as stated in K.S.A. 50-701(b) is as follows:
“(b) It is the purpose of K.S.A. 50-701 to 50-722, inclusive, and amendments thereto, to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information in accordance with the requirements of such sections of this act.”
This Act first defines various words and phrases including “consumer report” and “consumer reporting agency.” Then follows a list of permissible purposes for furnishing the reports, a list of items of obsolete information which must be omitted from these reports, and various requirements are listed to be observed by every consumer reporting agency. Procedures to be used are outlined for those cases where the accuracy of a consumer report is disputed. Civil penalties are provided for negligent noncompliance and criminal penalties are provided for willful violations of the Act.
We turn now to the facts leading to this appeal. TeleCheck is a service organization whose business is guaranteeing checks to its merchant subscribers. TeleCheck also offered a service called “Rent Check” in which it guaranteed payments of rent to apartment owners. TeleCheck maintains a negative information file in a computer data base on individuals whose checks have been dishonored by banks and whose rent payments have not been paid when due. TeleCheck enters into a contract with a subscriber merchant in which TeleCheck will guarantee for a fee the payment of certain checks approved by TeleCheck which the merchant accepts. TeleCheck also turns down certain checks from individuals whose names appear in the negative information computer data base it maintains. The procedure is as follows:
When a check is presented to a merchant subscriber, the merchant calls TeleCheck by telephone and gives the check maker’s name and the identification number on the bank check to an audio response computer. If there is no negative information on the maker of the check in the computer data base, the computer will respond with a numerical code number, which in effect approves the individual’s check for payment. If there is negative information on the maker in the data base, the computer transfers the merchant’s call to a human operator. The human operator turns the check down by using numerical code numbers. The final decision to accept or reject the check is then up to the merchant.
The human operator does attempt to update the information in the computer data base covering the maker of the check. Address, telephone number, and other information is gathered and the data base is corrected when necessary. The merchant receives from TeleCheck nothing more than a computerized approval code number or a disapproval code number.
In plaintiff’s case, his name and identification numbers became part of the computer base and were placed in the negative information file by reason of a rent dispute he had had with Fairfield Apartments. At that time TeleCheck also operated a similar service on rental dealings between landlords and tenants. Plaintiff and the Fairfield Apartment manager had had a misunderstanding over terminal rent due from plaintiff when he moved out of the apartment. Plaintiff believed he had an agreement with the manager to apply the security deposit on the last month’s rent, but the manager turned his name in to Rent Check and claimed a short rent payment of $145.00. TeleCheck made repeated attempts to collect this amount by letter, by post card, and by telephone.
Plaintiff, apparently, had never written a bad check in his life. The rent dispute was never solved and TeleCheck knew the rent amount it claimed was being disputed by plaintiff. From the deposition testimony of the TeleCheck employees it appears that TeleCheck did not distinguish a rent dispute from a bad check when operating the negative information base. It has since discontinued Rent Check and has removed instances of nonpayment of rent from the negative information base.
Plaintiff identifies four checks which he attempted to negotiate to merchants in the area and the merchants refused to accept the checks in payment of personal consumer items purchased by plaintiff.
The trial court entered summary judgment in favor of defendant, specifically holding that the service rendered by TeleCheck concerning checks did not come within the scope of the Fair Credit Reporting Act (FCRA), and therefore, no violations of the Act could occur. The validity of that decision depends on answers to two questions: (1) Is TeleCheck a “consumer reporting agency?” and (2) does the computer based audio reporting service of TeleCheck distribute “consumer reports?”
K.S.A. 50-702(e) provides:
“(e) The term ‘consumer reporting agency’ means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.”
The word “person” is defined in subsection (a) to include individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or any other entity.
K.S.A. 50-702(c) provides:
“The term ‘consumer report’ means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for credit or insurance to be used primarily for personal, family, or household purposes, or employment purposes, or other purposes authorized under K.S.A. 50-703. The term does not include (1) any report containing information solely as to transactions or experiences between the consumer and the person making the report; (2) any authorization or approval of a specific extension of credit directly or indirectly by the issuer of a credit card or similar device; or (3) any report in which a person who has been requested by a third party to make a specific extension of credit directly or indirectly to a consumer conveys that decision with respect to such request, if the third party advises the consumer of the name and address of the person to whom the request was made and such person makes the disclosures to the consumer required under K.S.A. 50-714.”
Kansas has but one case interpreting the provisions of this Act. It should be noted, however, that there is a federal counterpart to the Kansas FCRA. It appears in 15 U.S.C.A. § 1681 et seq., and a comparison of the two Acts, including the effective dates of the Acts, indicates that the 1974 Kansas FCRA is modeled closely after the 1971 federal Act. Therefore, case law interpreting the federal Act, although not controlling, is persuasive.
Greenway v. Information Dynamics, Ltd., 524 F.2d 1145 (9th Cir. 1975), is a one paragraph opinion affirming a lower court’s decision holding that a report on the previous issuance of an unpaid check taken from check lists maintained by a reporting agency is a “consumer report” under 15 U.S.C.A. § 1681a (d). The definition appearing in 15 U.S.C.A. § 1681a (d) is identical to that in K.S.A. 50-702(c). It was held in Greenway that such a report subjected the issuer to the requirements of the Federal Fair Credit Reporting Act as a “consumer reporting agency.” This holding was based on a finding that such a report bears on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, and personal characteristics.
In Howard Enterprises, Inc., et al., 93 F.T.C. 909 (1979), the Federal Trade Commission agrees with the Greenway court. However, the decision of the administrative law judge rejected the Greenway decision (93 F.T.C. 924), and concluded that it was improper to construe § 1681b (3) (E) so broadly since in the judge’s opinion these check lists were the same as protective bulletins recognized as exempt in the legislative history of the Act. Upon review by the Federal Trade Commission, the general findings of the administrative law judge were accepted but the Commission held it had jurisdiction over Howard Enterprises’ activities.
The check lists in the Howard case were derived from “report cards” which participating merchants sent to Howard Enterprises periodically. These cards were the only information received on the bad check writers. Howard Enterprises did not obtain any independent verification on the individuals involved. The only mechanism for correcting or updating the list was for the subscribers to mail a post card requesting deletion of a name.
On the key issue in Howard, whether the company came within the FCRA, the Federal Trade Commission reversed the administrative law judge, 93 F.T.C. at 932. The Commission concluded these check lists were “consumer reports” as defined in the federal FCRA.
In Howard it is stated:
“Judicial decisions support our conclusion that the FCRA applies in this case. For example, the facts in Greenway v. Information Dynamics Ltd., 399 F. Supp. 1092 (D. Ariz. 1974) aff’d 524 F.2d 1145 (9th Cir. 1975), are virtually identical to the facts in this case. In Greenway, the defendant distributed to subscribing merchants the following information concerning consumers who allegedly passed bad checks: their names, drivers’ license numbers, checking account numbers, number of checks returned, and, in some cases, the reasons for the return of the checks. There, the Court of Appeals for the Ninth Circuit concluded that such information constitutes a ‘consumer report,’ as defined in the FCRA. See also Belshaw v. Credit Bureau of Prescott, 392 F. Supp. 1356 (D. Ariz. 1975); Beresh v. Retail Credit Co., 358 F. Supp. 260 (C.D. Cal. 1973).” 93 F. T. C. at 934.
The trial court in our present case appears to have relied on the administrative law judge’s decision before that decision was reviewed by the Federal Trade Commission. It also relied on Pembleton, et al. v. TeleCheck Washington, Inc., No. 78-350-A (E.D. Va. 1978), an unreported, unappealed case. The latter case involved the identical check guarantee services discussed in this case, except in Pembleton, the computer data base did not include Rent Check data as in our present case. In Pembleton summary judgment was sustained against allegations of violations of the FCRA. No formal decision was filed. A transcript of the proceedings indicates that for reasons stated from the bench the summary judgment was ordered because a check was held to be a “credit transaction” and under 15 U.S.C.A. § 1681a (d) (3) (C) an exemption is provided for credit-granting institutions. 15 U.S.C.A. § 1681a (d) (3) (C) contains the same wording and recognizes the same kind of an exemption as does K.S.A. 50-702(c)(3). This subsection provides that the term “consumer report” does not include:
“(3) [A]ny report in which a person who has been requested by a third party to make a specific extension of credit directly or indirectly to a consumer conveys that decision with respect to such request, if the third party advises the consumer of the name and address of the person to whom the request was made and such person makes the disclosures to the consumer required under K.S.A. 50-714.” K.S.A. 50-702(c)(3).
The Pembleton court concentrated on TeleCheck’s check guarantee service, rather than its information gathering activities, and concluded that TeleCheck fell within the exception of § 1681a (d) (3) (C), which is identical to that in K.S.A. 50-702(c)(3), because it indirectly granted credit when a guaranteed check was dishonored for payment.
We find it extremely difficult to fit TeleCheck’s services into that exception. It appears that the exception contemplated by K.S.A. 50-702(c)(3) and its federal counterpart 15 U.S.C.A. § 1681a (d) (3) (C) was made for finance companies or banks, a fact of which the Pembleton court did not seem to be aware.
In Division of Credit Practices, Compliance with the Fair Credit Reporting Act reported in 5 Cons. Cred. Guide (CCH) ¶ 11,301 et seq., (rev. ed. 1977), the author, in referring to this particular exception states:
“The third exception to the term ‘consumer report’ covers the common situation in which a dealer or merchant attempts to obtain credit for his customer from an outside source (a finance company, for instance). The statute provides that the communication of the decision by the financial institution regarding the transaction is not a ‘consumer report’ if the retailer informs the customer of the name and address of the bank, finance company, or other financial institution to which the application or contract is offered and the bank, finance company, or other institution makes the disclosures required by Section 615 of the Act [i.e., K.S.A. 50-714].” ¶ 11,306 E. 3.
The Federal Trade Commission has consistently held that lists containing the names of consumers who have had checks returned for insufficient funds are consumer reports. Besides the Howard case mentioned earlier, see also Robert N. Barnes t/a National Credit Exchange, Etc., 85 F.T.C. 520 (1975); Filmdex Chex System, Inc., et al., 85 F.T.C. 889 (1975); Checkmate Inquiry Service, Inc., et al., 86 F.T.C. 681 (1975); Interstate Check Systems, Inc., 88 F.T.C. 984 (1976); Moore & Associates, Inc., 92 F.T.C. 440 (1978). The organizations compiling and publishing such lists have been issued cease and desist orders for violations of the Act, such as furnishing reports for impermissible purposes, failing to maintain procedures for settling disputed items, publishing noncoded lists, and publishing inaccurate reports.
Apparently the subscriber merchants were directed by TeleCheck to give information cards to those consumers whose checks were disapproved by TeleCheck. The card read:
“Dear Customer:
“We are sorry that we cannot accept your check at this time because TeleCheck will not approve it.
“We encourage you to contact TeleCheck so they can explain the reasons for their actions and work with you to resolve the situation.
“Please contact:
Consumer Service Manager
(913) 381-8742
8 a.m. - 5 p.m. Monday - Friday
(913) 381-6963
after business hours
TeleCheck Kansas City
8650 West College Blvd., Suite 200
Overland Park, Ks. 66210”
Considering the aspects of TeleCheck’s service, the decoded communication of information did bear upon a consumer’s credit worthiness, credit standing and credit capacity. The information was collected for the purpose of establishing the consumer’s eligibility for credit. Credit acceptance was primarily for check purchases of personal, family, or household goods. This falls within the definition of a “consumer report” set out in K.S.A. 50-702(c) when furnished to a merchant who has a legitimate business need for the information in connection with a business transaction involving the consumer.
Once it is determined the service offered is a consumer report within the definition of K.S.A. 50-702(c) it is then clear that TeleCheck is a consumer reporting agency within the definition appearing in K.S.A. 50-702(e). TeleCheck is a corporation who for monetary fees engages in whole or in part in the practice of assembling consumer credit information for the purpose of furnishing reports to third persons by means of interstate commerce. See 15 U.S.C.A. § 1681a (f) for the identical definition of a consumer reporting agency in the federal Act.
We hold the check guarantee and reporting service on bank checks of consumers, which defendant engages in for the benefit of merchant subscribers, falls within the definition of a “consumer report” as it appears in K.S.A. 50-702(c) and in 15 U.S.C.A. § 1681a (d), and defendant in furnishing such service is a “consumer reporting agency” as defined in K.S.A. 50-702(e) and in 15 U.S.C.A. § 1681a (f).
The FCRA requires a consumer reporting agency (1) to maintain procedures which will assure maximum possible accuracy, K.S.A. 50-706(b) and 15 U.S.C.A. § 1681e (b), (2) to maintain proper procedures to settle disputed accuracy of information, K.S.A. 50-710 and 15 U.S.C.A. § 1681i, and (3) to maintain proper procedures to assure that the information is furnished for permissible purposes, K.S.A. 50-706(a) and 15 U.S.C.A. § 1681e (a), 50-703 and § 1681b, and 50-714 and § 1681m. If defendant Tele Check did not do these things, it may be liable for damages in accordance with the provisions of K.S.A. 50-715 or 15 U.S.C.A. § 1681n, and K.S.A. 50-716 or 15 U.S.C.A. § 1681o. See Bryant v. TRW, Inc., 487 F. Supp. 1234 (E.D. Mich. 1980).
Arguably Peasley’s claim falls within K.S.A. 50-710 and 15 U.S.C.A. § 1681i which requires certain procedures to be followed in case of the disputed accuracy of an item of information on which a consumer report is based.
All cases agree there is a duty to maintain reasonable procedures to insure maximum possible accuracy. There is a duty to reinvestigate after the accuracy of a consumer credit file is disputed. Middlebrooks v. Retail Credit Co., 416 F. Supp. 1013 (N.D. Ga. 1976); Checkmate Inquiry Service, Inc., et al., 86 F.T.C. 681; Hauser v. Equifax, Inc., 602 F.2d 811 (8th Cir. 1979).
Plaintiff’s name was on the negative information list for over a year. It does not appear whether a reinvestigation was undertaken and neither does it appear whether plaintiff filed the statement of dispute as contemplated by K.S.A. 50-710 and 15 U.S.C.A. § 1681i. These are matters to be shown by evidence. At least arguably the bad check file on plaintiff was inaccurate because his name was on what was considered to be a bad check passers list and he had never written a bad check. The summary judgment was improperly entered for defendant. The defendant’s check guarantee services did come within the provisions of the Fair Credit Reporting Act, and whether it violated the requirements of that Act depends on disputed facts which are material to the claim of the plaintiff.
The second issue raiséd on appeal concerns the holding by the district court that plaintiff could base no cause of action on the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. § 1692, et seq. (1981), because the acts of defendant which plaintiff claimed to be in violation of the FDCPA occurred before the effective date of this Act. Kansas has no counterpart to this federal Act.
The Acts complained of consisted of maintaining plaintiff’s name on a computer bad check list long after defendant was advised that plaintiff had never written a bad check. This erroneous bad check listing resulted in having the merchants in the area refuse to accept plaintiff’s bank checks. It is alleged the defendant threatened to continue this erroneous listing in order to force collection of a disputed bill claimed by defendant to be due on a rental apartment occupied by plaintiff.
The FDCPA was enacted on September 20, 1977, and became effective upon the expiration of six months after September 20, 1977. Under 15 U.S.C.A. § 1692g (1981), in case of disputed debts as in this case, the Act applies only with respect to debts for which the initial attempt to collect occurred after the effective date. See § 818 of Pub. L. 90-312, set out as a note under § 1692 of this title. The effective date of the Act was, therefore, March 20, 1978. This law was enacted by Congress to eliminate false, deceptive, misleading, unfair, or harassing debt collection practices. Rutyna v. Collection Accounts Terminal, Inc., 478 F. Supp. 980 (N.D. Ill. 1979). The initial collection letter was sent to the plaintiff on March 31, 1977, almost a year before the effective date of the Act. Therefore, summary judgment was properly entered in favor of defendant on the FDCPA claim.
The final issue concerns the entry of summary judgment on the common law claim for relief on wrongful debt collection practices. Plaintiff relies on the case of Dawson v. Associates Financial Services Co., 215 Kan. 814, Syl. ¶ 1, 529 P.2d 104 (1974), in which it is held:
“A creditor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to the debtor is subject to liability for such emotional distress, and if bodily harm to the debtor results from it, for such bodily harm.”
In the recent case of Roberts v. Saylor, 230 Kan. 289, Syl. ¶ 2, 637 P.2d 1175 (1981), it is held:
“Liability for extreme emotional distress has two threshold requirements which must be met and which the court must, in the first instance, determine: (1) Whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it.”
After examining the facts and circumstances of the present case, we hold that neither threshold requirement was shown to have been met and summary judgment in favor of defendant on this claim for wrongful debt collection practices was properly entered.
In summary we reverse the judgment in favor of defendant on plaintiff’s claim based on the FCRA, K.S.A. 50-701 et seq., and remand for further proceedings; we affirm the judgment in favor of defendant on plaintiff’s claims based on alleged violations of the FDCPA, 15 U.S.C.A. ¶ 1692 et seq. (1981), and on wrongful debt collection practices.
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Abbott, J.:
This is an appeal in a divorce action from a judgment that created a trust fund to be used to educate the minor children of the parties. Three issues are presented.
The defendant, Keith Dwain Ferguson, argues that the trial court had no jurisdiction to provide funds to be used by his children after they reached adulthood, and that all funds placed in trust and not expended for educational purposes during the children’s minority should be returned to him and not equally divided between defendant and his ex-wife. He relies on Allison v. Allison, 188 Kan. 593, 363 P.2d 795 (1961). The plaintiff, Karen LaJeanne Ferguson, contends that this court has no jurisdiction to hear this appeal for the reason that defendant has failed to properly perfect it.
Plaintiff and defendant have two children. Jo Ellen was born August 9, 1962, and completed high school in December 1979. Cheryl Sue was born July 16, 1963, and completed high school in December 1980. This case was tried in the fall of 1979. The trial court divided the marital assets, awarded custody of the two children to plaintiff and provided for child support in the amount of $180 per month per child. Neither party complains about that part of the decision. Defendant complains because the trial court ordered life insurance policies and IDS stock (mutual funds) converted to cash and invested in an interest-bearing account to be used to help meet the educational expenses of the two children. The trial record indicates the testimony concerning the value of these assets came from the defendant who testified the IDS stock was worth $5,600 and one life insurance policy had a value of $3,800. It appears there were other life insurance policies that may have had some cash surrender value, but that fact is not clearly established in the record and there is no indication of their possible value. Defendant filed a motion after judgment was entered stating that the correct net value of the IDS stock was $9,000, not $5,600. In addition to the conversion of the IDS stock and life insurance policies, the trial court ordered the defendant to contribute an additional $6,000 to the educational fund. Defendant was given the option of transferring assets or waiting until the first child started to college and then paying $350 per month. If defendant had elected to pay $350 per month, the entire $6,000 would have been paid into the fund prior to the youngest child’s reaching 18 years of age. The trial court retained jurisdiction over the fund for the express purpose of ensuring that it would be used equitably and fairly for the education of the two daughters. The judgment provided that if the children failed to satisfactorily pursue a college education, or if they dropped out of college, any remaining funds would be equally divided between plaintiff and defendant.
Defendant filed a motion which he labeled a motion to modify findings of fact. We are of the opinion that it also encompassed a motion to alter or amend the judgment. The trial judge refused to hear and determine the motion, and this appeal follows. We are satisfied we have jurisdiction to hear the appeal; K.S.A. 60-2103 provides that the running of time for appeal is terminated by a timely motion made pursuant to K.S.A. 60-252(b) (amend or make additional findings of fact), or to K.S.A. 60-259 (alter or amend the judgment).
The record before us does not specifically state that the trial judge intended the educational fund to be available, at least in part, to meet the financial requirements of the children’s college education after their minority ceased. Defendant argues that it was so intended, but plaintiff concedes that existing case law prohibits the use of such funds after the period of minority. In essence, plaintiff argues that authority exists to set up such a fund, and that any funds not used for educational purposes should be divided equally between plaintiff and defendant.
Our Supreme Court has considered similar issues in a number of cases. The defendant relies on Allison v. Allison, 188 Kan. 593. There, the court required a father to establish a trust fund for the education of the minor child by paying a set sum per month for a set period which terminated, as it does in the case at bar, prior to the child’s becoming an adult. The order provided that if the child failed to enroll in or withdrew from college, the money remaining in the fund was to be returned to the father, his heirs or assigns. The Supreme Court held that the trial court had power to order the father of a minor child to establish a trust fund to provide for the college education of the child. The court stated that statutory authority limited that power to the child’s minority. G.S. 1959 Supp. 60-1510.
In Herzmark v. Herzmark, 199 Kan. 48, 427 P.2d 465 (1967), the trial court ordered a father to establish a $6,000 trust fund to be used for a minor child’s college education. The money was to be paid into the trust during the child’s minority, and any of it that was not used for the child’s education was to be returned to the father, his heirs or assigns. The payments to the daughter were to cease on her attaining legal majority. Herzmark was decided under the then relatively new Code of Civil Procedure (K.S.A. 1965 Supp. 60-1610). The father argued that 60-1610 related to support and education, but the provision for setting property apart referred only to support. The Supreme Court affirmed the trial court as to the trust fund, stating at pages 56-57:
“Such an educational fund may not extend beyond or make provision for a child of the marriage beyond minority. In event the child does not attend college for the period intended the fund should be made returnable to the funding party, his heirs or assigns. Such a plan must be definite and have for its purpose a suitable college education for the child. The plan must be reasonable within the parent’s ability to provide.”
In Clark v. Chipman, 212 Kan. 259, 267, 510 P.2d 1257 (1973), the Supreme Court ruled that a marriage settlement agreement that provided for the support and education of children past the age of majority was valid and binding upon the parties. The Supreme Court next had occasion to determine what effect the statutory shortening of the period of minority would have on an agreement to provide support for a child until the child attained the age of majority. K.S.A. 1972 Supp. 38-101. The court held in two cases that the duty to support ceased when the statutory age of majority was reached. Jungjohann v. Jungjohann, 213 Kan. 329, 516 P.2d 904 (1973); Rice v. Rice, 213 Kan. 800, 518 P.2d 477 (1974).
Both parties to this appeal agree that the above line of cases is controlling, and that the father’s obligation to provide a college education for the children ceased on their 18th birthday. We do note that in 1975, after the above line of cases had been decided, the legislature in considering House Bill No. 2212 amended K.S.A. 60-1610, which appears at first glance to be significant. The only change the bill originally was designed to make was to reduce the period that prohibits marriage to another person from 60 to 30 days (K.S.A. 60-1610[/i]). The bill was amended on the floor of the Senate (Senate and House Journals 1975, p. 510) to insert a sentence in section (a) as follows:
“Any order requiring either parent or both parents to pay for the support of any child until the age of majority shall terminate when such child attains the age of eighteen (18) years, unless by prior written agreement approved by the court such parent or parents specifically agreed to pay such support beyond the time such child attains the age of eighteen (18).”
That sentence is now incorporated in K.S.A. 1980 Supp. 60-1610(a).
The possible significance of that amendment is the first sentence states that the court shall make provisions for the support and education of the minor children. Then, presumably with full knowledge of the Supreme Court cases set forth in this opinion, the legislature provided that support payments shall terminate when the child attains the age of eighteen. The existing statute had already been interpreted to provide the same result provided for in the amendment. Thus, either the legislature intended that the court be empowered to provide for the education of children past the age of eighteen or it was merely amending the statute to reflect the decisions of the Supreme Court and overlooked adding “and education.” We are convinced that if the legislature had intended to extend parental duties to require those financially able to do so to provide education for their children who have attained majority, it would have used positive language to so indicate its intention rather than have the duty inferred by the courts as a result of its unexplained failure to include the words “and education” in the sentence added to the statute. This is particularly true in light of Herzmark, wherein the Supreme Court allowed property of the parents to be set aside for educational purposes even though the legislature in giving courts discretionary authority to do so mentioned only support, not support and education. We thus conclude the legislature did not intend to grant discretionary authority to the courts to extend the duty of a parent who is financially able to do so to provide for an education past a child’s 18th birthday. The legislature is cognizant of the hardship that frequently results for a significant number of children from child support payments terminating prior to the completion of high school. It is also aware of the necessity for a college education or for vocational training. Whether to impose a duty on a parent to provide for a formal education or for vocational training is a legislative decision and not one for the courts.
In our opinion, the trial court had authority to require the parents to contribute to an educational fund. The court order required the money to be paid in during the children’s minority. The money could be used only for educational expenses incurred prior to the 18th birthday of each child. As we see it, the ultimate question is whether the trial court abused its discretion in requiring an educational fund in the manner and amount ordered, and in providing for distribution of any remaining funds in the manner ordered.
The children were approaching college age and both had expressed a desire to attend college. The parents have the financial ability to pay for the children’s college education. The total amount ordered to be paid into the fund may be larger than what is necessary to provide for an education to age 18. It appears that the property was divided equally between plaintiff and defendant. Thus, in all likelihood, the IDS stock and the cash value of the life insurance policies would have been divided equally between plaintiff and defendant if they had not been placed in the educational fund. We view the court’s order as to the stock and life insurance policies to be a recognition that both parties have a responsibility to educate the two children, and the court started the educational fund with assets that otherwise would have been divided between the parties. We would not hesitate to approve a property settlement agreement that divided the property involved equally between plaintiff and defendant, and thus we hold that the trial court did not abuse its discretion as to that portion of the educational fund.
The remaining $6,000 obviously was supplied solely by the defendant, which raises two questions: whether an additional $6,000 was necessary, and whether the trial court erred in ordering any portion of it to be divided equally between plaintiff and defendant in the event it would not be used to educate the children.
Under the circumstances, we cannot say that the total amount of the educational fund is so large as to amount to an abuse of discretion as a matter of law. The record is not clear as to the total value of the IDS stock and life insurance, and defendant must bear the responsibility for that; for it is defendant’s vague testimony of the values, and his lack of knowledge of the value of his assets, that make unclear what the total amount is. If we accept the figures he testified to at trial, the total value is $15,400 (IDS stock, $5,600; life insurance, $3,800; and $6,000 to be paid from his assets); and if we accept his statement that the IDS stock is worth $9,000, the total amount is $18,800. The trial judge specifically stated he would retain jurisdiction to see that the funds were not squandered. Without knowing where the children would be admitted to school, the court could not know how large a fund would be needed. If the children had the ability and good fortune to be admitted to a prestigious private college, the fund provided would not be excessive for its intended purpose.
It obviously has been the opinion of the Supreme Court that in most instances the party who contributes the funds is the one who should regain any unexpended funds. As we view the Supreme Court cases, we are of the opinion that it is not mandatory for the court to always provide for the return of unexpended funds to the parent who contributed the funds if it is otherwise fair to divide them. We are hampered by the trial court’s failure to make either a written or oral explanation of why the decision was made to divide the remaining assets. It may well be that it was intended that the $6,000 be used first. It was provided that defendant could pay the money at the rate of $350 per month when the first child started to college. That sum would provide board and room plus some spending money each month. If that was the trial court’s intention, we would affirm the decision, as the defendant has an income from his salary and bonuses much larger than plaintiff’s, and the plaintiff has more debts to service. If that was not the trial court’s intention, and funds that were contributed solely from defendant’s separate property (the $6,000) remain to be distributed, then that part remaining from defendant’s $6,000 contribution should be returned to him. That part of the judgment ordering any unexpended portion of the $6,000 contributed solely by defendant to be divided equally between the parties is vacated and the case remanded for findings and conclusions concerning the court’s intention as to the order, if any, for which the funds should be expended.
Upon remand, it will be necessary for the trial court to hold a hearing to ascertain what amount of the educational fund would have been used for the reasonable college expenses of the two girls prior to their 18th birthdays. The defendant should not be allowed to profit from his failure to comply with the court order. The test to be used thus is not what was actually spent prior to the 18th birthdays, but what would reasonably have been expended if the defendant had complied with the court order. Any remaining funds should then be distributed to the parties as set forth in this opinion.
Affirmed as modified.
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Parks, J.:
This appeal consolidates three actions involving the estate of George F. Flater. The actions are (1) proceedings to settle the estate of Flater; (2) the final accounting of the conservatorship of Flater; and (3) a suit by the administrator of Flater’s estate alleging a wrongful conversion by the co-conservator/guardian, Aileen Howell. An identical memorandum decision and judgment was entered by the trial court in each of the three cases and both the co-conservator and the administrator appeal portions of the judgment.
On August 22, 1975, the probate court of Crawford County, Kansas, entered an order that Marvin Flater and Aileen Howell act as co-conservators of the estate of their father, George Flater. Subsequently, George became incapacitated as defined by K.S.A. 59-3002(1) and the district court appointed Aileen Howell as his guardian on April 5, 1977. Later that same day, Aileen and her husband, Clyde, cashed a certificate of deposit held in joint tenancy by Aileen, Clyde, and George Flater, Aileen’s father. The certificate of deposit had been purchased in May 1972 by George and issued in joint tenancy to George, his wife Ella (who prede ceased him), Aileen and Clyde. The proceeds of the certificate, $15,262.53, were deposited in Clyde and Aileen’s joint checking account in a Fort Scott bank.
George Flater died testate on January 18, 1978. His residuary legatee is his son, Marvin Flater. Timothy Fielder, administrator c.t.a. of the Flater estate, filed suit to reclaim the proceeds of the certificate of deposit. The trial court held that the certificate proceeds were a part of George’s estate and had to be returned. However, the trial court allowed offsets against the complete reimbursement consisting of (1) the funds expended by Aileen for the care of her father, (2) her attorney fees, and (3) a fee for her services as conservator. Aileen Howell appeals from the order of reimbursement; the administrator cross-appeals from that portion of the order which allowed the above offsets.
It was conceded at oral argument that the certificate of deposit purchased by George Flater contained the magic words of joint tenancy. It is also undisputed that as joint tenants and survivors of her father, Aileen and Clyde would ordinarily be entitled to the joint tenancy proceeds. In re Estate of Powell, 222 Kan. 688, 691-92, 567 P.2d 872 (1977). However, the administrator contends that Aileen’s dual status as joint tenant and guardian posed a conflict of interest which should compel forfeiture of her survivorship rights.
A similar situation has been addressed in Georgia. Dowdy v. Jordan, 128 Ga. App. 200, 196 S.E.2d 160 (1973). In Dowdy, an aged woman and her nephew were joint tenants on two savings accounts which she alone had opened. The nephew later applied for and was appointed guardian over her person and property, which consisted of the bank accounts and other assets valued at over $13,600. The guardian spent $13,650 for the maintenance of his ward during her lifetime but only $4000 of that sum was money withdrawn from the joint savings account. After the ward died, the guardian withdrew the remaining $13,652 in the bank accounts and deposited it in his own account as surviving joint tenant. The only assets remaining at her death were an open account in the amount of $610, and a house, lot and furniture with an estimated value of $7000. The woman’s executor sued for the full amount of the two savings accounts, contending that the guardian breached his fiduciary duty by assuming the role of joint tenant and guardian and should forfeit all right to the joint tenancy property.
The Georgia Court of Appeals agreed with the. executor. The court discussed the duty of loyalty owed by a fiduciary and concluded that the positions of guardian and joint tenant posed a conflict of interest which could have affected the exercise of his fiduciary duties. The court held that the possibility that the fiduciary might be influenced by his joint tenancy interest constituted a breach of the duty of loyalty. The court further noted that the guardian’s actual administration of his ward’s estate enhanced the value of his personal succession as joint tenant.
Unlike the situation in Dowdy, there was no evidence here that Flater’s conservator and guardian ever profited by the dual status as joint tenant and fiduciary. She had a right to the money in the account as a survivor and had been entrusted by her father to be a joint tenant several years before he was incapacitated. Aileen spent $1562.53 of the joint account to pay for George’s expenses and there was no liquidation of other assets of the estate evidenced in the accountings filed for the period of August 22, 1975 (date Aileen appointed conservator), to January 18, 1978 (date of death). Thus, on the day Flater died, the property he owned and could have passed to others was the same property he owned on the day Aileen was appointed conservator. Had George died without ever having been a conservatee, Aileen and Clyde would have owned the CD as joint tenants, Aileen’s remainder interest in the 80-acre farm would have become a fee, and Marvin Flater would have received all of the remaining property. Therefore, there was no evidence of actual impropriety of misuse of funds.
In Jennings v. Speaker, Executrix, 1 Kan. App. 2d 610, 614-617, 571 P.2d 358 (1977), the trustees of an express inter vivos trust were also the remaindermen of the trust. The court acknowledged this conflict of interest and stated that as a result, scrupulous fairness and impartiality were demanded of the trustees in allocating receipts as principal or income. There, the court found a demonstrated lack of such impartiality because the trustees as directors of the trust-owned holding company permanently retained the corporate earnings at the expense of the income beneficiary. Thus, the court looked beyond the existence of the conflict of interest to determine whether the beneficiary was harmed.
Appellee has urged this court to adopt a strict rule concerning the exercise of fiduciary powers. However, when the estate of the ward is in no way diminished and the apparent conflict of interest does not manifest itself by controlling the guardian’s actions, it would seem unduly harsh to make an example of a loyal fiduciary because of a potential, yet unrealized, conflict. We therefore hold that a case-by-case approach must be taken in alleged conflict of interest circumstances to determine whether the beneficiary of the trust is actually harmed or the trustee is rewarded by the dual interests.
We conclude that because the conservator is able to trace the proceeds received from cashing the certificate of deposit and the estate was in no way diminished, the conservator is entitled to the money as a surviving joint tenant despite the alleged breach of fiduciary obligation.
Our decision renders consideration of the points raised by the cross-appeal unnecessary. Judgment is reversed and remanded for further proceedings consistent with this opinion.
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Meyer, J.:
This case involves the breach of a commercial lease. On December 27, 1977, appellee and cross-appellant H. Kent Lanterman (tenant) entered into a five-year written lease with E. N. Maisel & Associates. The terms of the agreement provided for a $3,000 letter of credit as security, issued by Central Bank and Trust, and the premises were to be used for the sole purpose of conducting the business of a liquor store. The lease provided that the premises could be used for no other purposes without prior written consent of the landlord. Under the lease tenant was not allowed to sublet the premises or assign the lease without prior written consent of the landlord. On December 27, 1977, the interest of E. N. Maisel & Associates was assigned to appellant and cross-appellee Wichita Properties (landlord).
Tenant took possession of the property on April 24, 1978, with rentals to commence on May 24, 1978. Rent due under the lease was $1,050 per month for the first year, and $1,108.33 per month for the second year, with an additional increase for each additional year. Tenant paid one month’s rent of $1,050.00. No other rent was paid. In May or June, 1978, tenant notified landlord that he had been unsuccessful in obtaining a liquor license but was attempting to find someone with a license to operate the store for him. On September 28, 1978, Central Bank and Trust revoked its letter of credit. In early October, 1978, landlord contacted tenant and tenant stated that he was unable to find anyone to run the store and that he did not intend to go through with the contract.
Landlord contacted a local realtor to advertise the premises as being available for lease. The sign already in the parking lot of the shopping center advertised that there was available space, but did not specify the tenant’s particular premises as being available. The landlord also sent a representative to Wichita in December once or twice looking for prospective tenants.
In January, 1979, landlord was contacted by ABC Rentals and after considerable negotiation, ABC ultimately entered into a lease to commence July 1, 1979.
Landlord brought this action against tenant for breach of the lease seeking $12,916.95 for total rent due, common area charges of $326.08 and real estate taxes of $990.20. Landlord also tried to introduce evidence of property damage of $2,710.91. Tenant objected to the introduction of this evidence because property damage was not mentioned in the pleadings. The court gave the landlord the option of continuing the trial for amendment of pleadings, but the landlord’s attorney stated that he did not want the leave to amend unless he could introduce the witness’ testimony to avoid recalling him at a later date. This was declined and landlord’s attorney stated he did not want the leave under such conditions. Central Bank and Trust was also joined as a defendant, and tenant filed a third party petition against Standard Liquor Corporation, which claim was not decided at the time of the appeal. (The claims appealed from were certified by the trial court pursuant to K.S.A. 60-254[b].)
The trial court granted judgment in favor of landlord on the issue of liability. The trial court also found that landlord was reasonably diligent in mitigating damages, only from and after January 1, 1979, during its negotiations with ABC Rentals and was, therefore, only entitled to rent for $6,300.00. The court denied the claim for taxes and charges for common areas. Landlord appeals on the damage issues and tenant cross-appeals from the summary judgment on the issue of liability.
Landlord’s first claim of error is that there was no substantial competent evidence to support the trial court’s finding that landlord failed to mitigate damages.
Landlord argues on appeal that the tenant had not abandoned the property until he notified landlord in early October that he did not intend to fulfill the contract. Landlord argues, therefore, that it was under no obligation to find a tenant until October, and after that time it listed the property with a realtor and had someone looking for prospective tenants.
The tenant argued that the duty to mitigate arose upon the tenant’s notifying the landlord in June that he could not obtain a liquor license, coupled with the continued failure to pay rent.
The trial court held that landlord had not fulfilled his obligation to mitigate damages until January when it began negotiating with ABC Rentals and that all efforts up to that time had been “lackadaisical.” The trial court also stated in its journal entry that the landlord’s duty to mitigate commenced when it learned the tenant had been denied a liquor license, i.e., in June, 1978.
The rule in Kansas regarding a landlord’s duty to mitigate was recently stated in Lindsley v. Forum Restaurants, Inc., 3 Kan. App. 2d 489, Syl. ¶ 3, 596 P.2d 1250, rev. denied 226 Kan. 792 (1979):
“Where a tenant, under contract to pay rent on real property, abandons the property and notifies the landlord of that abandonment, it is the landlord’s duty to make a reasonable effort to secure a new tenant and obtain rent before he can recover from the old tenant under the contract so as to lessen the injury. Following Gordon, Executor v. Consolidated Sun Ray, Inc., 195 Kan. 341, Syl. ¶ 3, 404 P.2d 949 (1965).”
Since the duty to mitigate does not begin until tenant abandons the property and notifies the landlord of that abandonment, the issue is whether there is any evidence before the October notification of the tenant’s abandonment.
Since the tenant told the landlord that he intended to find someone who could get a liquor license to run the place for him, it would seem that the tenant had no intent to abandon the premises. Tenant was unable to obtain a liquor license because he did not meet the Kansas residency requirements.
While clearly tenant was in breach of the lease upon missing the payments after June, in light of tenant’s expressed intent to continue to try to find an alternative method of running the liquor store, this is not evidence of abandonment and notification of said abandonment in June. We conclude, as a matter of law, that there was no abandonment until the landlord was notified of tenant’s intent to terminate the lease in early October, 1978. While we recognize the rule that this court is not to rew'eigh evidence or retry the facts, where said facts are undisputed and are clearly insufficient, this court may rule as a matter of law that there was no abandonment.
As to the months of October, November, and December, 1978, the evidence indicated some, but not much, effort to mitigate on the part of the landlord. The trial court concluded that from and after January 1, 1979, landlord used reasonable and proper attempts to mitigate its damages. The trial court found there was not a reasonable effort to obtain a new tenant prior to January 1, 1979.
“It is not the function of the appellate court to weigh conflicting evidence, pass on the credibility of witnesses or redetermine questions of fact and our only concern is with evidence which supports the trial court’s findings, and not with evidence which might have supported contrary findings.” Addis v. Bernardin, Inc., 226 Kan. 241, Syl. ¶ 2, 597 P.2d 250 (1979).
We cannot rule as a matter of law that the facts disclosed by the evidence constituted reasonable mitigation. There was no conflicting evidence; however, the trial court might have disbelieved the evidence presented, and certainly found such efforts to be insufficient.
Landlord next contends that the court erred in ruling that tenant did not owe prorated taxes and common area charges because he never occupied the premises.
The trial court found that the landlord was not entitled to recover under its claim for common area charges and real estate taxes because the tenant did not occupy the premises within the meaning of the lease agreement.
Section 6(b) of the lease provides:
“Common Area Charge. Tenant shall pay to Landlord as a ‘Common Area Charge’ a proportionate share of all cost and expenses of every kind and nature paid or incurred by Landlord in operating and maintaining the Common Areas. Such cost and expenses shall include but not be limited to maintaining, repairing and replacing, cleaning, lighting, snow and ice removal, line painting and landscaping of all vehicle parking areas and other outdoor Common Areas; providing security; providing public liability, property damage, fire and extended coverage and such other insurance as Landlord deems appropriate; total compensation and benefits (including premiums for workmens compensation and other insurance) paid to or on behalf of employees; personal property taxes; supplies; fire protection and fire hydrant charges; water and sewer charges; utility charges; licenses and permit fees; reasonable depreciation of equipment used in operating and maintaining the Common Areas and rent paid for leasing any such equipment; together with all costs of administration of the Shopping Center. Tenant’s Common Area Charge shall be determined by multiplying the total cost incurred by Landlord by the ratio of the square feet of floor area within the Premises to the total square feet of floor area leased and occupied within all the buildings in the Shopping Center. For the purpose of Paragraphs 4(a), 11(b) and 22 as well as this Paragraph 6(b) the term ‘floor area’ with respect to the Premises and with respect to all other leasable area shall refer to floor area on all levels, including mezzanines, basements or balconies. No deduction shall be made for columns, stairs, elevators or any interior construction or equipment. Any change in floor area in such buildings shall be deemed in effect on the first day of the next succeeding month following such change.
“Tenant’s Common Area Charge shall be paid in monthly installments on the first day of each month in an amount to be estimated by Landlord. Within ninety (90) days following the end of the period used by Landlord in estimating Landlord’s cost, Landlord shall furnish to Tenant a statement of the actual amount of Tenant’s proportionate share of such Common Area Charge for such period. Within fifteen (15) days thereafter, Tenant shall pay to Landlord or Landlord shall remit to Tenant, as the case may be, the difference between the estimated amounts paid by Tenant and the actual amount of Tenant’s Common Area Charge for such period as shown by such statement.”
Section 4(a) of the lease provides:
“Real Estate Taxes and Assessments. Tenant agrees to pay Tenant’s proportionate share of all real estate taxes and assessments, both general and special, levied and assessed by any lawful authority, for each calendar year during the term hereof against the land, buildings and all other improvements within the Shopping Center or against any land or improvements which may be added thereto. Tenant’s proportionate share shall be the total amount of such taxes and assessments multiplied by a fraction, the numerator of which shall be the number of square feet of floor area within the Premises, and the denominator of which shall be the number of square feet of leased and occupied floor area within all buildings within the Shopping Center at the time such taxes were levied or assessed, but excluding the floor area of any buildings within the Shopping Center which are separately assessed for tax purposes. Copies of tax bills submitted by Landlord to Tenant shall be conclusive evidence of the amount of such real estate taxes and assessments levied or assessed, as well as the item taxed.
“During the term of this lease, Tenant shall pay to Landlord, monthly in advance, an amount equal to l/12th of Tenant’s proportionate share of real estate taxes and assessments for the current tax year, as reasonably estimated by Landlord. If Tenant’s proportionate share of taxes with respect to any tax year is less than the total amount theretofore paid by Tenant for such period, the excess shall be credited against the payments with respect to real estate taxes next becoming due. If Tenant’s proportionate share of taxes for any tax year exceeds the total amount theretofore paid by Tenant for such period, Tenant shall, upon receipt of invoices from Landlord, pay the difference between the actual amount paid by Tenant and Tenant’s proportionate share of real estate taxes and assessments.”
In State Bank of Parsons v. First National Bank in Wichita, 210 Kan. 647, Syl. ¶ 1, 504 P.2d 156 (1972), it was held:
“Regardless of the construction of a written instrument made by the trial court, on appeal the instrument may be construed and its legal effect determined by the supreme court.”
There is no provision in the lease before us which makes tenant’s liability for taxes and common area charges conditional upon occupancy of the premises. The trial court erred in so construing the lease. Neither does the law make these types of charges conditional upon occupancy.
Landlord further claims that the court abused its discretion in excluding evidence of physical damage to the premises because of failure to include the theory in the pleadings.
K.S.A. 60-215(b) provides in pertinent part:
“If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”
The tenant objected to the introduction of the evidence of damage to the property. The trial court was within its discretion to order a continuance for the amendment of pleadings. Landlord cannot now complain after refusing to amend the pleadings.
The issue on the cross-appeal is whether the court erred in granting summary judgment on the issue of liability.
Tenant cross-appeals from the trial court’s granting of summary judgment on the issue of liability. The trial court held that tenant’s defense of inability to obtain a retail liquor license to operate the premises as a retail liquor store was not tenable because the occurrence was foreseeable at the time the lease was executed and the defense was a subjective impossibility rather than an objective impossibility.
Landlord claims that whether the denial of the liquor license was reasonably foreseeable is a question of fact, and further that the denial of a liquor license is analogous to a situation where a change in law renders performance impossible, making nonperformance excusable, citing 17 Am. Jur. 2d, Contracts § 419.
The Kansas courts have followed the rule that subjective impossibility is not a defense. In White Lakes Shopping Center, Inc. v. Jefferson Standard Life Ins. Co., 208 Kan. 121, 124, 490 P.2d 609 (1971), it is stated:
“The impossibility which will, or may, excuse the performance of a contract must exist in the nature of the thing to be done. It must not exist merely because of the inability or incapacity of the promisor or obligor to do it. (17A C.J.S., Contracts, § 463(1), p. 610; 17 Am. Jur. 2d, Contracts, § 506, p. 987; State Highway Construction Contract Cases, 161 Kan. 7, 166 P.2d 728; Winfrey v. Automobile Co., 113 Kan. 343, Syl. 4, 214 Pac. 781.)
“In Winfrey v. Automobile Co., supra, it was said:
“ ‘Where 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 provided against in the agreement.’ (Syl. ¶ 4.)”
The Kansas Supreme Court distinguished between subjective and objective impossibility of performance in State Highway Construction Contract Cases, 161 Kan. 7, 67, 166 P.2d 728 (1946):
“Respecting impossibility of performance of a contract after it has been exe cuted, the authorities note that there is a difference between ‘the thing cannot be done’ and T cannot do it.’ (Restatement of Contracts, § 455, comment 1.) The first of these is referred to as objective and the second as subjective. The same distinction is made in Williston on Contracts (Rev. ed.), pp. 5411-12. Both authorities agree that the second statement, T cannot do it,’ never relieves the promisor, the reason being that the promisor had agreed and definitely bound himself to perform, and cannot be heard to say otherwise.”
While Kansas has not dealt with a factual situation in which a permit of license is denied by a governmental authority, several other jurisdictions have ruled on whether such a situation constitutes impossibility.
In Ogdensburg Urban Renewal Agency v. Moroney, 42 App. Div. 2d 639, 640, 345 N.Y.S.2d 169 (1973), the appellant claimed impossibility because federal funding had not been approved. The court held that appellant knew at the time that it entered the contract for purchase of the property that it would need federal approval if federal money was to be available and yet the contract was silent concerning approval. The court stated:
“[T]he defense of impossibility is only available where the performance is rendered impossible by the happening of an unanticipated event which could not be foreseen or guarded against in the contract.”
In North American Capital Corporation v. McCants, 510 S.W.2d 901 (Tenn. 1974), the court recognized the defense of frustration of commercial purpose. That doctrine provides that where there is a total or near total destruction of the purpose for which, in the contemplation of both parties, the lease was entered into, performance of the lease is excused. However, in this particular case, the doctrine was held inapplicable where the government failed to approve a site for a savings and loan. The court held that the failure to approve the site was reasonably foreseeable and that the defense of frustration of commercial purpose was not applicable.
In Helms v. Investment Co., 19 N. C. App. 5, 198 S.E.2d 79 (1973), the court granted summary judgment for plaintiff on the issue of liability for breach of contract to provide water and sewer facilities. The sole issue was whether prohibition by the city and county of sewer and water facilities would excuse the promisors of their obligation. It was held the parties in the exercise of reasonable care should have anticipated that they might encounter some difficulty from the city and county in view of current emphasis on pollution problems in metropolitan areas. Citing from 17A C.J.S., Contracts § 463(1), p. 611, the court stated:
“ ‘Where a party enters into a contract knowing that permission of government officers will be required during the course of performance, the fact that such permission is not forthcoming when required does not constitute an excuse for nonperformance.’ ” 19 N. C. App. at 8.
Under the facts of this case, the tenant knew that he would have to obtain a liquor license in order to run the liquor store. He should have provided in the contract for such contingency. Under these circumstances the defense of impossibility or frustration of commercial purposes has generally been held to be inapplicable. If tenant wished to raise some facts making the inability to obtain a liquor license unforeseeable, he should have done so by affidavit in a response to the motion for summary judgment. Our record shows that no response was filed.
“ ‘[T]here is an affirmative duty upon the non-moving party to respond with counter affidavits or take advantage of the alternatives offered to him, which are to ask leave to make additional discovery or to show good cause why he cannot obtain and present by affidavits facts essential to justify his position.’ ” Miller v. Sirloin Stockade, 224 Kan. 32, 36, 578 P.2d 247 (1978), citing from Gard’s Kansas C. Civ. Proc. § 60-256 (1977 Supp.), p. 98.
Also, it is noted in Dugan v. First Nat’l Bank in Wichita, 227 Kan. 201, Syl. ¶ ¶ 1, 2, 606 P.2d 1009 (1980):
“Summary judgment is proper only if there are no genuine issues of material fact.
“A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist.”
Further, in Collier v. Operating Engineers Local Union No. 101, 228 Kan. 52, Syl. ¶ 2, 612 P.2d 150 (1980), it is stated:
“An appellate court in examining the validity of a motion for summary judgment should read the record in the light most favorable to the party who defended against the motion. It should accept such party’s allegations as true, and it should give him the benefit of the doubt when his assertions conflict with those of the movant.”
The trial court committed no error in granting summary judgment against the tenant on the issue of liability.
In conclusion, the trial court erred in holding that the duty to mitigate commenced in June because of the absence of any evidence in the record to show an abandonment. Once the tenant advised the landlord that he was forsaking the lease — in early October, 1978—clearly the landlord then had a duty to mitigate. Since there was some evidence before the trial court relative to the months of October, November and December, 1978, upon which it could base a finding of failure to mitigate, we conclude that its ruling as to those three months must stand. The lost rent, shown as being due to landlord on his exhibit No. 16 of $12,916.95, must be reduced by the sum of $3,150.00 (same being for the $1,050 per month rent for October, November, and December, 1978), leaving the amount of rent which should have been awarded to landlord the sum of $9,766.95.
As we have noted, the trial court denied the landlord payment for common area charges on the ground that the tenant did not occupy the premises. This, too, we concluded was error. Since we have determined that the trial court must be affirmed as to tenant’s nonliability for rent for the months of October, November, and December, 1978, it follows that tenant is not liable for the common area charges for those three months. Therefore the common area charges of $326.08 shown to be claimed by landlord in its exhibit 16, must be reduced by the sum of $98.81, the same being the fourth quarterly charges (October, November, and December, 1978), during which quarter the tenant was not liable for such charges because of the ruling hereinabove that landlord had failed to properly mitigate during those three months of 1978. Therefore, landlord should receive in judgment for common area charges the sum of $227.27.
What we have said as to common area charges is likewise true as to the liability of tenant for taxes. We note, again by reference to the evidence in the case, that the $513.83 claimed by landlord for 1978 taxes was based on 221 lease days during 1978, or $2.325 per day. Tenant should be credited with 92 days (again those being the days during October, November and December, 1978), or $213.90. Landlord should thus receive judgment from tenant for taxes in the amount of $299.93.
From the above, we conclude that landlord should be awarded damages in the sum of $9,766.95 for rent, $227.27 for common area charges, and $299.93 for taxes owed by tenant, for a total judgment in the sum of $10,294.15 in favor of landlord. This case is remanded to the trial court for judgment in accordance with the views expressed herein.
Affirmed in part; reversed in part and remanded with instructions.
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Parks, J.:
This suit is one of many filed as a result of the collapse of Kansas Savings and Loan Association in the summer of 1977. Over 12,000 depositors were affected by the demise of the Association and this impact was compounded by the lack of any state or federal insurance to guarantee the depositors’ accounts.
On August 2, 1977, four named plaintiff depositors filed a class action petition on behalf of all of the Association depositors against multiple defendants including the Association and its officers and directors. The plaintiffs sought $72,000,000 in actual damages, $150,000,000 in punitive damages and reasonable attorney fees. After the initial petition was filed, Kansas Savings and Loan was reorganized under the name of Century Savings and a trustee was appointed. In order for the reorganized institution to obtain FSLIC insurance on accounts, the depositors agreed to waive their claims against the Association. As a result of this waiver, a unified petition was filed on April 20, 1978, realigning the Association as a plaintiff. In the meantime, discovery on the class action issues was conducted and a certification hearing was held. On June 2,1978, the court certified the suit as a class action under K.S.A. 60-223(fo)(l).
Over 19 months after the original petition was filed, the plaintiff depositors and the Association joined Peat, Marwick, Mitchell & Company (Peat, Marwick), a firm which had audited the Association in 1971, 1972 and 1973, as a defendant. An amended unified petition was filed charging Peat, Marwick with various breaches of duty in the conduct of the audits. Peat, Marwick responded with a motion to dismiss alleging laches, improper joinder and failure to state a claim.
At the same time, there was an attempt to initiate discovery against Peat, Marwick on behalf of a purported “plaintiff class.” Peat, Marwick resisted on the grounds that no such class existed on the claims being asserted against it. Plaintiff depositors filed a motion to compel discovery but the district court held that because Peat, Marwick was not a party at the time the class was certified, it was not bound by the earlier class action certification. The court then set December 13, 1979, for a hearing on the class action certification issue with respect to the claims asserted against Peat, Marwick. In the interim, however, on November 28, 1979, the court heard argument on Peat, Marwick’s motion to dismiss the claims against it. Because of the likelihood of the motion being sustained, the district court cancelled the previously scheduled class certification hearing and stayed class action discovery pending a ruling on the motion to dismiss.
On January 15, 1980, the court issued a memorandum decision dismissing all claims as to Peat, Marwick. The court held that the applicable statute of limitations barred plaintiffs’ claims against Peat, Marwick and judgment was entered pursuant to K.S.A. 60-254(b). This appeal was then taken from the grant of the motion to dismiss.
On March 10, 1980, defendant Peat, Marwick moved to dismiss this appeal contending that the court lacked jurisdiction because the notice of appeal was defective. This motion was denied with leave to renew the issue in a brief on the merits. In renewing its motion, defendant contends that the notice of appeal fails to confer jurisdiction upon this court because (1) the “plaintiff class” named as an appealing party in the notice does not exist with reference to this defendant and (2) the attorneys signing the notice were not authorized by Kansas Savings and Loan Association (now Century Savings Association) to bring an appeal.
The notice of appeal states:
“Notice is hereby given that the plaintiff class and plaintiff Kansas Savings and Loan Association appeal from that part of the District Court’s Memorandum Decision dated January 15, 1980, which granted defendant Peat, Marwick, Mitchell & Company’s motion to dismiss to the Court of Appeals of the State of Kansas.”
The notice is signed by Thomas E. Ruzicka and Randolph G. Willis on behalf of their law firm, and a Kansas City, Missouri, firm is indicated as being “of counsel.” There is no indication that signing counsel are attorneys for any particular party. The inference from this omission, if one can be drawn, is that they are attorneys for both parties taking the appeal.
Initially, defendant contends that there is no such party as the “plaintiff class.” We agree.
Our class action statute, K.S.A. 1980 Supp. 60-223, is patterned after Fed. R. of Civ. P. 23 and decisions of the federal courts interpreting that rule are traditionally followed in this jurisdiction. Steele v. Security Benefit Life Ins. Co., 226 Kan. 631, 636, 602 P.2d 1305 (1979). Rule 23 and K.S.A. 1980 Supp. 60-223 require a determination of whether a class may be certified “[a]s soon as practicable” after the commencement of the action. In its November 15, 1979, journal entry the trial court found that “the certification of this case as a class action does not apply to defendant Peat, Marwick.” The trial court then set a hearing on the propriety of certification of the claims asserted against Peat, Marwick by the alleged plaintiff class for December 13, 1979. The fact that this certification hearing never took place is reflected in the trial court’s memorandum decision dated January 15, 1980. There the court said: “The matter is a class action which has heretofore been certified a class action as to all defendants, excepting defendant Peat, Marwick & Mitchell. ” (Emphasis supplied.) Therefore, regardless of the reference in the notice of appeal, no “plaintiff class” was certified as to defendant Peat, Marwick at the time that this appeal was taken.
Absent class certification, a final decision is not binding on a class; therefore, an appeal from a decision on the merits without prior class certification will be treated as an appeal by the named plaintiffs only and not as a class action. Pharo v. Smith, 621 F.2d 656 (5th Cir. 1980); Shirley v. Chestnut, 603 F.2d 805 (10th Cir. 1979); Roberts v. American Airlines, Inc., 526 F.2d 757 (7th Cir. 1975), cert. denied 425 U.S. 951 (1976). Here, however, the only parties named in the notice of appeal were the nonexistent plaintiff class and Kansas Savings and Loan Association.
K.S.A. 60-2103(b) provides in part:
“The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken.” (Emphasis supplied.)
Appellants contend that this statute should not be strictly applied to bar their appeal. However, appellate jurisdiction is conferred by statute and in the absence of compliance with statutory rules, an appeal should be dismissed. Brown v. Brown, 218 Kan. 34, Syl. ¶ 1, 542 P.2d 332 (1975). Thus, for example, an untimely notice of appeal will compel dismissal. Giles v. Russell, 222 Kan. 629, 632, 567 P.2d 845 (1977). Moreover, in Sloan v. Sheridan, 161 Kan. 425, 426-27, 168 P.2d 545 (1946), our Supreme Court rejected the argument that a party who was not named in the notice of appeal, either directly or by inference, could still be regarded as an appellant. The federal courts have similarly ruled, noting that only the parties named in the notice of appeal are brought within the appellate court’s jurisdiction. Cook and Sons Equipment, Inc. v. Killen, 277 F.2d 607 (9th Cir. 1960). Furthermore, the taking of an appeal by a nonexistent party is not harmless error. Penwell v. Newland, 180 F.2d 551 (9th Cir. 1950). Because the “plaintiff class” was not certified it did not exist and could not take an appeal. We therefore conclude that unless this appeal was properly filed by the other party named in the notice of appeal, this court is without jurisdiction.
We now turn to defendant’s claim that the Kansas Savings and Loan Association (now Century Savings Association) did not authorize an appeal in this case and may not be regarded as a proper party on appeal.
Our examination of the record indicates that Peat, Marwick was added as a defendant on February 16, 1979, and that subsequent to that date, Kansas Savings and Loan Association/Century Savings was represented by Donald R. Hoffman. At the October 23, 1979, hearing, Mr. Hoffman made the following statements:
“MR. HOFFMAN: While we are all together, my name is Donald Hoffman. I represent Century Savings.
“THE COURT: Who?
“MR. HOFFMAN: For benefit of all counsel, Century is still in this as a defendant on some counterclaims that were filed. I would appreciate being supplied with all the pleadings and materials to make sure that I am on the service list because I think that I am not at the present time. I am getting your material, yes, sir (indicating to Mr. Feldmiller).”
Other incidents which directly or indirectly relate to the representation of KSLA can be summarized as follows: At the December 7, 1979, hearing Mr. Roger Hendrix stated that Mr. Hoffman still represented Kansas Savings and Loan/Century Savings, and Mr. Hutton, who was the trustee in this matter. Mr. Hutton informed this court by letter (filed October 17, 1980) that the Association was not asserting any claim against Peat, Mar-wick, Mitchell & Company and that “no such appeal was authorized by Kansas Savings and Loan Association or Century Savings.” The letter further stated that KSLA had agreed to cooperate with the individual plaintiffs and their counsel, but had not “retained said lawyers to represent it in this appeal and no appeal on its behalf was authorized.” Subsequently, in response to an order of this court dated November 6, 1980, Mr. Hoffman, as attorney for Century Savings, filed a resolution of a special Board of Directors meeting held on April 7, 1981. The resolution gives general authority to Donald R. Hoffman, Thomas E. Ruzicka and Randolph G. Willis to represent the interests of the Association and to argue on its behalf in the pending appeal. However, we fail to find that any specific authority was given to initiate an appeal on behalf of KSLA. Therefore, we conclude that KSLA did not authorize the purported appeal and may not be considered a proper party in this appeal.
For the reasons set forth above, the appeal is dismissed for lack of jurisdiction.
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Prager, J.:
The basic issue presented in this case is whether a certain joint and mutual will is also contractual. The parties to the action are Junior Zahradnik, appellant, and Gordon L. Zahradnik, appellee. They are brothers and the only children of the testators, Emil H. Zahradnik and his wife, Georgina B. Zahradnik. On November 28, 1973, Emil and Georgina executed a joint and mutual will which provided as follows:
“I, EMIL H. ZAHRADNIK, and I, GEORGINA B. ZARADNIK, husband and wife, of Ellsworth County, Kansas, each of us and both of us being of sound and disposing mind and memory and not under any restraint and realizing the uncertainty of life and the certainty of death, and wishing to direct how our property shall be distributed on our respective deaths, do hereby make, publish and declare this to be our last will and testament, and hereby revoke any and all former wills by us or either of us heretofore made.
“FIRST; It is the will and desire of each of us and of both of us that our just debts and funeral expenses be paid by our executor without first having them allowed by the probate court.
“SECOND: It is the mutual will and desire of each of us and the mutual will and desire of both of us that on the death of either of us all of the property, of every kind and nature whatsoever including both real and personal, of the first deceased party shall descend to and become the sole and separate property of the survivor to Be Bis or hers absolutely.
“THIRD: Upon the death of the survivor we give and bequeath to each of our grandchildren then living the sum of Five Hundred Dollars ($500.00).
“FOURTH: All the rest, residue and remainder of our estates we hereby give, devise and bequeath to our two sons, Junior Zahradnik and Gordon L. Zahradnik, in equal shares, provided that there shall be charged against the share of each of such children the amount due on notes given by them to us which have not been paid at the time of the death of the survivor.
“FIFTH: We hereby constitute and appoint the survivor as executor of this our last will and testament and direct that no bond be required of such survivor. On the death of the survivor we hereby constitute and appoint Junior Zahradnik and Gordon L. Zahradnik as executors of this our last will and testament and direct that no bond be required of them, or either of them in the event one shall be unable to serve for any reason.
“IN TESTIMONY WHEREOF, we have each subscribed our names in the presence of witnesses and declared the same to be our last will and testament, this 28th day of November, 1973.
‘7s/ Emil H. Zahradnik Testator
“/s/ Georgina B. Zahradnik Testatrix”
Emil died on November 11, 1975, and his estate was probated in Ellsworth County. No controversy arose in the administration of his estate. Under the terms of the will and by virtue of being the surviving joint tenant of certain property, Georgina inherited all of the property. Thereafter, it appears that Georgina and her son, Junior Zahradnik, became estranged. Georgina proceeded to create a revocable inter vivos trust which provided, in substance, that upon her death the trust property should vest in her other son, Gordon, the appellee. The effect of the inter vivos trust was to defeat the provisions of the joint and mutual will executed in 1973 by enabling Gordon Zahradnik to inherit Georgina’s property.
Georgina Zahradnik died on September 11, 1978, survived by Gordon and Junior. Junior Zahradnik filed a petition for the probate of the joint will as Georgina’s will. Gordon Zahradnik petitioned for certification of the case to the district court from the district magistrate on statutory grounds. The case was so certified, and a hearing was held on the petition to admit the will to probate. Gordon Zahradnik’s position was that he had no objection to the admission of the will to probate as Georgina’s will, but that there was no property for the will to act upon, because the will was not contractual and Georgina Zahradnik had transferred during her lifetime all of her property to the inter vivos trust or to joint tenancies. The district court admitted the will to probate and then summarily decided that it should determine as a matter of law whether or not the will was contractual. The district court directed the parties to file briefs on the issue. It did not afford either of the parties a hearing or an opportunity to present evidence on the intent of the testators. Memorandum briefs were filed. The appellant, Junior Zahradnik, contended that the joint and mutual will of his parents was contractual. Gordon Zahradnik contended that it was not. Thereafter, the trial court filed its memorandum decision holding that the will was joint and mutual, but not contractual. It appears that the trial court relied upon the second paragraph of the joint will, noting that, since Georgina, as the survivor, became the owner of all of the property absolutely at Emil’s death, the will was not ambiguous and, further, that it was not contractual as a matter of law. Junior Zahradnik has appealed that determination to this court.
Before proceeding with a determination of the appeal on its merits, we must first consider a challenge to appellate jurisdiction. The appellee has filed motions for involuntary dismissal, claiming lack of appellate jurisdiction on two grounds: (1) Failure of appellant to file an appeal bond, and (2) failure of appellant to serve notice of appeal on all interested parties. Essentially, it is the position of the appellee that the court of appeals is without jurisdiction, because no appeal bond was furnished within 30 days from the date of the final judgment, relying on K.S.A. 1980 Supp. 59-2401(b) and 60-2103. The record shows that the journal entry and notice of appeal were both filed on December 5, 1979. On April 18, 1980, appellee filed a motion under Rule 5.05 (225 Kan. xl-xli) for involuntary dismissal for lack of appellate jurisdiction because appellant had failed to file an appeal bond. Appellant responded on April 21, 1980, denying the necessity of filing such a bond, and alternatively, requesting permission to file an appeal bond. Permission was granted and the appeal bond was filed on October 3, 1980.
In order to determine this issue, we must consider several statutes. K.S.A. 1980 Supp. 59-2401(b) and (c) provide as follows:
“(b) Notwithstanding the provisions of K.S.A. 60-2103, and any amendments thereto, relating to bonds, the appellant, other than the state or municipality or a fiduciary appealing on behalf of the estate, shall file in the court from which the appeal is taken a bond in such sum and with such sureties as may be fixed and approved by the court, conditioned that said appellant will without unnecessary delay prosecute the appeal and pay all sums, damages and costs that may be adjudged against said appellant.
“(c) Except as otherwise provided in this section, appeals taken pursuant to this section shall be taken in the manner provided by chapter 60 of the Kansas Statutes Annotated for other civil cases.”
K.S.A. 60-2103 provides in part as follows:
“(a) When and how taken. When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, as provided by K.S.A. 60-258 ... .
“A party may appeal from a judgment by filing with the clerk of the district court a notice of appeal. Failure of the appellant to take any of the further steps to secure the review of the judgment appealed from does not affect the validity of the appeal, but is ground only for such remedies as are specified in this chapter, or when no remedy is specified, for such action as the appellate court having jurisdiction over the appeal deems appropriate, which may include dismissal of the appeal. . . .
“(d) Supersedeas bond. Whenever an appellant entitled thereto desires a stay on appeal, he or she may present to the district court for its approval a supersedeas bond which shall have such surety or sureties as the court requires. The bond shall be conditioned for the satisfaction of the judgment in full together with costs, interest, and damages for delay, if for any reason the appeal is dismissed, or if the judgment is affirmed, and to satisfy in full such modification of the judgment such costs, interest, and damages as the appellate court may adjudge and award.
“(e) Failure to file or insufficiency of bond. If a supersedeas bond is not filed within the time specified, or if the bond filed is found insufficient, and if the action is not yet docketed with the appellate court, a bond may be filed at such time before the action is so docketed as may be fixed by the district court. After the action is so docketed, application for leave to file a bond may be made only in the appellate court.”
K.S.A. 1980 Supp. 60-2103a provides as follows:
“Appeals from district magistrate judges, (a) In actions commenced in the district courts of this state all appeals from orders or final decisions of a district magistrate judge shall be heard by a district judge or associate district judge. Except as otherwise provided by law, such appeals shall be taken by notice of appeal specifying the order or decision complained of and shall be filed with the clerk of the district court within ten (10) days after the entry of such order or decision. The notice of appeal shall specify the party or parties taking the appeal; shall designate the order or decision appealed from; and shall state that such appeal is being taken from an order or decision of a district magistrate judge. The appealing party shall cause notice of the appeal to be served upon all of the parties to the action in accordance with the provisions of K.S.A. 60-205. Upon filing the notice of appeal, the appeal shall be deemed perfected.
“(b) Except as otherwise provided by law or rule of the supreme court, the provisions of subsections (b) to (i) of K.S.A. 60-2103, and any amendments thereto, shall be applicable to appeals from orders and decisions of district magistrate judges.” (Emphasis supplied.)
K.S.A. 1980 Supp. 59-2401(b) requires that when an appeal is taken in a probate matter under chapter 59, the appellant is required to file an appeal bond to be fixed and approved by the court. In re Estate of Kempkes, 4 Kan. App. 2d 154, 159, 603 P.2d 642 (1979). Prior to court unification, chapter 60 appellate procedures were not applicable to probate appeals under 59-2401. In re Estate of Parker, 201 Kan. 1, 4-5, 439 P.2d 138 (1968). In 1977, 59-2401 was amended to provide that probate appeals under 59-2401 were also to be governed by chapter 60. After unification, the rules of appellate procedure set forth in 60-2103 became applicable to appeals in probate proceedings appealed under K.S.A. 1980 Supp. 59-2401(a). See In re Estate of Burns, 227 Kan. 573, 575, 608 P.2d 942 (1980). In 1977, K.S.A. (now 1980 Supp.) 60-2103a was enacted to govern appeals from district magistrate judges to a district judge or associate district judge, which would include probate appeals under chapter 59. That statute provides that such appeals shall be taken by notice of appeal filed with the clerk of the district court within ten days after the entry of the order or decision complained of. 60-2103a then states unequivocally that, upon filing the notice of appeal, the appeal shall be deemed perfected. There is nothing in that statute which declares that the appeal bond, required by 59-2401(b), must be filed within the ten-day period in order for the appeal to be perfected. Stated in another way, when we read the three statutes set forth above together, it is clear to us that, although the filing of an appeal bond is required by K.S.A. 1980 Supp. 59-2401(b) in an appeal of a probate matter, the filing of such a bond is not jurisdictional and it may be filed after the appeal has been taken on order of the court.
In In re Lakeview Gardens, 227 Kan. 161, 167, 605 P.2d 576 (1980), the Supreme Court held that, under Kansas appellate practice, although timely filing of notice of appeal is jurisdictional, failure to strictly comply with other prerequisites for appeal is not jurisdictional where no prejudice results. In the case now before us, prejudice because of the late filing of the appeal bond is neither alleged nor apparent, and therefore is not sufficient to defeat appellate jurisdiction. There is a marked similarity of purpose between the probate appeal bond required by 59- 2401(b) and the supersedeas bond required by K.S.A. 60-2103(d). The bond required under chapter 59 is to assure that “appellant will without unnecessary delay prosecute the appeal and pay all sums, damages and costs that may be adjudged against said appellant.” Similarly, the purpose of the supersedeas bond under 60-2103(d) is to assure satisfaction of the judgment together with costs, interest, and damages for delay. Under 60-2103(e), a supersedeas bond which is not timely filed may nonetheless be filed upon leave of the appellate court. The late filing of an appeal bond may also be allowed by the appellate court as in the present case. A dismissal of an appeal under Rule No. 5.05 (225 Kan. xl-xli) is within the appellate court’s discretion. Carson v. Eberth, 3 Kan. App. 2d 183, 185, 592 P.2d 113 (1979). Denial of an appeal on technical procedural grounds is not favored, and it should not serve as the basis for dismissing the appeal if the interests of justice dictate otherwise. Kansas Bankers Surety Co. v. Scott, 225 Kan. 200, 202, 589 P.2d 575 (1979). Under all the circumstances in this case, we hold that the late filing of the appeal bond by the appellant did not deprive this court of appellate jurisdiction and should not result in the mandatory dismissal of the appeal.
The appellee also challenges the jurisdiction of this court by an additional motion to dismiss the appeal alleging that the appellant failed to serve notice of the appeal on all interested parties. Appellee maintains that, because appellant seeks to enforce the terms of the will, the joint owners of certificates of deposit purchased by Georgina before her death should have been served with a copy of the notice of appeal. Under the circumstances of this case, the joint owners of the certificate of deposit were not entitled to notice of the appeal. They were not parties in the case at the time the judgment was rendered. Furthermore, their property interests will not be affected by the outcome of this appeal because both parties have stipulated and agreed to the distribution of the certificates of deposit to the surviving joint owners. The only property to be affected by this appeal is the trust property, title to which is disputed only by appellant and the appellee, who was given proper notice of the appeal. Thus, we find the contention of appellee that lack of notice to others defeats appellate jurisdiction is without merit.
We turn now to the issue raised on the appeal — whether the joint and mutual will executed by Emil and Georgina Zahradnik was contractual in nature so as to preclude the devolution of Georgina Zahradnik’s property to her son Gordon by the creation of the inter vivos trust. The basic issue presented in this case has arisen many times down through the years. Justice Fontron, speaking for the Supreme Court in In re Estate of Chronister, 203 Kan. 366, 454 P.2d 438 (1969), succinctly summarized the following rules applied in prior decisions where wills were claimed to be contractual:
“(X) Whether a will is contractual, be it a joint will or one of separate wills, is a question of fact which must be established by proof.
“(2) The mere fact that a will is joint does not in and of itself establish it to be the result of a pre-existing agreement.
“(3) A joint and mutual will and the terms and provisions thereof, may be considered sufficient as circumstantial evidence to establish that it was executed pursuant to an agreement.
“(4) Where a joint will shows on its face by the terms and provisions thereof that it is contractual in character, extrinsic evidence is not admissible for the purpose of proving otherwise.
“(5) Where there is ambiguity from the language used in a joint will as to whether or not it is based on a contract, extrinsic evidence is admissible to establish either the existence or nonexistence of a contract.” (p. 372.)
These basic principles were recognized and followed in In re Estate of Thompson, 206 Kan. 288, 478 P.2d 174 (1970); Reznik v. McKee, Trustee, 216 Kan. 659, 673, 534 P.2d 243 (1975).
We must first consider whether or not the joint and mutual will involved here is ambiguous. In In re Estate of Chronister, 203 Kan. at 374, and later in Theimer v. Crawford, 224 Kan. 586, 589, 582 P.2d 1151 (1978), the rule for determining whether a will is ambiguous is stated as follows: The critical test in determining whether a will is ambiguous is whether the intention of the testator or testatrix can be determined from the four corners of the instrument itself. If the testamentary intention can be gleaned from the face of the will, ambiguity does not exist; otherwise it does. Here the district court found the will not to be ambiguous and then held, as a matter of law, that the will was not contractual. The effect of this ruling was to preclude any of the parties, particularly the appellant, from introducing testimony of the scrivener of the will and of other witnesses to establish whether or not there was a preexisting contract between Emil and Georgina Zahradnik that the property of the parties would ultimately pass to their two sons in accordance with the provisions of the joint will.
The joint and mutual will of Emil and Georgina Zahradnik contains no clearly expressed intent of the parties to be bound thereby. There is no presumption that a joint and mutual will is contractual in the absence of evidence to support a finding that the testators intended to contract and be bound thereby. In re Estate of Wade, 202 Kan. 380, 389, 449 P.2d 488 (1969). The intent of the testators to contract to be bound by a joint and mutual will need not be expressly recited, but may be determined circumstantially by other expressions used in the will. The Supreme Court has held that language indicating the testators’ joint intent to be contractually bound by a joint and mutual will include the following:
(1) A provision in the will for a distribution of property on the death of the survivor;
(2) a carefully drawn provision for the disposition of any share in case of a lapsed residuary bequest;
(3) the use of plural pronouns;
(4) joinder and consent language;
(5) the identical distribution of property upon the death of the survivor;
(6) joint revocation of former wills; and
(7) consideration, such as mutual promises.
Reznik v. McKee, Trustee, 216 Kan. at 674-78; In re Estate of Thompson, 206 Kan. at 291; In re Estate of Chronister, 203 Kan. at 369-71; In re Estate of Wade, 202 Kan. at 390.
The will now before us contains no clear expression of the parties’ intent to be bound. Nor is there joinder or consent language. The other factors demonstrating the intent to be bound are present, however. There is a provision for the distribution of property and the appointment of executor on the death of the survivor. There is a joint revocation of prior wills. There is identical distribution of property and the use of plural pronouns throughout the document. The only provision to the contrary is the language in paragraph two, that upon the death of one, “all of the property, of every kind and nature whatsoever including both real and personal . . . shall descend to . . . the survivor to be his or hers absolutely.” (Emphasis supplied.)
In In re Estate of Chronister, 203 Kan. 366, the Supreme Court upheld a trial court finding that a will which contained plural pronouns and provisions for the disposition of property on the death of the survivor, was contractual despite the devise of property to the survivor “forever.” Other Kansas cases have been more definitive, and have held wills to be contractual despite language purporting to convey to the survivor the fee or absolute title to real and personal property. In In re Estate of Tompkins, 195 Kan. 467, 407 P.2d 545 (1965), the will provided that all property, whether jointly or separately held by either of the testators, was devised and bequeathed to the survivor “with right of disposal.” It was held that the will was contractual despite the language used. Likewise, In re Estate of Jones, 189 Kan. 34, 366 P.2d 792 (1961), held that the joint and mutual will was contractual in nature despite a provision in the will that the property was to pass to the survivor “absolutely and without reservations” and, at the death of the survivor, all property thus possessed to be divided equally between the three children of the testator.
In Tompkins, it was held that extrinsic evidence was admissible to establish that the will was either contractual or noncontractual. There the testimony of the scrivener concerning his conversations with the testators was admitted. In Jones, the will was held to be contractual on the basis of the written instrument alone, since neither of the parties offered evidence on the issue. Having considered the cases cited above, we have concluded that the language used in the joint and mutual will before us in this case is ambiguous and that the parties were entitled to present evidence to establish the existence or nonexistence of a preexisting contract. We hold the district court erred in holding, as a matter of law, that the will was not contractual without affording to the appellant an opportunity to present evidence on that issue. The case, therefore, must be reversed and remanded to the district court with instructions to hold a hearing and to permit the parties to present relevant evidence on the factual issue of whether the Zahradniks’ joint will was based upon a preexisting contract. Having received that evidence, the court will then be in a position to determine the factual issue on the basis of the language used in the will plus any evidence which is presented by the parties.
The appellee presents two new issues which were not raised or determined in the trial court. These issues are not properly before the court on this appeal and will not be determined.
For the reasons set forth above, the judgment of the district court is reversed. The case is remanded for an evidentiary hearing and determination of the factual issue whether the will involved in this case is contractual or noncontractual.
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Brazil, J.:
Defendants appeal from a judgment which held that plaintiffs had a right-of-way across defendants’ land. The court further held that plaintiffs’ use of the easement for ingress and egress to plaintiffs’ residence was consistent with the prior use of the roadway reserved by grant or established by prescription.
The facts are not in dispute and both parties adopted the trial court’s findings of fact for their briefs. The critical facts can be summarized as follows:
There are three tracts of land involved in this case: (1) the Nelson land; (2) the Wells land—to the east of the Nelson tract; and (3) the Allingham land which is south of the Wells and Nelson tract.
Until 1945, Wells owned both the Nelson tract and his own; at that time, F. E. Wells conveyed the western 110 acres to Herbert Nelson, “Excepting and reserving unto said Grantors, their heirs or assigns, a right of way along the East side of said above described real estate and as near to the East side thereof as possible.”
At the time of the 1945 conveyance, the Allingham property was owned by H. E. Nolder. F. E. Wells leased this property as pasture for his cattle. Both Wells and Nolder had traditionally used the private right-of-way across the Nelson tract to drive their cattle to Highway 24.
F. E. Wells conveyed his interest in the eastern tract to his son, Donald, in 1951. Donald continued to lease the (Nolder-Allingham) property until 1963.
The Allinghams acquired the Nolder property in 1967 and built a residence on it.
In 1960, Herbert Nelson conveyed his tract to his son and daughter-in-law, Dallas and Evelyn Nelson.
In 1967, F. E. Wells executed a document which purported to assign the right-of-way reserved in the 1945 conveyance to Donald Wells and to the Nolders.
After acquiring the property from the Nolders, the Allinghams tried to get the Nelsons to recognize the assignment of 1967; the Nelsons refused to do so.
In February, 1968, the Allinghams and the Nelsons signed a license agreement which for the sum of $100 per year allowed the Allinghams to use the right-of-way across the Nelson property. This agreement remained in effect for eight years until there was a dispute over the Allinghams’ use of the right-of-way.
In 1974, Donald Wells granted a right-of-way to KP&L to service a substation on the Wells’ property.
The first question to consider is whether or not the Allinghams acquired an easement over the Nelson land as a result of the reservation in the 1945 deed from F. E. Wells to Herbert Nelson.
The trial judge ruled that the reservation of the right-of-way created either an easement appurtenant or an easement in gross. As a definition of easement appurtenant, the trial judge used the following language from Smith v. Harris, 181 Kan. 237, 311 P.2d 325 (1957):
“ ‘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. It is in the nature of a covenant running with the land, 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 . . . ” p. 247.
On the other hand an easement in gross is “a mere personal interest in or right to use land of another. It is not supported by dominant estate, but it is attached to, invested in, the person to whom it is granted.” 25 Am. Jur. 2d, Easements and Licenses § 12, pp. 426-27 (1966).
“Whether an easement in a given case is appurtenant or in gross depends mainly on the nature of the right and the intention of the parties creating it. If the easement is in its nature an appropriate and useful adjunct of the land conveyed, having in view the intention of the parties as to its use, and there is nothing to show that the parties intended it to be a mere personal right, it should be held to be an easement appurtenant and not an easement in gross. Easements in gross are not favored by the courts, however, and an easement will never be presumed as personal when it may fairly be construed as appurtenant to some other estate. If doubt exists as to its real nature, an easement is presumed to be appurtenant, and not in gross.” § 13, p. 427.
In this case Wells conveyed a portion of his land to Nelson and retained the balance. It is obvious that the easement reserved by Wells was for his use and enjoyment in connection with the balance of his land and there are no words in the reservation which would express an intention that this easement was one totally personal to Wells apart from his land. This is a perfect example of the reservation of a right-of-way for the purpose of serving the dominant estate held by the grantor.
In fact, both parties and the trial court agreed there is little doubt that the reservation of the right-of-way created an easement appurtenant to the Wells tract as the dominant estate. However, the trial court extended the boundary of the dominant estate to include the Nolder-Allingham tract in which F. E. Wells had a leasehold. The court concluded that the leasehold was a sufficient possessory interest to imply that it could be part of the dominant estate. See 2 Thompson on Real Property, Easements § 317, pp. 26-27 (1980 Replacement), which states:
“The only person who may grant a permanent easement is the owner of the land in fee. One who owns an estate less than the fee, such as an equitable estate or an estate for years, cannot, of course, grant a permanent easement, but only an easement to continue during the time his estate may continue. . .
“A tenant for years, having exclusive possession, may create an easement of way during the continuance of his terms, but such easement will terminate when the tenancy terminates. . . . This rule applies to an easement or right-of-way of necessity as well as one founded on an express grant. . . . The owner of an estate for years may grant a right of passage over the land demised which will have all the qualities of an easement during the remainder of his term, but will cease upon its expiration.”
In chapter 13, “Creation of Easements,” Thompson states:
“A reservation of an easement is not operative in favor of land not described in the conveyance. . . .
“Technically a grantor cannot except or reserve in the deed an interest which he does not himself own at the time of the deed.” pp. 138-39.
“An easement can be used only in connection with the estate to which it is appurtenant and cannot be extended by the owner to any other property which he may then own or afterward acquire, unless so provided in the instrument by which the easement is created; and the fact that such property is within the same inclosure [sic] as the lot to which the easement is appurtenant makes no difference in the application of the rule.” 28 C.J.S., Easements § 92, pp. 772-73.
The purpose of the rule is to prevent an increase of the burden on the servient estate. Miller v. Weingart, 317 Ill. 179, 183, 147 N.E. 804 (1925).
We have concluded that the 1945 deed created an easement appurtenant that ran only to the tract Wells retained as owner; that the Nolder-Allingham property was not part of the dominant estate.
Having concluded the 1945 deed created no easement in favor of the Allinghams or their predecessors in title, we next consider whether they have acquired an easement by prescription.
The trial court, in view of its findings that there was either an easement appurtenant or easement in gross, commented that “resolution of the (prescriptive easement) issue is probably not necessary.” However, the court briefly addressed the issue and adopted the authorities cited by the Allinghams in their suggested conclusions of law. The trial court held:
“[0]ne must conclude that a prescriptive right may be acquired in the same manner as an interest in land acquired by adverse possession. The claim of right or belief in ownership based on the reservation was present rather than a hostile claim. The requisite openness, continuity, and exclusiveness existed in the plaintiffs’ predecessors to satisfy the provisions of K.S.A. 60-503 as amended.”
As the trial judge points out, the elements necessary to establish a prescriptive easement are drawn from the law of adverse possession. Traditionally, the distinction between prescriptive easements and adverse possession has been described by 2 Thompson on Real Property as follows:
“Adverse possession denotes title acquired by the manner of possession, while a prescriptive easement is a nonexclusive right acquired by the manner of use.” p. 191.
In Kansas, however, the distinction has been blurred somewhat, and the cases on prescriptive easements use the statute of adverse possession (K.S.A. 60-503) as a basis for evaluating claims. That statute reads:
“60-503. Adverse possession. No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years.”
See Armstrong v. Cities Service Gas Co., 210 Kan. 298, 502 P.2d 672 (1972); Stark v. Stanhope, 206 Kan. 428, 480 P.2d 72 (1971); Renensland v. Ellenberger, 1 Kan. App. 2d 659, 574 P.2d 217 (1977).
In examining the record, there is evidence that the right-of-way was used openly and continuously by the former owners and lessees of the Allingham tract. An affidavit of Lester Frey, predecessor in title to H. E. Nolder, stated that the use of the right-of-way to drive cattle was “continuous and unimpeded” from 1919 until 1944. Donald Wells testified that from 1944 until 1963, he used the right-of-way to drive cattle, as did Nolder, his landlord. Wells also testified that Lee Walters, a tenant who leased the land from 1963 until 1967, when the Allinghams acquired it, also used the right-of-way to drive his cattle to Highway 24. The defendant, Dallas Nelson, testified that the use of the right-of-way was unimpeded from 1944 on; the Allingham tract and the right-of-way to it were historically used for livestock operations, according to Nelson.
The only interruption of the use seems to have been from 1968-1976, when the Allinghams used the right-of-way by virtue of a license agreement with the Nelsons, and the period thereafter when the license agreement was terminated.
As to exclusive use, there was evidence that the public sometimes used the right-of-way as an access for picnicking, but this use was discouraged by the Nelsons and the Allinghams. There was also some use by KP&L which involved going to and from a substation on the Wells property. There is no serious contention on appeal by either party, however, that the use of the property by the Allinghams and their predecessors was not exclusive.
The disputed element is that of use under “a claim knowingly adverse or under a belief of ownership.” K.S.A. 60-503. The trial court found the right-of-way was used “under a belief of ownership.”
This element represents a change in the statute on adverse possession. The prior statute, G.S. 1949, 60-304 Fourth, represented the traditional adverse possession which required a showing of hostile or adverse use. The change expected by the amendment of the statute in 1963 is extensively discussed in Stark v. Stanhope, 206 Kan. at 432-33. Pertinent parts of that discussion are included below:
“The section became effective January 1, 1964, and amended G.S. 1949 60-304, Fourth. Formerly, the elements of the possession were required to be ‘notorious’ and ‘hostile,’ but the new section eliminated the element of hostility as essential of adverse possession and changed the common-law conception of the doctrine. It is still necessary, however, to succeed on a claim of title by adverse possession, that the possession shall have been ‘open, exclusive and continuous’ for the statutory period. In lieu of an adverse or hostile holding, the claim may be based on, as the appellant testified, ‘a belief of ownership.’ In his commentary on Kansas Code of Civil Procedure, Judge Gard states the belief of owner concept may present some difficulties as it makes the belief of the possessory claimant, a relevant matter; that belief is a state of mind, whereas hostile holding involves an intent, and belief is distinct from intent; that they are not synonymous, and unless the claimant has made statements to someone evidencing a contrary mental attitude, it is difficult to challenge effectively the testimony of a person as to his belief. (Gard, Kansas Code of Civil Procedure, Annotated, § 60-503, p. 522.)
“In a Vernon’s Kansas Statutes Annotated, Code of Civil Procedure (Fowks, Harvey, Thomas) it is stated that Professor Melvin C. Poland wrote the authors’ comments concerning Section 60-503, pp. 6 and 7. In his commentary, Professor Poland refers to the Advisory Committee’s notes where it stated that this section ‘changes the common law principles of adverse possession as pronounced by the Kansas Supreme Court.’ He further states:
“ ‘In the language of the statute “belief of ownership” has been substituted for the common law element of “hostile” holding. It may be assumed the change will make it more difficult to challenge the character of the holding, belief being a state of mind whereas hostile holding involves an intent, normally evidenced by overt acts or statements in respect to such holding. While it may be argued that legislation should not be designated to make acquisition, by a possible criminal act, of ownership of property easier to obtain, it must be admitted that the two-fold policy behind statutes of limitation (the curtailment of stale claims, and the rewarding of the individual who has made beneficial and productive use of the land over a long period of time) will be accomplished more often under the new concept of “belief of ownership” established by the statute.
“ ‘Belief of ownership as a substitute for “hostile” holding is not without limitation. In cases where there has been an admission or recognition of doubt or uncertainty as to the true boundary line the requisite “belief of ownership” does not exist under the statute. Further, it must be recognized that in cases where possession has been “under a claim knowingly adverse” hostility remains an essential element. . . .’ (p. 7) (Emphasis supplied.)”
In this case, as in the Stark case and the Armstrong case, the difficulty is in evaluating the “belief of ownership.” Here, the owners or tenants of the Allingham tract who testified stated that the historic usage of the right-of-way was for driving cattle; there is no testimony that any of them believed that they had a right to the easement. It is very difficult to distinguish between a permissive use, which does not become an easement, no matter how long it continues, and a “belief of ownership” which would support a prescriptive use. The cases cited since the 1963 amendment do not give much assistance in making the distinction.
A review of the record reveals evidence relevant to this element: the Frey affidavit which describes the use of the right-of-way until 1944; Donald Wells’ testimony on the historic use of the Nolder-Allingham property and the right-of-way; Dallas Nelson’s testimony that he had never told Mr. Nolder whether he could or could not use the right-of-way; Nelson’s statement that he only recognized the historic use of the right-of-way for moving livestock.
Testimony that may cut against the interpretation of “belief of ownership” is Nelson’s testimony that Nolder did some work on the Nelson property in exchange for the use of the right-of-way. This testimony lends itself to the permissive use or license interpretation. The licensing agreement with the Allinghams also indicates the use may have been merely permissive.
The defendants point out the burden of establishing the elements of prescription is on the plaintiffs, the Allinghams, and the elements must be established by “clear, convincing and satisfactory evidence.” Fiest v. Steere, 175 Kan. 1, 6, 259 P.2d 140 (1953).
Finally, we consider the question of whether the present use of the right-of-way by the Allinghams is consistent with the use established by prescription. This issue, as with the issue of prescriptive easement is hampered by rather scanty findings of fact by the trial court. The trial judge held that:
“[T]he plaintiffs’ use, if acquired by prescription, would be a use consistent with and similar in kind to the use made by the plaintiffs’ predecessors in title which was access to and from the tract. As noted, that use is being made by the plaintiffs, although probably with greater frequency than the Freys, Nolder, Wells, and Walters.”
There is almost no real evidence on this issue in the record, other than the comment that the Allinghams have now built a home on the tract and use the right-of-way to get to and from their home. Mr. Fick, counsel for the defendants, argues that the expanded use is unreasonable, but there is little, if any, testimony on the expanded use.
The trial judge’s reluctance to rule on this point was based on his belief that making further findings on this issue was unnecessary in view of his findings that the easement was by reservation, not prescription. We thus find it necessary to reverse and remand this case for further findings of fact. The trial court should afford the parties an opportunity to present evidence pursuant to K.S.A. 60-252 on the issue of the existence of a prescriptive easement and if that easement is determined to exist to determine if the Allinghams have expanded the use of that easement.
Reversed and remanded with directions.
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Herd, J.:
This case involves a child custody dispute following the divorce of Carol and Charles Eastman. Charles Eastman appeals from a trial court’s ruling denying him access to the results of a home study investigative report, ordered pursuant to K.S.A. 1978 Supp. 60-1607(a)(5). We reverse and remand this case and order that the trial court provide the appellant with the requested information.
Charles Eastman (defendant-appellant) and Carol Eastman (plaintiff-appellee) were divorced on February 2, 1976. Mrs. Eastman was awarded custody of the couple’s three minor children. On March 13, 1979, defendant filed a motion for change of custody of the children, alleging a significant change of circumstances. At defendant’s request, the court ordered home study investigations of the homes of both parties. The investigations were conducted by the Kansas Department of Social and Rehabilitation Services. On March 21, 1979, the court temporarily ordered the children placed in defendant’s custody. On August 27, 1979, the court filed an order entered into by both parties changing custody of the children to defendant. The plaintiff filed a motion to make visitation rights definite and certain and defendant filed a motion for child support, restricted visitation rights and requested a home study on plaintiff’s home.
On March 17,1980, a hearing was held on the parties’ motions. The court ordered the plaintiff should have visitation with the children the last weekend of each month beginning with the month of March. The court further ordered a home study be conducted on plaintiff’s home. Plaintiff had remarried and was then living in Colorado. The order states copies of the report would be supplied to counsel upon receipt by the court. On May 22, 1980, defendant filed a praecipe for subpoena duces tecum which was served on Gary Marsh, director of Lyon County District Court Services. The praecipe requested him to produce the SRS report from Jefferson County, Colorado.
On May 28, 1980, a final hearing was held on defendant’s request to review the home study report. The court found defendant could obtain the necessary information contained in the report by cross-examination of Marsh, who was called as a witness at the hearing. The court ruled that any material in the reports was available to either party upon independent investigation. The court ordered the children could visit their mother from the last weekend in May until June 21, 1980, and ordered SRS to monitor the summer visit and report its findings to the court.
The trial court’s order was based on its interpretation of K.S.A. 1980 Supp. 60-1610(i>) which mandates that the court protect and promote the interests of minor children in custody disputes. The court concluded its duty to the minor children outweighed the rights of the parties to certain aspects of the report, such as a custody recommendation, which was not disclosed orally to the parties. Charles Eastman appeals from the trial court’s denial of access to the home study report.
This case presents for review the question mentioned in Hoffman v. Hoffman, 228 Kan. 290, 613 P.2d 1356 (1980). In Hoffman, which was also a child custody dispute, appellant contended it was error for the trial court to consider reports by social agencies in its determination of custody when a party has not been given the opportunity to see the reports or examine the investigating officer. The Supreme Court held the issue was raised for the first time on appeal and was, therefore, not subject to review. In dicta, the court added that the reports were favorable to the objecting party and any error resulting from their use by the trial court was harmless.
Appellant raises several issues to support his allegations of trial court error. He argues the trial court’s refusal to disclose the actual report denied a proper request for discovery, created the possibility that otherwise inadmissible hearsay evidence would be considered by the court and denied the appellant the right to confront witnesses. In discussing relevancy in discovery proceedings, the court in Gleichenhaus v. Carlyle, 226 Kan. 167, 170, 597 P.2d 611 (1979), stated:
“The scope of relevancy in a discovery proceeding is broader than the scope of relevancy at trial. Relevancy includes information which may be useful in preparation for trial. A request for discovery would be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the lawsuit.”
We find the information contained in the home study report is relevant evidence and the parties have a legitimate right to request its production. K.S.A. 60-226.
The ruling of the trial court must now be weighed pursuant to this court’s scope of appellate review. “The control of discovery is entrusted to the discretion of the trial court and a ruling thereon will not be disturbed on appeal in the absence of a clear abuse of that discretion.” Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, Syl. ¶ 8, 536 P.2d 54 (1975). See Yunghans v. O’Toole, 224 Kan. 553, 555, 581 P.2d 393 (1978); Vickers v. City of Kansas City, 216 Kan. 84, Syl. ¶ 2, 531 P.2d 113 (1975); Hamilton v. Ling, 1 Kan. App. 2d 22, 28, 561 P.2d 880, rev. denied 225 Kan. 844 (1977).
The home study report, containing impartial and independent assessments of a party’s home, is relied upon by the trial court in its determination of custody. Each party should have the opportunity to challenge the evidence contained in the report which becomes the basis for the ultimate recommendation of SRS. The report could also contain misstatements and errors that could be clarified by the parties if they knew the exact contents of the report. Although the trial court exercised its discretion in withholding this evidence from the parents pursuant to its duty to protect the interests and promote the welfare of minor children, we find the court abused its discretion and the report should be made available to the parents. Our ruling on this issue disposes of the appeal and defendant’s remaining contentions will not be considered.
The judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.
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Prager, J.:
This is a claim for waste asserted against the estate of a life tenant by remaindermen, seeking to recover damages for the deterioration of a farmhouse resulting from neglect by the life tenant. The life tenant was Ada C. Brannan. The defendant-appellant is her executrix, Ruby F. Phillips. The claimants-appellees are Dorothy Moore and Kent Reinhardt, the daughter .and grandson of Ada C. Brannan.
The facts in the case are essentially as follows: Leslie Brannan died in 1962. By his will, he left his wife, Ada C. Brannan, a life estate in certain farmland containing a farmhouse, with remainder interests to Dorothy Moore and Kent Reinhardt. Ada C. Brannan resided in the farmhouse until 1964. She then rented the farmhouse until August 1, 1965, when it became unoccupied. From that point on, Ada C. Brannan rented all of the farmland but nobody lived in the house. It appears that from 1969 to 1971 it was leased to the remaindermen, but they did not live there. It is undisputed that the remaindermen inspected the premises from time to time down through the years. In 1973, Ada C. Brannan petitioned for a voluntary conservatorship because of physical infirmities. In 1976, Ada C. Brannan died testate, leaving her property to others. Dorothy Moore and Kent Reinhardt were not included in Ada’s bounty. From the record, it is clear that Ada C. Brannan and her daughter, Dorothy Moore, were estranged from about 1964 on. This estrangement continued until Ada Brannan’s death, although there was minimal contact between them from time to time.
After Ada Brannan’s death, Dorothy Moore and Kent Reinhardt filed a demand against the estate of Ada Brannan on the theory of waste to recover damages for the deterioration of the farmhouse. The total damages alleged were in the amount of $16,159. Both the district magistrate and the district judge inspected the premises and found deterioration due to neglect by the life tenant. The district court found the actual damages to the house to be $10,433. The executrix of Ada’s estate denied any neglect or breach of duty by Ada Brannan as life tenant. She asserted the defenses of laches or estoppel, the statute of limitation, and abandonment. These affirmative defenses were rejected by the district magistrate and the district judge, except the defense of laches or estoppel which the district magistrate sustained. On appeal, the district judge found that the defense of laches or estoppel was not applicable against the remaindermen in this case. Following entry of judgment in favor of the remaindermen, the executrix appealed.
It is important to note that the executrix does not contend, as points of error, that the life tenant was not responsible for deterioration of the farmhouse or that the action is barred by a statute of limitations. The amount of damages awarded is not contested. In her brief, the executrix-appellant asserts four points which essentially present a single issue: Whether the remainder-men, by waiting eleven years until the death of the life tenant before filing any claim or demand against the life tenant for neglect of the farmhouse, are barred by laches or estoppel?
The executrix contends, in substance, that laches and estoppel, although considered to be equitable defenses, are available in an action at law to recover damages. She points out,that, under K.S.A. 58-2523, a remainderman may sue to prevent waste during the life of the tenant while the life tenancy is still in existence. She then notes that the remaindermen inspected the premises on numerous occasions during the eleven years the property was vacant; yet they made no demand that the farmhouse be kept in repair. They waited until the death of the life tenant to bring the action, because then they would not be faced with Ada’s testimony which might defeat their claim.
The remaindermen, in their brief, dispute certain factual statements made by the executrix. They agree that the remaindermen had very limited contact with the life tenant after the estrangement. They contend that there is evidence to show the vast majority of the damage to the house occurred during the last two or three years of the life tenancy and that Dorothy Moore did, in fact, express concern to her mother about the deterioration of the house 15 to 20 times during the eleven-year period. They contend that mere passage of time does not constitute laches and that, in order to have laches or estoppel, the person claiming the same must show a detrimental change of position or prejudice of some kind. They argue that the executrix has failed to show any prejudice, since the fact of waste and deterioration is clear and undisputed and there is nothing the testimony of the life tenant could have added on that issue had she been at the trial. As to the failure of the remaindermen to file an action in the lifetime of the life tenant, the remaindermen argue that claimants had been advised to avoid contact with Ada Brannan unless it was absolutely necessary and that they did not want to make a claim during her lifetime since it would have only made a bad situation worse. They maintain that they had good reasons to wait until Ada’s death to assert the claim.
In order to place this case in proper perspective, it would be helpful to summarize some of the basic principles of law applicable where a remainderman asserts a claim of waste against a life tenant. They are as follows:
(1) A life tenant is considered in law to be a trustee or quasi-trustee and occupies a fiduciary relation to the remaindermen. The life tenant is a trustee in the sense that he cannot injure or dispose of the property to the injury of the rights of the remaindermen, but he differs from a pure trustee in that he may use the property for his exclusive benefit and take all the income and profits. Windscheffel v. Wright, 187 Kan. 678, 686, 360 P.2d 178 (1961); In re Estate of Miller, 225 Kan. 655, 594 P.2d 167 (1979).
(2) It is the duty of a life tenant to keep the property subject to the life estate in repair so as to preserve the property and to prevent decay or waste. 51 Am. Jur. 2d, Life Tenants and Remaindermen § 259, pp. 546-548. Stated in another way, the law imposes upon a tenant the obligation to return the premises to the landlord or remainderman at the end of the term unimpaired by the negligence of the tenant. Salina Coca-Cola Bottling Corp. v. Rogers, 171 Kan. 688, 237 P.2d 218 (1951); In re Estate of Morse, 192 Kan. 691, 391 P.2d 117 (1964).
(3) The term “waste” implies neglect or misconduct resulting in material damages to or loss of property, but does not include ordinary depreciation of property due to age and normal use over a comparatively short period of time. First Federal Savings & Loan Assn v. Moulds, 202 Kan. 557, 451 P.2d 215 (1969).
(4) Waste may be either voluntary or permissive. Voluntary waste, sometimes spoken of as commissive waste, consists of the commission of some deliberate or voluntary destructive act. Permissive waste is the failure of the tenant to exercise the ordinary care of a prudent man for the preservation and protection of the estate. 78 Am. Jur. 2d, Waste § 3, p. 397.
(5) The owner of a reversion or remainder in fee has a number of remedies available to him against a life tenant who commits waste. He may recover compensatory damages for the injuries sustained. He may have injunctive relief in equity, or, in a proper case, may obtain a receivership. The same basic remedies are available against either a tenant for years or a life tenant. Kimberlin v. Hicks, 150 Kan. 449, 456, 94 P.2d 335 (1939).
(6) By statute in Kansas, K.S.A. 58-2523, “[a] person seized of an estate in remainder or reversion may maintain an action for waste or trespass for injury to the inheritance, notwithstanding an intervening estate for life or years.” Thus a remainderman does not have to wait until the life tenant dies in order to bring an appropriate action for waste.
(7) Where the right of action of the remainderman or landlord is based upon permissive waste, it is generally held that the injury is continuing in nature and that the statute of limitations does not commence to run in favor of the tenant until the expiration of the tenancy. Under certain state statutes, it has been held that the period of limitation commences at the time the waste is commit ted. Prescott, Exor. of Mary E. Prescott v. Grimes, 143 Ky. 191, 136 S.W. 206 (1911); In re Stout’s Estate, 151 Or. 411, 50 P.2d 768 (1935).
(8) There is authority which holds that an action for waste may be lost by laches. Harcourt v. White, 28 Beavan’s 303, 54 Eng. Reprint 382 (1860); 78 Am. Jur. 2d, Waste § 38, p. 424. Likewise, estoppel may be asserted as a defense in an action for waste. The doctrine of laches and estoppel are closely related, especially where there is complaint of delay which has placed another at a disadvantage. Laches is sometimes spoken of as a species of estoppel. Laches is a wholly negative thing, the result of a failure to act; estoppel on the other hand may involve an affirmative act on the part of some party of the lawsuit. The mere passage of time is not enough to invoke the doctrine of laches. Each case must be governed by its own facts, and what might be considered a lapse of sufficient time to defeat an action in one case might be insufficient in another. Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another. Clark v. Chipman, 212 Kan. 259, 510 P.2d 1257 (1973). The defense of laches may be applied in actions at law as well as in equitable proceedings. McDaniel v. Messerschmidt, 191 Kan. 461, 464, 382 P.2d 304 (1963). In Osincup v. Henthorn, 89 Kan. 58, 130 Pac. 652 (1913), it was held that laches is an equitable defense and will not bar a recovery from mere lapse of time nor where there is a reasonable excuse for nonaction of a party in making inquiry as to his rights or in asserting them.
The basic question for our determination is whether the district court erred in holding that the defense of laches or estoppel should not be applied in this case. We have concluded that the district court did not commit error in its rejection of the defense of laches or estoppel under the circumstances of this case. In reaching this conclusion, we have noted the following factors: The evidence is clear that the life tenant, Ada Brannan, failed to carry out her duty as life tenant and quasi-trustee to keep the property in reasonable repair. The claim of waste does not arise out of any act on the part of the remaindermen. Preservation of the property was the responsibility of the life tenant. There was evidence to show that the vast majority of the damage to the farmhouse occurred during the last two or three years of the life tenancy. The fact that permissive waste occurred was proved beyond question. If the life tenant had been alive, she could not very well have disputed the fact that the property had been allowed to deteriorate. Hence, any delay in filing the action until after Ada’s death could not have resulted in prejudice to her executrix. There is no evidence in the record to support the defense of estoppel.
Furthermore, the evidence was undisputed that the life tenant was an elderly woman who died in August of 1976 at the age of 83. The position of Dorothy Moore was that she did not wish to file an action which would aggravate her mother and take funds which her mother might need during her lifetime. Even though Dorothy Moore was estranged from her mother, the law should not require her to sue her mother during her lifetime under these circumstances. As noted above, it was the tenant’s obligation to see that the premises were turned over to the remaindermen in good repair at the termination of the life estate. Under all the circumstances in this case, we hold that the district court did not err in. rejecting the defense of laches or estoppel.
The judgment of the district court is affirmed.
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Harman, C.J.
Retired: Here a body shop owner has sued the owner of a damaged automobile and his collision carrier for repairs on the vehicle. Plaintiff took default judgment against the automobile owner. Trial to the court resulted in judgment for plaintiff against the insurance carrier for the amount of the repair bill. The insurer alone has appealed.
On December 6, 1979, an automobile owned by defendant, David Crooks, owner of Midwestern Delivery Service, was involved in a collision. The vehicle was taken to the Fritz Body Shop, a business owned by appellee Fritz Branner. Appellant Aetna Life and Casualty Company, which had collision coverage on the Crooks automobile, employed an independent appraisal service to appraise the damage to the car. This appraiser prepared a written appraisal indicating damage in the amount of $1,773.03. Fritz signed the appraisal form which contained this language: “The Below Agrees to Make Guaranteed Repairs As Per Appraisal When Authorized By Owner.” Thereafter, per agreement with Crooks to make only such repairs as would render the vehicle operable and to omit cosmetic repair, appellee fixed the vehicle at a cost of $1,573.00.
Before releasing the vehicle to Crooks, appellee Branner telephoned appellant’s office about the transaction and he testified he was told “[t]hat the check was in the mail.”
Appellant’s adjuster to whom appellee talked over the phone testified that, as reflected by notes made contemporaneously with the call, she told him that the check had been sent to the insured with only the insured’s name on it. Appellee denied he was told his name would not be on the check; instead, he thought his name would be on the check because “[ijt’s the general run.” He thereupon responded affirmatively to this question, permitted over objection:
“Is it the general custom in trade in your job when you repair collision losses for insurance companies where the repairs are complete and the company is aware that you’re concerned with payment, is it the custom in this community in your experience to have your shop guarded on the settlement draft by listing your name on the draft?”
Appellee released the vehicle to Crooks. Crooks cashed appellant’s check, which was for $1,673.03 (amount of the damage appraisal less $100.00 policy deductible), but unfortunately for the litigants here, never paid appellee.
The trial court’s judgment against appellant for $1,473.03 was predicated on the following:
“The Court finds that the estimate which was a binding obligation on the part of the plaintiff was procured at the request of the defendant, the Aetna Insurance Company, submitted to them and that the work was done and performed relying upon a custom and practice within the community that when repairs are completed upon a vehicle the drafts are to be made payable not only to the insured but to those who make the repairs. That the plaintiff relying upon this parted with possession of the property without filing a mechanic’s lien to protect himself and therefore was damaged to that extent.”
Appellant asserts, for various reasons, that the appraisal document did not constitute a contract between appellee and appellant. We agree. The appraisal is merely an estimate of the damage. Under its policy appellant had three options in settling its liabil ity. It could repair the damage to the vehicle, replace it or pay the insured the cash value of the loss. It chose the latter.
As between the appellant and appellee, none of the rudiments of a contract was present by reason of the appraisal form. The independent appraiser had no authority to bind appellant in any settlement nor did he attempt to exert any (by way of further elucidation, it may be noted that below the signature of Fritz on the appraisal form this language appears in large boldface type: “THIS IS NOT AN AUTHORIZATION FOR REPAIRS”); there was no mutuality of obligation between the present litigants, nor was there any obligation on anyone except appellee once the car owner elected to have him repair the damage.
Appellant also challenges the propriety of the trial court’s action in finding a contract from trade practices and custom in the community that insurers’ drafts for repairs on insured vehicles are made payable to both the insured and the one making the repairs. This finding apparently derived from appellee’s testimony already quoted and was made despite testimony by appellant that it puts the repairer’s name on checks for collision coverage only when directed by an adjuster or when making supplemental payments for repairs which have been made after an adjuster has indicated that further repairs were necessary. The finding was also made despite appellant’s proffer (rejected) of copies of its records showing that appellee in fact had repaired collision damage on another vehicle owned by defendant Crooks and insured by appellant, and that appellant had put only Crooks’ name on its settlement check dated September 1, 1979, and, further, despite appellee’s testimony that during the previous two years he had repaired several vehicles for Crooks and had always been paid by Crooks’ personal check or a Midwestern Delivery Service check.
A custom or trade usage cannot create a contract when the parties themselves have made none. The proper office of trade usage or custom is to explain technical terms in contracts to which peculiar meanings attach; to make certain that which is indefinite, ambiguous or obscure; to supply necessary matters upon which the contract itself is silent; and generally to elucidate the intention of the parties when the meaning of the contract cannot be clearly ascertained from the language employed. McSherry v. Blanchfield, 68 Kan. 310, Syl. ¶¶ 2, 3, 75 Pac. 121 (1904). See also Wendling v. Puls, 227 Kan. 780, 786, 610 P.2d 580 (1980).
There being no contract of any kind between the parties here, none can be derived from any purported trade custom. Appellant was entitled to judgment.
Judgment reversed.
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Miller, J.:
This appeal involves an order of the district court reducing the amount falling due under a nonapportioned support order for two children entered at the time of a divorce where, prior to the decision in Brady v. Brady, 225 Kan. 485, 491, 592 P.2d 865 (1979), one child was adopted by the plaintiff’s present husband.
The plaintiff and defendant were married in 1965. Defendant thereafter adopted Eric, plaintiff’s child by her previous marriage, and one child, Todd, was born of the marriage. The parties were divorced in 1969, and the defendant was ordered to pay $40.00 per week as support for the two children. Subsequently, plaintiff remarried, and her present husband, John Kearns, adopted Eric with the defendant’s consent. The adoption order was entered on January 7, 1976.
At the time of the adoption, the defendant was in arrears in his child support in the amount of $1,280.00 plus accrued interest. The parties entered into an agreement for the payment of support, the terms of which are disputed. Defendant says that it was agreed that he would continue to pay $40.00 per week, that $130.00 would be applied for the support of Todd and the balance applied to the arrearage. Plaintiff’s version was that defendant agreed to pay the arrearage in full and to continue support for Todd at $130.00 per month. The agreement was never reduced to writing or made an order of the court.
After numerous garnishments to collect the arrearage, the defendant, in January 1980, filed a motion seeking a retroactive modification and reduction of the support order going back to January 7,1976. The district court ruled that the agreement of the parties was not binding on the court and ordered that the amount falling due under the original support order should be reduced by one-half from the date of the Brady decision forward, but not from the date of the adoption. The defendant has appealed the decision not to retroactively modify the order back to the date of the adoption, and the plaintiff has appealed the court’s refusal to consider the parties’ post-divorce agreement and modification of the order back to the date of the Brady decision.
It is defendant’s contention that his obligation to support Eric terminated upon the adoption of Eric. The weight of authority undoubtedly supports this view. 2 Am. Jr. 2d, Adoption § 87, p. 930. As a result, he contends that the support order should have been reduced to $20.00 per week as of the date of the adoption, and that after that date the district court had no further jurisdiction to make or enforce any order against him for the support of Eric.
The issue is not, however, jurisdictional, or whether the adoption decree terminated defendant’s obligation to further support Eric. It is whether the nonapportioned order for the support of the two children was proportionately severable as a matter of law as of the date of the adoption.
Defendant’s position ignores the effect of the prior existing order over which the district court, concededly, had continuing jurisdiction over the parties and the support order for the purposes of determining what a proper support order should be for the remaining child and to what extent the existing order should be reduced or increased, if appropriate, in the light of the changed circumstances. Prior to Brady, such jurisdiction was exercised only upon proper motion filed by one of the parties (K.S.A. 1980 Supp. 60-1610), and the existing support order continued until so modified by the court.
Brady held that in this state, prospectively after April 1, 1979, modification of such a support order is no longer dependent upon a court order pursuant to a motion under K.S.A. 1980 Supp. 60-1610, but the order is to be reduced proportionately without further order as of the time of the child’s emancipation or going to live with the obligor. We perceive no difference in principle where the father’s obligation to support his child is terminated by an adoption. The court, in applying the principles of Brady, did not retroactively modify the original support order. Rather, it found that the amount of support due under the original order was reduced as of the date of Brady because of the adoption of Eric. We conclude that this was correct.
Plaintiff has also appealed the district court’s refusal to consider the parties’ post-divorce agreement on child support. Plaintiff contends that since defendant breached the agreement by failure to pay the arrearage, he is precluded from the benefit of the proposed reduction to $130.00 per month, and that the order for $40.00 per week continued until modified by the court. In this state, however, such an agreement is not binding upon the court. Thompson v. Thompson, 205 Kan. 630, 470 P.2d 787 (1970).
The judgment of the district court is affirmed.
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Miller, J.:
In an action on a contract, does a judgment against the initially undisclosed principal operate to release and discharge the agent from liability on the contract? That is the issue in this foreclosure action.
Delbert Crowl Co., Inc., entered into a contract with Kenneth D. McNaughton to supply and install air-conditioning equipment in a residence being constructed in Sedgwick County. Crowl performed, and there remained $1,354.40 due on the account. Thereafter, Crowl learned that McNaughton had been acting as agent for an undisclosed principal, Rampart Associated Management, Inc. Crowl then filed a mechanic’s lien against the property, naming both McNaughton and Rampart as the contractors.
Amortibanc Investment Company, Inc., held a mortgage on the premises. It filed this foreclosure action and named as defendants Rampart (the mortgagor), McNaughton (a guarantor on the mortgage note), and all lienholders of record, including Crowl. Crowl filed a cross-claim against both Rampart and McNaughton to enforce its lien and recover the balance due on its contract. Thereafter, judgment was entered by agreement of the parties on October 2, 1979, granting judgment for Amortibanc on its note and mortgage, and granting judgment for Crowl against Rampart on Growl’s cross-claim. The journal entry of judgment in part provided:
“13. The Court will reserve for future trial determination what, if any, obligations and liabilities the defendant, Kenneth D. McNaughton, owes to the defendant, Delbert Crowl Co., Inc., on the cross-claim filed by that defendant.”
Later, the claim of Crowl against McNaughton was tried, and the judge made the following findings:
“1. In the absence of paragraph number 13 of the Journal Entry of Judgment dated the 2nd day'of October, 1979 in the above captioned matter this cause of action would have been res judicata;
“2. The law requires a disclosure by a corporate agent that he is contracting in the name of the corporation, and a failure to make such disclosure renders the corporate agent personally liable to vendors that he has dealt with.
“3. The preponderance of the evidence showed that the corporate agent, Kenneth D. McNaughton did not disclose to Delbert Crowl Company, Inc., or any of its representatives that this was a transaction in the name of Rampart Associated Management, Inc., a Kansas Corporation.
“4. The preponderance of the evidence showed that the Defendant Kenneth D. McNaughton dealt with Delbert Crowl Company, Inc., as an individual.
“5. That judgment should be entered for the Defendant Delbert Crowl Company, Inc., against the Defendant Kenneth D. McNaughton in the sum of $1,354.40 with interest at 6% per annum from April 30, 1979 until the date of judgment, and thereafter should bear interest at 8% per annum until paid.
“6. Judgment is awarded in favor of the Defendant Delbert Crowl Company, Inc. against the Defendant Kenneth D. McNaughton for Court costs.
“7. The Court further FINDS that the judgment rendered against Rampart Associated Management, Inc., in favor of the Defendant Delbert Crowl Company, Inc., as set out in the Journal Entry of Judgment dated the 2nd day of October, 1979 and the judgment rendered herein arises out of one and the same obligation and that a payment made in satisfaction of either judgment should be applied to the other judgment. In other words, the obligation of Rampart Associated Management, Inc. and the obligation of Kenneth D. McNaughton are joint and several.”
Judgment was then entered for Crowl and against McNaughton for $1,354.40 plus interest and costs. McNaughton appeals, claiming that the earlier judgment in favor of Crowl and against Rampart bars the subsequent judgment and operates to release and discharge McNaughton.
We find no Kansas case directly in point; cases from other jurisdictions discuss, and apply in various ways, the rules laid down in Restatement (Second) of Agency §§ 210(1) and 210 A, which provide:
Ҥ 210. Judgment For or Against Agent
(1) An undisclosed principal is discharged from liability upon a contract if, with knowledge of the identity of the principal, the other party recovers judgment against the agent who made the contract, for breach of the contract.
[Comment]:
b. Amelioration. The hardship created by the rule in Subsection (1) may be ameliorated in several respects. Procedurally, it is possible for the third party to join the principal and the agent in one action and make his choice between principal and agent after the evidence is in. In some states, if the defendants do not require him to make an election, judgment against both can be entered, upon the ground that the defendants have waived their right to object to the judgments. Moreover, if the agent is entitled to exoneration or indemnity from the principal, the plaintiff is entitled to reach this asset of the agent as in the other situations in which a defendant is a secondary obligor.”
Ҥ 210A. Joinder of Undisclosed Principal and Agent
A principal, initially undisclosed, and his agent can properly be joined on one action based upon a contract made by the agent; but if either defendant objects, the plaintiff can secure judgment only against the one whom he elects to hold.”
The only Kansas case remotely similar is that of Bruce v. Smith, 204 Kan. 473, 464 P.2d 224 (1970), where plaintiff recovered judgment against both the agent and his undisclosed principal. The agent alone appealed, and the court upheld the judgment against him without reaching the propriety of the judgment against the principal and without discussing its effect, if any, on the liability of the agent. The court relied upon Restatement (Second) of Agency § 322, where this rule is stated:
“An agent purporting to act upon his own account, but in fact making a contract on account of an undisclosed principal, is a party to the contract.”
As § 210A indicates, both principal and agent can be joined in a single action based on a contract made by the agent until one of the defendants objects and forces plaintiff to choose either the principal or the agent as the source of recovery. Some courts have interpreted this section and the general rule to permit judgments to be entered against both the principal and the agent if the defendants fail to object and require the plaintiff to make an election prior to the entry of judgment. This is in conformity with Comment b to § 210. The rationale of courts following this rule is that the duty of the plaintiff to elect is waived if the defendants, who have the right to compel an election, fail to do so. See 3 Am. Jur. 2d, Agency § 309, p. 668; 2 Williston on Contracts § 289, pp. 363-64 (3d ed. 1957); and 3 C.J.S., Agency §§ 416, 417. The discussion in C.J.S. is particularly pertinent:
§ 416 a. “Subject to some exceptions, a person contracting with the agent of an undisclosed principal must elect whether he wishes to hold the principal or the agent liable, as the liability of the principal and agent on a contract entered into with the agency undisclosed is alternative rather than joint or several.
§ 416 b. “In general, the election whether to hold the principal or the agent liable on the contract must ordinarily be made, on motion or demand, after the trial has begun and the issue of agency determined, and before judgment rendered.
“In any case, after the agency is established, and at some point prior to judgment, plaintiff may be required to elect whether to hold the principal or the agent liable. Although it has been held that the third party must take the initiative and make his election, it has been held to be a wiser and better rule of procedure ... to require a motion for election to be made .... Since the right of election operates in favor of the principal and the agent, it is their duty to seasonably make a demand for an election, and the duty does not rest on the third party.
“[I]f the contracting party is not forced to elect in the lower court, this right of the principal and the agent is said to be waived and a joint judgment against them will be sustained.” (Emphasis supplied.)
A persuasive opinion following this rationale appears in Davis v. Childers, 381 So. 2d 200 (Ala. Civ. App.), writ denied 381 So. 2d 202 (1979). There the plaintiff brought suit jointly against Davis and the Davis Construction Co., Inc. Plaintiff had entered into a contract with Davis, who had not disclosed that he was acting on behalf of the corporation. The issue was stated as follows: “[W]here plaintiff has knowledge prior to filing suit that defendant was acting as agent for co-defendant principal, and plaintiff brings suit jointly against both agent and principal, may judgment be awarded against both or must plaintiff elect between defendants?” In the opinion the court said:
“Before addressing the stated issue, it is appropriate that we state the principles of law applicable to the rights of a third party after entering into a contract with one who is in fact acting as agent for an undisclosed principal. Generally when an agent, acting within his real or apparent authority, enters a contract on behalf of his principal, only the principal is bound and subject to suit on the contract. However, where the agent fails to disclose the fact that he acts for a principal or fails to disclose the identity of his principal, both the agent and the principal may be bound. . . . The person contracting with an agent for an undisclosed principal cannot recover from both, but upon demand must elect which one to hold liable.
“There appears to be no decision of precedent in Alabama upon the question of when the election to recover from either agent or undisclosed principal should be made. However, there are ample decisions from other jurisdictions. Having carefully considered the decisions, we find and state the law of Alabama to be that suit on a contract entered into by a person with an agent for an undisclosed principal may be brought jointly against both agent and principal. . . . The fact that such person, prior to filing suit gains knowledge of the existence and identity of a previously undisclosed principal does not require an election of remedy against agent or principal. There should be no requirement of election until after the issue of agency has been determined. To do so would require an election of parties before it is determined there exists a remedy against both.
“After agency is established, either by admission or by the evidence, plaintiff may be required prior to judgment to elect whether to hold liable the agent or the principal. Though the right of election belongs to the plaintiff, it operates in favor of the defendants. It therefore should be their responsibility to demand it by motion or some appropriate pleading. We hold that if such demand to elect is not made and plaintiff does not of his own accord elect before entry of judgment, it may be considered waived, though we do not say it would come too late if presented by timely motion for new trial.
“We do hold that if demand for election is not made during the trial or in a motion for new trial . . . it is waived and may not be presented as an issue for the first time upon appeal. The record indicates that appellant Davis did not move for election nor present the issue. . . . He therefore waived the requirement of an election of judgment by plaintiff. However, clearly the joint judgment we now sustain may support only one recovery.
“In support of our decision we cite the cases of Craig v. Buckley, 218 Cal. 78, 21 P.2d 430 (1933); McEwen v. Taylor, 106 Cal. App. 2d 25, 234 P.2d 754 (1951); Klinger v. Modesto Fruit Co., Inc., 107 Cal. App. 97, 290 P.2d 127 (1930).” 381 So. 2d at 202.
In the case before us, as in the Davis case, no timely demand for an election was made by the principal or by the agent before judgment was entered. In our case, the trial of the claim against the agent was specifically reserved by the trial court, with the assent of the parties, until a date subsequent to the entry of judgment on the claim against the principal. If Crowl had been required to elect as between McNaughton and Rampart prior to the entry of judgment against Rampart, perhaps he would have chosen to proceed against McNaughton, perhaps against Rampart. But Crowl was not required to elect; the claim against McNaughton was specifically and consensually reserved for later trial; to require an election at this stage of the proceedings, or to hold that the judgment entered by agreement against Rampart bars judgment against McNaughton, would violate the agreement of the parties. McNaughton waived his right to require an election by not making a timely motion to elect.
We conclude as follows: (1) Where a third party enters into a contract with an agent for an undisclosed principal, the third party, upon discovery of the agency, .may bring action against both principal and agent. (2) Once the agency has been established, either by admission or by evidence, the third party may be required to elect whether to proceed against, the principal or the agent. (3) The right to compel an election belongs to the principal and the agent, though the right to make an election belongs to the third party. (4) If no motion to compel an election is made in the trial court before judgment is entered against either principal or agent, then the matter of election is waived. (5) A judgment on a single contract, entered against both principal and agent, will support but a single recovery. In other words, satisfaction of the judgment by either principal or agent extinguishes the judgment against the other.
The judgment is affirmed.
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Parks, J.:
Plaintiffs Wilbur Sloan and Dorothy A. Huntsman appeal from a judgment of the district court holding that annexation Ordinances Numbers 6712 and 6713 of the City of Hutchinson were validly enacted.
The annexation process in the present case began on November 7, 1978, when the City adopted Resolution Number 1944 announcing it would hold a hearing on January 9, 1979, to consider the annexation of land described in the resolution. The City gave proper notice of its intention to annex; the plan of the City for extension of services was made available for inspection at the city hall; and a public hearing was held as required by statute.
On January 23, 1979, the City adopted Ordinance Number 6712 annexing a portion of the real property described in Resolution Number 1944. This ordinance was published in the Hutchinson News on January 26. Ordinance Number 6713 annexing the remaining property described in the resolution was adopted on January 30 and published on February 2. It is undisputed that the land annexed pursuant to Ordinance Number 6713 did not meet any of the statutory criteria for annexation under K.S.A. 1980 Supp. 12-520(a)-(g) until Ordinance Number 6712 became effective.
The power of a municipality to alter its boundaries by annexation is completely controlled by statute. State, ex rel., v. City of Kansas City, 186 Kan. 190, 198, 350 P.2d 37 (1960). Prior to any proceedings to annex outlying property, the governing body of the city must adopt a resolution announcing its intention to consider the annexation of certain described property and giving notice of a public hearing to consider the proposed annexation. K.S.A. 12-520a. The owners of the property under consideration must be given individual notice of the public hearing and provided with a sketch of the area included. Prior to the adoption of the resolution, the city must also prepare a comprehensive plan for the extension of services to the property. K.S.A. 12-520b. Once it is determined that the property can and should be annexed, an ordinance declaring the annexation is passed and published. K.S.A. 1980 Supp. 12-520.
Landowners aggrieved by the annexation decision may within thirty days following the publication of the ordinance maintain an action in the district court of the county in which the land is located. K.S.A. 1980 Supp. 12-520. On review, the function and duty of the court is to determine whether a city has statutory authority and has acted in accordance with such authority in passing an annexation ordinance. However, the test of the city’s action is one of substantial compliance. Clarke v. City of Wichita, 218 Kan. 334, 348, 543 P.2d 973 (1975). Courts are not to concern themselves with the wisdom, propriety, necessity or advisability of annexing territory to cities. Clarke, 218 Kan. at 349.
Appellants challenge the annexation, arguing that the adoption of two successive ordinances based on a single resolution and public hearing does not substantially comply with K.S.A. 12-519 et seq. when the validity of the second ordinance depends on the effectiveness of the first.
Nothing in the annexation statutes authorizes the use of multiple ordinances based on a single resolution but the practice has been approved by our Supreme Court. In Clarke, 218 Kan. at 347-348, the city used two ordinances to annex land described in a single resolution. The city complied with the statutory procedures concerning notice and opportunity to be heard but the landowners appealed, alleging that the use of two ordinances violated K.S.A. 12-520. The court disagreed and held that the City of Wichita had substantially complied with the statute by annexing the whole of the territory set forth in their resolution. The court held that the decision to annex via two ordinances in no way prejudiced the landowners.
More recently our Supreme Court gave tacit approval to the use of three successive ordinances. In City of Lenexa v. City of Olathe, 228 Kan. 773, 782, 620 P.2d 1153 (1980), the court summarized the action of the city as follows:
“In the present case, the city of Olathe annexed the three tracts by means of three ordinances enacted and proposed on successive days. The first tract annexed directly adjoins the city of Olathe on the city’s northern boundary. The ordinance annexing the first tract of land was enacted on June 4, 1979, and was published on June 5, 1979. The annexation became effective on publication under K.S.A. 12-523. The second tract of land was annexed by ordinance on June 5, 1979, which ordinance was published on June 6, 1979. The third tract of land was annexed by city ordinance on June 6, 1979, and the ordinance was published on June 9, 1979.”
The court concluded that under these facts it appeared that in each instance the land adjoined the city at the time the annexation occurred and could be properly annexed. Subsequently, a rehearing was granted (City of Lenexa v. City of Olathe, 229 Kan. 391, 625 P.2d 423 [1981]), when it was learned that the court had erroneously assumed that the facts regarding the eligibility of the land for annexation were undisputed. However, the later opinion does not alter the court’s apparent endorsement of the procedure of successive ordinances used by the City of Olathe to effect the annexation.
The landowners complain, however, that this case is distinguishable from earlier decisions because at the time the resolution was passed and hearing held on the annexation, none of the property in the region eventually annexed by Ordinance Number 6713 was legally subject to annexation. As a result, they contend that without notice that two successive ordinances would be used to complete the annexation, they could not determine the propriety of the annexation proposal so as to effectively fight it. In effect, appellants are arguing that land which is eventually annexed must be subject to annexation under the provisions of K.S.A. 1980 Supp. 12-520 at the time the resolution and public hearing take place.
The purpose of the annexation resolution is simply to set forth the city’s proposed action and to mark the formal beginning of the annexation proceedings. See Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 155, 234 S.E.2d 648 (1977). It is only after the city determines that annexation is appropriate and adopts an ordinance or ordinances to finalize the process (K.S.A. 12-523) that an aggrieved landowner may challenge the city’s authority to act. K.S.A. 1980 Supp. 12-520. Thus, the critical point by which the city must have authority to carry out the annexation is when the ordinance is passed and published and not when the intention to consider annexation is set out in the resolution.
Finally, as mentioned earlier, our review of annexation procedures is to test for substantial compliance, that is, was there compliance consistent with the purpose of the statutes. The purpose of the annexation statutes is to protect the rights of the landowners against unilateral action by a city in annexing their land. Clarke, 218 Kan. at 348. In the present case, the ordinances annexed only that land described in the resolution and discussed at the public hearing. No land was annexed which had not been the subject of intense discussion among the members of the city commission and the various affected landowners. An annexation is not effective until published; thus, at the time the land described in Ordinance Number 6713 was annexed, Ordinance Number 6712 had officially and finally altered the boundaries of the City of Hutchinson to bring the remaining property described in the resolution under the City’s annexation authority. We conclude that no prejudice accrued to the appellants and that the City substantially complied with the annexation statutes in enacting Ordinances Numbers 6712 and 6713.
Affirmed.
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The opinion of the court was delivered by
Brewer, J.: This was an action on a bond given by the administrator of the estate of Wm. H. Hays deceased, upon taking possession of the partnership property of the firm of Hays & Ludlum, of which firm the deceased was a member. It appears from the pleadings and special verdict that in March 1866 the firm of Hays & Ludlum was composed of Wm. H. Hays and John B. Ludlum; that the 26th of that month Wm. H. Hays died, intestate; that on the 5th of July Samuel S. Ludlum was appointed administrator of his estate; that thereafter the surviving partner filed in the probate court a written refusal to continue the business of the late firm, and a request that the administrator take charge of the partnership property; that the probate court ordered the administrator to take possession of said partnership property, giving a new bond therefor as provided by statute; that the administrator did take possession and give a new bond, the one sued on in this action; that he sold the property and converted the proceeds to his own use; that the partnership property he received was ample to pay all the partnership debts; that the firm of Hays & Ludlum was indebted to the plaintiff in the amount sued for, and that demand was made of the administrator for payment, and payment refused.
A great many questions are raised and discussed by counsel in their briefs. We shall notice only those we deem the most important. And first, can this action be maintained without proof of the allowance of the , ' •~ claim by the probate court, or of any settlement in said court by the administrator of the partnership estate? As the record stands, no action is shown of the probate court subsequent to the approval of the bond. After a careful examination of the statute and the authorities we must answer this question in the affirmative. We cannot express our views better than in the language of the able counsel for defendants in error, and so quote from their brief:
The probate court is established by the constitution, (Art. 3, § 8,) and its powers are limited to “such probate jurisdiction and care of estates of deceased persons * * * as may be prescribed by law” It would seem clear that unless there be some “law” specifically prescribing that the probate court shall have the power to allow, classify and order payments of partnership debts out of partnership assets, that no such power exists; it is a well-known rule that the powers of a court of limited jurisdiction are to be found only in the statute which confers them, that such a court takes nothing by intendment or construction. If then this power to allow, classify and order payments is not — to use the language of the constitution — “prescribed by law,” it does not exist, and it cannot with any show of reason be argued that such a power is necessary to the execution of any other power conferred by law upon the probate court. What powers, then, do we find are “prescribed by law?” The first forty-four sections of the act approved 30th July, 1859, the act under which the bond in this case was given, and the proceedings had out of which this action grows, apply wholly to the granting of letters and matters strictly connected therewith. The eight sections next following relate to the disposition of the property of a firm of which the deceased was a member. Sections 55 to 150, inclusive, prescribe the power of the court and the duty of the administrator respecting the money and property of the deceased. Sections 151 to 178 provide for the allowance and classification of demands against the estate of deceased persons, and specify the manner in which different characters of claims are to be paid from the estate of the deceased, and how these claims may be established. The sections then next following (§§180 to 196) prescribe the mode of settlement by administrators, and define the power of the court therein; from 197 to 222 inclusive, the statute prescribes the mode of distribution of the decedent’s estate. And the balance of the statute provides for proceedings against executors and administrators and for appeals; and this comprises all the legislation on this subject. Shall it be claimed that the 151st section (Comp. Laws, 534,) confers the power on the probate court to ■classify the claim of the plaintiff? If there are no partnership assets, and the claim was sought to be made out of the individual property of William H. Hays, then of course the court would have power under that section to classify the demand; and then, to maintain an action on the administrator’s bond, probably it would be necessary to allege an allowance and classification. But such is not the case at bar. Here is a partnership debt, with partnership assets sufficient to pay all such debts, and not a claim that is sought to be enforced against the individual property of the decedent. It is unquestioned law that the partnership debts are to be paid in preference to individual debts out of the partnership assets; yet if it can be maintained that §151 confers the power on the probate court to classify partnership debts, then the entire assets of the firm could or might be employed in the payment of the individual debts of the decedent, so setting aside á rule that has prevailed from time immemorial. Such a construction is surely not to be forced, and can only be conceded when the plain reading of the statute demands it. The legislature is speaking only in this section of the estate proper of the decedent, and providing what claims as against it shall be entitled to preference. No other rational construction can be given to this section, especially when we notice that the whole subject-matter of legislative attention, as shown by the sections immediately preceding and following, is the estate proper of the decedent; and this conclusion, it would seem, becomes entirely irresistible when we consider that this same law-making power which is now speaking of debts of the deceased, and of the property of the deceased, devotes several entire sections of this same law to prescribing what shall be done with claims against a partnership, and what disposition shall be made with partnership effects. The two subjects were before the legislature, and they provided for éach separately; and when a mode is prescribed and a power given to allow and classify one character of claims, if the same power was intended to be given as to the other it would have been as easy to express it. Not having been expressed, it is not only fair, but in accordance with all settled law, that it was not intended to be given.
But again, giving credit to the legislature for enacting laws in view of well-established principles of equity and the rights of the creditors of a partnership to the extent of the partnership assets, and examining the provisions of the act under consideration bearing on the question, we think it clear that the legislature did not intend to make the allowance and classification of a partnership debt by the probate court a condition precedent to the right of a creditor of the firm to recover on the bond given either by the surviving partner, or the administrator of deceased member of the firm. The legislature knew that the creditors of the firm had a right to be paid out of the partnership property, and therefore it provided in accordance with the principle of survivorship that the surviving partner should first retain the partnership property; but in order to protect the interest of the decedent, the statute (§47) compelled him to give a bond which required him “ to apply the property to the payment of the partnership debts,” and which also required him to render an account of his doings to the probate court. Two leading -ideas are manifest in this section — the payment of the partnership debts, and the preservation and payment to the administrator of any balance that might be due the estate of the decedent. Could it be claimed that if the surviving partner had given the bond required by the statute, taken the goods and converted them to his own use, that these plaintiffs could not recover against his bondsmen, because their demand had not been allowed, classified and ordered paid by the probate court? Would the probate court have the power to allow a claim that might be presented to the survivor, and the power to order him to pay it? It would be a judgment as well against himself as the estate of the deceased, and where, either in the constitution or statute laws, does the probate court obtain the power or jurisdiction to render judgment against a surviving partner? The constitution says it “shall have such probate jurisdiction and care of the estates of deceased persons as may be prescribed by law,” and not jurisdiction to render judgments 'against living persons on ordinary common-law liabilities. It is true, the law (§ 48) gives the probate court power to cite him to account, and to adjudicate upon the account, as in cases of an ordinary administrator; and this power is a necessary power to protect the interests of the decedent; his duty and obligation is to pay partnership debts, and in adjudicating upon his accounts, if the court should find that he had paid out money of the partnership in payment of other than partnership debts, the court would disallow it “ as in cases of ordinary administration;” and this is all the power conferred by “law” on the probate court over the surviving partner.
But again,, the legislature wisely anticipating the very state of affairs in this case, provided that if the surviving partner should not give the bond, then the administrator of the decedent upon giving bond should be entitled to the possession of the property of the partnership — to be dealt with, how and in what manner? As the other property of the estate? No, for the statute says in express terms “ he shall with the partnership property pay the debts of the late firm.” When? Within a year, or three years, as he pays by statute the other debts of the decedent? No, but “with as much expedition as possible,” and pay the surviving partner his proportion of the excess. Is it not clear thát the legislature intended simply to substitute the administrator for the surviving partner, giving him the same powers with reference to the partnership effects, and imposing upon him the same duties? He is to pay the debts “with as much expedition as possible,” not wait for the process of allowance in the probate court. It is not the debt of an estate, nor of a decedent, nor of an individual he is commanded to pay. In carrying out the trust he is not acting as administrator, nor are his bondmen liable on his administrator’s bond for his misdeeds in the execution of this trust. This has already been decided by this court. (Glass Co. v. Ludlum, 8 Kas., 40, 47.) He is neither more nor less than a special trustee as to this property and this class of debts. He needs no order from the probate court to pay them. By accepting the trust he takes upon himself the burdens of deciding what are debts. While we feel an abiding conviction that upon principle, analogy and reason we are right in our conclusions, we are not without the very best of authority to sustain our position. The case of The State to use of Bredell’s Executor v. Baldwin, 27 Mo., 103, is directly in point, the decision being upon the statute of Missouri of 1845, from which our statute is taken, and the court in that case, page 107, say “the law does not require partnership demands to be allowed by the court.” And the same court, in the case of Green’s Adm’r v. Virden, 22 Mo., 506, hold the same doctrine, and deny to the probate court any power over the partnership assets, or over the surviving partner, except those expressly granted, to-wit, to cite him to account and to adjudicate upon his account.
A second question of. importance is this: No citation was ever issued by the probate court to the surviving partner as provided for in §49 of the administrator act: ~ ° 7 (Comp. Laws, 520.) That section reads: “In case gUrYiying partner, having been duly cited for that purpose, shall neglect or refuse to give the bond required,” etc., “the executor or administrator on the estate of such deceased partner, on giving a bond as provided in the following sections, shall forthwith take the whole partnership estate,” etc. It is earnestly insisted by counsel for plaintiffs in error that such citation was jurisdictional, and that “the probate court had not power or jurisdiction to make any order in relation to the partnership property, or to assume jurisdiction over the same, or to require Samuel S. Ludlum to give the bond mentioned in § 50 of said act, and that therefore the bond sued on is void, because the proper steps had not been taken to divest the rights of John B. Ludlum, or to confer power to control the property on the administrator of the deceased partner.” We think that this citation is a matter personal to the surviving partner, and that while he may insist on his right to the possession of the partnership property until after such citation, and a refusal or neglect to give the statutory bond, yet that when he comes voluntarily into the probate court and declines to take any further charge of the partnership property he waives the necessity of any citation, and cannot thereafter object that none was served upon him ■ and that the objection to the subsequent proceedings which he is estopped from making, no one else can make for him, or for themselves. It is jurisdictional in the sense that a summons is. It brings the party into court. But when a party voluntarily appears in court, it is unnecessary to inquire what if any process has been served upon him. Counsel also criticises the paper filed in the probate court by John B. Ludlum, and says that “its legal effect was simply a refusal on the part of John B. Ludlum to continue the business of the late firm, and a request that the administrator of Wm. H. Hays deceased (whoever he might be) should take charge of his (John B. Ludlum’s) interest in the property of said firm — thus in substance merely appointing such administrator, whoever he might be, his agent to take charge of the property.” The paper is addressed to the probate judge, and reads: “I as the surviving partner of the late firm of Hays & Ludlum do refuse to continue the business of the late firm, and request that the administrator of Wm. H. Hays deceased take charge of my interest in the prop-erty of said firm,” etc. We think there is no difficulty in giving proper effect to this writing. True, it purports to be a refusal to continue the business instead of a refusal to give the bond, as named in the statute; but every instrument must be construed in the light of the circumstances under which it is executed. One or the other, the surviving partner or the administrator, was to take the property, give bond, and close up the partnership business. By this paper the surviving partner comes into court and in unmistakable language declines in favor of the administrator. No form of refusal is prescribed. This was sufficient.
Again, counsel insist that the bond sued on is void because the conditions in it are not any of them the conditions speci^ccl in the statute. The statute, § 50, provides that “ before proceeding to administer upon such partnership property, as provided in the preceding section,” the administrator shall give bond “conditioned that he will faithfully execute that trust, with no unnecessary waste or expense.” The form of a bond is not given in this case, as it is for the surviving partner, or in ordinary administration. In order to understand what trust is intended, we must refer to the preceding section. There it is provided that he shall take the whole partnership estate into his possession, and with it pay the partnership debts with as much expedition as possible, and return to the surviving partner his proportion of the excess if any there be. Now, the bond in this case (which seems to have been in part copied from the form given for a bond of a surviving partner,) covers all these points. It recites the refusal of the surviving partner, and that the administrator has taken possession of the partnership property, and the first condition is, that he shall “faithfully execute the trust incurred by such act with no unnecessary waste or expense.” If this had been all, we think the bond would have been sufficient. It however goes on and specifies more in detail the obligation assumed by the administrator.
Again, it is urged that if defendants in error had any cause of action it was barred before suit was brought. The petition was filed Oct. 24th, 1868. The verdict shows that the debt was due from Hays & Ludlum to defendants in error on the 6th of July, 1865, more than three years prior thereto. But no cause of action could arise on the bond until it was given, and that was" in 1866; none against Ludlum, in his individual capacity, or against his sureties until after a breach of the condition of the bond, and a conversion of the goods to his own use. When the administrator assumed the charge of the partnership estate the defendants in error had a valid claim against that estate. He had ample means to discharge that indebtedness. Instead of so doing he converted those means to his own use, and thereby created a personal, liability against himself and the sureties in his bond, which dated from the time of such conversion.
We do not think the amendments to the petition were so radical as to make the last petition present a cause of action substantially different from that in the first.
Other questions have been presented by counsel for plaintiffs in error in their brief, but we cannot stop to discuss them at length. We have endeavored to examine them all carefully, and after such examination we are satisfied that no substantial error appears in the record, and that the judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff in error as plaintiff below, brought his action on an account for goods sold. Defendant filed an answer alleging that before the commencement of the action he “had paid said plaintiff the full amount of said demand.” A reply was filed denying payment, and upon these pleadings the case went to trial.
One ground of error is that, under the allegation in the answer of payment to the plaintiff, defendant was permitted to prove payment to an agent of the plaintiff, the one from whom he made the purchase of the goo’ds specified in the petition. We see no error in this. Payment to an agent is in legal effect payment to the principal. And it is enough to allege payment to the principal, without specifying the particular party or agent who received the money.
A second alleged error is, that after it had apppeared in evidence that at the time of payment a receipt therefor was given, which was not produced, and whose loss or destruction was not so accounted for as to permit secondary evidence of its contents, the court permitted the defendant to give parol testimony as to the fact of payment. This was right. The receipt is good as an admission of payment, but it is only at best prima fade evidence, and susceptible of explanation or contradiction. The fact of payment can always be shown, independent of any admission by receipt or otherwise.
The third objection is, that the court refused certain instructions asked. In the general charge the court laid down the law substantially as asked, and was therefore un(jer no obligations to repeat it. It is true this addition or modification was made: “You are the exclusive judges of all the facts in the case, and you will carefully consider all the evidence submitted, giving such weight to the same as it is entitled to, taking into account all the surrounding circumstances, and thus determine where the preponder anee lies, and decide accordingly;” but as this is a, correct statement of the law the plaintiff has no cause of complaint.
We see no error in the record as presented. The question in 'the case was simply one of payment, one of fact for the determination of the jury, and not for the examination of this court. The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The question in this case is, whether a contract made on Sunday is valid. The services contracted for' were not necessarily or by the contemplation of the parties to be rendered, and were not in fact rendered, on Sunday. For while‘there is a conflict in the testimony as to when the services were rendered, the verdict of the jury, under the instructions, settles that they were not rendered on Sunday. At common law a contract on Sunday was valid; but in England, and in every state of the Union, have been enacted what are familiarly known as Sunday Laws, for the prevention of labor and business upon that day. Most of these statutes prohibit both labor and business; and under the latter .term the making of contracts has in many states been decided to be within the prohibition. Our own statute simply prohibits labor. It reads —
“ Sec. 255. Every person who shall either labor himself, or compel his apprentice, servant, or any other person under his charge or control, to labor or perform any work * * * on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor,” etc. (Gen. Stat., ch. 31, p. 373.)
In this it closely resembles the statutes of New York, Ohio and Missouri, and the decisions in those states place the making of a contract outside the limits of the prohibition. Merritt v. Earle, 29 N. Y., 120; Kaufman v. Haven, 30 Mo., 387; Bloom v. Richards, 2 Ohio St., 387. In the latter case is a lengthy and able opinion from Judge Thurman, pointing out the distinction between the terms “labor” and “business,” as well as discussing generally the subject of Sunday laws. We refer to that opinion as a clear and convincing argument that the making of a contract is not within the prohibition of a statute like ours. The thing prohibited is labor, and a contract made on any day to perform labor on Sunday, save “the household offices of daily necessity, or other works of necessity or charity,” is a contract to do a thing prohibited, and therefore void; but a contract made on Sunday to perform labor on any other day, is valid.
The order of the district court will be reversed, and the case remanded with instructions to affirm the judgment of the justice.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action of replevin in the district court of Chase county, brought by plaintiffs in error to recover the possession of certain Texas cattle claimed by them by virtue of a chattel mortgage given by one Ledrick, the owner. The defendant asserted no title, but simply claimed a lien for wintering the cattle. Three errors are alleged.
Plaintiffs sought to prove a demand for the possession, and a tender of the charges for keeping the cattle, made after the commencement of the action, but the court ruled out the testimony. We see no error m this. Under our code the gist of the action of replevin is the wrongful detention, and this relates to the time of the commencement of the action. Town of Leroy v. McConnell, 8 Kas., 273, 276; Wilson v. Fuller, 9 Kas., 176. If demand and refusal were necessary to make the detention by the defendant wrongful, they had that-effect only from the time they were made; and if defendant’s possession was rightful at the time of the commencement of the suit, the action failed, and could not be upheld by proof that this rightful possession was changed into a wrongful one by a subsequent demand and refusal. Such testimony would therefore be improper. On the other hand, if the defendant’s possession was wrongful, a subsequent demand and refusal were unnecessary, and the testimony was immaterial. In either case there would be no error in ruling it out. We may say, in passing, that from the facts as disclosed in the record we think the defendant’s possession was rightful. He had a lien for. the wintering of the cattle, and was entitled to the possession until his charges therefor were paid. This lien was paramount to the rights of the chattel mortgagee, as well as those of the mortgagor; nor would the fact that the mortgagor had, as is claimed, been guilty of a breach of duty toward the mortgagee in removing the cattle from the county in which the mortgage was given and filed, into another, affect the validity of this lien.
Plaintiffs offered their mortgage in evidence, but the court refused to receive it. It is insisted that this “ mortgage is so general in its terms, and uncertain in the description of the ProPerty mentioned therein, as to be void for uncertainty.” The description is as follows: “23 heac[ of beeves, four-year-old Texas cattle; 572 three-year-old Texas cattle; 29 two-year-old Texas cattle, * * * said goods and chattels now being in possession of the said party of the first part (Ledrick) in Morris county, Kansas.” We think this sufficient, .within the rule laid down in Golden v. Cockrill, 1 Kas., 259. In that case the language of Mr. Justice Swan, in Lawrence v. Coates, 7 Ohio St., 194, is quoted approvingly where he says, “the principle to be deduced from these cases is, that any description which will enable third persons to identify the property, aided by inquiries which the mortgage itself indicates and directs, is sufficient.” And among the descriptions which seem to have met the approval of the court are these: “All the mules the mortgagor had in the territory of Kansas, or the same then in the care of H. C. Branch in Leavenworth county, Kansas.” The similarity between the last description and that in the present case seem to render unnecessary any further discussion of these questions.
But counsel insist, “ that there is nothing in the record to show how in the remotest way possible, the introduction of this chattel mortgage as evidence was material to any of the issues framed in the case.” We think counsel are mistaken in this. True, the pleadings do not disclose how plaintiffs obtained their title, but the affidavit filed for the writ alleges that they claimed the cattle by virtue of this chattel mortgage; and so much of the testimony as is in the record shows that defendant knew of the existence of this chattel mortgage, and had himself received from the mortgagor the cattle to winter. Again, counsel contend that proof of title in the plaintiffs would avail nothing without proof of “ the wrongful detention of the property by the defendant,” and as no proof of the wrongful detention was made the error was immaterial. If it appeared affirmatively that there was no wrongful detention by the defendant, it might properly be held that any error in rejecting proof of title was immaterial. But in the trial, proof of title logically precedes proof of wrongful detention; and if, when offered, the evidences of title are rejected, it is unnecessary for the plaintiffs to proceed further and attempt to show a wrongful detention, for if the plaintiff has no claim to the property it matters not whether the defendant or some one else has. We are aware that the trial court has considerable discretion in deciding upon the order in which evidence shall be introduced pn a trial, and may in some cases properly refuse to let certain evidence in, until other testimony has been offered. In every such case however the reason for the decision should be given, or the dependence of the testimony rejected upon that not offered be apparent. When testimony, which in the natural order of things ought to be first presented, is rejected, it will be presumed that it was so reiected because of some ... ° supposed intrinsic defect therein. In this case no objection was made upon the ground that other testimony ought first to be offered. It was, that the mortgage was void for uncertainty, was immaterial, irrelevant, and incompetent. This was the objection that was sustained. True, the plaintiffs first attempted to prove demand and refusal, and failed, and then offered this mortgage; but it did not follow that because they had failed to prove a demand at one time they could not prove one at another, and were not prepared to do so as soon as they had established title in themselves. We think there fore that the court erred in ruling put this mortgage, and that the error was material. For this error the judgment must be reversed, and the cause remanded for new trial.
It does not seem to us that the record discloses any abuse of discretion in permitting the defendant to file his answer out of time. Spratly v. Putnam Fire Ins. Co., 5 Kas., 155.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
The only ground assigned for error in this case is that the court below erred in granting a new trial. The motion for a new trial was founded upon the following grounds, to-wit:
“ 1st, Error in the assessment of the amount of recovery; in that it is too large.
“ 2d, That the verdict is not sustained by sufficient evidence, and is contrary to law.
“ 3d, Error of law occurring at the trial and excepted to at the time by said defendant.”
Upon which of these grounds the new trial was granted, is not shown by the record. Hence, before we could reverse the order of the court below granting the new trial it would have to appear affirmatively to us that the new trial could not have been properly granted upon either of said grounds. This does not so appear. The question is discussed in the brief of counsel for plaintiff in error as though the new trial was granted solely upon the ground that the verdict was not sustained by sufficient evidence. Now the record does not show that the new trial was granted upon this ground alone; but for the purposes of this case we will suppose that it was, and still we do not think that we can reverse the ruling of the court below. The evidence was conflicting and contradictory, and while we think the preponderance of the evidence sustains the verdict, still we cannot reverse the ruling of the court below for that reason. [Anthony v. Eddy, 5 Kas., 127; Field v. Kinnear, 5 Kas., 233, 238; Owen v. Owen, 9 Kas., 91, 96.) For the preponderance is not great. Before we would reverse in such a case the preponderance of the evidence would have to be so overwhelmingly great that it would show an abuse of judicial discretion on the part of the court below in setting aside the verdict and granting a new trial. Where a new trial has been granted both parties have another opportunity of having a fair and impartial trial upon the merits of the action. But where a new trial has been refused, the matter is ended unless a reversal can be had. Hence new trials should be favored instead of being disfavored, wherever any question can arise as to the correctness of the verdict. As a rule, no verdict should be allowed to stand unless both the jury and the court trying the cause can say that they believe that the verdict is correct. While the question is before the jury they are the sole and exclusive judges of all questions of fact; but when the matter comes before the court upon a motion for a new trial, it then becomes the duty of the court to determine for itself whether the verdict is sustained by sufficient evidence or not. (Gen. Stat., 687, § 306, sub. 6.) And the decision of the trial court in such a case has almost controlling force with the appellate court. The appellate court will in such cases reverse only where the trial court has clearly abused its discretion.
The order of the court below granting the new trial must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This is a contest over a county-seat. election in Neosho county. The contestants now, as heretofore, were Osage Mission and Erie. As the result of the canvass, the county commissioners declared that Erie had received a ma jority, and directed the removal of the county offices to that place. Plaintiff in error, who was plaintiff below, instituted this proceeding to contest the election, and to restrain such removal. The judgment of the district court was in favor of the defendant, and sustained the result of the canvass as declared by the commissioners. The record of the case is very voluminous, comprising 647 pages of legal cap. As errors in the proceedings of the district court, plaintiff alleges certain rulings in the introduction of testimony, permitting an amendment of the answer, and certain of the findings of fact, and conclusions of law. But preliminary to any inquiry into these matters we are met by a counter objection on the part of the defendant, which, if well taken, is conclusive of the case. The trial was commenced at the April Term 1872 of the district court of Neosho county. The plaintiff introduced his testimony, and rested. The defendant commenced his, and examined a witness or two. All this testimony was reduced to writing as it was given. Before the defendant had rested, the April Term closed, and the further hearing was postponed. The record reads as follows: “And the time fixed by law for the holding of said April Term of court having expired, this cause was continued from term to term until the April Term of said court 1873, when the same was resumed.” By law two terms intervened between the commencement and close of the trial. At the April Term 1873 the defendant finished his evidence; rebutting testimony was offered, and the case submitted to the court. The trial in April 1873 was treated as a continuance that began in April 1872, and as though there had been but an adjournment from day to day during the same term. There was no formal offering of the testimony as written down; no re-examination of the witnesses. Now it is insisted by counsel for defendant in error that the trial which commenced in April 1872 was ended by the close of the term, and that that in April 1873 was a separate, independent trial, and as at that time no testimony was offered supporting the plaintiff’s claim the judgment was properly entered for defendant. We think this objection of the defendant in error well taken. We do not understand that a case can be tried piecemeal in this way. Here two terms and a year’s time intervene between the term at which part of the testimony is heard, and that at which the remainder is introduced. If the case were tried before a jury, the impropriety would be more apparent, in view of the difficulty of securing the re-attendance of the same triers; but the impropriety would not be more real where a great length of time intervenes, as in this case. Undue weight will very likely be given to the testimony offered at one of the terms. The case is not presented to the consideration of the court in a symmetrical and well-proportioned manner. Impressions settle into convictions, while the manner of witnesses and much of the minutia which gave rise to those impressions are forgotten. It frequently happens that the testimony on the one side, even when not contradicted, is explained or qualified by that on the other, and when so explained or qualified carries a very different meaning from that which it conveys by itself alone. If this explanation or qualification is not heard for a year, it will often go but little ways toward changing the effect first produced on the mind. The whole force of the argument in favor of the statutory requirement that exceptions must be reduced to writing at the term, is against the propriety of a trial in the manner this was tried. Again, at common law, the judgment and all proceedings were entered and dated as of the first day of the term, as though it was but a single day’s duration, and there were no break or interruption of any kind in the session of the court. The idea seemed to be, that a trial was a continuous proceeding from its opening to its close. The jury were under charge of an officer, and forbidden to separate through the entire trial, and not as now, only when counseling upon the verdict. A criminal trial once commenced must be carried through to its close, and a failure to finish it was equivalent to an acquittal of the defendant. Jurors were and are summoned only for the term. Process for witnesses loses its force at the end of the term. Exceptions must be reduced to writing at the term. Questions even have been raised as to the power to continue a motion for a new trial to a subsequent term, though in Ohio and in this state it has been decided that such a motion could be continued. (Coleman v. Edwards, 5 Ohio St., 51; Brenner v. Bigelow, 8 Kas., 496.) In Ohio the continuance of such a motion does not carry with it the right to’make a bill of exceptions as to rulings upon the trial. (Kline v. Wyman, 10 Ohio St., 223; Morgan v. Boyd, 13 Ohio St., 271.) “All indictments and information shall be tried at the first term at which the defendant appears, unless the same be continued for cause.” (Crim. Code, § 157, Gen. Stat., p. 845.) “Actions shall be triable at the first term of the court after the issuse therein by the time fixed for pleading are or should have been made up.” (Civil Code, § 315, Gen. Stat., p. 689.) A trial docket is to be made out twelve days before the term, and actions set for particular days, and so arranged that they may be tried as nearly as possible on the days for which they are set. (Code, §313, Gen. Stat., 688.) We are aware that the statute empowers the court to continue.“an action at any stage of the proceedings.” (Code, § 316, Gen. Stat., 689.) But the question here is not as to the power to continue, but the effect of the continuance. The court may break up a trial at any time, and continue the case; but at the next term the trial must be recommenced, and cannot be taken up where it was left off. “A final adjournment of the court for the term operates as a legal discharge of a jury, and terminates their functions as such.” (Ashbaugh v. Edgecomb, 13 Ind., 466.) In Indiana there is a special statute applicable to cases where the time fixed by law for the close of a term comes in the midst of a trial. (2 Gavin & Hord’s Stat., 27, § 32; Dorset v. Rosenthal, 39 Ind., 209.)
Our conclusion then is, that inasmuch as the plaintiff at the April Term 1873 offered no testimony to support his case, the defendant was entitled to judgment, and that it is immaterial whether any errors were committed in the rulings in April 1872.. At the time the trial was resumed in April 1873 the defendant objected to any consideration of the testimony offered the year previous, and moved for a dismissal of the case, so that the matter was fully called to the attention of the district court. While we have been constrained to place our decision upon this ground, we deem it due to the parties litigant, and interested, and to the importance of the case, to say, that we have examined the whole record before us, and considered all the objections made by counsel for plaintiff in error to the various rulings of the district court, and that, while upon such record there appears a great conflict of testimony, yet in accordance with well-settled rules of decision we should have been compelled to uphold the findings of the trial-court upon the disputed questions of fact.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action on a bill of exchange brought first in a justice’s court, and thence taken on appeal to the district court of Labette county, in both of which courts defendants in error obtained judgment for the amount of the bill and interest. Plaintiff in error insists that the district court erred in overruling his application for a continuance on the ground of absent testimony. We think not. The testimony was that of a witness residing in Cherokee county. The deposition of this witness was not takerij nor any effort made to take it. The affidavit alleges that the witness agreed to be present, but failed, as affiant was informed and believed, on account of sickness. This is not a showing of sufficient diligence. The law will not compel the attendance of a witness from an adjoining county. His attendance is purely voluntary, and a party relies upon such voluntary attendance at his peril. At‘least such is the general rule, and this case presents no exception. (Ed. Association v. Hitchcock, 4 Kas., 36.)
Again, the plaintiff in error insists that the bill of particulars did not contain a statement of facts sufficient to constitute a cause of action. The specific objection is, that there is no formal allegation of the partnership of the plaintiffs. The bill of particulars is entitled “A. H. B., H. W. B., A. H., and F. W. B., co-partners, doing business under the name of Blanke & Bros., plaintiffs,” etc. It commences with a like recitation, and alleges that the “plaintiffs by the name of Blanke & Bros, made their certain bill of exchange,” etc., alleges the acceptance of such bill by the defendant, and attaches a copy, and also alleges that defendant has not paid the same or any part of it, and that the same is now due said plaintiffs. We think this is sufficient precision and formality for the pleadings of a j ustiee’s court at least. (Civil Code, § 123; Justices Act, § 84.) The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
Where the verdict of a jury has been rendered upon oral testimony, and the testimony tending to support the verdict would be sufficient therefor if it were not contradicted by other testimony, and the district court has approved the verdict by refusing to set it aside and to grant a new trial, this court will not reverse the judgment of the district court and order a new trial to be granted where the only ground therefor is"that the verdict is not sustained by sufficient evidence. This principle has already been decided in Luke v. Johnnycake, 9 Kas., 511, 519; K. P. Rly. Co. v. Montelle, 10 Kas., 126, 127; Davenport v. Elliott, 10 Kas., 587; St. Jos. & Den. City Rld. Co. v. Chase, 11 Kas., 47; Brewster v. Hall, 12 Kas., 161; A. T. & S. F. Rld. Co. v. Stanford, 12 Kas., 354.
II. A receipt for money is only prima faeie evidence of the truth of the statements therein contained.
III. Where a debtor pays a portion of his debt, which portion he admits to be due at the time he pays it, but claims that it is all that is due, and that it is the whole of the debt, and the creditor receives the same and signs a receipt in full therefor, but at the same time claims that it is only a portion of the debt, and that the other portion still remains due, the creditor is not estopped by his receipt from afterward suing the debtor and recovering the balance of the debt not yet paid.
In support of these last two propositions we would refer to the cases of Ryan v. Ward, 48 N. Y., 204; Bright v. Coffman, 15 Ind., 371; Wheeler v. Wheeler, 11 Vt., 60, 66; Curtis v. Martin, 20 Ill., 558, 577; and other cases cited in briefs of counsel.
The judgment of the court below is affirmed.
King-man, C. J., concurring.
Brewer, J., dissenting.
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The opinion of the court wás delivered by
Valentine, J.:
The main question in this case is, whether a father is liable in a civil action for damages for the wrongful acts of his minor son where the son lives with the father and is under his control, but where the acts complained of were not authorized by the father, were not done in his presence, had no connection with the father’s business, were not ratified by him, and from which the father received no benefit. We must answer this question in the negative. The father in such a case is not liable. (Baker v. Holdeman, 24 Mo., 219; Tefft v. Tefft, 4 Denio, 175; Moon v. Towers, 8 C. B., (N.S.) 611; same case, 98 Eng. Com. Law, 611; McManus v. Crickett, 1 East, 106.) . In such a case the son alone is liable.' Suppose a minor son, fifteen or twenty years of age, should steal a horse, or rob a bank, and abscond with the proceeds of his larceny, does any one suppose that the father would have to answer therefor, either civilly or criminally? The minor alone would be liable, and he would be liable both civilly and criminally.
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All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by the plaintiffs in error, Thacher & Stephens, against the defendants in error, the board of county commissioners of the county of Jefferson, for services rendered by plaintiffs in error as attorneys and counselors-at-law. It appears from the record that one H. Gr. Turner commenced an action of mandamus in the supreme court of the state of Kansas against H. S. Walsh, J. D. Eollins, and Henry Ogle, the board of county commissioners of said county of Jefferson, to compel said board to submit to the qualified voters of Kock Creek township in said county the question whether stock should be taken in the name of said township in the A., T. & S. E. Eld. Co., and the bonds of the township be issued in payment for such stock. The said county board employed the plaintiffs in error as attorneys and counselors-at-law to defend said suit. The plaintiffs in error performed said services, the action of Turner was defeated, and this action is now brought to recover compensation for said services. (The case of Turner v. The Commissioners of Jefferson County is reported, and will be found in 10 Kas., 16, el seq.) We suppose the only question in this case is, whether the county commissioners as county commissioners had power to employ the plaintiffs in error to defend said suit. We think they had. In this state all the powers of a county are exercised by the board of county commissioners, (Gen. Stat., 254, § 3,) and the county always sues and is sued in the name of the board of county commissioners. (Gen. Stat., 254, § 5.) In fact, the county commissioners are the general officers or agents of the county. And whenever any duties are imposed upon the commissioners by law it should be presumed that such duties are imposed upon the commissioners as the agents of the county, unless the contrary clearly appears. In many cases the county is by law constituted the general agent or guardian for the protection of the rights and interests of townships, and of other subdivisions of the county, and may prosecute or defend therefor. Thus the county through the .board of county commissioners may maintain an action against the county treasurer for a misappropriation or misapplication of the funds of a township, or school district, etc., although the county as a corporation can have but little interest in the funds of such township or school district. (Comm’rs of Jackson Co. v. Craft, 6 Kas., 145.) In the matter of taking stock in railroad companies for townships, and of issuing township bonds in payment for such stock, and of levying and collecting taxes for the payment of the bonds, the township officers have nothing to do. Everything is done by the county officers, and nearly everything by the county board. The petition for the election to determine whether the stock shall be subscribed, is presented to the county board; (Laws of 1870, page 189, § 1.) The county board alone can determine whether the election shall be held, and such board alone can order the election; (id., 190, § 2.) The county board canvasses the returns of the election, and declares the result; (id., §§ 3, 4; also, Gen. Stat., 410, § 28.) If the election has resulted in favor of subscribing for said stock the county board orders the county clerk to make the subscription, and causes the bonds to be issued in payment of said stock, which bonds are “signed by the chairman of the board and attested by the clerk under the seal of the county;” (Laws of 1870, p. 190, § 5.) The county board then annually levies the tax on said township to pay the interest on said bonds, and to create a sinking fund to pay said bonds at maturity; (id;, p. 191, § 6.) And with the surplus taxes levied and collected for the payment of interest, (if there should be any such surplus,) and with the sinking fund, the county board may at any time cause the treasurer to buy up the outstanding bonds at their market value not exceeding their par value; (id., § 8.) In all this the county through the county board seems to be the agent and guardian for the township. And if any litigation should spring up concerning any of these matters we should think that the county through the county board would have ample authority to protect the rights and interests of the township. In this way the county protects the rights and interests of a portion of its own people. Eor all the foregoing services the county commissioners are paid by the county. (Gen. Stat., 256, § 14.) And we suppose there can be but little doubt but that the county must pay for the expenses of the election; (Laws of 1870, p. 190, §§ 3, 4; Gen. Stat., 420, 421, §§71 to 74.) And we suppose the county must also pay the expenses of issuing the bonds, etc. Now the litigation between Turner and the county commissioners was concerning the foregoing matters. Turner did not sue the county commissioners to compel them to do something merely as individuals, nor even to do something merely as individual commissioners. He sued them to compel them to do something which they could do only as a “ board of county commissioners.” (Laws of 1870, p. 189, § 1.) The law is explicit. It does not provide that the persons holding the offices of county commissioners shall call the election, nor merely that the county commissioners shall call the election; but it provides that “The board of county commissioners” shall call the election. Turner of course in effect sued the county commissioners as a board, whether the action was in form against them as individuals or not, for he sued them to compel them to do something which they could do only as a board and as the county board. And when the commissioners are sued as the county board beyond the limits of their own county, and where the county attorney is not bound, to go, may they not then as the county board employ counsel to defend the action ? We do not think that it is necessary to determine whether said action of Turner against the county commissioners was an action technically against the county or not; for we suppose that no one will claim that the county commissioners can employ counsel in only such cases as these where the county is technically a party. A suit against the officers of the county is often a suit substantially against the county. And in this very case we think the action of Turner was substantially an action against the county as the guardian and protector of the rights and interests of Rock Creek township. And it was also substantially against the county in another respect. It was an action to compel the county commissioners to do something which would incur liabilities against the county; for instance, liability for the county commissioners’ services, for the expenses of the election, etc. Suppose an action of mandamus should be commenced in the supreme court of the state to compel the county clerk to enter certain taxes on the tax list to pay certain supposed liabilities against the county: could not the county commissioners then employ counsel to defend? Or suppose an action should be commenced in the United States circuit court to enjoin the treasurer from collecting a certain county tax: could not the county commissioners then employ counsel to defend? We suppose that whenever the county is interested at all in the result of a suit, either in its own behalf or in
that of some township of the county, and the suit is brought against the legal representatives of the county, and is beyond the limits of the county, the county commissioners may if they choose employ counsel to take care of the interests of the county. As throwing some light upon the questions discussed in this case we would refer to the following authorities: Bancroft v. Lynnfield, 18 Pickering, 566; People v. Supervisors of N. Y., 32 N. Y., 473; Brady v. Supervisors of N. Y., 2 Sandford, 460, 472; Gillespie v. Broas, 23 Barb., 379. This case has been ably presented by counsel on both sides, and for additional arguments and additional authorities we would refer to counsel’s briefs.
There has been no question raised as to the value of the plaintiffs’ services. The parties agreed in the court below that the services were worth $265.00. The judgment of the court below will be reversed, and cause remanded with the order that judgment shall be rendered upon the facts agreed to in favor of the plaintiffs below and against the defendant below for the sum of $265, and costs.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This is an action of mandamus brought originally in this court. There are several questions involved in the case, but for the purposes of the case we shall assume that all except one should be decided in favor of the plaintiff, and that one may be stated as follows: Can any money belonging to the state, rightfully in the state treasury, and over which the legislature has the rightful control, be drawn from the state treasury except in pursuance of some act of the legislature passed for that purpose within one year prior to the attempted drawing of the money? We must answer this question in the negative. The question arises as follows: The superintendent of insurance issued a warrant in favor of the plaintiff upon the state treasurer, which warrant reads as follows:
“Insurance Fund, 1 Insurance Department,
No. 196. J Topeka, March 10th, 1874. Treasurer of State of Kansas:
Pay to Geo. W. Martin, or order, the sum of forty-three dollars, out of any moneys in the State Treasury belonging to the ‘Insurance Fund/ as provided by Chapter 93 of the Laws of 1871. [seal.] Ed. Russell,
$43.00. Superintendent of Insurance.”
The plaintiff presented this warrant to the state treasurer for payment, and the state treasurer refused to pay the same, and indorsed thereon the following words, to-wit:
“Presented for payment June 22d, 1874. Not paid, for the reason that no appropriation was made by the legislature of 1874 providing for the payment of this class of warrants.
“John Francis, State Treasurer.”
Now, admitting that everything must be decided against the treasurer except that the legislature failed to make an appropriation for this class of warrants, and then should the treasurer have paid said warrant? We think not. Section 24 of article 2 of the constitution reads as follows:' “No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law; and no appropriation shall be for a longer term than one year.” This section would seem to be decisive of the question now under consideration. “No money shall be drawn,” etc. This would seem to mean that no money that may ever rightfully be in the state treasury shall be drawn therefrom except in pursuance of an act of the legislature specifically authorizing the same to be done, passed within one year prior thereto; and it certainly does mean so unless some other provision of the constitution may be found which would tend to limit or modify the meaning of the language used. Now, we shall not say that there is nothing in the constitution which would tend to limit or modify the meaning of said language; but we think there is nothing in the constitution that would tend in the least to limit or modify the meaning of said language so far as it has any application to this particular case. The language of said section is broad enough to cover the insurance fund as well as every other fund, and there is nothing in the constitution that we are aware of that would tend to withdraw the insurance fund from its operation. Hence the provisions of • said section must apply to the • insurance fund, whether they apply to every other fund or not. It seems to be admitted by all parties that said insurance fund belongs to the state, and that it is rightfully in the state treasury. Indeed, this action of mandamus against the state treasurer to compel him to pay a warrant drawn on the state treasurer for money in the state treasury is founded upon such a theory. It is claimed, however, by the plaintiff that the words “no money” as used in said § 24 should be construed to mean “no money raised by taxation.” But if the framers of the constitution had intended to have given to said words such a meaning we think they would have said so in express terms; or at least they would have placed said § 24 in the article on finance and taxation (art. 11,) instead of placing it where they did. The state may and does receive money from various «other sources than that of taxation; and said section being isolated as it is, and broad in its terms, was undoubtedly intended to'apply to all money raised from every source except such money as may be excepted from the provisions of said section by some other provision of the constitution. As said § 24 was not inserted in the article of the constitution concerning finance and taxation, it would certainly be as reasonable to say that it did not apply to money raised by taxation as to say that it does not apply to the insurance fund. But is not the “insurance fund” raised by a species of taxation?
The writ of mandamus will be denied, and judgment will be rendered for the defendant for costs.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
On the 6th of January, 1871, taxes were due in Johnson county for the year 1870, from the Missouri Eiver, Fort Scott & Gulf Eailroad Company, amounting to the sum of $11,985.21, and the proper officers of that county were about to proceed to collect the same. The railroad company however on that day commenced an action against J. H. Blake, county treasurer of said county, and A. J. Clemmans, sheriff of said county, to perpetually enjoin them from collecting said taxes; and on the 7th of January, 1871, the judge of the district court for said county granted a temporary injunction to restrain the collection of said taxes pending the litigation. Afterward the petition of the railroad company was amended, and on the 28th of August, 1871, the defendants demurred to the amended petition. The court below sustained the demurrer, rendering judgment for costs against the railroad company, and in favor of said Blake and Clemmans, and dissolved said temporary injunction. The railroad company then brought the case to this court on petition in error, and in this court the judgment of the court below was affirmed. (For a report of that case see Gulf Railroad Company v. Blake, 9 Kas., 489.) In all the foregoing proceedings the present defendant in error, F. E. Ogg, acted, along with other counsel, as counsel for Blake-and Clemmans. He was not however employed by Blake or Clemmans, nor by the county commis sioners; but he acted in the defense of said suit in the capacity of county attorney of Johnson county. After said suit was determined in this court the railroad company paid said taxes to the treasurer of Johnson county, but neglected to pay the ten-per-cent, penalty which had then accrued on said taxes. The defendant in error, Ogg, then as county attorney filed a “precipe” with the county treasurer for a tax warrant to be issued for the collection of said tax penalty. The warrant was issued by the treasurer of said county to the sheriff, and the sheriff collected the said penalty from the railroad company and paid it over to the treasurer. The ten-per-cent, penalty amounted to $1,198.52 and the taxes and penalty in the aggregate amounted to $13,183.73. The defendant in error, Ogg, now claims that he is entitled to ten per cent, of the whole amount, to-wit, $1,318.37, for his said services as county attorney. He first filed his claim for that amount with the county commissioners, but they refused to allow the same or any part thereof. He then commenced this action in the district court for that amount, and the district court, upon an agreed statement of facts, rendered judgment in favor of Ogg, and against the county for the whole amount claimed, with costs, Is such judgment correct? This is the only question in the case. Ogg does not claim this amount as a part of his salary as county attorney. Nor does he claim it under any contract made with the county commissioners. Indeed, he does not claim it under any contract made with any person or persons. He simply claims it under that provision of the statute which says: “County attorneys shall be allowed ten per cent, on all moneys collected by them in favor of the state or eov/nty,” (Gen. Stat., 285, § 139.) And he claims this in addition to his salary as county attorney, and in addition to all other fees or compensation allowed by law. Whether all of said taxes belonged to the state and county is not shown by the record, (they may have belonged to some other fund,) but for the purposes of this case we shall assume that they all belonged to the state and county. Or rather, we shall assume that they all belonged to the county; for if any portion of them belonged to the state then a very serious question would arise whether the county is liable for the whole amount or not. That is, whether the county is liable to pay out of its own fund the ten-per-cent, allowed by the statute for collecting the state fund, or whether the state fund should not bear its proportion. Then with these assumptions the whole question in this case depends upon whether said payment of said $13,183.73 by the railroad company to the treasurer and the sheriff of said county was a eolleetion of the same or any part thereof by the said county attorney, Ogg, within the meaning of said statute. That is, did the county attorney collect the taxes paid by the railroad company to the county treasurer, and did the county attorney collect the penalty paid by the railroad company to the sheriff? The court below decided that the county attorney collected both the taxes and the penalty. We think however that the county attorney did not collect either. None of the money ever,passed into his hands, or through his hands, and he had no authority to receive it. But he claims that he collected said money by virtue of said injunction suit, and that he collected a portion of the same by virtue of said “precipe.” Now neither the state nor the county was a party to said injunction suit. No judgment was rendered in favor of or against either the state or said county. Neither the state nor the county employed said county attorney. Indeed he was not employed at all. The suit was between the railroad company on the one side, and said Blake and Clemmans on the other; and no judgment was rendered even in favor of Blake and Clemmans, except for costs. The judgment did not give Blake and Clemmans or either of them any right to collect said taxes, or to collect said penalty. It did not give or pretend to give them any rights which they did not have before. They could not have had an execution issued on said judgment for the collection of said taxes and penalty. And they did not even attempt to have any such execution issued. They did not collect, nor attempt to collect said taxes and penalty by virtue of said judgment, and they had no authority to do so even if they had so attempted. The taxes and penalty were collected wholly under the statute, independently of said judgment, and were so collected in the same manner (with the exception of said “precipe,”) that they would have been collected if no such suit as said injunction suit had ever been commenced. (Gen. Stat., 1059, §123; Laws of 1869, p. 251, § 15; Laws of 1871, p. 234, § 11.) The said precipe filed by the county attorney with the county treasurer was a nullity. Or at most it could be treated only as an opinion of the county attorney that a tax warrant should be issued. It is an instrument unknown to the tax laws. It gave to the county treasurer no powers. It could perform no office nor function, other than as a mere opinion of the county attorney. It did not make the tax warrant afterward issued any better or worse than such tax warrant would have been if no such precipe had ever been filed. It did not make it any more obligatory upon the treasurer to issue said tax warrant than it was before under the law. It simply left the treasurer with just the same rights and powers that he had before the precipe was filed, and with just the same rights and powers that the treasurer would have had if no injunction suit had ever been commenced. It may be true that said injunction suit determined incidentally that said taxes were legal, and that the treasurer had a right to collect the same; but such a determination could only be incidental. The direct determination was that the railroad company was not entitled to an injunction in the case. This determination might have been for other reasons than that the taxes were legal. Injunction to enjoin the collection of taxes is often refused notwithstanding that the taxes or some portions thereof may be illegal. (Sleeper v. Bullen, 6 Kas., 300, 306, 309; Ottawa v. Barney, 10 Kas., 270, 279, 280; Gulf Rld. v. Morris, 7 Kas., 210, 229 to 232; City of Lawrence v. Killam, 11 Kas., 499; Gilmore v. Fox, 10 Kas., 509; Hudson v. Atchison Co., 12 Kas., 140.) The refusal of tha injunction in such .a case is simply a negative judgment, and gives to the defendants no affirmative rights except to collect their costs. The refusal of an injunction to restrain the collection of taxes does not confer any right upon the officers to collect the taxes. It simply leaves the officers with just such rights as they had before.
The judgment of the court below will be reversed, and cause remanded with the order that judgment be rendered in favor of the defendant below and against the plaintiff below for costs.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error recovered a judgment in the district court of Crawford county for damages, for breach of a contract to cut, bind and stack certain oats. This judgment plaintiffs in error now seek to reverse. The testimony is not preserved, and but a single question is presented, and that upon the refusal of an instruction as to the measure of damages. Plaintiffs in error asked the court to charge that the measure of damages was the difference between the contract price and what it would have cost to have gotten the same work done by other parties. This the court refused, and charged that the plaintiff was entitled to recover such damages as he actually sustained by reason of the failure, provided he did what he could to protect himself from loss — that if he, relying upon the contract with the defendant, made no other provision for cutting the grain, and did not become aware that defendants would fail in their contract until it became so late that he could not get these oats harvested by others until they were ripened and destroyed, he was entitled to recover the value of the oats so lost and destroyed, as they stood in the field. While the instruction refused states what perhaps would be the ordinary rule for the measure of damages, still we think that given states the rule as applicable to some cases. If the plaintiff, after using all reasonable precautions lost his crop by reason solely of the failure of defendants to perform their contract, he was clearly- entitled to recover the amount of such loss; and to that extent the instruction goes, and no further. We must presume that the evidence, it not being before us, warranted the instruction. The petition clearly does, for it alleges specifically that by reason of the breach the oats were entirely destroyed and lost to the plaintiff.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The issues in this case were at the December Term 1872, of the district court of Montgomery county, referred to a single referee, with instructions to report his determination ten days before the beginning of the next term. No report was filed within the time named, 'but one was filed on the last day of that next term. This report is dated of the day it was filed. There is nothing in it to show when the trial before the referee was completed, or his decision rendered. And if you are to look at the affidavits filed on the motion to set it aside, it would appear that his decision was not made until the day before the filing. At any rate, it does not appear from the report or otherwise that the trial was completed and the decision made prior to the time fixed by the court for filing the report. A motion to set it aside, on the ground that at the time of filing the referee had no power to act, was overruled, and judgment entered on the report. In this we think the court erred. The referee is an officer whose" power and duties are created by the order of the court. If he go outside the limits of that order, his acts are void. When the time within which by the terms of the order • he must act has expired, his office has ceased, and his powers are ended. Neither party is obliged to take any further notice of the reference. Here he was ordered to make his report by a specified time. When that time had passed without the filing of a report his powers as referee were at an end, and any further action was as though no order of reference had ever been made. Nor did the confirmation of the report make valid that which was before void. The report, when filed, was no more than a volunteer report; and a court cannot by confirmation breathe life into such a document. Harner v. Coffin, 1 Oregon, 99; Brower v. Kingsley, 1 Johns. Cases, 334; White v. Pivyer, 10 Geyer, 441; Ryan v. Dougherty, 30 Cal., 218; Francis v. Ames, 14 Ind., 251; Smith v. Warner, 14 Mich., 152.
Before disposing of the case we desire to notice one other matter. No exceptions were filed with this report, and several affidavits are filed to show that plaintiffs in error had no knowledge of the determination of the referee until after the filing of the report, and no opportunity to prepare and present a bill of exceptions to the referee. The statute requires the referee to sign exceptions and return them with his report. In practice a party does not generally like to write out exceptions and have them signed, unless the findings are against him. To do so pending the hearing, works disagreeable delays. Hence a referee ought always, after the preparation of his report, to give notice thereof to the parties a sufficient time before the filing for them to prepare exceptions if desired. The writer of this opinion, when upon the bench of the First Judicial District, made a general rule requiring in all cases of reference five days’ notice to each party before the filing of the report. It would be well for all trial courts, if they have no general rule applicable, to prescribe in each order of reference the length of notice to be given before the filing. In this way the defeated party can always save his exceptions; and whenever in the absence of any general rule, or special order, it appears that a defeated party has, without any laches on his part, been deprived through the action of the referee of an opportunity to prepare and preserve his exceptions, the report should be set aside.
In taking advantage of this case to make some suggestions as to references, we do not wish to be understood as intimating that the facts in this case show any misconduct on the part of the referee. So far as those suggestions are concerned, we speak not in criticism of the present, but in advice for future cases. The judgment of the district court will be reversed, and the cause remanded for further proceedings.
Kingman, C. J., concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin for twelve head of neat cattle. The defendants in error (plaintiffs below,) replevied the cattle from plaintiff in error, and judgment was rendered in favor' of defendants in error, The petition below was an ordinary petition in replevin, and suf ficiently stated the plaintiff’s cause of action. The answer contained first, a general denial, and then six separate defenses setting up new matter. In these subsequent defenses the defendant admitted that the plaintiffs were the owners of the cattle, and that the defendant detained the cattle from the plaintiffs. Hence, upon the trial of the action, the general denial of the defendant could be considered only as a denial that the plaintiffs were entitled to the immediate possession of the property, and that the defendant wrongfully detained the same from the plaintiffs, (Wiley v. Keokuk, 6 Kas., 94; Butler v. Kaulback, 8 Kas., 668,) for the answer itself admitted and proved on the trial all the other allegations of the petition. The answer in fact proved prima faoie the plaintiffs’ whole case. It proved conclusively that the plaintiffs were the owners of the cattle, and that the defendants detained them from the plaintiffs. And as proof of ownership, if unaccompanied by other circumstances, is always prima faoie evidence of the right of possession, and as proof of a detention of property by a person not the owner and against the will of the owner, if unexplained by other circumstances, is always prima faoie evidence of a wrongful detention of the property, therefore the foregoing admission of ownership and detention contained in the answer were prima /acie'evidence of the plaintiffs’ right of possession, and that the detention of the cjattle on the part of the defendant was wrongful. If it be claimed however that .said ownership and said detention were explained by other circumstances stated in the answer which showed that the plaintiffs were not entitled to the immediate possession of the property, and that the defendant did not wrongfully detain the same, then it may be answered that these other circumstances stated in the answer were controverted by the plaintiffs and could not be taken as true until proved by the defendant. Under the pleadings it did not devolve upon the plaintiffs in the first instance to prove anything. It devolved upon the defendant to show that he had the right to the possession of said cattle, and that he did not wrongfully detain them. And “this brings us to another question.
The defendant, although admitting in his answer that the plaintiffs were the owners of said cattl.e, and that the defendant detained the same from the plaintiffs, also alleged that the detention was not wrongful for the following reasons, to-wit: He alleges that the plaintiffs permitted these twelve head of cattle along with a large number of other cattle belonging to the plaintiffs to enter the .premises of the defendant, and there do a great deal of damage, for which damage the plaintiff claims to have a lien, upon said cattle. (Gen. Stat., 494., § 33; id., 1002, § 3; Laws of 1872, 384, § 3.) And the defendant also alleges that he took said cattle up as estrays. (Gen. Stat., 1003, et seq.) All of the defenses (six in number) in which the foregoing allegations are contained are defective for reasons not necessary now to be stated, except that the defendant does not show by any of said defenses that his case comes within any of the statutes above cited. We think however that the defendant had a right to show, under his general denial, all the facts that he attempted to allege in said six defenses of his answer; (Wilson v. Fuller, 9 Kas., 177, 190;) that is, he had a right to show under his general denial that the plaintiffs were' not entitled to the immediate possession of the cattle, and that the defendant did not wrongfully detain the same, by showing that the cattle broke through a lawful inclosure and entered the defendant’s premises and there did damage, and that the defendant detained them for the purpose of enforcing his lien for the damages; or, by showing that the cattle were strays, and that they entered the defendant’s premises, and that the defendant then took them up as strays. The court below, on objections by'the plaintiffs, refused to permit the defendant to prove the foregoing fact's, or at least the first of the foregoing facts. The question as to what may be proved by a defendant under a general denial in replevin has already been considered and decided by this court. (Town of Leroy v. McConnell, 8 Kas., 273; Wilson v. Fuller, 9 Kas., 177, 190.) In these cases it was decided that under our code the gist of the action of replevin is the wrongful detention of the property by the defendant as against the plaintiff, and that under a general denial the defendant may prove anything that will tend to show that he does not wrongfully detain the property as against the plaintiff. In the present case, for instance, the defendant might show that he did not wrongfully detain the property1' by showing that he rightfully detained it. The court below however, on objections made by the plaintiff, excluded all evidence tending to show that the detention of the property by the defendant was rightful instead of wrongful. And herein we think the court below erred.' The plaintiffs alleged in their petition that the detention of the cattle was wrongful. The defendant denied the same by a general denial. The plaintiffs then proved prima fade by parol evidence, and by the defendant’s admissions in his answer, that the detention was wrongful, and the defendant then had a right to rebut this prima fade case by showing that the detention was not wrongful.
The judgment of the court below is reversed, and cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
That an action in the nature of a “Bill ■ of Interpleader” may be maintained under our system of practice, whenever a proper case is made therefor, and whenever the plaintiff has no other adequate remedy, wehave no doubt. And we think the action may be maintained whenever the plaintiff has no adequate remedy in the nature of an action at law. The first and main question then for our consideration is, whether a proper case for interpleader has been made out in this particular case. Involved however in this main question are several minor questions, which we shall consider as we proceed. The court below decided upon various demurrers to the petition that the petition did not state facts sufficient to constitute a cause of action as against any of the defendants. And this petition in error is now instituted for the purpose of having that decision reversed. Now, if the petition in the court below did state facts sufficient to constitute a cause of action in favor of the plaintiff and against any two or more of the defendants, the decision of the court below must be reversed as between the plaintiff and those two or more defendants.
The action of interpleader is undoubtedly an equitable remedy, and for that .reason principally it cannot be maintained in any case where the party seeking it has another plain and adequate remedy in the nature of an action at law. Indeed, as a rule the action of interpleader cannot be maintained where another plain and adequate remedy has been given by statute; for as a rule, the remedy given by statute is considered as a legal remedy, in contradistinction to an equitable remedy. But the remedy given by statute may sometimes be an equitable remedy, and when it is, then it does not supersede some other previously-existing equitable remedy unless it has been expressly so enacted, but the second remedy is merely cumulative, and the two remedies are in effect concurrent. There never has been any rule in equity that we are aware of requiring a party to resort to one equitable remedy in preference to some other equitable remedy where the two remedies are equally applicable to the facts constituting the cause of action or defense, and where both are equally available to the parties; and we think no such rule has ever existed. In the present case the plaintiff is a school district. It employed the defendants Clark & Co. to build a school-house. Clark & Co., with the assistance of several sub-contractors, built the school-house, The school-house now owes Clark & Co., the contractors, $793.38J. This amount does not seem to be disputed. Clark & Co. claim the whole of it. Other defendants claim the same or portions thereof by virtue of being sub-contractors who furnished labor and materials for the school-house, and by virtue of having mechanic’s liens thereon. Other defendants claim said fund, or portions thereof, by virtue of being creditors of the contractor, and by virtue of garnishment-liens obtained in attachment proceedings against him in a j ustice’s court. And still another defendant claims the larger portion of said fund by virtue of a garnishment-lien obtained in the district court before a judge pro tem. in a proceeding in aid of execution. Clark & Co., (the contractors,) claim directly from the school district. All the other defendants claim under and through Clark & Co., except as to a portion of Trimmer & Thompson’s claim, of which we shall speak hereafter; but each defendant claims that his right to said fund is paramount to that of any other defendant. The amount which the defendants claim in the aggregate is vastly more than the plaintiff owes to Clark & Co., and therefore the plaintiff could not well pay the claim of any one of the defendants without great hazard to itself. For the purposes of this case, we shall assume that mechanic’s liens may be taken upon school-houses, and such other public buildings. Also, for the purposes of this case, but without expressing any opinion thereon, we shall assume that the action of interpleader does not lie in favor of the owner of a building to compel the holders of mechanic’s liens thereon, (contractors and sub-contractors,) to interplead with each other, .and with the contractor, and thereby have determined the extent and priority of their respective liens. And yet there may be cases where the action ought to lie. Under our statutes a promissory note may be given for the amount covered by the mechanic’s lien. (Laws of 1871, page 253, § 1; Laws of 1872, page 294, § 1.) And in such a case it is not necessary for the holder of the note to commence an action to enforce the lien until after the note becomes due, (Laws of 1872, page 297, §4,) although the note may not become due for ten or twenty or any other number of years. Now suppose that there are twenty or more sub-contractors holding notes for various sums due at various times, and the aggregate amount of these notes is vastly more than the owner of the building owes the contractor, or js liable for to the contractor and sub-contractors taken together. And suppose the contractor disputes all these notes, and that each sub-contractor claims that his own note is valid, unpaid, and secured by a lien upon the building, but disputes the notes and supposed liens of all the others. Suppose also that it is claimed that some of the notes were not given for labor or material furnished for the building; that some of them were obtained fraudulently; that some of them are paid; that some of the supposed liens were obtained irregularly, or fraudulently; that some of the holders of the notes are not the real owners of the same, etc.; and suppose the holder of each note intends to contest the lien of every other holder of a note: must the owner of a building keep his money five, ten, fifteen, or twenty years, until some one is ready to sue him, although his debt to the contractor is all the time due and drawing interest, which interest he will eventually have to pay? The action or defense given by the mechanic’s-lien law, and by § 43 of the civil code, is hardly an adequate remedy in such a case, f For the purposes of this case, and for that only, we shall also assume the following, to wit: lst.-A party who has a debt coming to him secured by a mechanic’s lien, may abandon or waive the mechanic’s lien, commence an ordinary action for the debt, sue out an attachment, and garnish any debtor of his debtor. 2d.-A garnishment-lien may be ob tained upon a fund already subject to a mechanic’s lien held by some other person, but of course the mechanic’s-lien will remain prior in right to the garnishment-lien. 3d.-When a party has two claims, one of which is secured by a mechanic’s lien and the other is not, he may sue out an attachment and garnish a fund subject to said mechanic’s lien, and to various other mechanic’s liens held by other parties, to secure one or both of his said claims. But in such a case he of course waives his mechanic’s-lien unless he commences a regular action to foreclose the same. We shall also for the purposes of this case assume, (and this is probably a correct assumption,) that a garnishee cannot require an attaching-creditor and the debtor (his creditor) to interplead with each other as to who shall receive the amount due from the garnishee to the debtor. And yet, if there were other persons claiming to hold prior liens on the fund due from the garnishee to the debtor in attachment, the only adequate remedy for the garnishee to protect himself from these conflicting claims would be an action of interpleader. The garnishment-lien attaches when the garnishee is served with notice, (Gen. Stat., 667, §206; id., 787, §51,) and continues until the attachment is dissolved, or the plaintiff’s claim is satisfied; and there is no provision for the determination of the extent, force, validity, or priority of this kind of lien in an action to foreclose a mechanic’s lien. (Laws of 1871, page' 255, § 5.) Indeed, the garnishee in such a case would have no adequate remedy except by the action of interpleader. And hence in such a case the action would lie. It is claimed however that § 43 of the civil code furnishes an adequate remedy. We do not think so. Under that action the holder of the fundis not entitled to any remedy until he jg gue(j^ an<j commencement of the suit may be postponed almost indefinitely. If the holder of the fund has no remedy except the one given to him by §43 of the civil code he may be compelled for an almost indefinite period of time to hold said fund always ready to pay the same to the person entitled thereto, and to pay it at any time when called upon with accumulated interest, although the holding of the same may be no benefit to him. His debt due to the contractor, in a case like the one at bar, does not stop drawing interest because others have obtained supposed liens thereon. Sometimes undoubtedly the remedy given by said § 43 of the code is an adequate remedy; but even then we do not think that the legislature intended that it should take the place of the action of interpleader. In such cases it was probably intended that the two remedies should be concurrent. Such seems to be the opinion of Mr. Wait as he gathers it from the New York authorities. (1 Wait’s Practice, 166, 167, 174. The remedy given by §43 of the code, as applied to cases like this, is in its nature an equitable remedy; and we know of no rule that requires that one equitable remedy should supersede or take precedence of another equitable remedy where both are equally applicable to the case. But it is claimed that the plaintiff in this action (the school district) had already been sued by the defendants Trimmer & Thompson, and that therefore the plaintiff as defendant in that suit had a right under said §43 of the code to have all the other parties brought in and have them interplead as to who should receive said fund, and as to how much each should receive; and therefore, that the plaintiff had another adequate remedy. But if this were true, still the remedy given by said section is an equitable remedy as applied to this case, and therefore the plaintiff still had no adequate remedy at law. But it cannot be that said section was intended absolutely to supersede the action of interpleader, even in a case like the one at bar. If such were so it would lead to insuperable difficulties in practice. Suppose that twenty or more different persons should each claim to be entitled to a particular fund, and suppose that one of these persons should sue the holder of the fund for the recovery of the same, and should in the same suit set up twenty or more separate and distinct causes of action and ask judgment on the whole of them: would the holder of the fund be bound to forego his action of interpleader, and in its stead resort to his remedy under said §43 of the code? Would he be bound to bring in as co-defendants with himself all the adverse claimants to said fund, and have them litigate their right to said fund while he was at the same time in the same suit on the same trial litigating with the plaintiff the questions arising in the other twenty separate and distinct causes of action in. which himself and the plaintiff alone were interested? But suppose there were various other persons, not claimants to said fund, but interested in the subject-matter of some one or more of these various other causes of action set up by the plaintiff against the defendant: must these other persons also all be brought in so that their claims m,ay also all be determined in this same suit? And so on, ad infinitum.' Each of these different causes of action set up in said petition may be concerning a fund, to each of which there may be twenty or more different claimants. Now suppose that each adverse claimant to one of these funds should commence an action against the holder thereof at about the same time: would the holder be bound under said § 43 to bring in all the adverse claimants into each suit, or could he bring them into one suit only and have the other suits enjoined? And if- he could bring them into one only, and have the others enjoined, into which should he bring them, and which should he have enjoined? If these suits were brought in various counties, or in various courts, they could not well be consolidated. Or if there were various other matters to litigate in each one of these suits they could not well be consolidated, although they might be brought in the same court. Now if it be agreed that the holder of the fund may enjoin the litigation concerning this fund in all the suits but one, why not in that one too, and allow him to bring an original action divested of all extraneous matters, and have it determined in that-action to whom the fund belongs? After a careful consideration of the whole question we have come to the conclusion that wherever under the former chancery practice a bill of interpleader would lie, an action in the nature of a bill of interpleader will now lie.
With respect to a portion of Trimmer & Thompson’s claim it would seem that the school-district has made itself absolutely liable; or at least Trimmer & Thompson so claim; and .hence with respect to this portion of said claim the action of interpleader will not lie. This portion of said claim must be litigated in another suit.
There are two other questions involved in this case. First; Is an order of a judge pro tem. of the district court in a proceeding in aid of execution, under §490 of the civil code, that a garnishee shall pay over to the judgment-creditors certain money which the garnishee owes to the judgment-debtor, a final determination of the liability of said garnishee to pay said money to said judgment-creditor? Second: Is an order of a justice of the peace in an attachment proceeding pending before him under §42 of the justices act, that a garnishee shall pay into court certain money which the garnishee owes to the defendant in the action, a final determination of the right of the plaintiff in the action to said money? We must answer both of these questions in the negative. Neither of said orders is a judgment. The making of them is not an adjudication between the parties. It does not determine their ultimate rights. It simply gives to the creditor the same right to enforce the payment of the money from the garnishee that the debtor previously had. It is in effect only an assignment of the claim from the debtor to the creditor. The creditor gains no more or greater rights than the debtor had, and the garnishee loses no rights. And the payment of the money can be enforced from the garnishee to the creditor only by an ordinary action. It is not necessary that an order under § 490 of the civil code be made by the court, as a court. It may be made by a judge of the court, at chambers; and in the present case it was made by a judge pro tem. Now can it be possible that a proceeding for the recovery of money may be determined finally, without parties plaintiff or defendant, without pleadings, before a judge at chambers, and without a jury? Final jurisdiction is always conferred upon courts, and not upon judges at chambers. Besides, in proceedings for the recovery of money a man’s rights can be determined against his will only by a jury. “The right of trial by jury shall be inviolate.” (Constitution, Bill of Eights, §5.) And no legislative act can abridge or impair that right. But suppose said order is an adjudication, a final determination of the rights of the parties: then there should be some way of directly enforcing it — either by execution against the property of the garnishee, or by imprisonment of his person. Now, it has already been decided in this court, and well decided as we think, that an execution is not allowable in such a case. (Arthur v. Hale, 6 Kas., 161, 165.) And we think it is equally clear that the order cannot be enforced by imprisonment of the garnishee. (Union Bank of Rochester v. Union Bank of Sandusky, 6 Ohio St., 254; Edgarton v. Hanna, 11 Ohio St., 323; Welsh v. Railroad Co., 11 Ohio St., 569.) “No person shall be imprisoned for debt except in case of fraud.” (Constitution, Bill of Eights, §16.) Now suppose the garnishee owes a debt to the .judgment-debtor, as is claimed in the present case. He is ordered to pay it into court, or to the judgment-creditor. He is unable to do it, or indeed he may even refuse to do it. May the court, or judge at chambers, imprison him therefor? If they can, then they may not only imprison him for debt, but they may imprison him forever therefor, or at least until he pays the debt; for there is no provision for'his discharge before he pays the debt. Would not this be imprisonment for debt, with a vengeance? But the statute does not seem to authorize the court or judge to order the garnishee to pay the money into court, or to the judgment-creditor. It simply provides that the court or judge may order the money “to be applied toward the satisfaction of the judgment.” (Civil code, § 490.) Under this order the money may be paid voluntarily by the garnishee, or it may be collected from him by an ordinary action. This is the view taken of the question by the Supreme Court of Ohio. (Edgarton v. Hanma, 11 Ohio St., 323, and other cases above cited.) Section 490 of our code is the same as §467 of the Ohio code, except that immediately after the words above quoted the following words are inserted in our code and omitted in the Ohio code, to-wit: “ and may enforce the same by proceedings for contempt in case of refusal or disobedience.” Now these words probably do not mean that the court may imprison a garnishee for not pajdng money which he owes (a debt) into court, or to the judgment-creditor ; but if they do, then we think that they are unconstitutional to that extent. (Union Bank of Rochester v. Union Bank of Sandusky, 6 Ohio St., 254, 260 to 262.) Section 473 of the Ohio code is the same as § 498 of our code; and both read.as follows:
“If any person, party or witness disobey an order of the judge or referee, duly served, such person, party or witness may be punished by the judge as for a contempt.”
This section is about as strong as the new words inserted in §490 of our code, and yet with this section the supreme court of Ohio made the decisions above cited.
With regard to the order made by the justice in the attachment and garnishment proceedings, we would say that the plaintiff in such proceedings has his remedy to enforce the payment of the money due from the garnishee by an ordinary action under § 43 of the justices act, and perhaps also by an action or proceeding under § 44 of the justices act; but he has no other remedy. (Rice & Burnett v. Whiting, 12 Ohio St., 358.)
In conclusion we would say that we think the petition shows a good cause of action for interpleader. It shows that there are several persons claiming the same thing from the plaintiff; that the plaintiff has no beneficial interest in the thing claimed; that some of the defendants have already instituted proceedings therefor against the plaintiff, and that others threaten so to do; that the plaintiff cannot determine to whom it belongs without great hazard to itself; that the plaintiff has no adequate remedy at law, nor indeed any other adequate remedy; that while the thing in dispute is a debt to Clark & Co., one of the defendants, yet there is no dispute about the amount of the debt; and that while some of the defendants do not claim the whole of the debt, yet that Clark & Co. do, and the others in the aggregate claim vastly more than the debt.
The judgment of the court below is reversed, and cause remanded with the order that the demurrer to the petition be overruled, and for such other proceedings as may be proper in the case.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Counsel presses earnestly on our attention, upon a motion for rehearing, two principal points. First, he claims that the court erred in its statements as to the issue of $25,000 of city bonds, and hence erred in its judgment as to the power of the city to make the contract referred to. There was a slight error in the statement of facts in the opinion filed in this case, (11 Kas., 526,) though the facts are correctly stated in the opinion filed when the case was here on error to reverse the temporary injunction order. (A. & N. Rld. Co. v. City of Troy, 10 Kas., 517.) The error is this: The city subscribed for $50,000 of stock, to be paid for with $50,000 of its bonds. The opinion states that $25,000 of these bonds had been issued, and the remaining $25,000 were placed in the hands of trustees as security only for the payment of $6,000. The facts are, as a re-examination of the record shows, that no bonds were issued except the $25,000 placed in the hands of the trustees as security. But this certainly cannot alter the power of the city. A valid contract' of subscription having been made, it was entitled of $5(^000 of stock, and owed $50,000 of bonds. The issue of these bonds could have been enforced by mandamus. It could in like manner have compelled the issue of the stock. With the legal rights and obligations existing by virtue of this contract of subscription, it can contract in reference to those rights and obligations, as well as it could in reference to the bonds and stock when already issued. It sold its right to the stock, and was released from its obligation to issue the bonds, for the sum of $6,000 — a contract it had the same right to make that it would have had, in case both bonds and stock had been issued, to have purchased its outstanding bonds by thé sale of its stock and the payment of a difference of $6,000. We regret the error in the statement of the facts, and are grateful to counsel for calling our attention to it. But we cannot see that the change in the facts affects in the slightest the question as to the power of the city. It was not an error that affected the nature of the original contract of subscription, or thé later one of sale, but only the extent to which the original contract had been carried into effect by one party to its terms.
The other, and really the important point is, that the court sustained the introduction of parol testimony to show the passage of an ordinance. A careful re-examination of the question does not satisfy us that we were wrong iu the views expressed in the opinion, and those views we reamrm. it may perhaps be proper to state, in order to guard against misapprehension, that we do not by any means hold that a party may, independent of any question of equitable estoppel, and without other and corroboratory circumstances, introduce parol proof of the passage of an ordinance and found thereon any claim against the city. Here the findings show that the Railroad Company had, on the strength of the acts of the city, and relying on the certified copies of the ordinance and other proceedings of the city council, duly attested, been to an extra expenditure of a large sum of money, facts presenting a strong foundation for the application of the doctrine of, equitable estoppel. A certified copy of the ordinance duly attested by the proper officers is in evidence. Record evidence is before the court also of the passage by the council of resolutions and of other proceedings of the council, which imply the previous passage of such an ordinance, and are meaningless without it. An election, which is a matter of public notoriety, is shown to have been held, an election which implied the existence as well as required the authority of a prior ordinance, and public notice of which is shown to have been posted about the city. The ordinance itself is produced from the files of ordinances kept by the city register. The testimony of the city officials is, that they had no book in which to record the ordinances, and that they were thus kept on file, waiting till some book should be purchased in which to record them, and also that the proceedings of the council were kept on slips and pieces of paper. Under all these corroboratory circumstances, and with the pressure of the equitable estoppel, we cannot say that the. district court erred in admitting parol proof that the ordinance did as a matter of fact p’ass the council and receive the approval of the mayor.
The distinction which counsel presses between acts which are within the scope of the ordinary powers of a city, and those which belong only to its extraordinary powers, does not seem to us to be material in this case.
The motion will be overruled.
All the Justices concurring.
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The opinion of the court was delivered by
Breweb, J.:
The material facts of this case are as follows: On the 8th of June 1871 J. L. Landreth executed his note due in one day after date to Eedfield & Co. Thereafter Eedfield & Co. indorsed to E. F. Wright, one of the partners in the firm of Eedfield & Co., and on July 10th 1872 Wright indorsed it to the plaintiff. At the time of the indorsement to plaintiff, and for months prior, Eedfield & Co. were prosecuting their claim on said note against the maker. This action (or their said claim,) was terminated adversely to them on the 18th of November 1872, on the ground, as appears from the report of the referees, that they had no interest in the claim. On the 16th of January 1873 this action was instituted by plaintiff, seeking to charge both the maker and the indorsers. No proof was made of demand by the plaintiff of payment from the maker, or notice to the indorsers. Were the latter liable? It is conceded that a bill or note indorsed after maturity is in the nature of a new bill, payable on demand, and that to hold an indorser thereon, the same strictness as to demand and notice is required as in the case of the drawer of an ordinary inland bill; but it is insisted that upon the facts shown the indorsers were not entitled to notice; that the rule is, that if the drawer had not at the time reasonable grounds to expect that the bill would be honored he is not entitled to notice, and that as at the time of the indorsement the indorsers were vainly attempting to collect the note by suit they had no reasonable grounds to expect that the maker would pay it to the indorser. We are inclined to think that the facts as stated do not make an exception to the ordinary rule, and that no demand and notice having been shown the indorsers were not liable. The principle is thus stated in 2 Smith’s Leading Cases, 61: “The whole principle of exception, then appears to be, that where the non-acceptance or nonpayment of the bill is caused by the fraudulent act of the drawer or indorser, or in other words, where the drawing or issuing of the bill, or the leaving it to be presented, is a fraud in any party liable on the bill, such fraudulent party is not entitled to notice, and it is believed that there are no other exceptions to the general rule requiring demand and notice. In some of the cases the rule is stated to be, that notice is excused wherever the drawer or indorser could not possibly be injured by the want of it; Commercial Bank of Albany v. Hughes, 17 Wend., 94; but practically that amounts to the same thing, for there is always in law a possibility of being injured by the want of notice, and the law will never refuse to take notice of that possibility except in case of a fraudulent drawer or indorser. The well-settled principle that bankruptcy, or notorious insolvency of the drawer, will not excuse notice, that having actual knowledge will not excuse regular legal notice, and that the holder neglecting to give legal notice is not permitted to show that no injury has in fact been sustained, all of which points are settled beyond the possibility of question, clearly show that the application of the fixed rule as to notice is no longer affected by what may once have been the reason for it.” In the 1st vol. of Parsons on Notes and Bills, on page 535, the rule is differently stated, and in these words: “The true test in our opinion in each case is this: Had the drawer under the circumstances of the case a right to draw? This depends upon the fact whether he had a reasonable ground to expect that the bill would be honored, or not. If he had such reason to expect it to be honored, he is entitled to a regular presentment and notice, and refusal to accept or pay; and if not so entitled, he cannot complain either for negligence in presenting and in forwarding notice, or for entire neglect to do either. The reasonable grounds required by law are not such as would excite an idle hope, a wild expectation, or a remote probability that the bill might be honored, but such as create a full expectation and a strong probability of its payment, such indeed as would induce a merchant of common prudence and ordinary regard for his commercial credit to draw a like bill.” Now there was certainly no fraud in the indorsement of this note. It was a valid instrument, a legal promise to pay. No suggestion is made of anything tending to impeach it. Being a contract in writing, it, under our statutes, imported a consideration; (Gen. Stat., 183, §7.;) and there is nothing to raise a suspicion that full value was not given for it. To transfer a valid obligation given for value, involves nothing of fraud. If it be regarded as a new bill, it is a draft on funds, and an accepted draft at that. If it be said that there was no reasonable grounds to expect payment, no more is there when the maker or acceptor is notoriously insolvent,; yet demand and notice in such a case are unquestionably necessary. Many of the most eminent English judges have expressed regrets that there was ever any exception made to the rule of demand and notice to charge a drawer, or indorser; and the current of authority tends to limit rather than extend the cases of exception. The indorsement effectuates two things — it transfers the title, and -creates a conditional liability. The first is often in the contemplation of the parties at the time of the transfer, the only thing sought; and if afterward recourse is sought on the indorser, he may well insist on an exact compliance with all the steps necessary to change the conditional to an absolute liability. See further on this subject, By les on Bills, pages 232, 234, and notes; Story on Prom. Notes, §367; 3 Kent’s Com., marginal page 110, and note. In this last citation the author says: “ Nor does knowledge in the indorser, when he indorsed. .the paper of the insolvency of the maker of the note, or drawer of the bill, do away the necessity of notice in order to charge him.”
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Lockett, J.:
Landowner initiated an inverse condemnation action, claiming that a city resolution placed limits on the right of commercial access from her property to the street and constituted a taking of the property. The trial court found that a taking of private property had occurred and awarded judgment to landowner. The City of Topeka (City) appeals. Jurisdiction is pursuant to K.S.A. 20-3018(c) (transfer from Court of Appeals on this court’s own motion).
The facts are uncontroverted. In 1988 plaintiff Lena Garrett and her husband, now deceased, owned a tract of land located between 1-470 and Wanamaker Road in Topeka. The south edge of the property abutted SW 21st Street. Garrett had a single family residence located on the southern part of the tract, with direct residential access to SW 21st Street.
The City adopted Resolution No. 5587 on Januaiy 26, 1988. Resolution No. 5587 affects property in the area known as the Wanamaker Corridor, the area bounded by SW 17th Street on the north, Wanamaker Road on the west, SW 21st Street on the south, and 1-470 on the east. Garrett’s property was within the Wanamaker Corridor and was affected by Resolution No. 5587. Resolution No. 5587 stated that it was enacted to safeguard public health, safety, and welfare in anticipation of commercial development and to place reasonable controls on traffic flow on the major arterial streets as well as the internal streets within the Wanamaker Corridor. The resolution provided that permanent access to commercial properties and public intersections must be a minimum of 420 feet apart. There would be five permanent access points to the interior traffic circulation for the corridor; the two permanent access points nearest the plaintiff’s property were to be north from SW 21st Street, each of which would be a specified distance from Wanamaker Road. Resolution No. 5587 also provided:
“Temporary access to Wanamaker Road and 21st Street may be granted with the following conditions:
a. All temporary access points must comply with existing access standards ....
b. Applicant/owner signs written agreement to participate in costs of internal access road.
c. Owner agrees to abandon temporary access at the time the internal access road is available for permanent access to the site.”
Each site plan included provisions for continuous internal commercial traffic circulation throughout the Wanamaker Corridor, and one north/south public street would be dedicated and constructed between SW 21st Street and SW 17th Street. The internal traffic circulation plan is known as the “ring road.” Although Garrett’s property was zoned as residential when Resolution No. 5587 was enacted, the parties agree that the highest and best use of the property was and is for commercial use.
On September 13, 1988, the Topeka City Council adopted and approved Resolution No. 5696 to begin implementing the proposed interior traffic circulation provisions of Resolution No. 5587 by constructing SW Ashworth Place, SW 19th Street Terrace, and SW 20th Park as public streets. The cost would be paid 100% by owners of property within the proposed improvement district, including Garrett’s property.
On January 10, 1989, the City adopted a third resolution, No. 5727. The resolution included construction of SW Ashworth Place, extending north from SW 21st Street, and SW 20th Park, an east-west street intersecting SW Ashworth Place. The costs of construction of these roads (except the intersection costs) would be paid 20% by the City and 80% by the improvement district. The costs would be apportioned within the improvement district, with 50% paid by property fronting the improvements and 50% by all lots, tracts, or parcels within the district. Garrett’s property was assessed $144,733.51 for street construction and $33,948.93 for sewer construction for the improvement project related to this resolution.
The construction of SW 20th Park pursuant to Resolution No. 5727 cut through Garrett’s tract and created two separate tracts, one of which was bounded on the south by SW 21st Street and on the north by SW 20th Park (south tract) and the other of which was bounded on the south by SW 20th Park (north tract). Garrett’s house was on the south tract. In lieu of formal condemnation for the permanent right of way and a temporary easement of 3,713 square feet during the construction of the roadway, Garrett deeded 8,663 square feet to the City for the construction of SW 20th Park in April 1989. She was paid $61,800 as compensation. SW 20th Park and SW Ashworth Place were constructed. At the time this action was filed, SW Ashworth Place extended from SW 21st Street to beyond SW 20th Park, and SW 20th Park intersected SW Ash-worth Place and extended to the west a short distance and to the east to just beyond Garrett’s eastern property boundary. The streets dead-ended at those points. The only access road to Garrett’s property, SW 20th Park, ended “in a com field” east of her property at the time the action was commenced. (See map on page 901.)
On September 30, 1992, Garrett made written demand on the City to repeal Resolution No. 5587 and grant permanent commercial access to SW 21st Street or complete the ring, road project as originally proposed. On January 15, 1993, after the City failed to respond to her demand, Garrett initiated an inverse condemnation action, claiming that by the City’s restriction of the permanent commercial access and direct access rights to SW 21st Street and by failing to complete the ring road project, a taking of her property had occurred.
Garrett moved for partial summary judgment. She acknowledged that Resolution No. 5587 .advances a legitimate gove mmental interest and, under Kansas law, rights of access are subject to reasonable regulation under the government’s police power: She argued, however, that the resolution had denied her all or substantially all economically viable use of her land. She contended that by failing to complete the ring road, which was designed to offset the access restrictions of Resolution No. 5587, the City’s exercise of its police power by the resolution unreasonably restricted commercial access to her property and constituted a taking.
The City filed a cross-motion for summary judgment. Though acknowledging that the ring road had not been completed, the City pointed out that Garrett’s right of residential access had not been restricted because Resolution No. 5587 restricts only permanent commercial access. The City contended that Resolution No. 5587 was not a taking of property but a valid exercise of police power; further, because reasonable alternate access was provided to the property, no compensable taking had occurred. The City stressed that the portion of the ring road which abutted Garrett’s property was complete and asserted that completion of other segments of the ring road was discretionary and not required by Resolution No. 5727. It stated that the fact the ring road had not been completed did not mean the concept had been abandoned. The City admitted that although the value of Garrett’s property as commercial property had decreased because of the resolution, it still had economic value. In response, Garrett observed that the highest and best use of the property was commercial, pointed out that she had only temporary direct residential access, and asserted that the value of her land had decreased because her right to commercial access had been taken by the City’s failure to repeal Resolution No. 5587, grant direct commercial access to SW 21st Street, or complete the ring road.
In determining the motion for partial summary judgment, the trial court noted the applicable test that where a landowner’s direct access or an access route is changed, the reasonableness of the circuity of travel caused by the rerouting is considered to determine whether the impairment of access to the property is reasonable or unreasonable. The landowner is entitled to compensation for the impairment of his or her access where the rerouting or circuity of travel is unreasonable. See Small v. Kemp, 240 Kan. 113, 120, 727 P.2d 904 (1986).
The court noted that the highest and best use of Garrett’s property was commercial and concluded that Resolution No. 5587 created a restriction on the direct commercial access to SW 21st Street. The court observed that “the granting of temporary residential access was contingent upon the plaintiff signing a written agreement to participate in the costs of constructing the permanent business access.” The court found as a matter of law that a taking had occurred because the rerouting of commercial traffic was unreasonable. In addition, the court pointed out that Garrett no longer had direct access to what was the “front” of her property; rather, the entrance was now “three blocks away” and customers would have to turn in at SW Ashworth Place, turn again at SW 20th Park, and travel one additional block to the entrance of Garrett’s property, and the road dead-ended there without turnaround space.
Two months after the court’s award of judgment as to the taking, the parties filed pretrial orders agreeing that the date of the taking was January 26, 1988. The City renewed its motion for summary judgment. In its renewed motion, the City argued that in an inverse condemnation action where no property interest is taken, a balancing test weighs the benefit to the public against the burden to the landowner. The City argued that no actual taking occurred and that Resolution No. 5587 substantially advanced the valid public purpose of traffic control and safety and imposed only a potential future economic burden on commercial development. Though Garrett’s property was zoned as residential at the time the court found there was a taking, in its motion the City stated that Garretts south tract of property was by that time zoned for commercial use, construction of a building for retail sales was planned, and the property had direct access to SW 21st Street through an easement on adjacent commercial property. The City asserted the trial court’s prior finding that Garrett’s temporary residential access was conditioned on signing a written agreement to participate in the cost of constructing the permanent business access was incorrect. In support of the motion the City submitted the affidavit of the director of the Topeka-Shawnee County Planning Commission, which stated that the “temporary access conditions” provided for in Resolution No. 5587 applied to temporary commercial access and did not restrict existing access to developed properties.
The trial court refused to consider this affidavit because it contradicted the uncontroverted statement of facts submitted by the City in its motion for summary judgment. The court’s refusal to admit the affidavit was also based on a June 1988 letter memorandum in which James H. Schlegel II, the Director of the Topeka-Shawnee County Metropolitan Planning Commission, reversed his earlier opinion on the effects of the City’s policy and stated, in part:
“Initially, a concept plan for the interior frontage road was developed by the Planning Agency Staff. However because of the objections from some of the effected [sic]developers, the concept plan was not approved. Both developers and the Planning Commission were of the opinion that the concept plan did not provide for sufficient flexibility. Based upon the proposals presented to date, it is quite evident that a “workable” interior frontage road will not be achieved because of the varying interests involved.
“I would anticipate that with the proposed development of each subsequent smaller property, there will be requests for ‘temporary access’ points along with SW 21st Street and Wanamaker Road and prior to the actual improvement of the interior frontage road system. The continuity and sequencing of the interior access will be based upon the subsequent rezoning and development of virtually each and every property in this area, therefore extending the completion of the street over an indefinite period of time.
“In as much as I fully support the restriction of access as set forth in Resolution #5587,1 am of the opinion that until such time as the entire interior frontage road system is in place there is less than an equal or balanced benefit to the subject properties and the public resulting from the limited access along the adjacent major thoroughfares.
“Therefore, I respectfully recommend that serious consideration be given to the acquisition of the right of way through eminent domain and the creation of an improvement or benefit district to establish the interior frontage road system. By way of this process, the City would:
“1) Support the reciprocal benefit issue.
“2) Resolve the question as to timing and sequencing.
“3) Resolve the question as to who pays for the improvement.
“4)' Provide the necessary right of way for the orderly extension of water-sewer-storm sewer and other utilities.
“It is my understanding that the Engineering Division is currently devéloping a preliminary plan for the alignment and design together with an estimate of the project cost. The Planning Agency Staff supports the initiation of this proposal at this time.” (Emphasis ádded.)
The trial court found that Resolution No. 5587 was not a zoning ordinance, nor did it restrict Garrett’s use of her property; therefore, the court found that the law concerning police power regulatory use restrictions was not applicable and rejected the City’s argument to apply a balancing test. The court affirmed its original judgment finding that Resolution No. 5587 restricted Garrett’s access to SW 21st Street, an incident of ownership which cannot be taken for public use without compensation, and failed to provide reasonable rerouting.
The parties then addressed the calculation of damages. The City asserted that future development of the ring road should be considered in calculating damages. It pointed out that Garrett was previously paid $61,800 as compensation for the taking and construction of SW 20th Park and that by that time the south tract of Garrett’s property had been developed into commercial property. The City argued that Garrett’s acceptance of $61,800 for the construction of SW 20th Park barred her claim for damages from the taking of her right to direct commercial access to SW 21st Street and that awarding additional damages would result in dual compensation.
The court determine.*! that because different issues were involved, the taking due .to Resolution No, 5587 and the damage to Garrett’s property existed whether or not SW 20th Park was constructed; therefore, payment for that taking would not be included in the calculation of damages.
Following the trial court’s determination of the method for calculating damages, the parties stipulated that under that method damages were $190,000. The City reserved its right to appeal the taking judgment and the trial court’s method for calculating damages. The trial court entered judgment for Garrett in the amount of $190,000. The City appeals.
TAKING OF PLAINTIFF’S PROPERTY
The Fifth Amendment Jo the United States Constitution, applicable to the states via the Fourteenth Amendment, prohibits private property from being taken for public use without just compensation. Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 123, 671 P.2d 511 (1983). This prohibition is codified in K.S.A. 2(3-513(a), whiph slates that private property shall not be taken or damaged for public use without just pompen-sation. The procedure for die government to exercise its power of eminent domain is set forth in K.S.A. 26-501 to 26-516 and is to be followed in all proceedings. K,S,A- 26-50L The exercise of eminent domain is referred to as a condemnation proceeding. “Eminent domain” is the right and power of ,a governmental entity to take private property for public use without the owner’s consent upon payment of just compensation. The requirement of a physical taking has been modified such that where a government has imposed significant restrictions on private property through eminent domain or an exercise of police power, a taking may be found and the government required to pay compensation. Small v. Kemp, 240 Kan. at 117.
In addition to exercising the power of eminent domain to acquire laud to build highways .or streets, a public authority in the .exercise of police power may regulate or restrict the use of the streets and highways to the extent necessary to provide for and prpmote the safety, peace, health, mprals, and general welfare of the people. Where there is an actual taking of property under the police power, compensation is required. If no actual taking of private property occurs, the fact that such regulation results in a diminution of the value of private property does not necessarily require that the landowner be compensated. Small, 240 Kan. at 119.
Three types of regulatory takings by use of police power have been recognized: physical, title, and economic. A physical regulatory taking constitutes a per se taking. This category arises when a regulation produces a physical intrusion, occupation, interference, or displacement onto or into a property owner’s space sufficient to constitute a per se taking. Examples of this type of regulation include authorization of low and frequent overflights for military airplanes (United States v. Causby, 328 U.S. 256, 90 L. Ed. 2d 1206, 66 S. Ct. 1062 [1946]), forbidding an owner to exclude the boating public from a newly navigable pond (Kaiser Aetna v. United States, 444 U.S. 164, 62 L. Ed. 2d 332, 100 S. Ct. 383 [1979]), and the authorization of permanent physical occupation of the landowner’s property by cable lines and boxes on the roof of apartment buildings (Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 73 L. Ed. 2d 868, 102 S. Ct. 3164 [1982]). Where a government regulation authorizes permanent, physical occupation by parties other than the government, there is a per se taking, and no balancing test is applied.
A title regulatoiy taking is a restriction on use which significantly interferes with the incidents of ownership. Title takings differ from physical takings in that the regulatoiy body does not authorize physical invasion of the land but restricts incidents of ownership. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 120 L. Ed. 2d 798, 112 S. Ct. 2886 (1992). An example is requiring land dedication as a condition for the issuance of a building permit. See Nollan v. California Coastal Comm’n, 483 U.S. 825, 97 L. Ed. 2d 4377, 107 S. Ct. 3141 (1987). Although title takings are not subject to a per se rule, heightened scrutiny of the governmental objective is implied.
An economic regulatory taking is a taking only if the economic impact on the landowner outweighs the public purpose of the regulation. Economic takings “comprise the vast majority of regulatoiy taking cases.” Freilich and Garvin, Takings after Lucas. Growth Management, Planning, and Regulatory Implementation Will Work Better Than Before, 22 Stetson L. Rev. 409, 417 (1993). Under this category, a two-tier inquiry is made to determine if a compensable taking has occurred. Both the purpose of the regulation and its economic impact on the landowner are considered. This is the arm of the regulatory taking analysis which asks whether the regulation has gone too far in affecting the land’s economic value.
Inverse condemnation is an action to obtain compensation for the taking of private property by government which is initiated by the person having interest in the private property rather than by the governmental entity. In a condemnation or inverse condemnation action, the question of whether there has been a compen-sable taking of property is a question of law for the trial court. See Hudson v. City of Shawnee, 246 Kan. 395, 403, 790 P.2d 933 (1990); Teachers Insurance & Annuity Ass’n of America v. City of Wichita, 221 Kan. 325, Syl. ¶ 7, 559 P.2d 347 (1977); Brock v. State Highway Commission, 195 Kan. 361, 366, 404 P.2d 934 (1965). An appellate court’s review of questions of law is unlimited.
In addition to a right to be compensated for property taken by the government, the owner of land abutting a street or highway has a private right to use the property and to access the street or highway, distinct from that of the public, which cannot be taken or materially interfered with by condemnation or an exercise of police power without just compensation. However, the rights of an abutting owner’s right to access must be subordinated to the right of the public to the proper use of the highway and the right of governmental agencies to enforce proper regulation. The landowner’s rights are subject to reasonable regulations and restrictions for the purpose of providing reasonably safe passage for the public, but the regulations or limitations cannot be enforced without just compensation where they unduly limit or unreasonably interfere with the rights of the abutting property owners. Brock v. State Highway Commission, 195 Kan. at 367. A case-by-case approach is used in determining whether the facts and circumstances of a case show free and convenient access or substantial interference with access or impose a burden to the use of the land. The courts will not interfere with a valid exercise of police power as long as the restriction is reasonable. See 195 Kan. at 368, 371.
The parties disagree as to the applicable test for evaluating whether a compensable taking under Resolution No. 5587 occurred. The City asserts that the trial court erred by applying an eminent domain analysis for an actual taking of the property. The City reasons that because Resolution No. 5587 was adopted pursuant to the City’s authority to regulate traffic flow, a regulatory use analysis under its police power applies. The City argues that an economic regulatory taking occurred and that the applicable test to determine whether the taking is compensable is the balancing test, weighing the benefit to the public against the economic burden to the landowner to determine if the City’s regulation went too far. According to the City, the economic burden to the landowner occurs only when the regulation denies the landowner all economically viable use of his or her land. The City concludes that (1) Resolution No. 5587 serves the valid public purpose of regulating traffic control and promoting traffic safety; (2) there was no economic burden because there was no deprivation of economically viable use of Garrett’s land; and (3) the regulation did not interfere with the existing use (residential) of Garrett’s property and affected only future commercial use.
Garrett agrees that a regulation of property under the police power of the City for the purpose of traffic contraband public safety is not a per se taking. Garrett’s claim is not that her use of the property for commercial development was denied by the City’s exercise of its police power but that because the City failed to complete the ring road or repeal the resolution, her lack of commercial access was an unreasonable restriction that decreased the value of her land. She asserts the “regulatory use” analysis set forth by the City is inapplicable because the use of her property was not restricted by the resolution. Garrett asserts that the correct test is the one used by the trial court in evaluating whether there was a restriction of access and whether a reasonable alternate route was provided.
We disagree with the trial court’s conclusion that the City was not exercising its police power when it enacted the resolutions that affected the commercial value of the landowner s property. To proceed, we must first determine whether the City’s exercise of its police power was a physical, title, or economic taking and then apply the proper balancing test to determine if the City must compensate the landowner for that taking. It is obvious that Resolution No. 5587 was an exercise of police power and not a physical taking. The only physical taking occurred when Garrett deeded a portion of her property for the construction of SW 20th Park; Garrett was compensated for that taking. In addition, the City’s exercise of its police power did not deny all economic, beneficial, or productive use of the land. The difficult question is whether the diminution of the value of the landowner’s property was a title regulatory taking which significantly interfered with the right of ownership or an economic regulatory taking which affected the value of the land. In some instances the taking may fit within more than one category of takings. After review, we find that this was an economic regulatory taldng and that the applicable test is whether the economic impact on the landowner outweighs the public purpose of the regulation.
Where the government’s exercise of its police power has an economic impact on private property, a balancing test is applied to determine if the regulation of private land is too unfair or goes too far. Factors that are used in determining if government action is too unfair or goes too far include, but are not limited to, the economic loss, i.e., loss of value of land or sales; restrictions on access; and the distance and circuity of travel that is now required for ingress and egress. Where the use of police power is too unfair or goes too far, the public, not the landowner, must bear the cost. Did the City go too far here? Our prior cases answering somewhat similar questions appear inconsistent.
In Small v. Kemp, 240 Kan. 113, the plaintiff claimed that the State had used its power of eminent domain to take his property. The Small court reviewed and distinguished the right of eminent domain from the power of the government to constitutionally take or interfere with privately owned property without just compensation when the taking is to promote public health, safety, welfare, and morals under its police power. Plaintiff Small owned an animal clinic in Overland Park The clinic originally fronted Grant Circle, which terminated in a cul-de-sac to the south and which intersected with a frontage road to the north. The State relocated the frontage road on land near but not touching the plaintiff’s property. Small’s clinic was still on Grant Circle, but that road ended in a cul-de-sac at Small’s clinic and then continued south, where it intersected with the relocated frontage road. Prior to and after the relocation, the frontage road intersected 75th Street, but after the relocation the intersection was 400 to 600 feet east of the former intersection. With the relocation, the clinic was approached only from the south, and traffic flowed around the south side of the clinic, rather than past the clinic and to the north. The jury, following instructions applicable to eminent domain, awarded Small $50,000 compensation.
The Small court recognized that the constitutional prohibition against taking by eminent domain without just compensation creates no barrier to the proper exercise of the government’s police power. 240 Kan. at 116-17. The Small court noted the State had not taken Small’s property but had exercised governmental police power to regulate the use of, or impair a right in, the property to prevent detriment to the public interest, without the payment of compensation. 240 Kan. at 117. Small was not denied access to his property, but rather the mode of access was modified. The Small-court determined that the relocation of the frontage road merely diverted traffic, and noted:
“The change of travel route does not of itself result in legal impairment of the right of ingress and egress to and from such property and a controlled access highway. Where a landowner’s direct access or an access route is changed, the reasonableness of the circuity of travel caused by the rerouting of the access is considered to determine whether the impairment of access to the property is reasonable or unreasonable. The landowner is entitled to compensation for the impairment of his access where the rerouting (circuity of travel) is unreasonable.” 240 Kan. at 120.
All access to and from an existing public highway may not be taken from the owner of land abutting the highway by the public without just compensation. The right of access of an abutting property owner upon a public street or highway is merely a right to reasonable, but not unlimited, access to and from the abutting property. An owner of land has no right to the continuation of a flow of traffic in front of his property from a controlled access thoroughfare, and under certain circumstances the State may abandon, reroute, or otherwise divert traffic without any liability to the owner of abutting lands. 240 Kan. at 119.
In Brock, 195 Kan. 361, the plaintiffs owned property abutting U.S. Highway 24 in Topeka. The businesses located on plaintiffs’ property had direct access to the highway. In 1951, the State condemned portions of the plaintiffs’ property to widen the highway, and in 1955, the highway was declared to be a controlled access facility (see K.S.A. 68-1901 et seq.). In 1956, a frontage road was constructed between plaintiffs’ property and the highway, using land which the defendant had acquired by condemnation in 1951 for the widening project. After the frontage road was constructed, the businesses had access to the highway via only two access facilities which the defendant had constructed at each end of the frontage road. The plaintiff brought an action for the loss of direct access to the highway. The defendant answered alleging that the landowner had been furnished reasonable, direct, and convenient access to and from the highway. The jury found for the defendant, and the landowner appealed. The Brock court observed that in light of the changes which had occurred in the highway system as a result of the increased number and speed of automobiles, the doctrine granting a right of access to abutting landowners which had developed for conventional streets and highways did not apply in the same manner to controlled access highways. The court reaffirmed the rule that owners of abutting lands have a right of access to the public road system, but the court rejected a requirement of unlimited direct access to and from a controlled access thoroughfare. “The right of access, if it can be determined to be a right under such circumstances, is the right to reasonable, but not unlimited, access to and from the abutting lands.” 195 Kan. at 370. Pursuant to the police power of the State and in the interest of public safety, the Brock court concluded that no unreasonable restriction of access had occurred. The court also noted that the frontage road was itself a part of the highway system and the plain tiffs had unlimited access to the frontage road. “Access is not denied but traffic is regulated within the scope of the police power of the state.” 195 Kan. at 371.
A similar conclusion was reached in Ray v. State Highway Commission, 196 Kan. 13, 410 P.2d 278, cert, denied 385 U.S. 820 (1966). There, a highway abutting the plaintiffs’ property was turned into a divided, concrete four-lane highway with a frontage road. The plaintiffs had access to the frontage road from all points of their property. There were two points of connection between the frontage road and the westbound traffic on the highway; one was 155 feet east of the east boundary of the plaintiff’s property, and the other was 714 feet west of the west boundary of the property. 196 Kan. at 15. The landowners filed an action claiming that the defendant’s exercise of police power had impaired their right of access. Applying the same analysis as the Brock court, the Ray court found the access to be reasonable.
In other cases the government’s exercise of police power which changed the access to private property was found to be unreasonable. In Teachers Insurance & Annuity Ass’n of America v. City of Wichita, 221 Kan. 325, 559 P.2d 347 (1977), the landowners had direct access to Kellogg Street (a major trafficway) and a side street. The State Highway Commission then changed Kellogg Street to a fully controlled access facility. With the change, the plaintiffs would not have direct access to the new highway. An access road would be constructed, but that road would not have direct access to the highway either. To reach the plaintiffs’ property, persons travelling on the highway would have had to travel from 1.34 to 2 miles, possibly by means of a “tortuous and circuitous route.” 221 Kan. at 328. Recognizing that the State, subject to constitutional limitations, has absolute control over streets and highways, either by the use of its police power or by the power of eminent domain, the Teachers Insurance court also pointed out that the right of access to and from an existing public street or highway is one of the incidents of ownership of the land abutting the street or highway. 221 Kan. at 330. The Teachers Insurance court concluded that access is the right vested in the owner of land which adjoins a road or other highway to go and return from his or her own land to the road or highway without unreasonable interference. 221 Kan. at 335. Because there had been a substantial impairment of and an unreasonable interference with the plaintiffs’ right of access to the highway, this court found that a compensable taking had occurred. 221 Kan. at 336.
In McCall Service Stations, Inc. v. City of Overland Park, 215 Kan. 390, 524 P.2d 1165 (1974), the landowner operated a service station which fronted and had direct access to a highway and a street. Because of changes to the intersection of the street and highway, the access points to the service station were changed. McCall filed an action claiming that the right of access had been substantially impaired by the City’s exercise of its police power. To show that the change of access had diminished the value of the land, McCall introduced evidence of reduced sales each month since the taking. The district court found there had been a taking and awarded compensation to the landowner. The City appealed. The McCall court distinguished Brock as involving a controlled access highway and found that a compensable taking had occurred. 215 Kan. at 394-97. The McCall court approved the use of loss of sales to show a decrease in market value and noted that (1) the market value was decreased by the change in access and (2) there was no testimony that the taking of access was to protect the public. The McCall court affirmed the trial court. 215 Kan. at 397.
Garrett makes a similar claim. Garrett argues that in addition to substantially and unreasonably interfering with her right of access to SW 21st Street, by failing to complete the ring road as contemplated by the original resolution, the City substantially reduced the commercial value of Garrett’s property.
In Kohn Enterprises, Inc. v. City of Overland Park, 221 Kan. 230, 559 P.2d 771 (1977), the landowner operated a motel and restaurant which fronted and had direct access to a highway and a street across from the property in McCall. Because of changes to the intersection of the street and highway, the access points were moved. There was a loss of security because there was no longer a view from the motel office of persons entering the premises, and there was also a loss of privacy for motel facilities. Further, access from the highway was severely restricted. The district court found that a compensable taking had occurred. Although there was evidence relating to safe traffic regulations in Kohn, the Kohn court followed the holding in McCall, found that the Kohn property had sustained the same type of access loss as in McCall, and held that the taking was compensable. Kohn, 221 Kan. at 236.
These cases provide a framework for evaluating Garrett’s claim that the City’s exercise of its police power constituted an unreasonable change to her access to SW 21st Street and that its failure to complete the ring road diminished the economic value of the land. Although some of the cases involved controlled access facilities or highways, the cases all apply the same test and evaluate whether the alternate access is “reasonable.” Because of the increased number and speed of automobiles on highways, this court has been less likely to find that alternate access to a controlled access facility is unreasonable. See Brock, 195 Kan. at 369. However, even when access to a controlled access facility is at issue, a rerouting of 1.34 to 2 miles was found to be unreasonable. Teachers Insurance, 221 Kan. 325. Reconciling the rationale of the cases discussed to state a broad rule, it appears that use of police power which restricts access to a street, highway, or a controlled access commercial area may be compensable depending on the reasonableness of the alternate access. Where a controlled access highway is constructed, public safety concerns allow a greater rerouting or diversion of access. Here, the parties agree that the rationale behind Resolution No. 5587 was to control traffic flow to and from SW 21st Street as well as the commercial traffic on surrounding streets and commercial traffic within the corridor.
We also note that in Small, this court considered whether to adopt a rule that the landowner is entitled to compensation where the diversion of traffic results in a cul-de-sac. This court rejected a per se rule because Small’s clinic was located in a cul-de-sac prior to the relocation of the frontage road. However, the fact that a relocation of a street results in a cul-de-sac and takes away a landowner’s direct access to the street is a factor to consider in determining whether the rerouting is reasonable.
Here, unlike in Small and the other cases previously discussed as to compensation for loss of access, the City not only limited Garrett’s access to SW 21st Street, it also failed to complete the ring road and in failing to do so diminished the commercial value of her property. Since this was an economic taking, the applicable test is weighing the public benefit against the economic burden to the landowner.
The trial judge determined that because the City had failed to complete the ring road, which would have provided additional access points for commercial traffic to SW 17th Street, Wanamaker Road, and SW 21st Street, restricting direct commercial access from Garrett’s property to SW 21st Street and placing the commercial property on a cul-de-sac was not a reasonable rerouting. It found that the alternate access decreased the economic value of the property and that under the circumstances, the City must bear the economic loss to the landowner’s property.
The takings clause of the federal Constitution’s Fifth Amendment is violated when land-use regulation does not substantially advance legitimate State interests or denies an owner economically viable use of his or her land. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016, 120 L. Ed. 2d 798, 813, 112 S. Ct. 2886 (1992). The takings clause applies to regulation of property as well as to physical deprivation of property. 505 U.S. at 1028 n.15. Where the government reasonably concludes that the health, safety, morals, or general welfare would be promoted by prohibiting particular contemplated uses of land, compensation need not accompany a reasonable prohibition. 505 U.S. at 1023; Penn Central Transp. Co. v. New York City, 438 U.S. 104, 125, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1977).
The public safety rationale of Resolution No. 5587 was to decrease the number of avenues of direct access to SW 21st Street because of commercial development. In addition, that resolution also was enacted to control commercial traffic off the public streets within the corridor. To construct SW Ashworth Place, extending north from SW 21st Street and SW 20th Park, Garrett’s property was assessed approximately $144,000 for street construction and $33,950 for sewer improvements. Because of the reduced access to Garrett’s property and the failure to complete the ring road for interior traffic, the value of Garrett’s land as commercial property has decreased.
Did the City act reasonably in this case? To resolve that question we apply the balancing test to determine if the landowner or the City at large is to bear the economic loss to the property caused by the City’s exercise of its police power. In applying this test we are able to use the findings of the district court. Based on the findings of the district court, we find that the economic impact of the resolutions interfered with the landowner’s investment and caused an economic loss which should be borne by the City.
BAR TO COMPENSATION
The City argues that Garrett’s acceptance of $61,800 for the construction of SW 20th Park barred her claim for damages from the taking of her right to direct commercial access to SW 21st Street because the access restriction resulting from the failure to complete the ring road included the restricted access through SW 20th Park. The City concludes that Garrett had already been compensated. The City contended that the district court’s award to the landowner results in duplicate compensation to Garrett. The trial court rejected this argument.
The rules governing calculation of damages in a condemnation proceeding, found at K.S.A. 26-513, apply to calculating damages in inverse condemnation proceedings as well. Where only a part of a tract of land is taken, damages are the difference between the value of the entire property before the taking and the value of that portion of the tract remaining after the taking. On appeal, the City acknowledges that if after applying the balancing test, this court finds that the City has gone too far, this “before and after” rule applies in determining the damages.
The City asserts that factors to be considered include the most advantageous use to which the property is reasonably adaptable, access to the property remaining, and severance or division of a tract. K.S.A. 26-513(d)(l), (2), (6). The City reasons that because all damages resulting from a taking are assessed in one proceeding, these factors were previously considered in calculating the $61,800 compensation paid Garrett for the construction of SW 20th Park. As authority, the City cites DeVore v. State Highway Comm., 143 Kan. 470, 54 P.2d 971 (1936).
In DéVore, this court recognized that when a deed is given in lieu of condemnation, the deed grants the same rights acquired by a condemnation action. The compensation for the action includes the compensation for the value of the land taken and the damage to the land not taken. 143 Kan. at 473. In DéVore, rather than filing a condemnation action, the Highway Commission purchased a right-of-way from the landowners. Subsequently, the commission commenced a condemnation action for additional acreage. When the landowner sought to include flooding as part of the damages in the condemnation action, the trial court excluded the evidence because the flood damages resulted from the original taking and not from the subsequent condemnation. This court agreed and concluded: “ ‘The conveyance of land for a public purpose . . . will be held to be a release of all damages which would be presumed to be included in the award of damages if the property had been condemned.’ ” 143 Kan. at 473. The City cites cases from other jurisdictions reaching similar conclusions.
The rule stated in DéVore is correct, but it is inapplicable here. Garrett received compensation in lieu of condemnation for the construction of SW 20th Park pursuant to Resolution No. 5727, not pursuant to Resolution No. 5587. The compensation could reasonably be presumed to have included damages for the value of the land taken, for the severance of Garrett’s land into two tracts, and for the restriction of direct access from the north tract to SW 21st Street. The construction of SW 20th Park did not require any restriction on direct access, commercial or otherwise, to SW 21st Street from the south tract of Garrett’s property. Therefore, the loss of direct access from the south tract was not a part of the damages contemplated when Garrett received compensation for the construction of SW 20th Park. The trial court correctly held that the $61,800 Garrett received in lieu of condemnation was not a complete bar to compensation for the taking of direct commercial access to SW 21st Street in this action.
DAMAGES
Damages in an inverse condemnation action are calculated pursuant to K.S.A. 26-513. Where, as here, a partial taking of property has occurred, the measure of damages is the difference between the value of the entire property immediately before the taking and the value of that portion of the property remaining immediately after the taking. See K.S.A. 26-513(c). The statute specifies factors which are considered in calculating the amount of damages. K.S.A. 26-513(d). Those factors include access to the property remaining and severance or division of property. The parties agree that the date of the taking was January 26, 1988, the date the City adopted Resolution No. 5587.
The City argued to the trial court that if the compensation Garrett received for the construction of SW 20th Park did not bar her claim for compensation for the restricted access to SW 21st Street, then the prior compensation affected the calculation of damages resulting from the restricted access. It argued that the compensation for damages resulting from the construction of SW 20th Park and the severance of Garrett’s land should be deducted from the calculation of damages resulting from the adoption of Resolution No. 5587, restricting Garrett’s direct commercial access to SW 21st Street. The trial court disagreed and found that the taking of Garrett’s land to construct SW 20th Park did not sever direct commercial access to the property. The court concluded that “the prior compensation is not part of, nor should it be part of any calculation in the current suit.”
Garrett points out that the parties filed a stipulation as to just compensation, agreeing that her damages were $190,000. Garrett argues that this stipulation bars the City’s appeal on the damage verdict. The City points out that it was only after the trial court held that the prior compensation had no impact on the current damages that it entered into the stipulation. If the trial court incorrectly excluded consideration of the prior compensation in determining the damages in the current case, the City could properly appeal the trial court’s exclusion of the prior compensation from consideration.
The difficulty in determining damages here arises from the fact that Resolution No. 5587 was adopted prior to the construction of SW 20th Park, but this action was not filed until after Garrett received- compensation for the construction of SW 20th Park. Im mediately before Resolution No. 5587 was adopted, Garrett had one contiguous tract of land fronting and with direct access to SW 21st Street. Thus, when Resolution No. 5587 restricted Garrett’s direct commercial access to that street, all parts of Garrett’s tract were affected. Garrett’s property was not severed by that taking. However, Garrett’s property was severed into two tracts as a result of the City’s adoption of Resolution No. 5727. Garrett received compensation for this severance when she agreed to compensation in lieu of condemnation. This compensation occurred after the date of the taking by Resolution No. 5587 but before damages for the Resolution No. 5587 taking were calculated.
The appraisal submitted by Garrett valued the property immediately before the adoption of Resolution No. 5587 at $430,000; this property was described as being 115,004 square feet with 124 feet fronting SW 21st Street. To calculate the value immediately after the taking, the appraiser assumed that SW 20th Park was the only access to SW 21st Street for both portions of the property. The appraiser found that the front tract contained 30,942 square feet and the rear tract contained 75,487 square feet (a total of 106,429 square feet) and that the value was $206,000, a difference of $224,000. Thus, the appraiser considered that the result of the Resolution No. 5587 taking was the severance of Garrett’s property and the loss of the area taken for the construction of SW 20th Park. However, the appraiser did state that these estimates did not take into account the amount paid for the right-of-way purchased from Garrett for the construction of SW 20th Park.
We note that in Hudson v. City of Shawnee, 246 Kan. 395, 406, 790 P.2d 933 (1990), the court discussed the effect that one construction project has on the calculation of loss of value damages for another construction project, depending on whether the two projects are related or unrelated. A party asserting that two or more projects should be considered as one for valuation of property taken has the burden of proving that the projects are related.
The parties agreed to compensation of $190,000, although, applying the appraiser’s calculations, the decrease in property value was $224,000. By agreeing to the lesser amount of compensation, it appears that the parties recognized that the appraiser’s calcula tions would result in dual compensation for the acreage taken for construction of SW 20th Park. The City is bound by its stipulation that the amount of compensation should be $190,000.
Affirmed.
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The opinion of the court was delivered by
McFarland, C.J.:
Teamsters Union Local 795 (Union) filed a petition with the Public Employee Relations Board (PERB) seeking to become the exclusive bargaining representative, for certain safety-officers working at the Wichita Mid-Continent Airport.- The petition alleged that tire City of Wichita (City) was the employer of such officers. The respondent City filed a motion to. dismiss the petition on the ground the officers were the employees of the Wichita Airport Authority (Authority). Authority is not subject to the Public Employer-Employee Relations Act (PEERA), K.S.A. 75-4321 et seq., whereas City is subject to PEERA.
The adversaries on the motion to dismiss were Union and City, and each introduced extensive evidence in support of their respective positions. The presiding officer for PERB, acting in a quasi-judicial capacity, heard the evidence and made findings of fact and conclusions of law encompassing 45 pages. The presiding officers key holdings were: (1) City and Authority were each a “public agency or employer” as defined by K.S.A. 75-4322(f); (2) City and Authority each exerted control over varying aspects of the employment relationship and were the “joint employers” of the safety officers, with City “having the dominant role in setting the conditions of employment” and being “fully capable of bargaining effectively with the Teamsters, [sufficient] to satisfy an employer’s obligations under PEERA”; and (3) PERB, having jurisdiction over City, could proceed with the petitioned-for unit determination.
City then filed a petition for judicial review pursuant to K.S.A. 77-607. The district court held that: (1) PERB’s findings of fact were appropriate and supported by the evidence; (2) PERB’s conclusion as to City and Authority being joint employers was erroneous; and (3) the case should be remanded to PERB for further consideration.
An appeal and cross-appeal were filed. We held that (1) the district court’s order of remand to PERB was invalid as it was not premised on any of the grounds set forth in K.S.A. 77-619(b); (2) the order sought to be appealed from was not a final order; and (3) the appeal and cross-appeal must be dismissed. City of Wichita v. PERB, No. 70, 317, unpublished opinion filed October 28, 1994.
The district court then entered a final order in which it (1) held that City and Authority were not separate entities as held by PERB but, rather, constituted a single employer subject to PEERA and (2) affirmed PERB’s determination that it had jurisdiction to determine the petitioned-for unit determination. City appeals therefrom.
SCOPE OF REVIEW
Preliminarily, the scope of review must be determined.
The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KAJR) applies to all agencies and all proceedings not specifically exempted by statute from the provisions of the act. K.S.A. 77-603(a). PERB is not a statutorily exempt agency. See K.S.A. 77-603(c).
The scope of review under KAJR is set out in K.S.A. 77-621(c) as follows:
“The court shall grant relief only if it determines any one or more of the following:
“(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
“(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
“(3) the agency has not decided an issue requiring resolution;
“(4) the agency has erroneously interpreted or applied the law;
“(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
“(6) the persons taking the agency action were improperly constituted as a decision-maldng body or subject to disqualification;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in fight of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the corut under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
“A rebuttable presumption of validity attaches to all actions of an administrative agency and the burden of proving arbitrary and capricious conduct lies with the party challenging the agency’s action.” Kaufman v. Kansas Dept. of SRS, 248 Kan. 951, 961, 811 P.2d876 (1991). See Sunflower Racing, Inc. v. Board of Wyandotte County Comm'rs, 256 Kan. 426, 430-31, 885 P.2d 1233 (1994); In re Tax Exemption Application of City of Wichita, 255 Kan. 838, 840-42, 877 P.2d 437 (1994).
Arbitrary or capricious conduct may be shown where an administrative order is not supported by substantial evidence. Substantial evidence is evidence possessing both relevance and substance that furnishes a substantial basis of fact from which the issues can reasonably be resolved. Kansas Racing Management, Inc. v. Kansas Racing Comm'n, 244 Kan. 343, 365, 770 P.2d 423 (1989).
The interpretation of a statute by an agency charged with its enforcement is normally entitled to a great deal of judicial deference. Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of KNEA, 233 Kan. 801, 809, 667 P.2d 306 (1983). “[I]f there is a rational basis for the agency’s interpretation, it should be upheld on judicial review.” State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991). In reviewing questions of law, however, a court may substitute its judgment for that of the agency. Richardson v. St. Mary Hospital, 6 Kan. App. 2d 238, 242, 627 P.2d 1143, rev. denied, 229 Kan. 671 (1981).
Here, City asserts that the district court did not give the required deference to PERB’s findings of fact and its decision was therefore erroneous. City argues that because the hearing officer found that both City and Authority were separate employers, those factual findings must be presumed valid on review.
The legal profession is frequently criticized for its perceived ability to burden, complicate, and otherwise drag out relatively simple controversies ad infinitum. This case and its procedural history are, unfortunately, illustrative of the truth behind that criticism. On October 18,1991, Union petitioned PERB for a unit determination and election under PEERA as to the safety officers at the airport involved herein. Authority, which had not elected to come under PEERA, operates the airport. Union contended that City, which has elected to come under PEERA, had sufficient control over the safety officers to be considered their employer. City denied it should be considered the employer. This is really the only issue that has ever been in this case. It sounds simple, but it has not proven to be so. This is even the second time the case has been before us. Like the Energizer Bunny, this case just keeps going and going and going. The petition may have been filed in 1991, but all that has been litigated is the threshold question of whether PERB has jurisdiction to determine the petition.
PERB’s order contains 105 highly detailed findings of fact covering every conceivable aspect of the relationships among City, Authority, and the safety officers. These findings have never been challenged by the parties and were approved by the district court. As noted by PERB in its order, City and Union each presented uncontroverted evidence of particular facets of the relationship which supported their respective claims as to City’s control or lack thereof. Little would be gained from their inclusion herein in toto.
Prior to 1975, the Wichita Mid-Continent Airport was a component of the Park Commission of the City of Wichita. On September 5, 1975, pursuant to K.S.A. 3-162, City established the Wichita Airport Authority by resolution.
The PERB hearing officer summarized his findings relative to City’s degree of control as follows:
“The record clearly demonstrates that the City effectively and actively participates in the control of labor relations and working conditions of employees at the Airport Authority. The City, through Policy 8, reserved to itself the authority to approve the By-laws of the Airport Authority . . . ; to approve and change the proposed budget of the Airport Authority . . . ; to establish position descriptions, positions and salaries for employees at the Airport Authority . . . ; to require inclusion of the Airport Authority employees in the Wichita Employees’ Retirement System . . . ; to require adherence by the Airport Authority to Administrative Regulations . . . ; to set personnel policy through the Airport Authority use of the City Administrative Personnel Policy and Procedure Manual, for example the grievance procedure and the layoff procedures . . . ; and to set benefits to be received by the Airport [Authority employees] by tying them to the benefits received by City employees, e.g. paid holidays, computation of sick leave, vacation leave and well days. . . .
“Additional indicia of control by the City of labor relations matters can be found in the Airport [Authority’s] inclusion in the self-insured fund administered by the City for purposes of providing Workers Compensation protection for which the City establishes procedures to be followed following an injury and the approved physicians . . . ; Airport Authority employees are protected by the Wichita merit system and are represented on an Employees’ Council established by the City . . . ; and the ability of Airport Authority employees to transfer to City positions without prior approval of the Airport Authority, without loss of benefits, have their years of service calculated to include Airport Authority and City employment to determine seniority, vesting, and qualification for awards. . . .
“The authority of the City to appoint and remove a majority of the members of the Airport Authority is of special significance.”
The hearing officer also found that the safety officers’ W-2 forms show the employer to be City. The forms filed relative to the State Employment Security Fund also show City as the employer.
Both PERB and the district court concluded that City had sufficient control to afford meaningful negotiations under PEERA. Clearly, each was concerned that City riot be permitted to escape PEERA as to some of the employees it controlled, while conducting negotiations under PEERA as to others. Both PERB and the district court apparently believed there had to be some label applied to the relationships herein that had previously been utilized under the National Labor Relations Act (NLRA). This is where the joint employer-single employer dichotomy crept into this case. The only real difference between the hearing officer’s findings and conclusions and those of the district court is which label should be applied — they agree on the result, that is, that City should be required to negotiate under PEERA. The difference of opinion is more of form than of substance.
K.S.A. 75-4321(a)(4) declares the policy behind PEERA:
“[T]here neither is, nor can be, an analogy of statuses between public employees and private employees, in fact or law, because of inherent differences in the employment relationship arising out of the unique fact that the public employer was established by and is run for the benefit of all the people and its authority derives not from contract nor the profit motive inherent in die principle of free private enterprise, but from the constitution, statutes, civil service rules, regulations and resolutions.”
In National Education Association v. Board of Education, 212 Kan. 741, 512 P.2d 426 (1973), this court cautioned against the use of federal decisions in public employment labor disputes. We noted the similarities and differences between collective negotiations by public employees under the Kansas Professional Negotiations Act, K.S.A. 72-5413 et seq., and collective bargaining in the private sector under the NLRA, stating:
"[W]e recognize the differences . . . between collective negotiations by public employees and ‘collective bargaining’ as it is established in the private sector, in particular by the [NLRA], Because of such differences federal decisions cannot be regarded as controlling precedent, although some may have value in areas where the language and philosophy of the acts are analogous. See K.S.A. 1972 Supp. 75-4333(c), expressing this policy with respect to the [PEERA].” 212 Kan. at 749.
The facts herein illustrate the wisdom of not relying on NLRA cases in deciding PEERA issues. Both the hearing officer and the district court struggled to tiy and make the single employer or joint employer theory fit. Neither of these theories is a comfortable fit because they are NLRA concepts. Highly summarized, the single employer concept involves piercing the corporate veil, for labor relations purposes, of separate but interrelated corporations. See Esmark, Inc. v. N.L.R.B., 887 F.2d 739 (7th Cir. 1989). The joint employer concept has been applied when two separate employers, by contractual agreement, each have control over the employees in question. The concept is akin to statutory employee determinations in workers compensation proceedings. See N.L.R.B. v. Browning-Ferris Industries, Etc., 691 F.2d 1117 (3d Cir. 1982). Resort to either of these NLRA concepts is unnecessary for resolution of the issue herein.
We have before us uncontroverted findings of fact establishing City’s control over significant portions of the safety officers’ conditions of employment. As PEKB has succinctly stated in its brief:
“Finally, the fact that the City does not have complete say over all terms and conditions of employment does not preclude effective bargaining over those matters which the City does control. See S.S. Kresge Company v. N.L.R.B., [416 F.2d 1225, 1229-32 (6th Cir. 1969)]; Herbert Harvey, Inc. v. N.L.R.B., [424 F.2d 770, 775-78 (D.C. Cir. 1969)]; and Gallenkamp Stores Co. v. N.L.R.B., [402 F.2d 525, 529 (9th Cir. 1968)].
“The City may not be able to bargain over job assignments or work rules. However, the City clearly has control over salary rates and employee fringe benefits, and can bargain effectively with airport authority employees over those matters.”
We agree. City elected to come under PEERA, pursuant to K.S.A. 75-4321(c). It has also elected to retain control over many aspects of the safety officer positions, even after establishing the Airport Authority.
K.S.A. 75-4321(b) provides:
“Subject to the provisions of subsection (c), it is the purpose of this act to obligate public agencies, public employees and their representatives to enter into discussions with affirmative willingness to resolve grievances and disputes relating to conditions of employment, acting within the framework of law. It is also the purpose of this act to promote the improvement of employer-employee relations within the various public agencies of the state and its political subdivisions by providing a uniform basis for recognizing the right of public employees to join organizations of their own choice, or to refrain from jpining, and be represented by such organizations in their employment relations and dealings with public agencies.”
We find no error in the agency determination, which was affirmed by the district court, that PERB has jurisdiction to proceed under PEERA with the petition. Such result is appropriate under the unique facts herein and the purposes of PEERA.
The judgment is affirmed.
Six, J., concurring in result.
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The opinion of the court was delivered by
Davis, J.:
The State appeals the dismissal of a rape charge after a preliminary hearing pursuant to K.S.A. 1994 Supp. 22-3602(b)(1). The main issue on appeal involves the appellate standard to be applied when reviewing a magistrate court’s decision dismissing a criminal complaint based upon a finding of no probable cause at the conclusion of a preliminaiy hearing. For the reasons set forth below, we reverse and remand with directions to reinstate the charge of rape.
Because the case comes to us in an unusual procedural posture, the facts giving rise to the charge of rape as well as the procedural history of the case are set forth in some detail. The complaint charging rape alleged that the defendant, Michael Farmer, had unlawfully, feloniously, and willfully had sexual intercourse with T.D., the defendant’s sister-in-law, without her consent and at a time when T.D.-was overcome with force or fear. In the alternative, the complaint also charged that the defendant had sexual intercourse with T.D. and that T.D. was incapable of giving consent because of mental deficiency or disease, which condition was known or reasonably apparent to the defendant.
PRELIMINARY HEARING BEFORE MAGISTRATE
At the preliminary hearing, several witnesses were called and testified. R.D., the mother of the defendant’s wife, testified that after T.D. returned from a visit with her sister (P.F.) and the defendant, P.F.’s husband, in Scranton, Kansas, T.D. called asking for help. When R.D. arrived at T.D.’s apartment, T.D. was acting nervous and .scared. Initially, T.D. told R.D. that the defendant had “hugged” her. Then she told her mother that the defendant had raped her. R;D. then took T.D. to the hospital in Topeka and called the police.
T.D. testified that while visiting her sister and the defendant, she was sitting with the defendant in the camper in back of the defendant’s house when the defendant unbuttoned her pants. She told him to stop, but the defendant took off his overalls and put a finger in her vagina. .He then forced her over to the bed in the camper, took off her clothes, and engaged in sexual intercourse. She testified that the intercourse hurt her and that she was very scared.
Under cross-examination, T.D. could not remember the exact day the rape occurred. She remembered, however, that she made her sister and the defendant take her to her apartment the next day. The following day, she called her mother to come and get her. T.D. also was confused as to whether the defendant had attempted to rape her later that same evening.
Jeanne Frieman, a psychologist, testified that she examined T.D. on four separate, occasions. According to Frieman, T.D. is mildly retarded, with an I.Q. in the high 50’s to lower 60’s range. In Frie-man’s opinion, T.D. did not understand the concept of sexual intercourse well enough to be able to consent to it.
P.F. testified that late one evening while in her kitchen, she looked out into the back yard and saw the defendant in the camper with T.D. She could see that the defendant was on top of T.D. and was moving up and down. She walked to the camper, looked in, and saw the defendant with his overalls down lying on top of T.D. P.F. screamed and hit the camper. She then went to the house, got the keys to the camper, unlocked the door, and went in.
P.F. testified that when she entered the camper, the defendant was coming out of the bathroom door. She shoved him up against the side of the camper and yelled at him. According to P.F., T.D. was sitting on the side of the bed smoking a cigarette during the time P.F. was screaming at the defendant.
John Gaines of the Osage County Sheriff’s Department testified that when he interviewed T.D., she indicated that she had had sexual intercourse with the defendant “ten times.” He also stated that he had trouble understanding T.D., and so he arranged for an interview to be conducted later with Detective Hoffmeier of the Topeka Police Department. Gaines testified that he was also present for that second interview and that again he and Hoffmeier had trouble understanding T.D. because she seemed unable to comprehend times and dates.
Gaines also stated that the clothing analysis and rape kit performed on T.D. showed no evidence of seminal fluid in T.D.’s vaginal or rectal area or on T.D’s clothing. Gaines testified that T.D. and her mother had told him that T.D. had not bathed or changed clothes since the alleged rape.
The defendant also called Lariy Lemon of the Kansas Attorney General’s office. Lemon testified that he had interviewed P.F. 6 months after the alleged incident and that P.F. had told him that T.D. had come to visit 2 or 3 days prior to the incident. The defendant had been in the Veterans Administration Hospital at the time. According to Lemon, P.F. told him that she had come home a day or two later to find that her husband had checked out of the hospital and that he and T.D. had gotten drunk together. Lemon stated that P.F. had told him that the defendant wanted T.D. to live at the farm with them. Lemon also stated that P.F. had told him that when she entered the camper during the incident, T.D. called her a “bitch” and told her that she did not love the defendant.
The magistrate judge dismissed the complaint at the conclusion of the preliminary hearing, stating:
“I’m going to grant the motion to discharge and more particularly on the Kansas Bureau of Investigation’s report that a rape kit was conducted and Officer Gaines’ testimony about the clothing that was taken and the family members that were present at the hospital saying that these, are the same clothing, that the victim had never taken a bath or anything during the — prior to this examination and the defendant is discharged.”
APPEAL TO DISTRICT COURT
The State appealed the dismissal of the complaint to the district court. District Judge Thomas H. Sachse conducted a de novo review of the evidence presented at the preliminary hearing and determined that the evidence was sufficient to cause a person of ordinary prudence and caution to entertain a reasonable belief that a crime was committed and that the defendant had committed the crime. The court ordered the defendant bound over for trial, which was scheduled to be heard before another district judge.
MOTION TO DISMISS BEFORE DISTRICT JUDGE
Prior to trial the defendant filed a motion to dismiss for lack of jurisdiction, arguing that District Judge Sachse’s decision was erroneous because he applied a de novo standard of review instead of what the defendant claimed was the appropriate standard, one of abuse of discretion. Upon hearing the motion, District Judge Jules V. Doty agreed that Judge Sachse had erred in applying a de novo standard of review instead of an abuse of discretion standard. Judge Doty then reviewed all of the case history, including evidence not presented at the preliminary hearing, and determined that the district magistrate had not abused his discretion. The court concluded that it had no jurisdiction to arraign the defendant and dismissed the case.
ANALYSIS AND DECISION
In an appeal by the prosecution from an order discharging the defendant for lack of probable cause, the reviewing court follows the same standard for weighing the evidence as did the magistrate in the preliminary examination. State v. Bockert, 257 Kan. 488, 491, 893 P.2d 832 (1995). In State v. Martinez, 255 Kan. 464, 465, 876 P.2d 617 (1994), which involved an appeal to this court from a dismissal of a criminal complaint at the conclusion of the preliminary hearing based upon a finding of no probable cause, this court held:
“We conduct a de novo review of the evidence when considering the trial court’s preliminary hearing probable cause finding. State v. Starks, 249 Kan. 516, 617, 820 P.2d 1243 (1991). The single issue is whether there was probable cause to believe Martinez (defendant) had committed the crime of theft. We reverse the trial court and remand the case with directions to reinstate the charges.”
The function of a judge or magistrate at a preliminary hearing is not to determine die wisdom of the prosecuting attorney’s decision to file and pursue charges against the defendant. Nor is it the function of the judge to conclude that there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent. State v. Puckett, 240 Kan. 393, Syl. ¶ 3, 729 P.2d 458 (1986). The sole question before the judge or magistrate at the conclusion of a preliminary hearing is the same question an appellate court is faced with upon de novo review: whether the evidence is sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt. See 240 Kan. 393, Syl. ¶ 1.
In this case the court erred by applying an abuse of discretion standard. The correct standard of review is de novo. Given the unusual procedural posture of this case, with two reviews by two separate district judges of the magistrate’s probable cause determination at the conclusion of the preliminary hearing, one might conclude that it would be appropriate to end our discussion at this point. This conclusion might seem appropriate because the first district judge to review this case applied the correct de novo standard and set the matter for trial. However, the State’s appeal comes to us under the provision of K.S.A. 1994 Supp. 22-3602(b)(1) “[f]rom an order dismissing a complaint.” Because the second district judge dismissed based not only upon what he considered to be error on the part of the first district judge, but also upon evidence adduced at the preliminary hearing, we must apply the de novo standard in this appeal. The sole question upon review is whether the preliminary hearing evidence is sufficient to establish probable cause that a crime has been committed and that the defendant committed the crime.
We have set forth the evidence adduced at the preliminary hearing above. Applying the appropriate de novo standard of review, we conclude that probable cause has been established that a crime has been committed and that the defendant committed the crime charged. The dismissal of the charge of rape is reversed, and we remand the case with directions to reinstate the charge.
Reversed and remanded with directions to reinstate the charge.
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The opinion of the court was delivered by
Davis, J.:
Robert O. Miller appeals his jury conviction of first-degree murder, contending (1) the prosecutor impermissibly commented on his post-arrest silence, (2) the trial court erred in recalling two members of the venire to serve as jurors after two seated jurors had been dismissed, (3) the trial court erred in not declaring a mistrial when the number of jurors fell to 11, (4) the trial court erred in its comments to the jury panel regarding the disposition of other cases, (5) he received ineffective assistance of counsel, and (6) there were cumulative trial irregularities.
We have jurisdiction pursuant to K.S.A. 22-3601(a)(l).
In August 1993, Shawn Haggins was shot to death at close range near a pay telephone at the comer of 18th and Parallel in Kansas City. Miller was charged with the homicide.
At trial, the victim’s sister, Shelis Haggins, testified her brother had told her about an earlier fight in which Miller had pulled a gun that Shawn then took away from him. Shawn had described the assailant’s car as a gray Buick Park Avenue. Miller was known to drive such a car. Shelis testified her brother had been staying in Missouri because he knew Miller was looking for him.
Shelis also testified about an incident a week before the m,urder in which she and her boyfriend were stopped by Miller, who was trying to locate her brother. Shelis’ boyfriend corroborated her testimony.
LaKetra Williamson provided the principal testimony linking Miller with Haggins’ death. She testified Miller was her drug dealer and on the day of the murder she waved him down near 18th and Quindaro to buy cocaine from him. Because Miller did not want to make the sale in plain view, Williamson got in Miller’s car to drive a few blocks away. The sale was completed near 18th and Parallel.
Williamson testified that Miller then told her he saw someone he wanted to talk to at a nearby pay telephone. Williamson saw a black male at the telephone. Williamson testified Miller parked the car, approached the man, and she heard them talking loudly. Miller returned to the car, got in, and bent down for something. While Williamson was using her drugs and walking away, she heard Miller get out of the car and slam the door. She heard the two talking loudly again and then heard two gunshots. By this time she was high and continued to walk away.
Williamson said she told her friend Ronald Dorsey about the incident, but when Dorsey testified, he said that Williamson had said somebody named “Money Mike” or “Mighty Mike” was the person involved.
A witness named M’Sherie Johnson lived some distance away and testified she saw one black man walk over to another who was using a telephone and shoot him. She described the assailant’s car as a gray Buick.
Miller’s defense was that he had been in St. Louis at the time of the murder and Haggins was likely shot by a man named Michael Shelby, who had an extensive criminal history including a charge of homicide. Miller presented several witnesses who substantiated his alibi and said they had seen him in St. Louis and talked to him by telephone during the time of the shooting.
Miller was convicted and sentenced to life imprisonment. He appeals, raising the issues stated above. We affirm.
Should Miller he granted a new trial because the prosecutor im-permissibly commented on his post-arrest silence?
Miller alleges the State impermissibly commented on his post-arrest silence both in cross-examination of witnesses, including Miller himself, and in closing argument.
Miller’s girlfriend, Michelle Henry, testified that Miller was visiting relatives in St. Louis in August 1993 and that she had con tacted him there by telephone. During cross-examination, the prosecutor asked Michelle if she had gone to the police to say Robert could not have done this because he was out of town. She admitted that she had not.
When Miller testified, the prosecutor cross-examined him about when he had first contacted his relatives about his alibi. Miller admitted he had not contacted them until several months after his arrest.
Two of Miller’s relatives from St. Louis also testified in support of his alibi. In cross-examination, the prosecutor established that they had not come forward with their stoiy until several months after Miller’s arrest.
In closing arguments, the prosecutor asked the jury why there were not any phone records of the alleged calls by the girlfriend to Miller in St. Louis. He further contended the delay in coming forward with the alibi made the alibi witnesses' not credible. He essentially told the jury that the stories were not believable and had been constructed.
Miller did not object either during the cross-examination or during the closing arguments. Failure to object normally precludes consideration of the propriety of the State’s cross-examination or closing argument. See State v. Sexton, 256 Kan. 344, 363, 886 P.2d 811 (1994). However, “[a] judge has a duty to intervene on the judge’s own motion where counsel’s remarks exceed the limits of professional freedom of discussion,” and the lack of an objection does not automatically preclude consideration of the issue. State v. Gibbons, 256 Kan. 951, 962, 889 P.2d 772 (1995).
When constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate courts for review. State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993). However, Miller contends this case is controlled by State v. Heath, 222 Kan. 50, Syl. ¶ 2, 563 P.2d 418 (1977), where we stated:
“It is constitutionally impermissible for a state prosecutor to impeach a defendant’s exculpatory story told for the first time at the trial by cross-examining him as to his post-arrest silence after receiving the Miranda warning, and comment on his post-arrest silence during the state’s closing argument should not be permitted.”
In Heath, the State questioned the defendant about why he did not tell the police or the State about his alibi when he was arrested or prior to trial. In closing argument, the State argued it was inconsistent not to have told the police about it previously.
Our case is distinguishable from Heath. The cross-examination of the alibi witnesses did not concern Miller s post-arrest silence, but their own failure to timely come forward with an alibi that might have secured Miller s release. There was no error in using such delay to impeach their stoiy.
“While it is generally true that a defendant is under no obligation to present evidence in his defense prior to time of trial, it does seem natural that a person who knew facts which would protect a defendant, particularly a family member, would come forward when the opportunity existed rather than remain silent. (State v. Brawn, 16 Utah 2d 57, 395 P.2d 727 [1964].) This silence raises proper concern for the credibility of the story and is a proper subject of inquiry.” State v. Jackson, 222 Kan. 424, 429-30, 565 P.2d 278 (1977).
Miller claims that the prosecution’s commenting on Miller’s delay in contacting the witnesses was improper even if there was no error in commenting on the witnesses’ delay in coming forward on their own. While it is true a defendant is under no obligation to present evidence in his defense prior to the time of trial, it is not improper for the prosecution to test the credibility of an alibi by noting the alibi witnesses’ delay in coming forward to exonerate the defendant and the defendant’s delay in contacting such witnesses.
The comments in closing argument concerning these questions addressed the alibi witnesses’ credibility, not that of Miller. Additionally, Miller was not questioned about his failure to report his alibi to police, as was Heath, or about his silence during custodial interrogation. The factual situation here differs from Heath, and the prosecutor did not err in his impeachment tactics. Cf. State v. Higgins, 243 Kan. 48, Syl. ¶ 1, 755 P.2d 12 (1988) (due process violated by impeaching defendant by using “defendant’s silence at the time of his arrest and after receiving Miranda warnings”).
In State v. Massey, 247 Kan. 79, 81, 795 P.2d 344 (1990), we noted that the prohibition on using post-Miranda silence during interrogation to impeach a defendant is rooted in the implied as surance in a Miranda warning that silence during custodial interrogation will carry no penalty. Miller’s delay in contacting his alibi witnesses is not such a silence. The trial court did not commit reversible error in failing to stop this manner of impeachment of the alibi defense.
Did the trial court err in recalling two members of the venire to serve as jurors after two seated jurors had been dismissedP Did the trial court err in not declaring a mistrial when the number of jurors fell to 11?
We will consider these two issues together, as they raise similar problems. After a jury of 12 and 1 alternate had been selected and the State had made its opening statement, a recess occurred, and during that recess a juror informed the bailiff that he now realized he knew the victim’s family.
After the court decided the juror should be dismissed, Miller’s attorney asked the court if there was any way to salvage one of the potential alternates. The attorneys agreed which of previous venire members they would accept as an alternate, and eventually the trial court decided to impanel two alternates. Miller’s attorney responded, “That would be fine.”
During the same recess and while the judge and counsel were trying to solve the first problem, another juror approached the bailiff and said he also knew the victim’s family. After questioning, this juror was also excused. At this point, the trial court suggested a mistrial but proposed that if the State and the defendant agreed, they would impanel a 12th juror and an alternate the following morning. After conferring with Miller, Miller’s counsel mentioned to the court his concern that Miller’s witnesses were already scheduled and agreed with the trial court’s proposal.
The next morning the trial court was not comfortable with Miller’s attorney’s stipulation and made the following record of Miller’s personal approval of the plan.
“THE COURT: . . . Mr. Miller, I’m going to ask you have you had all the time you need to discuss this procedure with your attorney?
“MR. MILLER: Yes, sir.
“THE COURT: Okay. Do you understand what we’re going to do? We’re going to impanel two of the people that were on the juiy panel from yesterday.
“MR. MILLER: Yes, sir.
“THE COURT: And these have been selected by both your attorney and the State’s attorney as acceptable jurors, you understand that?
“MR. MILLER: Yes, sir.
“THE COURT: Do you have any objection to us proceeding in this fashion?
“MR. MILLER: No, sir.
“THE COURT: Okay. You understand that I would — if you do have an objection, I would declare a mistrial and we’d start this trial over again with a fresh panel, you understand that, don’t you?
“MR. MILLER: Yes, sir.”
The trial court then impaneled the two venire members chosen by the attorneys. The State elected not to repeat its opening argument, but said it “would simply ask the new impaneled jurors to listen closely to the evidence and hear the story as it comes along.”
In his assertion of error, Miller relies on the proposition that once a juiy has been discharged it cannot be impaneled again to hear matters relating to the same case. This rule is not applicable here because all that happened was that two venire members who would not have been impaneled but for Miller’s stipulátion were placed on the jury. The jury had never been discharged, and the alleged error is not applicable in this situation.
The selection of additional or alternate jurors lies within the sound discretion of the trial court. The defendant has the burden of showing the substantial prejudice necessaiy to a finding that the trial court abused its discretion. State v. Helms, 242 Kan. 511, 517-18, 748 P.2d 425 (1988). Miller has presented no showing of substantial prejudice.
It is apparent that Miller made a decision to proceed with the trial while his alibi witnesses were available. We have often held that a litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal. State v. Prouse, 244 Kan. 292, 298-99, 767 P.2d 1308 (1989).
Miller’s final complaint about the unusual way the jury was impaneled is that because the substitute juror was not impaneled until after the State’s opening statement, Miller was deprived of a fair trial because the juror was not aware the evidence actually adduced did not match that proposed by the opening statement.
We go back to the rule previously stated that it is within the trial court’s discretion whether to declare a mistrial. Miller continues to bear the burden of affirmatively showing an abuse of discretion by establishing he was substantially prejudiced. No such showing has been made.
The statements of counsel are not evidence, and the jury was instructed that “any statement made by the attorneys ... in opening statement . . . or at any other time during the trial which are not supported by evidence should be disregarded by you.” See State v. Logan, 236 Kan. 79, 84, 689 P.2d 778 (1984).
More importantly, Miller was personally informed that if he objected to the proposal of impaneling new jurors rather than declaring a mistrial, the court would declare a mistrial and restart the trial with a new jury panel. Miller acknowledged that he understood that, but failed to object. In State v. Bennett, 222 Kan. 358, 564 P.2d 540 (1977), the defendant stipulated to the manner in which the trial would proceed and was held to have waived whatever rights he had to a different procedure. Although Miller argues he should be relieved from his stipulation to prevent manifest injustice, there is no showing of such injustice here. Miller was tried by a panel he consented to and in an manner which he agreed to. Reversible error does not exist.
Did the trial court err in comments it made to the jury panel before the start of the trial?
Before naming the selected jurors and dismissing those venire members who were not seated on the jury, the trial court thanked all the venire members and, in the course of these remarks, stated:
“And I just want to tell you that we appreciate-the fact you came in, because if we didn’t have persons such as yourselves who were willing to take a day out of their lives to come down here to make up a jury panel for us, we’d never get juries. And the reality is that for every case we try, we end up handling nearly twenty of them without the necessity of a trial because people involved in the process know that citizens such as yourselves are willing to come down here and make up juries for us and that we have a system that will, in fact, work.”
Miller claims this comment denied him a fair and impartial trial, citing Edmonds v. State, 395 S.E.2d 566 (Ga. App. 1990), in which the trial court committed reversible error in mentioning that in the afternoon it would be taking pleas in about 40 cases.
The first difficulty with this argument is that Miller made no objection to this allegedly improper comment below and thus the issue is not preserved on appeal. See State v. Johnson, 253 Kan. 75, 91, 853 P.2d 34 (1993).
In State v. Grissom, 251 Kan. 851, Syl. ¶ 36, 840 P.2d 1142 (1992), we stated that to warrant a new trial due to judicial misconduct, it “affirmatively must appear the conduct was of such a nature that it prejudiced the substantial rights of thé complaining party.”
Miller has shown no prejudice as a result of the trial court’s remark, nor does any appear from an independent review of the record. The trial court’s remark, read in context, does not suggest that Miller should have pled guilty, and no error is demonstrated.
Should Millers conviction he reversed for ineffective assistance of counsel?
The argument of ineffective assistance of counsel was not raised below and will not be considered for the first time on appeal. See State v. Hall, 246 Kan. 728, 753, 793 P.2d 737 (1990). “[I]n an action asserting ineffective assistance of counsel, the trial court must have an opportunity to assess the performance of counsel before an appellate court will consider the matter.” Chamberlain v. State, 236 Kan. 650, 659, 694 P.2d 468 (1985).
“The principal problem facing an appellate court when a claim of ineffective assistance of counsel is raised for the first time on appeal is that the trial court, which observed counsel’s performance and was aware of the trial strategy involved, is in a much better position to consider counsel’s competence than an appellate court is in reviewing the issue for the first time from a cold record.” State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 (1986).
There is no basis for a remand, nor has one been sought.
Miller argues State v. Jenkins, 257 Kan. 1074, 898 P.2d 1121 (1995), permits this court to consider a claim of ineffective assistance of counsel for the first time on appeal in certain circum stances. In Jenkins, the allegations did not deal'with deficient representation but with a clear conflict of interest that had not been waived. Under those circumstances, we indicated that remand was not necessary, but that is decidedly different from the situation here. This case does not fit within the narrow exception recognized in Jenkins, and we will not consider Miller’s ineffective assistance contention for the first time on appeal.
Was Miller denied a fair trial due to cumulative error?
We held in State v. Lumbrera, 252 Kan. 54, 57, 845 P.2d 609 (1992) (quoting Taylor v. State, 251 Kan. 272, Syl. ¶ 6, 834 P.2d 1325 [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 defendánt.’ ”
Miller received a fair trial. The issues were resolved by a jury that viewed the witnesses, was properly instructed, and reached a reasonable verdict based upon the evidence which was presented. Miller’s contention of denial of a fair trial due to cumulative trial error is without merit.
Affirmed.
Larson, J., not participating.
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The opinion of the court was delivered by
Six, J.:
This first-degree murder case considers defendant Christopher J. Allison’s four contentions that: (1) the district court erred in instructing the jury concerning the testimony of a witness who receives benefits from the State; (2) the State’s service of notice of intent to seek the hard-40 sentence under K.S.A. 1992 Supp. 21-4624(1) was not proper; (3) the district court erred in admitting as rebuttal, the testimony of the attorney who represented an accomplice in plea bargain negotiations; and (4) he did not receive a fair trial because of cumulative error.
Allison was convicted in a jury trial of first-degree premeditated murder, K.S.A. 1992 Supp. 21-3401, a class A felony, conspiracy to commit first-degree murder, K.S.A. 21-3302, a class C felony, and terroristic threat, K.S.A. 21-3419, a class E felony. He received a life sentence without the possibility of parole for 40 years for first-degree murder. The jury decided that aggravating circumstances existed (i.e., Allison committed the crime to avoid or prevent a lawful arrest or prosecution). The hard-40 sentence was imposed consecutive to a term of 22 to 85 years, the aggregate sentence for the additional crimes Allison pled guilty to or was convicted of by the jury. Our jurisdiction is under K.S.A. 1994 Supp. 22-3601(b)(l) (a class A felony imposing a life sentence).
We find no error and affirm.
FACTS
Allison, Jason Topper, Patrick Thomas, and Tammy Hotchkin burglarized the home of Hotchldn’s father and stepmother in Arkansas City while her father and stepmother were at church. The burglars had cased the home and expected to find a safe when they returned; however, the safe had been moved. Allison was upset. He thought Hotchkin may have tipped off her father. A day or two after the Hotchkin burglary, Allison, Topper and Thomas burglarized the Hanshaw home in Winfield. Hotchkin wanted to participate in the Hanshaw burglary, but Allison would not let her. Allison was concerned that Hotchkin might report the burglaries to the police. Allison spoke with Thomas and Topper about killing Hotch-kin.
A coin flip was used to decide that Thomas would do the shooting and Topper would be the backup. During a stop at a Wal-Mart store early in the evening of February 25, 1993, Allison selected flashlight batteries and rope. He said the rope would not “break” in the water. Topper picked up engine oil and paid for all the items. Upon returning to Topper’s trailer home, Allison announced that he, Thomas and Topper were going out to the river to shoot guns. Hotchkin, who was there, asked if she could go along. Topper drove the group late that evening to a spot near the Walnut River southeast of Winfield. They walked to the bank of the river. Thomas had a .12 gauge shotgun. According to Thomas and Topper, as the group stood on the bank, Thomas said, “Chris.” Allison then took the shotgun from Thomas and told Hotchkin to shine her flashlight at the river where some empty cans had been thrown for target practice. As Hotchkin pointed the flashlight toward the cans, Allison stepped behind her and fired the fatal shot at the back of her head. Allison, Thomas and Topper used the rope to attach window weights from Topper’s pickup to her body. They removed her leather jacket and pushed her body in the river. Allison threw the shotgun into the river.
Allison, Thomas, and Topper picked up Wendy Williams and returned to Topper’s trailer home. Rebecca Topper (Topper’s wife and Allison’s sister) and Anthony Kelly were there. Allison said “Pat [Thomas] chickened out,” and then proceeded to describe the murder. Allison was afraid Hotchkin would tell “the cops” about the burglaries. He threatened that if anyone told what had happened, he would “take everybody out before he went down.” Anthony Kelly called his parole officer early the next morning to report what he had heard.
Allison, Topper, Thomas and Wendy Williams pawned Hotch-kin’s leather jacket in Wichita. On the trip back to Winfield, they placed a sack containing the unused portion of the rope, gloves worn the night of the murder, plastic gloves used in cleaning Hotchkin’s leather jacket, and Hotchkin’s personal items in a dumpster. The authorities recovered the sack.
Topper and Thomas named Allison as the shooter in statements taken by the police. Topper identified the murder site. Hotchkin’s body and the murdér weapoh were recovered. Topper and Thomas negotiated plea bargaíñs with'the State in which the’first-degree murder and aggravated kidnapping charges against them were dismissed. Before trial, Allison pled guilty to several theft and burglary charges and an unlawful possession of a firearm charge.
Topper and Thomas, identified Allison at trial as the shooter. Several items of physical .evidence, inpluding the murder weapon and sack recovered in-.the dumpster, were introduced. Rebecca Topper and Anthony Kelly related Allison’s description at the Topper home of his role in the murder. Wendy Williams, under a grant of immunity, testified that Allison, on the night of the murder, said he shot Hotchkin. Allisdn testified oh his own behalf. Allison’s testimony was largely consistent with that of Topper and Thomas, except about who pulled the trigger. Allison admitted going to the river to shoot guns, but claimed that Thomas shot Hotchkin when Allison slipped and fell in front of Hotchkin and she began laughing at Allison. ■ ‘ ’ :
DISCUSSION
A Witness Receiving Benefits From the State— the fury; Instruction
At trial, Allison requested what he characterized as a modified instruction from PIK Crim. 3d 52.18-A:
“You should consider with caution the testimony of a witness who gives testimony in exchange for benefits from the state. - .
“You have heard the testimony of (Jason Topper and Patrick Thomas). He is providing evidence for the state in exchange for a promise from the state. He told the government what he would testify to in exchange Tor this promise.’Alterna-' tively, the state may present the testimony of someone who has been promised favorable treatment in his-own-case in exchange for his testimony. Sóme people in this position are entirely truthful.when'testifying. Still, you should consider the testimony of __with more- caution than-the testimony, of other.witnes^es. He may have had reason to make up stories or exaggerate what others did because he wanted to strike a good bargain with this state about his own case. In deciding whether you believe ’s testimony, .you should keep these comments in mind.”
The district court refused-to'give Allison’s requested instruction and instead gave the following Instruction No. 18:
“You should consider with caution the testimony of a witness who, in exchange for benefits from the State, testifies in behalf of the State, if that testimony is not supported by other evidence.”
PIK Crim. 3d 52.18-A (Testimony of an Informant — For Benefits) provides:
“You should consider with caution the testimony of an informant who, in exchange for benefits from the State, acts as an agent for the State in obtaining evidence against a defendant, if that testimony is not supported by other evidence.”
The district court, without any objection from Allison, also gave Instruction No. 17 based on PIK Crim. 3d 52.18 (Testimony of an Accomplice):
“An accomplice witness is one who testifies that he was involved in the commission of a crime with which the defendant is charged. You should consider with caution the testimony of an accomplice.”
PIK Crim. 3d 52.18-A arises from State v. Novotny, 252 Kan. 753, 760, 851 P.2d 365 (1993): “We conclude that ordinarily it is error to refuse to give a cautionary instruction on the testimony of a paid informant or agent where such testimony is substantially uncorroborated and is the main basis for defendant’s conviction."
Instructions 17 and 18 address separate concerns regarding witness reliability. An accomplice has incentive to minimize involvement in the crime and maximize the culpability of the others involved. “When an accomplice testifies, and whether that testimony is corroborated or not, the better practice is for the trial court to give a cautionary instruction.” State v. Moore, 229 Kan. 73, 80, 622 P.2d 631 (1981). The informant has incentive to strengthen testimony against the accused, because the informant has received benefits for that testimony. Both incentives were operating here. Thomas and Topper were accomplices. In addition, they had entered into plea bargains and agreed to testify in exchange for having the first-degree murder and aggravated kidnapping charges dropped.
The district court’s Instruction 18 is a modification of PIK Crim. 3d 52.18-A.
We have recently observed:
“The pattern jury instructions for Kansas (PIK) have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK; the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.” State v. Whitaker, 255 Kan. 118, Syl. ¶ 1, 872 P.2d 278 (1994).
Allison argues that Instruction 18 nullifies Instruction 17. He contends that the corroborating physical evidence introduced at trial did not establish who the shooter was, and the corroborating evidence of who the shooter was consisted of testimony from another State’s witness who received benefits. Thus, Instruction 18 told the jury to consider with caution the subject testimony “if that testimony is not supported by other evidence,” whereas Instruction 17 told the jury to “consider with caution the testimony of an accomplice.” Allison believes that the jury could have disregarded the caution given in Instruction 17 because there was corroborating evidence for Topper’s and Thomas’ testimony.
During the jury instructions conference, the State objected to Instruction 18, stating: “It’s the State’s position that that cautionary instruction only applies to paid informants and that no witnesses for the State could be considered paid informants.” Allison’s counsel said:
“Your Honor, the defendant had requested an instruction along the line of Instruction Number 18, which was simply more expansive; and we — At the conclusion of our discussion about the specific instructions, we’ll ask that that instruction be submitted in lieu of Instruction 18.”
The district court considered Allison’s counsel’s comments as an objection and overruled the objections of both counsel. The district court was not made aware of the asserted contradiction between Instructions 17 and 18 advanced by appellate counsel before this court.
Both Instructions 17 and 18 are based on PIK Crim. 3d 52.18 and 52.18-A. Each addresses separate credibility concerns: the accomplice’s incentive to point the finger at someone else (17), and the witness’ incentive to receive benefits to strengthen “bargained- for” testimony (18). While Instruction 18 could be considered du-plicative, since the jury was already cautioned about accomplice testimony, it does address the separate credibility issue concerning testimony of a witness who has plea bargained and received benefits from the State.
“When reviewing challenges to jury instructions, 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. Whitaker, 255 Kan. 118, Syl. ¶ 3.
The trial court did not err in instructing the jury.
The Stated Notice of Intent to Seek the Hard 40
Allison claims that he was not served with a copy of the State’s Notice of Intent to Seek the hard 40 at the time of his arraignment.
K.S.A. 1992 Supp. 21-4624(1) states:
“If a defendant is charged with murder in the first degree, the county or district attorney shall file written notice if such attorney intends, upon conviction or adjudication of guilt of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be required to serve a mandatory term of imprisonment of 40 years. Such notice shall be filed with the court and served on the defendant or the defendant’s attorney at the time of arraignment. If such notice is not filed and served as required by this subsection, the county or district attorney may not request such a sentencing proceeding and the defendant, if convicted of murder in the first degree, shall be sentenced as otherwise provided by law, and no mandatory term of imprisonment shall be imposed hereunder.” (Emphasis added.)
At his arraignment hearing on July 6,1993, Allison entered “not guilty” pleas to all charges. Immediately after Allison entered his plea of “not guilty” on the last charge (terroristic threat), the following discussion took place:
“THE COURT: Mr. Pringle, Go ahead.
“MR. PRINGLE: Your Honor, I would ask that the record reflect that the State of Kansas through myself, Jim Pringle, Cowley County Attorney, is serving upon the defendant notice that the State of Kansas intends upon conviction or adjudication of guilt of the defendant of the crime, of premeditated murder to request a separate sentencing proceeding to determine whether the defendant should be required to serve a mandatory term of imprisonment forty years, pursuant to K.S.A. 1992 Supplement 21-42 et seq. [21-4624(1)]. I’m filing a copy of the same showing said service with the Court.
“THE COURT: All right, Mr. Allison, the County Attorney has just served you with notice of his intent to seek a mandatory imprisonment term of forty years if you are convicted of the crime of premeditated murder. Do you understand that that’s what he’s requesting at this time, the opportunity to present evidence to impose that sentence?
“THE DEFENDANT: Yes.
“THE COURT: Have you discussed that with Mr. Krusor, your counsel?
“THE DEFENDANT: Yes.
“THE COURT: And he’s explained to you the procedure and your exposure to the mandatory term of imprisonment of forty years if you are convicted of the crime charged in Count XIII, which is murder in the first degree. Is that correct?
“THE DEFENDANT: Yes.
“THE COURT: And youve discussed that with him?
“THE DEFENDANT: Yes.
“THE COURT: And the fifing of the notification of intent by the County Attorney to seek that sentence has no effect upon your plea. Is that correct?
“THE DEFENDANT: Yes.
“THE COURT: If that notice had been filed prior to the time you had entered your not guilty pleas, would your not guilty pleas have been any different?
“THE DEFENDANT: No.
“THE COURT: You intended to plead not guilty to all of these charges, knowing that this notification of intent to seek the mandatory term of forty years would be filed. Is that correct?
“THE DEFENDANT: Yes.
THE COURT: Is that your understanding of it, Mr. Krusor?
“MR. KRUSOR: It is, Your Honor.
“Your Honor, may I address the Court with respect to the trial date?
“THE COURT: You may, sir.”
Allison contends that his arraignment was completed at the moment he entered his last plea. Because he did not receive the notice until after that moment (although the judge, attorneys,' and defendant were still present and on the record), he argues the notice is invalid under K.S.A. 1992 Supp. 21-4624(1). The State asserts that the arraignment is not concluded until the judge so indicates. Both parties cite State v. Deavers, 252 Kan. 149, 843 P.2d 695 (1992), cert. denied 125 L. Ed. 2d 676 (1993) as authority for their respective positions. Deavers was reaffirmed in State v. Johnson, 255 Kan. 140, 155, 871 P.2d 1246 (1994), and State v. Peckham, 255 Kan. 310, 318, 875 P.2d 257 (1994). Deavers is factually distin guishable. Deavers was not served with the hard-40 notice until ihe afternoon after his arraignment. At a morning arraignment, Deavers pled not guilty and requested a jury trial, and the trial date was set. Before concluding the hearing, the judge asked if anything else needed to be accomplished. Both the prosecutor and Deavers’ counsel said no. Later that day, at the prosecutor’s request, Deav-ers, his attorney, and the prosecutor appeared before the judge. The prosecutor advised that she had forgotten to give Deavers a copy of the notice regarding the hard 40 at the earlier hearing and handed a copy to Deavers. Deavers’ counsel objected to the notice as untimely. The judge allowed the notice. On appeal of the conviction and hard-40 sentence, we, vacated the sentence, deciding that the notice requirement in K.S.A. 1991 Supp. 21-4624(1) was mandatory..
Here, Allison was served with notice before the judge had concluded the arraignment hearing. The record shows notice was filed with the court at the same time.
We have defined arraignment as
“ ‘the formal act of calling the defendant before a court having jurisdiction to impose sentence for the offense charged; informing the defendant of the offense charged by reading the complaint, information or indictment or stating to him the substance of the charge; and asking defendant whether he is guilty or not guilty or-to otherwise plead as permissible bylaw.’ ” State v. Smith, 247 Kan. 455, 458, 799.P.2d 497 (1990) (quoting State v. Rosine, 233 Kan. 663, Syl. ¶ 3, 664 P.2d 852 [1983]).
K.S.A. 1992 Supp. 22-3205(a) provides:
“Arraignment shall be conducted in open court and shall consist of reading the cpmplaint, information or indictment to the defendant or stating to the defendant the substance of the charge and calling upon the defendant to plead thereto. The defendant shall be given a copy of the indictment or information before the defendant is called upon to plead. Except as provided in subsection (b), if the crime charged is a felony, the defendant must be personally present for arraignment; if a misdemeanor, with the approval of the cpurt, the defendant may appear by counsel. The court may direct any officer who has custody of the defendant to bring the defendant before the court to be arraigned.”
Interpretation of a statute is a question of law. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). The issue of statutoiy construction is subject to a standard of unlimited review. Davis v. City of Leawood, 257 Kan. 512, 517, 893 P.2d 233 (1995).
The general rule is that a criminal statute must be strictly construed in favor of the accused, which means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. Donlay, 253 Kan. 132, Syl. ¶ 3. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Tyler, 251 Kan. 616, Syl. ¶ 15, 840 P.2d 413 (1992). Our function is to interpret statutes to effect the intention of the legislature. State v. Richardson, 256 Kan. 69, 77,883 P.2d 1107 (1994) (quoting State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 719, 792 P.2d 971 [1990]). Generally, statutes are construed to avoid unreasonable results. 256 Kan. at 77.
K.S.A. 1992 Supp. 21-4624(1) requires that the notice be served on the defendant “at the time of arraignment.” A defendant could not make an informed decision about a plea without receiving such notice. The recommended practice is to serve the notice upon the defendant before a plea is entered.
We were requested in Richardson to characterize as invalid the K.S.A. 1993 Supp. 21-4624(1) hard-40 notice provision served on Richardson before her arraignment. We refused such a “hyper-literal” interpretation. 256 Kan. at 77. The notice provision “serves the purpose of alerting a defendant to a hard-40 prospect so that he or she may plan strategy accordingly.” 256 Kan. at 76-77.
Allison had entered his pleas to all charges when the prosecutor served him with the notice. However, the judge had not left the bench or concluded the hearing. The judge asked Allison if: (1) he had discussed the notice with his attorney and if his attorney had explained what it meant (Allison said that he had); (2) the notice would cause him to change any of his pleas (Allison said that it would not); and (3) he had intended to enter his pleas, knowing that the hard-40 notice would be filed (Allison stated that he had so intended). The judge also confirmed with Allisoris counsel Al-lisoris intention to plead not guilty. Allisoris counsel did not object to the notice. He asked that the trial date be extended beyond 90 days from the arraignment date, in part, because this was the first hard-40 case in Cowley County. The judge granted the requested extension.
The record reflects that Allison knew the State intended to seek the hard-40 sentence before entering his pleas. In addition, while all parties were still present and on the record and before the trial date was set, the judge afforded Allison the opportunity to reconsider his pleas. Allison was not surprised by the notice.
The term “time of arraignment,” as a matter of common sense, includes the period when the defendant appears before the court for the arraignment, the court informs the defendant of the offense charged, and the court decides that the defendant has made a fully informed decision concerning his plea. Allison was free to change his plea as if it had not yet been entered or accepted by the court. The court was still in the process of informing Allison of his rights. The jury trial date had not yet been set. Allison’s hard-40 notice was served at the “time of arraignment” within the meaning of K.S.A. 1992 Supp. 21-4624(1).
The State’s Rebuttal
The State called in rebuttal William Muret, the attorney who represented Jason Topper during his plea bargain negotiations. Allison characterizes Muret’s testimony as improper bolstering of Topper’s testimony. The State asked Muret to describe the terms of the plea bargain as Muret explained them to Topper. The terms provided that the first-degree murder and aggravated kidnapping charges would be dropped, Topper would plead guilty to other charges, waive his Fifth Amendment rights and testify truthfully in Allison’s trial. During Allison’s cross-examination of Topper, Allison’s counsel repeatedly suggested that as part of the plea bargain, Topper was to testify “the way you have today” (inferring that Topper agreed to testify to whatever the prosecutor wanted, regardless of die truth) in exchange for the guilty pleas and dropping the most serious charges. During recross of Topper, Allison’s counsel raised the inference that during the plea bargain negotiations, Topper was attempting to strike the best deal.
The State also called. Muret to testify that from the beginning of Muret’s representation of Topper, Topper had consistently asserted to Muret that Allison, not Thomas, had killed Hotchkin. (Topper had waived his attorney-client privilege.)
During Topper’s direct testimony, Topper testified for the State that “I seen Chris [Allison] step back and shoot Tammy.” During cross-examination, Topper was asked about a prior statement he made in court at the time he was attempting to have his plea bargain accepted by the court. Allison’s counsel referred Topper to the transcript of the hearing, which showed that the judge had asked Topper “And who fired the shot?” and Topper first had answered “Pat,” then corrected himself. Although Topper first denied having answered the judge’s question that way, Allison’s counsel then asked the following question, and Topper responded:
“Q. Okay. What I suggest to you, Mr. Topper, happened is that the judge asked you the question; you said 'Pat’, and then you remembered that’s not what' you were supposefd] to say. You were suppose[d] to say ‘Chris’, correct?
“A. Chris, yes.”
Allisons counsel was implying that in truth, Thomas shot Hotchkin, but Topper had agreed to falsely testify as part of his plea bargain that Allison shot Hotchkin.
Rebuttal evidence is limited to issues placed in conflict by the adverse party. Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 742, 822 P.2d 617 (1991). “ ‘The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party’s prejudice.’ ” State v. Richard, 235 Kan. 355, 360, 681 P.2d 612 (1984). (quoting State v. Weigel, 228 Kan. 194, Syl. ¶ 9, 612 P.2d 636 [1980]).”
The State contends that this rebuttal evidence was needed to rehabilitate or corroborate Topper’s direct testimony that Allison shot Hotchkin. Allison’s counsel had impeached Topper by attacking his credibility in two respects: (1) Topper had an incéntive to fabricate his testimony that Allison shot Hotchkin, if that is what the State wanted him to say, to work out the best possible deal on his plea bargain; (2) Topper made a prior inconsistent statement when he answered the judge’s question at his plea bargain hearing, first saying that Thomas shot Hotchldn and then correcting his answer, saying that Allison did the shooting.
Topper was impeached with his prior inconsistent statement when he admitted to Allison’s counsel during cross-examination that he had first answered the judge’s question by saying that Thomas shot Hotchkin. The State was then entitled to bring in corroborating evidence. Muret’s testimony as to the terms of the plea bargain countered Allison’s inference that Topper had agreed to testify as the State directed him, as opposed to what the truth was. Muret also testified as to statements Topper made before the plea bargain which were consistent with his trial testimony that Allison shot Hotchkin.
Muret was not asked to give any opinion concerning his own understanding or investigation of the facts. Muret only testified about prior consistent statements he heard his client make before negotiation of the plea bargain and his explanation of the terms of the plea bargain to his client. We find no abuse of discretion. See Richard, 235 Kan. at 362 (rebuttal testimony of attorney who represented an impeached witness in her plea bargain held admissible in defendant’s murder trial).
Cumulative Error
Allison contends he was denied a fair trial because of cumulative error. We do not agree. In arguing that the “cumulative trial error” rule applies, Allison refers to the other issues raised in his appeal “together with repeated, improper references to Mr. Allison’s prior incarcerations. See also K.S.A. 60-455.” Allison identified three occasions during the State’s case when inadvertent references were made to Allison’s prior criminal record. On each occasion, the trial court sustained counsel’s objection or motion to strike and directed the jury to disregard the testimony. Allison also contends that the evidence against him was not overwhelming. The State made no response to Allison’s cumulative error argument. We have held that cumulative trial érrors, when considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant. State v. Lumbrera, 252 Kan. 54, Syl. ¶ 1, 845 P.2d 609 (1992). Allison received a fair trial.
The evidence against Allison was overwhelming. The two accomplices both testified that he planned the murder with them and shot Hotchkin in their presence. Several persons, including Allison’s girlfriend, his sister, and Anthony Kelly, heard Allison admit after die murder that he had shot Hotchkin. Allison admitted being involved in the murder and the disposal of the body, although he claimed Thomas fired the murder weapon. The weapon was recovered. The body was recovered, bound and weighted as described by Thomas and Topper. Items of clothing, rubber gloves, and other property implicating Allison, Thomas, and Topper were retrieved.
Affirmed.
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In a letter dated March 6, 1996, to the Clerk of the Appellate Courts, respondent Steven L. Stapleton, of Dodge City, Kansas, an attorney admitted to practice law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (1995 Kan. Ct. R. Annot. 219).
At the time respondent surrendered his license, one complaint was docketed for investigation by the Disciplinary Administrator. The Disciplinary Administrator’s office had also received numerous complaints from respondent’s clients that he had abandoned his practice of law, had failed to communicate with his clients, and had missed court dates.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
Is Therefore Ordered that Steven L. Stapleton 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 Steven L. Stapleton 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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In a letter dated January 8, 1996, and received by the Clerk of the Appellate Courts on January 16, 1996, respondent Michael P. O’Keefe, of Lenexa, Kansas, an attorney admitted to practice law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (1995 Kan. Ct. R. Annot. 219).
On October 20, 1994, this court placed respondent on disability inactive status pursuant to Supreme Court Rule 220(c) (1995 Kan. Ct. R. Annot. 232), and all pending disciplinary proceedings were stayed. On June 21, 1995, respondent was restored to active status and temporarily suspended from the practice of law pending the final disposition of four disciplinary actions, which were reinstated.
At the time respondent surrendered his license, four separate complaints had been heard on January 10, 1996, before a panel of the Kansas Board for Discipline of Attorneys. Three additional complaints had been received and docketed and were being investigated by the Disciplinary Administrator’s office. The complaints docketed against respondent contained allegations of improper conversion of probate funds, abandonment of a business client and failure to return financial records, violations as co-trustee of an educational trust, and respondent’s disbarment by the United States Tax Court for fraud on the court and disbarment by the Missouri Supreme Court.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that Michael P. O’Keefe 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 P. O’Keefe from the roll of attorneys licensed to practice law in Kansas.
Dated this 18th day of January, 1996.
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
Davis, J.:
The defendant, Gregory Starr, appeals from convictions of one count of first-degree murder, one count of attempted aggravated burglary, and two counts of aggravated assault. He contends: (1) The trial court had no jurisdiction over the first-degree premeditated murder charge or, in the alternative, that the amended charge deprived him of due process; (2) prosecutorial misconduct during closing argument denied him a fair trial; and (3) the sentence imposed was inconsistent with the Kansas Sentencing Guidelines.
" On February 27,1994, Ethean Johnson, Tyrell Clinton, and Nick Murrell, three students and football players at Coffeyville Community College, went to Henry C’s, a nightclub in Coffeyville. At approximately 2 a.m., a confrontation occurred between the students and some others, including a person named Ronnie Scott. The confrontation was broken up, and the three students got a ride to the nearby Cleveland Apartments, specifically the apartment of Sharon Fields, where they hoped to get a ride back to the college dorms:
According to Nick Murrell, they arrived at Fields’ apartment to find a person named Fred already visiting there. Murrell called a friend, Renea Marion, to come pick them up. Some time later, Marion arrived in the parking lot and honked her horn. As the three students walked out the door, Ethean Johnson told Murrell that some persons were heading toward them carrying guns. The students, ran back into Fields’ apartment and shut and locked the door. At that point, shots were fired and Murrell and Tyrell Clinton ran back into Fields’ bedroom and hid in the closet. Once in the closet, however; they discovered that although Fred, the visitor, was in the closet with them, Ethean Johnson was not. After a while, Murrell and Clinton exited the closet and found Johnson mortally wounded, lying in the living room of the apartment.
Gregory Starr was one of the persons charged with the murder of Johnson. He was originally charged with premeditated first-de gree murder, or in the alternative, felony murder, as well as aggravated burglary and two counts of aggravated assault. However, prior to trial, the State dismissed the premeditated murder charge as well as the aggravated burglary charge, electing instead to proceed on the felony-murder charge.
At trial, the State presented the testimony of others who were involved. Stacey Johnson testified that he was at Henry C’s during the night in question with a group of people, including Larry Clark, Justin Johnson, Adam Davis, Brandon Shields, Ronnie Scott, and Glenn Starr, the brother of the defendant. He stated that during the evening, Ronnie Scott and Glenn Starr got into an argument with “three college dudes.” According to Stacey Johnson, the college students left with Keisha Colbert and headed for the Cleveland Apartments.
Johnson then stated that his group left Henry C’s and took Scott to Scott’s girlfriend’s apartment to get a gun. They then went to Starr’s parents’ house and dropped off Starr. The group then took Justin Johnson to another friend’s house to get another gun. Following this, the group went back to Starr’s parents’ house and were rejoined by Glenn Starr, along with his brother Gregory Starr. Stacey Johnson testified that the defendant was carrying a 9-milli-meter pistol.
The group arrived at the Cleveland Apartments and went to Keisha Colbert’s apartment looking for the three college students. However, the three students were not there. Stacey Johnson stated that the group then stood around in the parking lot for a while and then saw the students coming out of Sharon Fields’ apartment. According to Stacey Johnson, the students went back inside the apartment, and the defendant, along with Glenn Starr, rushed the door. Johnson stated that the defendant fired at the door three or four times. Glenn Starr then kicked the door open, the defendant handed the gun to Glenn, and Glenn then fired inside twice.
Justin Johnson, brother of Stacey Johnson, also testified. His testimony echoed that of his brother regarding the evening’s events. Johnson admitted that he provided Ronnie Scott with a Tech .22 caliber automatic pistol but stated that the pistol was never fired during the evening.
David Newton also testified on behalf of the State. Newton testified that he lived in the Cleveland Apartments and on the night in question had paid a visit to Sharon Fields. He encountered the three students there waiting for a ride. As the students were leaving, he heard one of them say, “[Tjhey got guns.” At that point, shots were fired and Newton got down on the floor. He saw Mur-rell and Clinton run back toward the bedroom and saw Ethean Johnson lying on the floor as if he had been shot. Newton went to another apartment and called the police.
Renea Marion, the person who had come to pick up the three students, also testified.- She stated that she was a college student and friend of Murrell, Clinton, and Johnson. On the night in question, Murrell called her from the Cleveland Apartments and asked her to give the three students a ride back to the dorms. According to Marion, she was to pull into the parking lot and honk, and the students would come out.
Marion testified that when she pulled into the parking lot, a car driven by Larry Clark pulled in behind her, and some people got out. These people joined another group of people who were standing in the parking lot. Marion recognized Glenn Starr and the defendant in the group.
Marion saw the three students come out of an apartment and then saw Glenn and the defendant walking towards them with a gun. Marion stated that the defendant then began shooting and then either the defendant or Glenn kicked open the door. Marion testified that she recognized the defendant because he had been a friend of hers prior to the shooting.
At the end of the State’s testimony, the defendant filed a motion to dismiss, arguing that the State had failed to prove aggravated burglary and, as a result, felony murder. After some discussion, the district court denied the motion. The State then moved to amend the complaint to reinstate the charge of premeditated first-degree murder and to amend the charges of aggravated burglary to charge attempted aggravated burglary. The defendant objected, arguing that the amendment was a surprise and also that the amendment prejudiced the defendant. However, the district court overruled the objections and allowed the changes, making a specific finding that no new crime had been charged.
The defendant presented an alibi defense. Ronnie Scott, one of the participants in the evening’s events, admitted going to the Cleveland Apartments but insisted that the defendant was not with the group. Scott testified that he was not present when the shooting occurred because he was in Keisha Colbert’s apartment at the time, but he also admitted that he pled guilty to conspiracy to commit aggravated assault because he was in the car.
Glenn Starr testified that he went to the Cleveland Apartments, but only to try to work things out with the college students because of the earlier argument. He stated that he left the area before the shooting started, however. Starr insisted that his brother was never at the apartments.
Adam Davis, another participant, stated that at the Cleveland Apartments he saw Justin Johnson and Glenn Davis go towards the students and that he heard the shots. However, he stated that the defendant was not with the group and he had not seen the defendant the entire night.
Larry Clark, yet another participant, testified that he drove to the Cleveland Apartments but did not get out of the car and that he left before the shooting started. He stated that he did not pick up the defendant and did not see the defendant at the scene.
The defendant testified on his own behalf. He stated that on the evening of the shooting he went to Cowanda Broadway’s house until 10:30 p.m. He then returned home and watched television with his parents until they went to bed shortly after 10:30. The defendant then stated that he continued to watch television into the early morning when he heard shots. The defendant testified that his parents’ house is only two blocks from the Cleveland Apartments. Shortly thereafter, his brother Glenn came home. Soon after, there were more shots, and both the defendant and Glenn went to see about the noise. The defendant stated that when he arrived at the Cleveland Apartments, he saw an ambulance outside, so he turned around and went home.
During closing arguments, the State argued that the defendant’s alibi should not be believed. During this argument, the prosecutor stated: “He testified his parents were there. Well, where .are his parents? Why didn’t they testify? We didn’t hear from them.” The defendant did not object to .this comment.
The jury was unable to unanimously find the defendant guilty of either premeditated murder or felony murder but did unanimously find the defendant guilty of first-degree murder based on a combination of those two aítemativés. He was also convicted of attempted aggravated burglary and two counts of aggravated assault.
At sentencing, the district court stated that it was sentencing the defendant to life on the murder charge and three 17-month sentences on the attempted aggravated burglary charge and the two aggravated assault charges, to rail consecutively. However, in the journal entry, the sentence is reflected as T7 months for the attempted aggravated burglary charge' and' 13 months each on the aggravated assault charges, to 'ran consecutively.
(1) JURISDICTION. AND DUE PROCESS
Jurisdiction
The defendant argues that the trial court did not have jurisdiction-to try him on the charge of premeditated first-degree murder after it dismissed the charge prior to trial. However, the-trial court granted the amendment because it concluded that no additional or different crime was charged. For .the reasons stated below, we conclude that the trial court was correct and retained jurisdiction to amend the complaint and try the ■ defendant on the amended charge of first-degree premeditated murder.
K.S.A. 22-3201(e) provides that “[t]he 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 the substantial rights of the defendant- are not prejudiced.” Thus, determining whether an amendment should be permitted requires a two-part analysis: (1) whether an additional or different crime is charged by the amendment- and (2) whether the amendment will prejudice the substantial rights of the defendant. See State v. Barncord, 240 Kan. 35, 38, 726 P.2d 1322 (1986).
In Bamcord, we determined that premeditated and felony murder are not separate and distinct offenses. Instead, a prosecution under the felony-mürder rule changes the type of proof necessary to prove first-degree murder by relieving the State of the burden of proving premeditation and malice. Bamcord had been charged with premeditated' murder, and during the trial the State moved to amend the complaint to add felony murder. We found that an amendment was not actually necessary as an information alleging that a Idling was done with malice aforethought, deliberation, and premeditation is sufficient to sustain a conviction of felony murder. We also found that if an amendment was necessary, no different or additional crime was charged by such an amendment. 240 Kan. at 37-38.
The Barncord rationale was applied in State v. Grissom, 251 Kan. 851, 926-27, 840 P.2d 1142 (1992). Grissom was charged with the first-degree murder of a victim on the alternate theories of premeditated murder, felony murder with the underlying felony of aggravated burglary, and felony murder with the underlying felony of aggravated kidnapping. At the preliminary hearing, the court found that there was not sufficient evidence to bind the defendant over for felony murder committed during an aggravated kidnapping. However, the court later allowed the State to amend the complaint to its original form at the conclusion of the State’s evidence 251 Kan. at 926. This court found no error in allowing that amendment. 251 Kan. at 927.
The situation now before the court is somewhat similar to Grissom and Bamcord. In the case before us, the State could have proceeded on both the premeditated and felony-murder theories without electing between them. See State v. Wise, 237 Kan. 117, 121, 697 P.2d 1295.(1985) (holding that the State is not required to elect between first-degree and felony murder as long as the defendant is apprised of both theories). However, the State did elect to dismiss-the charge of premeditated murder. The question, therefore, is what effect this dismissal had on the State’s ability to proceed on both theories. -
The defendant argues that once a charge is dismissed, the district court loses jurisdiction over that charge. Howéver, the charge of first-degree murder in this case was not dismissed; instead, one of the alternative theories under which the cRarge.could be proven was dismissed. The district court retained jurisdiction over the charge of first-degree murder, and it appears that the charge could be amended as long as no new or additional offense was charged or the substantial rights of the defendant prejudiced.
Unlike Bamcord, the State was required to amend the complaint in order to charge premeditated murder. This is because although a charge of premeditated murder alleging that the'killing was done with malice, deliberation, and premeditation is sufficient to sustain a conviction of felony murder, a charge of felony murder is not sufficient to sustain a charge of premeditated first-degree murder, as it does not charge premeditation.
Premeditated and felony murder are not separate and distinct offenses but are two separate theories under which the crime of first-degree murder may be committed. The amendment at the close of the State’s case charging the defendant under the alternative theory of first-degree premeditated murder when the defendant had been charged with felony murder did not charge an additional or different crime.
Due Process
The defendant argues that by dismissing the theory of premeditated murder, the State indicated to the defense counsel that premeditation and intent were not in dispute or legally relevant and, therefore, defense counsel had no reason to defend against those issues. According to the defendant, the amendment caused surprise and prejudice, denying him due process of law. The question to be resolved is whether die defendant’s substantial rights were prejudiced by the amendment. See K.S.A. 22-3201(e).
During oral argument, counsel for the defendant asserted that questions that would normally be asked of witnesses upon cross-examination of the State’s witnesses were not asked because the charge of premeditated murder had been dismissed at the beginning of trial. When asked by the court what different questions may have been asked, counsel could furnish none. We also find it difficult to conceive of a different approach by defense counsel at trial. The entire defense to the charge of murder at trial was one of alibi. On cross-examination, the defendant, consistent with his defense, attacked the credibility of the State’s witnesses placing him at the scene. Under these circumstances, we perceive no prejudice flowing from the amendment at the close of the State’s case.
Moreover, the State’s amendment to proceed on the theory of premeditated murder created no unusual surprise for the defendant. Originally, the defendant was charged under both theories, and only immediately prior to trial was the premeditated murder theoiy dismissed. Under the circumstances, the defendant should have been prepared to defend against both theories.
Finally, the theory of felony murder reheves the State of the burden of proving premeditation and malice. State v. Barncord, 240 Kan. at 38; State v. Underwood, 228 Kan. 294, 302-03, 615 P.2d 153 (1980). Instead, these elements are established through proof of the collateral felony. State v. Underwood, 228 Kan. at 302. Absent this theoiy, the State must prove premeditation. The amendment at the close of the State’s case to include the alternate theoiy of first-degree premeditated murder had the effect of creating a greater burden on the State by requiring the State to prove intent and premeditation.
(2) PROSECUTORIAL MISCONDUCT
The defendant argues that the State committed prosecutorial misconduct by commenting at closing argument on the failure of the defendant’s parents to testify in support of the defendant’s alibi defense. The defendant argues that these comments impermissibly shifted the burden of proof to the defendant and that the comments were misleading.
The defendant did not object at the time of the prosecutor’s comments. However, based upon our recent decision in State v. Ruff, 252 Kan. 625, 634-35, 847 P.2d 1258 (1993), he argues that the trial court had an independent duty to stop counsel’s argument in order to preserve the defendant’s right to a fair trial.
Ruff applies only if we conclude that the prosecutor’s remarks upon closing amounted to prosecutorial misconduct. We have held that it was not error for the prosecution to comment upon the failure of a defendant to call an alibi witness when exerting an alibi defense. See State v. Milo, 249 Kan. 15, 20-22, 815 P.2d 519 (1991); State v. Mims, 222 Kan, 335, 337, 564 P.2d 531 (1977). In Milo, we cited United States v. Schultz, 698 F.2d 365, 367 (8th Cir. 1983), which holds that such a comment does not impermissibly shift the burden of proof to the defendant. 249 Kan. at 21.
The defendant argues that the comment by the State was misleading because it mischaracterized the evidence. The defendant points out that his parents could not have provided him with an alibi because, according to the defendant, they went to bed long before any of the events that led to the shooting occurred. In support of his contention that this alleged mischaracterization constituted prosecutorial misconduct, the defendant again cites Ruff.
Ruff holds that while it is the duty of the prosecutor to see that the State’s case is properly presented with earnestness and vigor and to use every legitimate means to bring about a just conviction, the prosecutor should also bear in mind that he or she is an officer of the court. 252 Kan. at 634. Where counsel refers in closing argument to pertinent facts not before the jury, or appeals to prejudices foreign to the case, it is the duty of the court to stop the prosecutor without waiting for objection from the defense attorney. 252 Kan. at 635.
In this case, counsel’s comment was based upon evidence in the record. The defendant asserted an alibi defense for his whereabouts the entire evening, denying that he was a part of any of the actions leading up to and including the shooting. The defendant could have called his parents to testify to his whereabouts at the time they went to bed and to testify that they did not hear him leave the house after they went to bed. We conclude that the prosecutor’s comment upon the failure of the defendant to call alibi witnesses when exerting an alibi defense was not error because the comments were based upon fair comment on evidence of record.
(3) SENTENCING
The defendant contends that the trial court erred in sentencing him to 17 months for each of his on-grid offenses'. He argues that the trial court mistakenly used the wrong criminal history category in sentencing him on these two counts.
The defendant was convicted of first-degree murder, an off-grid offense. He was also convicted of one count of attempted aggravated burglary, a severity level 7 offense, and two counts of aggravated assault, also both severity level 7 offenses. He was sentenced to 17 months for each of the on-grid offenses.
Under K.S.A. 21-4720(b)(2), the district court was required to establish a base sentence for the primary crime, which is the crime with the highest severity level. The district court correctly designated one of the aggravated assault charges as the primary, or base, crime. The court sentenced the defendant to 17 months on that charge, consistent with his criminal history level of G.
At this point however, confusion set in. On the two remaining charges, the nonbase offenses, the court should have sentenced the defendant in accordance with a criminal history of I, as required by K.S.A. 21-4720(b)(5), which states: “Nonbase sentences will not have criminal history scores applied, as calculated in the criminal history I column of the grid, but base sentences will have the full criminal history score ássigned.” This would have led to a sentence of between 11 and 13 months for each of the two remaining offenses. See K.S.A. 21-4704(a).
The court apparently set out to do just that, sentencing the defendant to 13 months on the attempted aggravated burglary charge. However, then the court was reminded by the State that it still needed to sentence on one of the aggravated assault charges. The district court then mistakenly sentenced the defendant to 17 months on the remaining aggravated assault charge and summed up the sentence as 17, 17, and 17 months on the three charges.
The sentence imposed was inconsistent with the Kansas Sentencing Guidelines Act. The journal entry in this case reflects the correction of the error, stating that the defendant is sentenced to 13 months on the two nonbase charges. However, the sentences do not derive their effectiveness from the journal entry but instead are effective when announced. State v. Royse, 252 Kan. 394, Syl. ¶ 3, 845 P.2d 44 (1993). The sentences announced by the district court were illegal under the sentencing guidelines. Although the journal entry attempted to correct this illegality, the defendant was not present when the journal entry was filed.
The State, while admitting that a mistake was made, argues that it would be a waste of time and money to return the defendant to Montgomery County for a favorable change of sentence when that change is already in the journal entry. However, the defendant was sentenced in the journal entry to 13 months on each count, which is the maximum sentence on each. Upon resentencing, it is possible that the defendant will be sentenced to either 11 or 12 months on each count. Although the result may very well be exactly the same, this does not change the fact that the defendant must be sentenced in open court. See 252 Kan. at 397. As a result, the defendant’s sentences on one count of attempted aggravated burglary and one count of aggravated assault must be vacated and the case remanded for resentencing.
Convictions affirmed, sentences vacated, and case remanded for resentencing.
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The opinion of the court -was delivered by
Abbott, J.:
The defendant, Willie J. Bowen, appeals from the summary denial of his post-appeal motions to modify sentence.
Bowen was convicted and sentenced to life imprisonment for first-degree murder, and 5 tó 20 years for aggravated battery, with the sentences to run consecutively. The trial court did not have any option other than to sentence Bowen to life for the first-degree murder conviction. The trial court did have an option to sentence the defendant to a range of 3 to 1Ó years or 5 to 20 years for the aggravated battery conviction and an option to run-the sentences concurrently or consecutively. - . . - .
Bowen filed a direct appeal of his conviction, which this court affirmed. State v. Bowen, 254 Kan. 618, 867 P.2d 1024 (1994). Bowen then filed a pro se motion to modify his sentence and requested that counsel be appointed to represent him. Some 5 months later, the trial court reappointed Bowen’s trial counsel to represent Bowen in regard to his post-appeal motion. Two months later, Bowen filed a second pro se motion for sentence modification.
The trial court, without any appearances and without a formal hearing, denied Bowen’s motions to modify his sentence. However, the order reflects that in denying these motions, the trial court considered the facts of the case, the Topeka Correctional Facility (TCF) report, the statutory factors, the severity of the defendant’s crime, the needs of the defendant, and public safety. The order denying sentence modification was approved by Bowen’s court-appointed counsel.
For the first time on appeal, the defendant contends that he was denied allocution at the time of sentencing. At the sentencing, the trial court asked the State whether it knew “of any reason why we should not proceed in sentencing the defendant at this time.” The State responded in the negative.
The cotut then asked the defendant’s counsel if she had anything to present on behalf of the defendant before the sentence was imposed. The defendant’s counsel made a statement regarding the defendant’s presentence investigation report, his prior criminal history, and his age. The defense counsel conceded that there was “no other sentence the Court [could] give except life imprisonment for first degree murder.” The defense counsel asked that the court impose the sentences for each crime concurrently instead of consecutively. Further, the defense counsel stated, “My client has nothing — I don’t think he wants to make a statement to the Court at this time.”
The court then asked, .“Mr. Bowen, do you have any statement you want to make?” The defendant responded in the negative. After hearing the State’s argument, the court again asked the defense counsel whether she knew “of any reason why the Court should not impose sentence at this time.” Defense counsel responded in the negative.
However, during the sentencing hearing, the court never directly asked the defendant if he wished to present any evidence in mitigation of punishment pursuant to K.S.A. 22-3424(e)(4), which states:
“Before imposing sentence the court shall: . . . 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.” (Emphasis added.)
Under K.S.A. 22-3424(e)(4), a defendant has an absolute right to allocution which is “not waived by the defendant’s silence or by argument of counsel.” State v. Johnson, 255 Kan. 156, 159, 872 P.2d 247 (1994). See State v. Webb, 242 Kan. 519, 748 P.2d 875 (1988) (giving a full historical analysis of allocution). A trial court violates K.S.A. 22-3424(e)(4) and denies the defendant the right to allocution if the court does not ask the defendant personally if he or she has any evidence to present in mitigation of punishment before the sentence is imposed. State v. Hunt, 257 Kan. 388, 405, 894 P.2d 178 (1995). The defendant correctly points out that the district court, when imposing the sentence, never asked him if he wished to present any evidence in mitigation of punishment. Thus,' according to the defendant, he did not know that he could present evidence in mitigation of the punishment and was denied his absolute right to allocution. The defendant is correct. He was denied allocution.
The State contends, however, that a defendant waives the 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. State v. Duke, 256 Kan. 703, 728, 887 P.2d 110 (1994); see State v. Webb, 242 Kan. at 529. The State points out that the defendant filed two pro se sentence modification motions and that the defendant did not allege in either motion that he was denied allocution. Further, the State points out that counsel was appointed to represent the defendant after he filed his first pro se motion to modify, which included a request for counsel. Once appointed, this counsel did not file a new or amended sentence modification motion which raised the denial of allocution issue. Thus, according to the State, the defendant has waived the allocution issue.
In State v. Borders, 255 Kan. 871, 879 P.2d 620 (1994), the district court rescheduled the sentencing hearing. The defendant requested a sentencing continuance so that his family could attend the rescheduled sentencing hearing. The district court denied this request. At the sentencing, the district court asked the defendant if he wanted to address the court, but the district court did not ask the defendant if he had any evidence he would like to present in mitigation of his punishment. The defendant filed a motion to modify the sentence which challenged, inter alia, the district court’s refusal to grant a sentencing continuance until the defendant’s family could be available so that the defendant could present evidence in mitigation of punishment by calling his family to testify. Without a hearing, the district court denied the defendant’s motion to modify the sentence. This court addressed whether the district court violated the defendant’s right to allocution under K.S.A. 22-3424(e)(4).
The Borders court held that the “ 'right to allocution is waived . . . when a defendant fails to raise the issue of denial of allocution in a motion to modify sentence.’ ” 255 Kan. at 877 (quoting State v. Webb, 242 Kan. 519, Syl. ¶ 1). Waiver of an allocution issue occurs even if the district court summarily denies the motion to modify without a hearing. 255 Kan. at 881-82 (concluding that the holding in State v. Spencer, 252 Kan. 186, 843 P.2d 236 [1992], was overly broad). Spencer held that the waiver’of an allocution issue did not occur, even when the defendant failed to raise the issue in his sentence modification motion, if the district court denied the motion without a hearing. The Borders court stated:
“Whether a defendant is entided to a hearing on a motion to modify sentence is discretionary with the trial court based upon the record before the court at the time. State v. Pierce, 246 Kan. 183, Syl. ¶ 1, 787 P.2d 1189 (1990). While it is true the court ruled on the motion to modify sentence without a hearing, the defendant has the duty to set forth in such a motion sufficient allegations and facts that would justify a hearing. When the motion for modification is based upon assertions that the defendant was denied statutory rights to allocution, allegations to that effect must be set forth with particularity in the motion. Absent any such allegations in the pleading or motion, the defendant waives any issue as to the sufficiency of the allocution or compliance with K.S.A. 1992 Supp. 22-3424(4). The waiver rule recognized in Webb applies not only where there is an actual hearing but also when the court properly exercises its discretion and rules without a hearing based upon the record before it.” 255 Kan. at 882-83.
Borders’ motion to modify “contained no facts, assertions, or claims that the defendant’s right to allocution had been denied or violated.” 255 Kan. at 882. Borders based his motion for modification solely on the TCF report, which in fact did not contain support for sentence modification. Thus, this court found that the defendant’s right to allocution had been waived and found no merit in the defendant’s allocution argument on appeal. 255 Kan. at 883.
Under the Borders waiver analysis, the first step is to determine if the district court erred by refusing to grant a hearing on the defendant’s motions to modify. In State v. Jennings, 240 Kan. 377, 379, 729 P.2d 454 (1986), this court found that the district court’s summary dismissal of a motion to modify was appropriate because the court had based its dismissal on the presentence investigation report, the TCF report, and the transcript of the sentencing proceeding. The court held that a defendant does not have a right to a hearing on a sentence modification motion. Instead, a trial court has discretion to determine if a hearing is necessary to decide a motion to modify, based on the record before the court at the time, including the pleadings and the TCF report. If the motion does not contain new facts or allegations, then the trial court’s decision not to have a hearing is justified. State v. Pierce, 246 Kan. 183, 187, 787 P.2d 1189 (1990).
Here, the defendant’s second motion to modify requested a hearing on the matter so that the court could hear arguments for and against sentence modification. However, the defendant in this case does not have a right to a hearing on his motions to modify the sentence. The defendant’s motions for sentence modification did not contain any new facts or allegations. The defendant did not satisfy his duty by setting forth sufficient allegations or facts in the modification motion to justify a heating. The district court summarily denied the defendant’s sentence modification motion without a hearing by relying on the facts of the case; the court file; all the available reports, including the report compiled by the staff of the TCF; the case law; the statutes and annotations; the defendant’s past experiences; the defendant’s needs; the seriousness of crime; and the safety of the public. The trial court did not abuse its discretion by summarily denying the sentence modification motion without a hearing. Thus, the defendant’s allocution issue is subject to waiver if he did not raise the issue in his motions to modify, even though the district court denied the motions without a hearing.
In this case, the defendant did not set forth with particularity in his modification motions any facts, assertions, or claims that his allocution rights had been denied or violated. In fact, neither of the defendant’s pro se sentence modification motions raised denial of allocution as an issue at all. Since the defendant did not raise the denial of his allocution rights in either motion to modify and the district court properly exercised its discretion in ruling on the motions without a hearing, the defendant has waived any objection to the lack of allocution provided at his sentencing.
The defendant contends that the allocution issue should not be waived in this case for two reasons. First, according to the defendant, he did not have counsel when he filed his sentence modification motions, even though he requested the court to provide him with counsel. Second, the defendant points out that pro se pleadings are to be broadly construed. Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). Thus, the defendant contends that his statement in the second sentence modification motion, indicating that he wished to present arguments to the court in a hearing, should be interpreted as raising the allocution issue. The defendant argues that this allocution issue should not be waived simply because he failed to directly raise the issue in his pro se motions to modify. According to the defendant, the district court was in error to summarily dismiss his motions to modify without raising the allocution issue sua sponte or at least appointing counsel to assist the defendant.
The defendant’s arguments are meritless. From the record, it appears the defendant is mistaken as to when he was appointed counsel. It is true that the defendant did not have counsel when he filed his first pro se motion to modify on February 23, 1994. However, the defendant was appointed counsel to assist him in unspecified matters on July 20, 1994. Thus, when the defendant filed his second pro se motion for sentence modification on September 1, 1994, he was represented by counsel. The defendant’s counsel did not file a new or amended modification motion which raised the allocution issue. Further, the defendant’s counsel signed and approved the district court’s order denying the defendant’s motions to modify. Thus, the defendant’s right to allocution is subject to waiver, just as the allocution right of all other defendants is waived if they do not raise the denial of allocution in their motions to modify. We do not hold or imply that a pro se motion to modify sentence, which fails to raise the allocution issue, waives the allo-cution issue. We simply hold that the defendant had counsel in this case and counsel did not raise the issue; thus, the issue is not before us.
However, in his second motion for modification, filed after counsel had been appointed to represent the defendant, the defendant alleges that his “court appointed counsel did not fulfill [her] obligation to Defendant by filing a Motion for Modification of Sentence, so Defendant therefore filed it Pro Se.” As a pro se motion, the defendant contends that it should be broadly construed. Thus, the defendant contends that his statement in the sentence modification motion requesting the court “to set a hearing date so this matter can be heard and arguments presented ... so that this court . . . will have a clear understanding of all the issues involved,” should be interpreted by this court as raising the allocution issue.
It is true that pro se pleadings in a criminal case are held to a less stringent standard than are formal pleadings. Haines v. Kerner, 404 U.S. at 520-21. However, even under a less stringent standard, there is no indication in either motion that the defendant had any problem whatsoever with allocution. Nothing which the defendant states in the motions can be construed as an indication that the defendant wished to present evidence in mitigation of punishment before the sentence was imposed. In both motions, the defendant merely explains that the motions were filed within the proper 120-day time period, requests the appointment of an attorney, and requests a hearing so that he can present arguments on the motion. Thus, the defendant has waived his denial of allocution challenge because he did not raise the issue in either motion to modify. The trial court properly denied the motions summarily without a hearing.
Not only is the allocution issue waived, the State contends that denial of allocution did not result in reversible error because the defendant did not suffer substantial prejudice. Failure to comply with K.S.A. 22-3424(e)(4) is “not reversible error unless prejudice to the substantial rights of the defendant is shown.” State v. Duke, 256 Kan. at 728; see also State v. Spencer, 252 Kan. 186, Syl. ¶ 2 (“Errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done.”) Under Duke, this court has refused to find the denial of allocution to be a reversible error absent some proffer by the defendant that he or she actually had evidence to present in mitigation of punishment before the sentence was imposed. 256 Kan. at 728.
In State v. Borders, 255 Kan. 871, discussed earlier, the defendant filed a motion to modify the sentence because the judge did not continue the sentencing hearing until the defendant’s family was available; thus, the defendant was not given a opportunity to present evidence in mitigation of punishment under 22-3424(e)(4). 255 Kan. at 873, 876, 880. However, the Borders court pointed out that the defendant had never indicated that he or his family actually had any evidence to present in mitigation of his punishment. 255 Kan. at 880. This court found that in order for a defendant to successfully challenge a denial of allocution based on the district court’s failure to give the defendant an opportunity to present evidence in mitigation of punishment, the defendant must proffer the evidence which he or she would have presented had the defendant been given the opportunity. According to the Borders court, this evidence should be proffered in a manner comparable to what.a defendant challenging an erroneous exclusion of evidence must do under K.S.A. 60-405. See 255 Kan. at 880. K.S.A.. 60-405 states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating die desired answers.”
Using this statute as an analogy, the court stated that “[a]bsent some proffer that the defendant had evidence to present in mitigation of the sentence, we fail, to find any reversible error.” 255 Kan. at 880. The court then pointed to K.S.A. 60-261 which does not allow a trial error to be grounds for reversal unless it can be shown that substantial rights of the defendant were prejudiced. 255 Kan. at 881. K.S.A. 60-261 states:
“No' error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties (Emphasis added.)
The court then held that this substantial prejudice standard also applies to a denial of allocution, as it does to other areas of criminal procedure. Thus, this court found that the district court erred in violating K.S.A. 22-3424(e)(4) by not providing the defendant with an opportunity to present evidence in mitigation of punishment before the sentence was imposed. However, this error did not justify reversal because the substantial rights of the defendant did not suffer prejudice. 255 Kan. at 881.
In State v. Hunt, 257 Kan. at 405, the defendant was denied allocution because the district court did not provide the defendant with an opportunity to present evidence in mitigation of punishment before sentencing,-pursuant to K.S.A. 22-3424(e)(4). The defendant appealed, but this court affirmed the sentence. In making this ruling, this court affirmed the Borders substantial prejudice/ reversible error test by stating:
“Here, the defendant does not identify how he was prejudiced by the sentencing court’s failure to ask if he wished to present evidence in mitigation of punishment. The defendant has not made the requisite proffer of the contemplated evidence, nor does the record show that his substantial rights were prejudiced. We do not find that the defendant was prejudiced by the court’s failure to provide allocution. The denial of allocution was harmless error.” 257 Kan. at 406.
In the case herein, the defendant indicated that he had information he would like to present to the court because his second pro se modification motion requested the court “to set a hearing date so this matter can be heard and arguments presented for and against such a Modification of Sentence.” However, neither motion specified what evidence the defendant would have presented at the sentencing in mitigation of the punishment if he had been given an opportunity to do so. Further, the defense counsel did not file an amended motion which included a proffer of the evidence the defendant desired to present at the sentencing.
On the other hand, the defendant contends that he did not make such a proffer in his motions to modify because he did not know how and he did not have an attorney to assist him. Without knowing what evidence he would have presented at the sentencing in mitigation of his punishment if he had been given the opportunity to do so, the defendant contends that this court cannot find the denial of allocution was harmless error. According to defense counsel, there is no way to put the evidence which the defendant desired to present at the sentencing into the record unless this court remands the case to the district court and gives the defendant an opportunity to present evidence. The defendant asks the court to remand the case to the district court with instructions to appoint counsel and to advise the defendant that he has a right to present evidence in mitigation of his punishment and to allow the defendant an opportunity to do so. Without.such relief, the defendant claims he has suffered a due process violation and a Sixth Amendment violation.
Nevertheless, the defendant does allege or proffer, via a new appellate defense counsel, some of the evidence he would have presented in mitigation of the punishment at the sentencing if he had not been denied allocution. The defendant points to his background of extreme deprivation, his lack of vocational education, his drug addiction, and his amenability to treatment. Further, the defense counsel contends that expert testimony could have been presented in these areas if the defendant had been given an opportunity to do so.
The State contends that even though the defendant proffered evidence in his appellate brief that he would have presented at the sentencing had he not been denied allocution, the allocution issue should still be dismissed as harmless error because the defendant has not suffered substantial prejudice. According to the State, the evidence which the defendant might have presented at the sentencing if he had been given the opportunity would not have had an effect on the sentencing court’s ruling. As the State points out, this proffered evidence was already included in the TCF report, which the district court considered when it denied the defendant’s sentence modification motions. Thus, the State contends that the denial of allocution is not reversible error because the only evidence proffered which the defendant would have presented at sentencing if he had been given an opportunity has already been considered and rejected by the trial court, through reference to the TCF report, when the court denied the defendant’s sentence modification motions. According to the State, rio substantial rights of the defendant have been prejudiced.
The district court did rely on the TCF report when it denied the defendant’s modification motions. In ruling on the motions, the court stated: “THE COURT considers the facts of the case, the Court’s file, all available reports by the professionals to include that from the staff of the State Reception and Diagnostic Center [TCF]. . . .” (Emphasis added.) The next question is whether all of the evidence the defendant now proffers as evidence that he would have presented at the sentencing if he not been denied al-locution is included in the TCF report. The defendant points to his background of extreme deprivation, his lack of vocational education, his drug addiction, and his amenability to treatment as evidence which would have been presented in mitigation of punishment if he had been given an opportunity to do so.
The TCF report states, in regard to the defendant’s background of extreme deprivation, that the “inmate appears as a young man who has found little of the love, support, or nurturance from his world that he desperately sought after as he was growing up.” Both of the defendant’s parents abused cocaine. The defendant was raised by his maternal and paternal grandmothers. Further, the defendant and his spouse abused each other. In regards to the defendant’s lack of vocational education, the TCF report stated that the defendant did not graduate from high school. The defendant’s overall work history included being a janitor, a stock clerk, and unemployed. The defendant’s IQ score was low average. With regard to drug abuse and amenability to treatment, the TCF report states that the defendant experiences episodic substance abuse. He began using alcohol at age 16 and became intoxicated almost daily. The defendant’s longest abstinence from alcohol has been 2 months. The defendant also began using marijuana at age 17, but he stopping using the drug in 1988. The defendant has never had substance abuse treatment. According to the TCF report, the defendant “has had a problem with the law, job, school, family, or another relationship due to substance abuse. The usage history may include blackouts or other physiological symptoms of early substance dependence.” The TCF report recommends an intervention, or programming after treatment, with the focus on lifetime abstinence. The TCF report indicated that “[i]n light of the seriousness of this offense, there is clearly no option seen at this time other than serving an appropriate sentence.”
All of the evidence which the defendant now proffers as evidence he would have presented had he not been denied allocution has already been considered by the court in referring to the TCF report when it considered the defendant’s motions to modify. The court rejected the evidence as a reason to modify the sentence by denying the defendant’s sentence modification motions. Thus, the defendant has not suffered any substantial prejudice, and the denial of allocution was harmless error.
In State v. Heide, 249 Kan. 723, 822 P.2d 59 (1991), the district court sentenced the defendant. Then, after the sentencing, the court asked the defendant if he would like to address the court regarding sentence mitigation. After hearing the defendant’s comments, the district court reaffirmed its earlier sentence. This court remanded the case for resentencing, holding that the defendant was denied allocution because he was not given a opportunity to address the court or present evidence before the imposition of the sentence, as 22-3424(e)(4) requires. 249 Kan. at 731.
The Heide case seems similar to the case at issue. In Heide, the district court did not hear the arguments that the defendant desired to present before the sentence was imposed until after the defendant was already sentenced. The court found that these arguments did not justify a lesser sentence and that it would not have mitigated the defendant’s sentence even if it had heard the arguments before sentence was imposed. In the present case, the district court did not consider the evidence which the defendant desired to present before the sentence was imposed until after the defendant was already sentenced and the court was considering the TCF report and ruling on the defendant’s motions to modify. At this time, the court found that the evidence was not enough to justify a lesser sentence and denied the defendant’s motions to modify.
However, Heide is not as applicable as it appears. At the time that Heide was decided in 1991, the substantial prejudice/reversible error standard which now applies to the denial of allocution was not clearly enunciated. Borders, 255 Kan. 871, which was decided in 1994, was the first case to clarify this standard. Thus, the Heide court did not have this standard under which to uphold the sentence. Today, the substantial prejudice/reversible error standard clearly applies to allocution. Under this standard, the defendant’s substantial rights were not prejudiced even though the district court did not consider the evidence (through the TCF report when ruling on the modification morions) until after the sentence had already been imposed.
In State v. Johnson, 255 Kan. 156, 872 P.2d 247 (1994), the district court sentenced the defendant before it asked the defen dant if there was anything he would like to say or any evidence he would like to present. After sentencing the defendant, the court realized that it had forgotten to allow the defendant an opportunity to address the court. Thus, after the sentence had already been imposed, the court allowed the defendant to make a statement. The court then found that nothing the defendant said went to mitigation and reaffirmed its previous sentence. This court found that the district court did not comply with K.S.A. 22-3424(e)(4) because it did not allow the defendant to address the court before the sentence was imposed. 255 Kan. at 159. However, the court found that the defendant had waived allocution, and affirmed the sentence. 255 Kan. at 159-60.
Here, the district court did not comply with K.S.A. 22-3424(e)(4) arid denied the defendant allocution because it did not allow the defendant to present evidence in mitigation of punishment before it sentenced the defendant. Later, the court considered the evidence which the defendant would have presented if he had been given an Opportunity when the court referred to the TCF report. Even after considering this evidence, the court fourid that a lesser sentence was not justified. Thus, the court denied the defendant’s sentence modification motions. Since the trial court has already considered and rejected the proffered evidence which the defendant would have presented in mitigation of punishment before sentencing was imposed had he not been denied allocution, the defendant’s substantial rights did not suffer prejudice and the error was harmless.
“ 'Absent an unequivocal recommendation for modification by the [TCF], the court has discretion in modifying sentence and commits no error in refusing modification of sentence absent an abuse of that discretion.’ ” State v. Bruce, 255 Kan. 388, 398, 874 P.2d 1165 (1994) (quoting State v. Moon, 15 Kan. App. 2d 4, 10, 801 P.2d 59 [1990], rev. denied 248 Kan. 998 [1991]). The defendant was convicted of first-degree murder and aggravated battery. The TCF report recommends an appropriate sentence. The district court sentenced the defendant to the recommended sentence for each count and decided the sentences should run consecutively.
In denying the defendant’s motions for sentence modification, the district court stated that it considered the facts of the case, the court’s file, all the available reports by the professionals, including the TCF report, the factors set out at K.S.A. 21-4606(b), the statutory law, the defendant’s past experience, the needs of the defendant, the seriousness of the defendant’s crime, and the public safety. The trial court did not abuse its discretion in summarily denying the defendant’s sentence modification motions without a hearing.
Affirmed.
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
The State of Kansas appeals from the district court’s dismissal of possession of marijuana charges in two separate criminal cases in which the court held the prosecution would con stitute double jeopardy. Jensen- appeals from his conviction of possessing marijuana without paying the drug tax and the denial of his motion to suppress the evidence seized from a search , of his residence. The cases have been consolidated on appeal.
Two issues are raised in this consolidated appeal:
1. Should the evidence seized from Jensen’s residence have been suppressed because the warrant-issuing judge was misled by the informant’s testimony?.
2. Does assessment and partial or complete satisfaction of tax and penalty under the Kansas Drug Tax Act, K.S.A. 79-5201 et seq., bar subsequent criminal prosecution on a charge arising from possessing the drug?, _ .
Jensen tiled a motion to suppress evidence obtained during execution of a search warrant at his residence. A hearing was conducted, and the district court filed a written decision denying the motion. At the urging of Jensen, the'district court clarified its earlier decision by filing findings of fact and conclusions of law in formally numbered paragraphs. The findings of fact were as follows: . . .
“1. On June 22,1993, David Zellmer, a Sheriff’s Deputy and a member of the Ellis County Drug Enforcement Unit was called out of a meeting to talk to a man by the name of Robert Kiehl.
“2. Deputy Zellmer did not know Kiehl well, and had only met him once before, approximately two weeks prior to June 22,1993. On this earlier occasion, Detective Tom Meiers of the Hays Police Department asked Zellmer to take Kiehl home in an unmarked car. Kiehl was a witness in an investigation being carried on by Detective Meiers. This investigation was unrelated to any of the matters presented in the above captioned case.
“3. During the course of the June 22, 1993 conversation, Kiehl told Zellmer that Roy Jensen was selling marijuana and growing it in Jensen’s home. Kiehl further stated that he had been to Jensen’s home with Chad Weilert, and that Weilert had purchased $200.00 or $250.00 worth of marijuana from Jensen. At this time, Kiehl stated that he saw 50 to 100 marijuana plants in Jensen’s basement, and described the conditions under which these plants were being grown.
“4. On the morning of June 23, 1993, Deputy Zellmer had Kiehl appear at the Ellis County Law Enforcement Center. Zellmer interviewed Kiehl. During this interview, Kiehl gave .an accurate description of Roy Jensen, with whom Zellmer was acquainted. Kiehl also described certain vehicles which belonged to Jensen, described Jensen’s home, and the general area in Hays, Kansas where the Jensen home was located. Kiehl did not know the street, address of the Jensen home.
“5. Zellmer, in an effort to corroborate Kiehl’s story, put Kiehl in Zellmer’s vehicle, with Zellmer driving, and asked Kiehl to direct him to the Jensen home. Kiehl did so, and Deputy Zellmer was able to observe the Jensen home, which matched Kiehl’s previous description. The motor vehicles previously described by Kiehl were at the Jensen residence.
“6. At some point in time after the June 22,1993 conversation between Deputy Zellmer and Kiehl, Zellmer contacted Detective Jim Braun of the Hays Police Department, also a member of the Ellis County Drug Task Force. Braun was ásked by Zellmer to assist in the investigation.
“7. Additional means of corroborating Kiehl’s story were considered. Detective Zellmer considered checking Jensen’s city water bill and his electric bill to determine whether water and electricity consumption were consistent with a marijuana growing operation. Investigation determined that Jensen had a water well at his home, and therefore city water usage information was unavailable or would not be rehable. Midwest Energy, which supplies power utilities to Jensen’s home, would not release power consumption information without a warrant.
“8. Deputy Zellmer and Detective Braun decided that Kiehl should personally appear before Judge Tom Scott of the Ellis.County District Court, as neither officer knew Kiehl well, and they were unable to find any additional corroboration for his story. The officers desired that Judge Scott be able to see and hear Kiehl’s testimony, and be able to reach his own conclusions about Kiehl’s reliability.
“9. Kiehl appeared before Judge Scott on June 23, 1993 and gave testimony under oath in support of an application for a search warrant authorizing a search of Jensen’s home. A search warrant was issued by Judge Scott on that date.
“10. As a result of a search of the Jensen home under authority of the warrant, marijuana and paraphernalia were found; however, no growing marijuana was found in the basement of the Jensen home. The only growing plant that was recovered as a result of the search was a plant growing in the back yard of the Jensen residence.
“11. As a result of items found in the search conducted, Jensen was charged in this case.
“12. Robert Kiehl was not at any time relevant to this case a law enforcement officer or government employee. He was not acting at any time relevant hereto on behalf of any governmental agency, or in any capacity, or under any circumstances by virtue of which his actions could be considered governmental action.
“13. Neither Deputy Zellmer nor Detective Braun knew or had reason to know of any matter in Kiehl’s background which would cast doubt on his veracity or reliability, including, but not limited to, any knowledge of mental disease, disability or treatment history.
“14. The two officers did not tell Judge Scott, at the time the application for search warrant was being considered, that they had attempted to corroborate Kiehl’s testimony through water and electricity bills.
“15. Defendant filed a motion to suppress the evidence seized in the search on the basis that the testimony of Kiehl in support of the search warrant was perjured. In support of this motion, defendant attached the sworn testimony of Chad Weil-ert and the affidavit of Roy Jensen.
“16. The law enforcement personnel who executed the search warrant, and all officers connected with the warrant and the search did so in good faith reliance upon the search warrant.”
The record on appeal also reveals the following facts pertaining to the search of Jensen’s residence:
The application for search warrant is dated Wednesday, June 23, 1993, at 10:34 a.m. Detective Jim Braun was the affiant. In the space for attested facts upon which the application is based, there is only the notation, “(oral affidavit).” The “oral affidavit” was made when Detective Braun was sworn in and Kiehl and Deputy Zellmer gave sworn testimony in the presence of a district judge. Questions were asked of them by the county attorney.
Kiehl stated that he had gone to Jensen’s residence on Saturday, June 19, with Chad Weilert. Kiehl said that they went there because Weilert wanted to spend approximately $200 to $250 for a bag of marijuana. Inside the house, Jensen told Weilert that he had a bag for him and asked Weilert to go downstairs. There Kiehl saw Jensen hand Weilert a sandwich bag of marijuana.
Kiehl also described seeing 50 to 100 marijuana plants in containers. He estimated the plants to be “[ojver a foot,” “maybe thirteen, fourteen” inches, and between 1 and 2 feet. Each plant was individually potted, and there were lights around the plants.
Kiehl testified that he had not been promised anything in exchange for the information about Jensen, that his giving the information was completely voluntaiy, and that he had no personal animosity toward Jensen.
There was little in Kiehl’s brief testimony from which the judge who issued the search warrant reasonably could have drawn conclusions about his trustworthiness. Kiehl said he had lived in Ellis County approximately 2 or 3 years, he knew Jensen, Jensen’s house, and Jensen’s vehicles, he used drugs until approximately 6 months to a year before the hearing, he contacted Deputy Zellmer “about another situation in regards to a girl that I five with, in regards to an incident that she pulled in Wichita,” and he might be a witness in another case in which he was working with Detective Meiers.
Deputy Zellmer testified that his only contact with Kiehl before June 22 was when he had spent about 5 minutes driving Kiehl home in an undercover vehicle at the request of Detective Meiers. Zellmer also testified that he had understood from Kiehl that he had been in Jensen’s basement on Monday evening rather than on Saturday. And finally, Zellmer stated that Kiehl’s description of the lights in Jensen’s basement was “somewhat vague.”
No marijuana plants were found in the house. In the back yard three 6-inch marijuana plants were found in two styrofoam cups. No lights or lighting equipment were found. The search did yield marijuana in brick form in a quantity greater than would be presumed to be for personal use, paraphernalia, scales, plastic bags, and marijuana buds and seeds.
There is no dispute about the facts pertaining to the double jeopardy issue for either Jensen or Simpson. With regard to Jensen, the district court stated:
“On June 23, 1993, pursuant to a search warrant issued out of this Court, officers of the Ellis County Drug Task Force searched defendant’s home. A quantity of marijuana was found and seized, resulting in the present charges. (See Affidavit in Support of Search Warrant). On July 9,1993, The Kansas Department of Revenue, Division of Alcoholic Beverage Control, Drug Tax Administration issued a Notice of Assessment of Tax Upon Marijuana and a Controlled Substance.
“The Notice states that the KDR has levied a tax upon the marijuana seized of $9,975.00, based upon the statutory tax rate of $3.50 per gram or portion thereof. In addition, the Department assessed a 100% penalty. The total tax due as stated in the Notice is $19,950.00, and a tax warrant was issued for that amount. The tax warrant is also dated July 9, 1993. (See Defendant’s Exhibits 1 & 2).
“The parties have stipulated that a sum in excess of $18,000.00 has been seized by KDR from defendant’s bank account under the tax warrant, in substantial satisfaction of the tax and penalty due.”
With regard to Simpson, the district court stated:
“On May 2, 1994, the defendant was stopped by officers of the Hays Police Department for operating a vehicle with an expired license tag. While at the scene of die stop, officers looked through the window of the defendant’s pickup and, with the aid of a flashlight, saw a large bag of what appeared to be marijuana. Defendant was arrested and charged with three counts of violation of the law: Count I, possession of marijuana upon which a tax is imposed without a stamp affixed proving payment of die tax in violation of K.S. A. 79-5204 and 5208; Count II, possession of marijuana with intent to sell in violation of K.S.A. 65-4127b as amended; and Count III, driving [an] unregistered vehicle in violation of K.S.A. 8-142.
“On May 16, 1994, The Kansas Department of Revenue, Division of Taxation issued a Notice of Assessment of Tax Upon Marijuana and a Controlled Substance. The Notice states that the KDR has levied a tax upon the marijuana seized of $7,840.00, based upon the statutory tax rate of $3.50 per gram or portion thereof. In addition, the Department assessed a 100% penalty. The total tax due as stated in the Notice is $15,680.00, and a tax warrant was issued for that amount. The tax warrant is also dated May 16, 1994. The parties have stipulated that a motorcycle belonging to the defendant has been seized by KDR under the tax warrant, in partial satisfaction of the tax and penalty due.”
We first consider if the evidence seized from Jensen’s residence should have been suppressed due to the warrant-issuing judge’s having been misled by the informant’s testimony. Jensen contends that the warrant to search his house was improperly obtained. His theory starts with the premise that he established at the hearing on his motion to suppress that most material statements in the affidavit were false. He contends that Kiehl, the one who made the false statements, was a government agent and that the State failed in its duty to provide information bearing on his credibility to the judge who was reviewing the warrant application. It is Jensen’s position that what remains of the affidavit after false statements are removed is insufficient to establish probable cause for issuance of the search warrant.
The State contends that findings of the district court control for the purpose of this review. The district court conducted a hearing on Jensen’s motion to suppress at which the defendant presented evidence which tended to undermine the credibility of all aspects of Kiehl’s testimony. After studying authorities cited by the State, the district court concluded that no hearing should have been conducted. It concluded that, because Jensen had failed to show that Kiehl was a government agent, the affidavit could not be impeached. In the words of the district court, “[t]he defendant is, therefore, not entitled to a finding by this court as to the truth or falsity of Kiehl’s testimony in search of the warrant.” In addition, the district court concluded that there had been no deliberate or reckless suppression of material fact by the police officers involved in obtaining the search warrant. Finally, the district court con- eluded that the search was executed in good faith reliance on the warrant so that evidence seized during the search should not be suppressed.
Generally, a defendant may not dispute allegations in the affidavit upon which a search warrant was issued against him. State v. Jacques, 225 Kan. 38, Syl. ¶ 4, 587 P.2d 861 (1978). Following Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), this court created an exception to the general rule where the defendant’s “attack is supported by allegations and an offer of proof under oath that the affidavit or application for search warrant contains material statements of deliberate falsehood or of reckless disregard for the truth.” 225 Kan. 38, Syl. ¶ 5. Here, the district court’s principal rationale in overruling Jensen’s motion to suppress was that the exception, although not specifically stated in Jacques, was applicable if the material statements of deliberate falsehood or of reckless disregard for the truth were made by a government agent.
The State contends that the district court’s interpretation of Franks and Jacques, although unexpressed in those cases, is intrinsic in those decisions. The State offers the rationale that the Fourth Amendment protects a criminal defendant against government misconduct but not against misconduct of a private citizen. The district court also noted that the exclusionary rule was “designed to deter investigatory agents of the government from violating constitutional mandates.” This view was expounded in State v. Moore, 54 Wash. App. 211, 773 P.2d 96, rev. denied 113 Wash. 2d 1027, 782 P.2d 1071 (1989), which was quoted by the district court in its memorandum decision and is relied on by the State on appeal:
“A defendant is entided to an evidentiary hearing upon making a ‘substantial preliminary showing’ that an officer or an agent of the State knowingly or recklessly made a false statement that was the basis of a court’s probable cause finding. State v. Thetford, 109 Wn.2d 392, 398, 745 P.2d 496 (1987) (a/k/a a Franks hearing, see Franks v. Delaware, 438 U.S. 154, 155, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978)). The tiieory behind the Franks hearing is that the government is never permitted to benefit from its own misconduct. The Franks hearing arose as an exception to the ‘four comers-’ rule, which does not permit challenges to facially valid affidavits establishing probable cause. See, e.g., United States v. Bowling, 351 F.2d 236, 241-42 (6th Cir. 1965); Annot. 5 A.L.R. 394 (1949). The Franks hearing was instituted to detect and deter the issuance of warrants based on information gathered as a result of governmental misconduct. See Thetford, at 399.
“If, however, a nongovernmental affiant provides testimony upon which a warrant is based and that testimony is later shown to have been intentionally false or gathered by means that would constitute a constitutional violation if done by a governmental agent, Franks, nonetheless, does not apply. Thetford, at 398; 2 W. LaFave, Search and Seizure § 4.4(b) (1987). Franks does not apply in such instances because there exists no governmental misconduct that could be detected or deterred by a Franks hearing.” 54 Wash. App. at 214-15.
Applying the principle to the facts of its case, the Washington Court of Appeals stated: “Accordingly, to be entitled to a Franks hearing, appellant must establish by a ‘substantial preliminary showing’ (1) that [the informant] was a governmental agent, and (2) that [the informant] made false statements to the magistrate.” 54 Wash. App. at 215. The Washington Court of Appeals found that Moore had established neither. Moore, as the ruling of an intermediate court of another state, is not controlling, but it is persuasive.
Although the Franks Court did not expressly limit the exception to an affidavit sworn to by a government agent, we agree with the State that it is intrinsic to the decision. In its holding, the Franks Court said: “The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.” 438 U.S. at 171. The affidavit in support of the search warrant in Franks was sworn to by two police detectives.
In Jacques, we applied the Franks exception. However, the only reference to the identity of the affiant was “that the applicant who applied for the search warrant was lying because the name of the informant on which he relied was confidential and could not be discovered; therefore defendant alleged the informant never existed.” 225 Kan. at 44. In Jacques, we state the general rule as “a party against whom a search warrant is directed may not dispute the matters alleged in the supporting affidavit or application.” 225 Kan. 38, Syl. ¶ 4. However, following Franks, the exception to the general rule was applied in Jacques, and we concluded no hearing was required. 225 Kan. at 44.
The exception to the general rule applies only where the affiant is a government agent and the defendant’s challenge is supported by sworn allegations that false statements made knowingly, intentionally, or with reckless disregard for the truth were included in the affidavit, and the false or reckless statement is necessary to the finding of probable cause. If the exception applies, then the defendant is entitled to a Franks hearing.
There is no contention in the present case that Kiehl was acting as an agent of the government when he visited Jensen’s house. However, it is Jensen’s theory that Kiehl was the affiant pursuant to K.S.A. 22-2502(a), which does not require affidavits supporting search warrant applications to be made by law enforcement officers. When Kiehl was called by the county attorney to testify before the magistrate, Jensen contends, he was an instrument of the government acting under the authority and direction of the State rather than independently. We do not agree.
Examination of the record discloses that the affiant actually was a law enforcement officer. The affidavit and application for search warrant form bears the signature of and identifies “Jim Braun, Hays P.D.,” as the affiant. In the space for a recitation of facts on which the application is based appears the note “(oral affidavit).” The transcript of the sworn testimony begins:
“THE COURT: This is a hearing in Ellis County District Court in regard to an oral affidavit and application for search warrant. Detective Jim Braun will now take the oath. Do you solemnly swear to tell the truth, the whole truth and nothing but the truth, so help you God?
“DETECTIVE JIM BRAUN: I do.
“THE COURT: You may examine.
“MR. GLENN BRAUN [county attorney]: The first witness I am going to call, Your Honor, would be Robert Kiehl.”
It ends with the judge asking, “Jim, do you want to sign this thing?” The “oral affidavit” took the form of Detective Braun’s being sworn in and two witnesses, Kiehl and Deputy Zellmer, answering questions asked by the county attorney. The application in this case is not a typical written application supported by information provided by a confidential informant where reliability has been vouched for by the law enforcement affiant. Here, the officers did not verify Kiehl’s veracity or reliability. Instead, the officers suggested the lack of such verification and left it to the judge to determine. K.S.A. 22-2502(b) authorizes the magistrate to require precisely the procedure which was followed in the present case on the initiative of the police:
“Before ruling on a request for a search warrant, the magistrate may require the affiant to appear personally and may examine under oath the affiant and any witnesses that the affiant may produce. Such proceeding shall be taken down by a certified shorthand reporter or recording equipment and made part of the application for a search warrant.”
The district court credited law enforcement officers with applying for the warrant in the manner in which they did for the purpose of providing to the warrant-issuing judge all aváilable means of satisfying himself of Kiehl’s reliability. The district court stated:
“The officers then, knowing thát they had no previous knowledge of Kiehl and only a limited amount of corroboration for his story,'took Kiehl before the issuing magistrate. The officers could not have done more. They put before Judge Scott everything they had, including their witness. . . .
“Since the Court has found that the officers, in applying for'the search warrant, and using Kiehl’s testimony in support of the application, did nothing improper, the actions of the officers-cannot give rise to a successful'challenge to the testimony upon which the search warrant was based.”
In this case, Kiehl’s reliability was an unknown quantity to police, who avoided the issue by making no representations about it and having Kiehl testify .before the magistrate. The magistrate could and should have questioned Kiehl and the officers in order to satisfy the intertwined requirement of the informant’s reliability. Here, however, the issuing judge ignored the opportunity to elicit information on which an opinion of the informant’s reliability could have been based. The few minutes in which Kiehl appeared to testify may have permitted the judge to form an initial impression of the informant as credible or not, but an impression based on appearance and demeanor -cannot replace an opinion formed on facts. That failure lies with.the issuing magistrate and not with' the law enforcement officers! The district court correctly interpreted the Franks exception and did not err in denying a hearing.
We next consider the issue common to both cases: Does assessment and partial or complete satisfaction of tax and penalty under the Kansas Drug Tax Act bar subsequent criminal prosecution on a charge arising from possessing the drug? In 1994, the United States Supreme Court decided in Montana Dept, of Rev. v. Kurth Ranch, 511 U.S. 767, 128 L. Ed. 2d 767, 114 S. Ct. 1937 (1994), that Montana’s drug tax was invalid under the Double Jeopardy Clause of the Fifth Amendment to the federal Constitution. Motions to dismiss charges were filed by defense counsel in the present cases based on application of the Rurth Ranch holding. In its memorandum opinion, the district court stated the double jeopardy issue raised by Jensen and Simpson as follows: “Does the Kansas drug tax, like that of Montana, constitute punishment and therefore prohibit a second punishment of the defendant through these criminal proceedings?” The district court concluded that the Kansas tax was punitive in nature. Accordingly, it granted the motions to dismiss one count against each defendant.
The complaint against Jensen charged him in. Count I with possessing marijuana with intent to sell within 1,000 feet of school property and in Count II with possessing marijuana without paying the tax imposed pursuant to K.S.A. 1995 Supp. 79-5202. The district court dismissed Count I. The district court left untouched the charge of possessing marijuana without paying the tax.
The complaint against Simpson charged him in Count I with possessing marijuana without paying the tax imposed pursuant to K.S.A. 1995 Supp. 79-5202 and in Count II with possessing marijuana with intent to sell. The district court dismissed Count II. The State already had dismissed Count I.
After the district court granted Jensen’s and Simpson’s motions to dismiss, this court issued its opinion in State v. Gulledge, 257 Kan. 915, 896 P.2d 378 (1995). In that case, based on Rurth Ranch, the district court dismissed a complaint against Barbara Gulledge charging her with possession of marijuana and possession of marijuana without a tax stamp. The State appealed. This court reversed the judgment and remanded for further proceedings. 257 Kan. at 931.
In Gulledge, the court gave the following brief overview of double jeopardy jurisprudence:
“In State v. Cady, 254 Kan. 393, 867 P.2d 270 (1994), we described the effect and application of the Double Jeopardy Clause as follows:
‘The Double Jeopardy Clause of the United States Constitution protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977). The language of § 10 of the Kansas Constitution Bill of Rights is veiy similar to the language contained in the Fifth Amendment to the United States Constitution. Both provide in effect that no person shall be twice placed in jeopardy for the same offense. The language of the Fifth Amendment guarantees no greater protection to an accused than does § 10 of the Kansas Constitution Bill of Rights. Therefore, the underlying protection contained in the Double Jeopardy Clause of the United States Constitution is contained in § 10 of the Kansas Constitution Bill of Rights.’ 254 Kan. at 396-97.” (Emphasis added.) 257 Kan. at 920.
This court stated the issue in Gulledge as: “Does assessment and payment of amounts allegedly owed under the Kansas Drug Tax Act (Act) constitute a criminal punishment for double jeopardy purposes under the holding in [Kurth Ranch]?” 257 Kan. at 916-17. The court concluded that it did not. It reasoned that the Supreme Court relied upon two unusual features of the Montana drug tax scheme in finding a double jeopardy violation and that a statutory scheme, like the Kansas Act, without the unusual features would pass muster.
The issue in the present case, as in Gulledge, is whether defendants face multiple punishments for the same offense, but Jensen and Simpson argue that Gulledge was wrongly decided. We do not agree and conclude that Gulledge is controlling.
In addition to arguing that Gulledge was wrongly decided, Jensen and Simpson argue that there is an important aspect of Kansas’ drug taxing scheme which was not examined in that case. That aspect is the 100 percent penalty which was assessed against each of them. The penalties for violation of the Act are set out in K.S.A. 1995 Supp. 79-5208:
“Any dealer violating this act is subject to a penalty of 100% of the tax in addition to the tax imposed by K.S.A. 79-5202 and amendments thereto. In addition to the tax penalty imposed, a dealer distributing or possessing marijuana or controlled substances without affixing the appropriate stamps, labels or other indicia is guilty of a severity level 10 felony.”
It is the contention of Jensen and Simpson that the 100 percent penalty is “a sanction clearly imposed to punish one who illegally possesses a controlled substance.” As a sanction rather than a tax, the contention continues, it is subject to the test set out in United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), rather than to the Kurth Ranch tax analysis.
Irwin Halper managed a medical services laboratory. He was convicted on 65 counts of violating the criminal false claims statute for submitting false Medicare claims for reimbursement for services rendered. He was fined $5,000 and sentenced to prison. In a subsequent civil suit under the False Claims Act, the government was granted summary judgment on the issue of liability on the basis of the convictions. The statute authorized a sanction of $2,000 plus double damages for each violation. The United States Supreme Court concluded that the statutory penalty constituted a second punishment for the same conduct and that it was not rationally related to the goal of making the government whole. 490 U.S. at 451. The Court stated its holding as follows:
“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.” 490 U.S. at 448-49.
In State v. Mertz, 258 Kan. 745, 907 P.2d 847 (1995), we considered whether a prosecution for DUI, following a defendant’s driver’s license revocation, constituted multiple punishment and thus violated the Double Jeopardy Clause of the United States and Kansas Constitutions. We found it did not. As to Kurth Ranch and Halper, we said:
“The defendant’s reliance on Kurth Ranch is misplaced for two reasons. First, contrary to the defendant’s position, Kurth Ranch seems to interpret Halper as promulgating a restrictive, rather than expansive, definition of punishment. In analyzing Halper, the Court quoted the clause of Halper that states a civil sanction is punishment if the sanction ‘ “may not fairly be characterized as remedial, but only as a deterrent or retribution.” ’ 128 L. Ed. 2d at 777. Thus, Kurth Ranch follows the interpretation that if a sanction has a remedial purpose at all, then it is not punishment. Consistent with this interpretation, Kurth Ranch states later in the opinion that ‘neither a high rate of taxation nor an obvious deterrent purpose automatically marks this tax a form of punishment.’ 128 L. Ed. 2d at 779. The second reason the defendant’s reliance on Kurth Ranch is invalid is that the court specifically found Halper s definition of punishment did not apply to the tax statute at issue in Kurth Ranch. In Kurth Ranch, the tax was found to be punishment not because of the Halper punitive purpose rule but because of several unusual features of the tax statute. Thus, Kurth Ranch does not apply to the situation at hand.” 258 Kan. at 754-55.
We then concluded:
“We hold the suspension sanction in this case serves a purpose which is solely remedial, in that the sanction’s purpose is to protect the public. The suspension sanction quickly removes dangerous drivers from the street to prevent them from injuring anyone. Any harmful effect which the sanction may have on the driver simply indicates that the sanction may appear to be punitive from the driver’s perspective. Such harmful effects do not necessarily indicate that the sanction carries purposes of punishment such as deterrence and retribution. While certainly the sanction may be interpreted as having punitive effects, this does not mean the sanction must be interpreted as having punitive effects. [United States v.] Hudson, 14 F.3d [536,] at 540 [(10th Cir. 1994)]. Thus, the sanction does not serve the purpose of punishment. Rather, it protects the public safety as a solely remedial sanction. Moreover, following Halper s suggestion as to what factors might make a sanction remedial, the suspension of a driver’s license seems proportionate to driving with a .08 or greater blood alcohol concentration.” 258 Kan. at 760.
In In the Matter of C.M.J., 259 Kan. 854, 915 P.2d 62 (1996), we considered whether the expulsion of a student from high school precluded adjudication of a student as a juvenile delinquent based upon the same conduct. The district court determined that it was a violation of the double jeopardy protections. The State appealed, and we reversed the trial court. C.M.J. relied on Halper in arguing that the juvenile prosecution subjected C.M.J. to multiple punishments. We disagreed, stating:
“Although we said in Mertz, 258 Kan. 745, Syl. ¶ 5, 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,’ nevertheless, a civil sanction will rarely qualify as punishment for double jeopardy purposes. We recognized this in Mertz when we said:
‘The rules announced in United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), concerning the issue of whether a civil sanction constitutes punishment so as to prohibit a criminal prosection for the same offense are rules for the rare case.’ 258 Kan. 745, Syl. ¶ 7.
“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 invoice 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. Hemrnandez-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). ‘[Tjhe 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.” 259 Kan. at 859.
Jensen and Simpson note that this court determined that the primary purpose of the Kansas Act is deterrent. See 257 Kan. at 923. They contend that the primary purpose of the penalty cannot be said to be remedial if that of the tax is deterrent.
The State argues that the same analysis should apply to both tax and penalty because the 100 percent penalty does nothing more than “increase the amount of the tax burden.” In Kurth Ranch, the Supreme Court stated that it would be inappropriate to subject Montana’s drug tax to the Halper test. 128 L. Ed. 2d at 781. The Court reasoned:
“In Halper, we recognized that a civil penalty may be imposed as a remedy for actual costs to the State that are attributable to the defendant’s conduct. 490 U.S. at 452, 104 L. Ed. 2d 487, 109 S. Ct. 1892. Yet as The Chief Justice points out, tax statutes serve a purpose quite different from civil penalties, and Halper’s method of determining whether the exaction was remedial or punitive ‘simply does not work in the case of a tax statute. [Citation omitted.]’ ” 128 L. Ed. 2d at 781.
Thus, under the State’s analysis, the Rurth Ranch test rather than the Halper test should be applied to the 100 percent penalty as well as to the tax.
For a slightly different reason, KDR agrees with the State that the Rurth Ranch test is appropriately applied to the penalty. KDR suggests that it would be illogical, where the tax has been determined not to violate the Double Jeopardy Clause, if the penalty for fading to pay the tax were not likewise determined to be unobjectionable. The suggestion has merit.
The State makes the additional argument that the 100 percent penalty is imposed for failure to pay the drug tax rather than for possessing the drug. We agree. The express language of 79-5208 supports the understanding that what is being penalized is the failure to pay the drug tax. The question for this double jeopardy challenge is whether there were multiple punishments for the same offense. Since the 100 percent penalty is exacted for failing to pay the drug tax rather than for possessing the drug, Jensen and Simpson were not punished more than once for failing to pay the drug tax. What makes this point significant is that the charge the district court dismissed against Jensen was possession of marijuana with intent to sell within 1,000 feet of a school and, against Simpson, was possession of marijuana with intent to sell. Thus, the charges which were dismissed as carrying duplicative punishments would not have punished the same offense as the 100 percent penalty. The 100 percent penalty is punishment for the offense of failing to pay the drug tax, and the punishment for the dismissed charges would have been for possessing the drug. Because the punishments are not for the same offense, the Double Jeopardy Clause is not implicated.
We conclude that our rationale in Gulledge is controlling as to the 100 percent penalty. The basis for our decision, was that the features which rendered the Montana drug tax law unconstitutional did not exist in the Kansas drug tax statute. The same analysis applies to the penalty provision.
The district court erred in holding that prosecution on the possession of marijuana charges was precluded as a violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
Jensen’s conviction of possession of marijuana without paying the drug tax is affirmed. The district court’s dismissal of the possession of marijuana charges against Jensen and Simpson is reversed, and the cases are remanded with directions to reinstate the charges against both defendants.
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The opinion of the court was delivered by
Six, J.:
This case reviews district court discretion in the context of party stipulations in a pretrial order. The focus is on admissibility of medical records of six previous falls as evidence of habit in a trip and fall personal injury case. The plaintiff, Gloria Hardesty, was injured in a fall after purchasing gasoline at a station owned by defendant, Coastal Mart, Inc. (Coastal). The jury assessed 90% fault against Coastal and 10% against Hardesty. Hardesty was awarded damages of $177,712.48, including $150,000 for pain and suffering. Coastal appealed. In an unpublished opinion, a divided Court of Appeals affirmed the district court. We granted Coastal’s petition for review. Our jurisdiction is under K.S.A. 20-3018(b).
We find no error and affirm the Court of Appeals and the district court.
The Issue on Review
Did the trial court err in releasing Hardesty from her pretrial order stipulation that all her medical records would be admissible? The answer is “no.”
FACTS:
Hardesty filled her car with gas at a Coastal station at Derby, Kansas. She went into the store and paid for the gasoline. As she walked back to her car, she watched another car pulling up to the pumps. She did not see a 1- to 2-inch deep hole in the concrete pavement and fell forward on her hands and knees. She sat there for a short time, then got up and drove home. Her right arm hurt; she took three Tylenols and went to bed. The next day, she went to work. Her right arm was still painful. She thought she had sprained her wrist. She reported her fall to the Coastal store manager and, about a week later, went to the store to fill out a report. Hardesty did not seek medical attention for her injury until 12 days after her fall.
At the pretrial conference, counsel for both parties reached a stipulation contained in the pretrial order that: “[a]ll medical records of plaintiff are admissible. All medical bills are admissible without records custodian testimony; however, the reasonableness and necessity thereof is not stipulated.”
Hardesty iater filed a motion in limine requesting “an order prohibiting the defendant from presenting evidence by direct examination or cross-examination of the plaintiff’s medical illnesses and/ or opinions which are not relevant to the plaintiff’s medical condition in this case.”
Hardesty filed the motion after an éxchange of exhibits. Har-desty’s attorney (Hernandez) learned that Coastal’s attorney (Moore) intended to use medical records concerning illnesses and injuries dating back to the early 1980’s which were unrelated to her current injury. These records included nasal surgery, a hysterectomy, diabetes, and left wrist and ankle injuries. Hernandez had no objection to Moore’s use of medical records concerning a prior right thumb problem but objected to the use of any other prior medical records. Moore responded that he relied upon the stipulation that all medical records were admissible in preparing for trial. Hernandez understood the stipulation only to cover medical records for the current injury and any prior relevant medical records — not all prior medical records. Moore argued the prior medical records showed Hardesty had six injuries from falls between 1987 and the current injury. According to Moore, those records were relevant to show a habit of “not looking where she’s going and falling down and injuring herself as a result.” We note that one of the instances did not involve a fall, but an injury caused by a door knob.
Before jury voir dire, the district judge ruled that Coastal could: (1) introduce medical records concerning the prior right thumb problem and (2) go into the facts concerning Hardesty’s prior falls but not the injuries. He withheld ruling on whether the medical records concerning those prior falls would be allowed.
During the voir dire, Moore said:
“Now, I want to touch on a matter that’s going to come up in the evidence, and probably in the examination of the plaintiff, and there’s going to be evidence that the plaintiff has had prior instances where she has fallen down and injured herself. Now, I’m talking about instances prior to the time that her trip and fall happened at Coastal Mart. In fact, the evidence is going to be — I’m going to put this evidence on, and I want to know if anyone is going to be offended that I’m going to put on evidence that there have been six prior occasions where she has tripped and fallen, injured herself?”
One jury panel member responded, “I think so. I think we’re trying this case right here and not six prior ones. . . . I’m just saying that this is the case that’s supposed to be tried and not — no matter how many accidents that were before; it shouldn’t come into account.”
Moore then asked, “If I put on evidence that this particular plaintiff maybe has a habit of not looking where she’s going, and there are prior instances of that, I just want to know if you’re going to hold it against me . . . The jury panel member responded in the negative.
Following voir dire, Hernandez asserted that evidence concerning prior falls should not be admissible. He requested that the matter be considered before opening statements were made. The district judge preferred to wait, but instructed the parties not to bring up the prior falls in their opening statements. Despite the instruction, Hardesty’s counsel referenced previous falls in his opening statement:
“The evidence in this case will be, and what I anticipate that the defendant in this case will do, and I’ll tell you what they’ll do. They will say that Gloria Hardesty should have been — should have seen this hole when she drove in the station. They’ll say Gloria Hardesty should have seen this hole when she put the cap back in her tank and walked towards the Mart store. They will tell you that she should have seen it and been looking out for it when she walked back to her car. And they’ll represent to ijou, or insinuate that she’s clumsy, had previously [sic] falls and, therefore, she fell on this occasion.” (Emphasis added.)
Coastal did not mention the prior falls in its opening statement.
The next day, the district court reversed its ruling, stating: “But I’m not going to allow other slip and fall instances to come in, unless plaintiff’s counsel would open up the area, and then they would be fair game for defense counsel.”
Without mentioning Hardesty’s opening statement reference to previous falls, Coastal requested that the district court reconsider its ruling, stating:
“[MR. MOORE:] I’m in a real bind, Your Honor. And, frankly, I prejudiced my client in front of the jury by referring to it, in rebanee upon the pretrial order, and I think the case law in Kansas gives me a right to rely upon the pretrial order.
“Now, I’m willing to concede that the compromise we reached yesterday, those things which are clearly irrelevant [such as medical records concerning the nasal surgery, diabetes, the hysterectomy, etc.], I’m not even going to refer to, you know, and I’m not going to hold Mr. Hernandez to that stipulation on those kinds of matters. But with respect to the six prior falls, it’s absolutely critical to my defense in this case, Your Honor, and I think the defense is extremely prejudiced if I’m precluded from relying upon that stipulation.” (Emphasis added.)
The district judge did not change his ruling, but acknowledged:
“Well, okay. Tim [Moore], I realize that I put you behind the eight ball. I put Jim [Hernandez] behind the eight ball on some things. ... I realize that during the course of the trial — during the course of the trial so far, which has only been opening statements, certain mention has been made of — of other falls by Ms. Hardesty. I can’t go back and blot that out. I don’t want to give an instruction that would limit the jury that they would not consider anything said on voir dire or opening about prior falls. But once I weighed the facts in my mind and I researched it in my mind, in my office, I thought this would be fair. This is the route I’m going to go.”
However, the judge did expand Coastal’s right to inquire into prior medical problems. Coastal could ask Hardesty about her past use of a left wrist splint without going into the cause of the injury.
Hardesty testified about her injury and following medical treatment. She also called two physicians who treated her injury. Testimony from Coastal employees was uniformly damaging to Coastal’s position. The store clerk on duty at the time of the injury testified that the pavement defect existed during her employment at the store from December 1988 to April 1992 and gradually worsened without repairs being made. The evidence also showed that a Coastal customer fell and was injured at the same location in 1989. Customers complained when it rained or when water collected in the pavement defect and their feet got wet. The Coastal store manager had previously explained to her area sales manager that the pavement needed to be repaired. She had given a photograph of the defect to him. The area sales manager did not recall receiving any complaints or photographs of the defect but admitted making monthly visits to the premises to inspect the pumps. He further acknowledged that the defect should have been immediately repaired.
The Stipulation
Coastal’s claimed district court error requires not only our analysis of the circumstances surrounding the stipulation but also application of the rules of evidence to the admissibility of the six prior falls or injuries.
While the general rule is that trial courts are bound by stipulations of the litigants, courts are warranted in relieving parties from stipulations improvidently or mistakenly made. State v. Craven, 215 Kan. 546, 548, 527 P.2d 1003 (1974). In Craven, we summarized the circumstances justifying such relief:
“ ‘[A] trial court may, in the exercise of judicial discretion, upon proper cause shown, relieve a party from a stipulation entered into in the course of a judicial proceeding when it appears that such relief is necessary to prevent manifest injustice to the parties seeking it, and that the granting of such relief will not place the adverse party at any disadvantage by reason of having acted in reliance upon the stipulation. It has thus been held that a stipulation should only be set aside after placing the parties in approximately the same positions in which they were or in positions of substantially equal advantage. And on appeal, the determination of the trial court as to the propriety of granting such relief will not ordinarily be interfered with, except where a manifest abuse of discretion is disclosed ....”’ 215 Kan. at 548 (quoting 73 Am. Jur. 2d, Stipulations § 13).
Parties may be relieved of their stipulations for mistake, accident, surprise, or inadvertence. Runyon v. City of Neosho Rapids, 2 Kan. App. 2d 619, Syl. ¶ 2, 585 P.2d 1069 (1978) (“It is apparent that the city’s concept of what was required of it by the stipulation and order was entirely different from the concept entertained by the plaintiffs and the trial court.” 2 Kan. App. 2d at 621-22.).
A stipulation to admissibility of evidence means that the party agreeing to the stipulation waives any objection to the evidence. Hardesty’s motion in limine poses an objection to the admissibility of prior medical records not related to her current injuiy. Hardesty sought release from a stipulation she claimed was ambiguous and which she reasoned had been misinterpreted by Coastal.
We approach the issue by determining whether the circumstances justifying release from a stipulation, set forth in Craven,, are present.
Coastal argues that the Court of Appeals ignored precedent in finding the stipulation unenforceable, citing State v. Roach, 223 Kan. 732, 576 P.2d 1082 (1978), and White v. State, 222 Kan. 709, 568 P.2d 112 (1977). In Roach, we affirmed the district court’s admission of the results of a polygraph test in a criminal case, under an oral stipulation made on the record during trial between the prosecutor and the defendant. Polygraph results are not admissible absent a stipulation. In White, the defendant pleaded not guilty but stipulated to the facts and waived a jury trial. After his conviction, he filed a K.S.A. 60-1507 motion to vacate his sentence, which was denied. We affirmed, noting that stipulations as to evidence in criminal cases are permissible under Kansas statutes. 222 Kan. at 713. Roach and White illustrate the general rule that evidentiary stipulations are enforceable. Neither case is persuasive support for Coastal’s position. Roach deals with a highly specialized topic, admissibility of polygraph test results in a criminal case. Roach contended, on appeal, that admissibility of the test results required a written stipulation and a determination that the stipulation was voluntarily and freely made. In Roach, the stipulation was made on the record. We found the requirement of voluntariness was met and that no error had been shown. 223 Kan. at 736-37. White concerned a stipulation of facts subject to neither a claim of misunderstanding nor of ambiguity. Roach and White do not parallel this case.
An abuse of discretion standard of review applies to a trial court’s ruling on the enforceability of a stipulation. See Craven, 215 Kan. at 549. Craven sets forth several circumstances justifying release from a stipulation: (1) Relief is necessary to prevent manifest injustice; (2) relief will not disadvantage the adverse party relying on the stipulation; and (3) the parties can be returned to the same positions or to substantially equal advantage. 215 Kan. at 548.
Coastal argues Hardesty made no showing that the stipulation was entered into by mistake or that relief from it was necessary to prevent manifest injustice. The record indicates the contrary.
Mistake
At the hearing on Hardesty’s motion in limine, Hernandez stated he understood the stipulation meant that all medical records concerning the present injury and any prior relevant medical records would be admissible, but the court would still determine what was relevant. Hardesty also argues that the stipulation is ambiguous in view of the sentence following the stipulation in question, which provides: “All medical bills are admissible without record custodian testimony; however, the reasonableness thereof is not stipulated.” Hardesty believes tbe'medical bill sentence related only to medical bills for Hardesty’s injury from the fall on Coastal’s premises, not to bills for prior medical problems. Thus, the stipulation that “[a]ll medical records of plaintiff are admissible” should also relate only to those medical records concerning the Coastal injury. Hardesty’s understanding of tíre stipulation obviously differed from Coastal’s.
Coastal asserts it should have been obvious to Hardesty that Coastal intended to bring in evidence of the prior falls through the medical records in view of Coastal’s witness list in the pretrial order (including medical personnel who treated Hardesty’s prior injuries). The transcript of the pretrial conference shows that Coastal listed witnesses obtained from Hardesty’s prior medical records, but it does not reveal that Coastal intended to use the medical records and those witnesses to bring out Hardesty’s prior falls.
Coastal believes that a letter Moore wrote to Hernandez'demonstrated the intention to use Hardesty’s prior falls as part of Coastal’s theory of defense. The letter.summarizes Hardesty’s medical history and mentions the prior falls. However, the letter does not say that Coastal intended to use the prior falls to establish a habit of Hardesty not watching where she walked.
The stipulation pertained to admissibility of the medical records. The admission of prior falls was not included. The record supports the existence of a mistaken understanding between counsel about what the stipulation meant.
Manifest Injustice
The question of whether it would create manifest injustice not to grant Hardesty relief from the stipulation goes to the issue of whether evidence of the prior falls would have been relevant and admissible absent the stipulation. If enforcement of the stipulation would allow the presentation of irrelevant and prejudicial evidence to the jury, then it should not be enforced. See 22 Wright & Graham, Federal Practice & Procedure: Evidence § 5194, p. 196 (1978) (“Although no cases have been found, it seems doubtful that the courts would honor an agreement that made irrelevant evidence admissible.”). The district judge determined that evidence of the prior falls would be prejudicial. We agree.
A statutory trio guides any analysis of evidence of habit or specific instances of behavior or character.
K.S.A. 60-449 states:
“Evidence of habit or custom is relevant to an issue of behavior on a specified occasion, but is admissible on that issue only as tending to prove that the behavior on such occasion conformed to the habit or custom.”
K.S.A. 60-450 provides in part:
“Evidence of specific instances of behavior is admissible to prove habit or custom if the evidence is of a sufficient number of such instances to warrant a finding of such habit or custom.”
K.S.A. 60-448 states:
“Evidence of a trait of a person’s character with respect to care or skill is inadmissible as tending to prove the quality of his or her conduct on a specified occasion.”
See Advisory Committee Notes and Authors’ Comments in 4 Vernon’s Kansas C. Civ. Proc. §§ 60-448, 60-449, and 60-450 (1965 and 1995 Supp.); 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-449 and 60-450 (1995 Supp.). 1 McCormick on Evidence § 195 (4th ed. 1992); 1A Wigmore on Evidence § 93 (Tillers rev. 1983); see Slough, Other Vices, Other Crimes: An Evidentiary Dilemma, 20 Kan. L. Rev. 411 (1972).
We endorse Professor Slough’s observations:
“In determining whether the plaintiff or defendant was acting with due care on a given occasion, the great majority of American jurisdictions have long excluded any reference to character, or to specific instances of prior negligence. Such evidence has been inadmissible for the patent reason that relevancy values must yield to almost certain dangers of confusion of ideas, wasted time, undue prejudice, and surprise. Because even the most careful and prudent person may be inattentive and neglectful on occasion, a few scattered instances of indifferent behavior will scarcely cast valid fight upon his general disposition. From considerations of relevancy and policy, therefore, evidence of specific occasions of indiscretion must be rejected to make way for the reception of reasonable proof.”
“The current Kansas rules of evidence, adopted in 1963 and patterned meticulously after the Uniform Rules of Evidence, state the general policy of exclusion with greater clarity.” 20 Kan. L. Rev. at 412.
We have applied K.S.A. 60-448, K.S.A. 60-449, and K.S.A. 60-450 to either exclude or admit evidence of habit. See Pope v. Ransdell, 251 Kan. 112, 130-31, 833 P.2d 965 (1992) (Allegation of negligent obstetrical care; mother was impeached with expunged criminal convictions relating to her drug use. One conviction was 3 years before the birth and another 6 years after the birth, an insufficient number of instances to warrant a finding of habit under K.S.A. 60-450. Error in admitting the convictions was deemed harmless.); State v. Gonzales, 245 Kan. 691, 701, 783 P.2d 1239 (1989) (evidence that victim had habit of meeting strange men, implying that she had gone with another man after the defendant was seen with her, was excluded); Williams v. Union Pacific Railroad Co., 204 Kan. 772, 780, 465 P.2d 975 (1970) (Collision between a railroad switch engine and a gasoline transport truck in the dark; port of entry inspector testified switch engines operating at the crossing at night did not use lights, sound any warnings, or use flagmen. Two police officers who patrolled the area four or five times each evening observed switch engines without lights or flagmen at the crossing. Admission of testimony affirmed. “It must be assumed the trial court determined the testimony showed a sufficient number of such instances to warrant a finding of habit or custom.”).
We have held that specific instances of conduct are generally inadmissible as evidence to prove the quality of conduct on any later occasion. Scogin v. Nugen, 204 Kan. 568, 576, 464 P.2d 166 (1970).
Coastal wanted to use the prior falls to establish that Hardesty had a habit of “not looking where she is going” while walking. All Coastal had was evidence of six prior injuries, without evidence of what caused them. In addition, six prior falls or injuries over a 3-year time span, even if they were caused by Hardesty not looking where she was going, do not establish a habit. Both Coastal and Hardesty cite and discuss cases from other jurisdictions, notably Perrin v. Anderson, 784 F.2d 1040 (10th Cir. 1986); Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519 (11th Cir. 1985); and Reyes v. Missouri Pac. R. Co., 589 F.2d 791 (5th Cir. 1979). As noted by Hardesty, none are helpful to Coastal’s position.
The district judge was correct. Hardesty’s six prior falls or injuries in 3 years do not establish habit. Also, Hardesty admitted what Coastal argued the six prior falls or injuries would suggest, that she did not see the hole in the pavement.
Coastal’s Reliance
The district judge initially ruled that medical records concerning the prior right thumb injury would be admissible, but withheld ruling on whether the medical records concerning the prior falls could come in. However, Coastal was still to be allowed to go into the prior falls, but not the injuries from them. Coastal was only tangentially interested in Hardesty’s prior medical records. What Coastal was really interested in was the right to go into Hardesty’s prior falls.
The following discussion took place during the initial hearing on the motion in limine:
“MR. MOORE: Your Honor, the only question is, does she have a habit of looking where she is going, or a habit of not looking where she’s going. That’s it, that’s the only thing I’m trying to prove.
“THE COURT: You don’t even want to get the medical in?
“MR. MOORE: I do want to get medical in, Your Honor, but that also, incidentally, I don’t think it’s a primary basis for their motion, but those medical records will go to the mit — or to her damages.”
Coastal relaxed its position on the definition of “all medical records” in arguing that the district judge should reconsider his reversal on prior accidents:
“[MR. MOORE:] I have a real problem, Judge, and I think that a nice compromise was attained yesterday, and that is, I said I agree that there were certain medical records I wasn’t interested in using, for instance, her sinus problems, for instance, she had a hysterectomy some years after the accident; those medical records I would concede are absolutely irrelevant and don’t go to any issue in the case, just wasn’t interested in bringing them in. Rut orthopedic injuries, Your Honor, on two counts. Number one, the habit evidence that Your Honor already expressed himself on. Secondly, on damages, I’ve got a real question as to why, if the plaintiff wore a brace on her left hand for over year and a half, and that did not impair her ability to engage in the activity that she loved, whereas wearing a brace on her right hand from the time of the accident to the present does.” (Emphasis added.)
The record shows that Coastal emphasized the prior falls as evidence of habit and placed less rebanee on the medical record stipulation.
Substantially Equal Advantage
The district judge’s final ruling on the motion in bmine barred Coastal from using the medical records concerning the prior fabs or going into the circumstances of those falls. However, Coastal was allowed to use the prior medical records concerning Hardesty’s right thumb treatment. Coastal was also abowed to bring out the fact that Hardesty had previously worn a splint on her left wrist, although prior medical records concerning left arm injuries were not abowed in. The district court allowed Coastal to use any prior medical records or medical facts that the court determined were relevant. The consequence Coastal suffered from the stipulation release was that Coastal could not introduce prior medical records that the district court determined were prejudicial.
Coastal’s only defense was that Hardesty did not look where she was going. Coastal intended to use the six prior fabs or injuries as habit evidence to suggest that Hardesty did not look when she fell on Coastal’s premises. Hardesty testified that she did not see the pavement defect when she fell. The jury determined her comparative negligence to be 10%. Thus, Coastal was able to establish its defense.
Valid grounds exist for not enforcing the stipulation: (1) Har-desty and Coastal did not have a common understanding of what the stipulation actually meant; (2) the trial court would have allowed in irrelevant, prejudicial evidence if the stipulation were enforced, causing manifest injustice; (3) Coastal’s reliance on the stipulation was minimal; and (4) the parties were placed in substantiaby equal advantage, in that Coastal was abowed to use relevant prior medical records and history and Coastal did estabhsh its defense.
We observe that Coastal chose neither to pursue Hernandez’s reference to previous falls in Hardesty’s opening statement nor to move for a mistrial after the trial court’s rubng excluding evidence of prior falls. The trial court did not abuse its discretion by releasing Hardesty from the stipulation.
Timing of the District Judge's Ruling
" Coastal argues it was prejudiced by the timing of the judge’s exclusionary ruling. The Court of Appeals’ dissent focuses on the timing of the ruling and views it as “not fair” to Coastal. During the jury voir dire, Coastal told the panel members to expect evidence of the prior trip and falls, in reliance on the judge’s initial ruling allowing inquiry into those falls. The timing of the district judge’s reversal of that ruling after jury voir dire disadvantaged Coastal; because the ruling prevented Coastal from following through with the promised evidence. However, the comments of the jury panel member responding to Coastal’s statements during voir dire about the prior falls suggest, that at least that juror might not have viewed such evidence favorably.
At the time the district judge reconsidered his ruling, he faced a dilemma. If he held with his original ruling, he would have allowed Coastal to present inadmissible evidence to the jury. Har-desty would have been prejudiced.
The timing of the district judge’s reversal of his prior ruling did not prevent Coastal from establishing that Hardesty was comparatively negligent, because the jury found Hardesty to be 10% at fault. Although Coastal was in an unenviable position after already previewing the prior falls to the jury, the district judge’s ruling was not an abuse of discretion.
Affirmed.
Abbott, J., not participating.
David Prager, C. J. Retired, assigned.
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The opinion of the court was delivered by
Abbott, J.:
This is the State’s appeal from the district court’s dismissal of all criminal charges at the conclusion of the preliminary hearing based on the State’s failure to meet its burden of proof that a crime had been committed. The State appeals pursuant to K.S.A. 1994 Supp. 22-3602(b)(1).
The defendant, W. Fletcher Bell, was charged with two counts of theft by deception (K.S.A. 21-3701[b]) arising out of a workers compensation claim. To convict a defendant of theft by deception^ the State is required to prove a number of elements (K.S.A. 21-3701[b] and PIK Crim. 3d 59.01). Only one of the elements appears to be in dispute in this case: that the defendant obtained money from the State by means of a false representation or statement that deceived the State, .which relied in whole or in part upon the false representation or statement of the defendant.
The burden of proof at a preliminary hearing is basic to this opinion. Preliminary examinations are authorized by K.S.A. 1994 Supp. 22-2902. K.S.A. 1994 Supp. 22-2202(16) defines a preliminary examination as “a hearing before a magistrate on a complaint or information to determine [1] if a felony has been committed and [2] if there is probable cause to believe that the person charged committed it.” Under the first requirement, a judge may detérmine that a felony has been committed based on the evidence presented at the preliminary hearing if “there is a reasonable ground of suspicion, supported by circümstances sufficiently strong in themselves, to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that it appears a felony has been committed.” State v. Engle, 237 Kan. 349, 350, 699 P.2d 47 (1985).
If a preliminary hearing judge determines,a felony has been committed, then the judge must determine whether there is' probable cause to believe that the person charged committed'the crime. “In order to prove probable cause, there must be evidence'sufficient to cause a person of ordinary prudence and caution to con scientiously entertain a reasonable belief of the accused’s guilt. State v. Green, 237 Kan. 146, Syl. ¶ 3, 697 P.2d 1305 (1985).” State v. Bockert, 257 Kan. 488, 492, 893 P.2d 832 (1995). The evidence need not prove guilt beyond a reasonable doubt, only probable cause. 257 Kan. at 492. According to In re Mortimer, 192 Kan. 164, 166-67, 386 P.2d 261 (1963):
“There is a difference between the quantum of proof essential to a binding over for trial and that required to convict at the trial. The guilt or innocence of a defendant is not adjudged at a preliminary examination, and it is not necessary that evidence upon which a defendant is held for trial should be sufficient to support a conviction. It is enough if it shows that an offense has been committed and that there is probable cause to believe the defendant is guilty. [Citations omitted.]”
A judge at a preliminary hearing should not evaluate the prosecutor’s decision to file criminal charges against the defendant. The judge should not dismiss the case simply because the judge believes the State should not have prosecuted the case due to the remote or nonexistent possibility of a conviction. Bockert, 257 Kan. at 492 (citing State v. Puckett, 240 Kan. 393, Syl. ¶ 3, 729 P.2d 458 [1986]). When evaluating evidence presented at a preliminary hearing, the judge must seriously consider the defendant’s defense and pass judgment on the credibility and competency of both the State’s and the defendant’s witnesses. If there is a conflict in witness testimony that creates a question of fact for the jury, the preliminary hearing judge must accept the version of the testimony which is most favorable to the State. State v. Jones, 233 Kan. 170, 174, 660 P.2d 965 (1983).
In this case, the preliminary hearing judge found that the State failed to meet its burden of proof by establishing that a crime had been committed. In appeals by the prosecution from an order discharging the defendant for lack of probable cause, this court follows the same standard for weighing the evidence as the judge at the preliminary examination See Bockert, 257 Kan. at 492-93. This court is to conduct a de novo review of the evidence when considering the trial court’s probable cause finding. State v. Martinez, 255 Kan. 464, 465, 874 P.2d 617 (1994).
Under Count I, the State attempted to prove that the defendant intentionally and willfully obtained workers compensation payments from the State by filing a false workers compensation claim. The State argued that the workers compensation claim was false because the injury which the defendant claims to have suffered— a back injury from lifting a briefcase out of the trunk of his car— did not occur or, if it did occur, the defendant did not incur the injury in the manner in which he claims to have incurred it.
Under Count II, the State argues that the defendant made false representations which caused his workers compensation payments to be improperly paid out of the State Self-Insurance Fund, which is funded primarily by taxpayers, instead of being properly paid out of the Second Injury Fund, which is funded primarily by insurance companies. Thus, Count II alleges that the defendant intentionally obtained control over workers compensation payments with the intent to permanently deprive the State Self-Insurance Fund of property by making false representations.
The defendant filed a motion to dismiss the charges, contending that they were barred by the statute of limitations and collateral estoppel. The trial court denied the motion, and the defendant has filed a cross-appeal. Because of our decision on the direct appeal, we do not reach the cross-appeal.
Count I
It is undisputed that the defendant was injured in an automobile accident in 1987. That injury primarily involved the defendant’s cervical spine. The defendant also had a degenerative condition in his lower back for which he had received medical treatment. The defendant had filed a Form 88 revealing all of his prior back injuries. This form was available to and in the possession of the State throughout this proceeding and throughout the workers compensation proceeding.
Although the following facts are relevant to Count II, some information regarding the relationship between the State Self-Insurance Fund and the Second Injury Fund will aid in understanding the background of the case and why certain events occurred or did not occur. Thus, the information is provided here.
The State of Kansas has a Self-Insurance Fund (SSIF), which pays workers compensation claims to state employees who are injured on the job. At the time the defendant’s injury occurred, all elected state officials were considered state employees. In fact, at least one Kansas governor has made a workers compensation claim which was paid by the SSIF. The money for the SSIF is appropriated by the legislature from State funds.
There is also a Second Injury Fund (the Fund) which is designed to encourage employers to hire injured and handicapped employees. Most of the money for the Fund (approximately 97%) is provided by insurance carriers (the cost is ultimately borne by all employers who purchase workers compensation insurance or who are self-insureds). The State of Kansas contributes approximately 3% of the money in the Fund.
Employers, including the State of Kansas, are careful to file Form 88s when they hire an employee who has a prior injury or handicap. The form is helpful in relieving their insurance carrier of partial or full responsibility for a workers compensation claim made by a previously handicapped or injured employee. Instead, such claims may be assessed against the Fund. As a result, the employer’s loss experience is lower, thereby making the employer’s insurance premium lower and saving the employer money. The Fund also applies to self-insured employers.
As a practical matter, when an injured state employee files a claim against the SSIF, the SSIF then impleads the Fund and attempts to prove that the Fund should pay all or part of any workers compensation award which the employee may receive.
The SSIF is administered through the Department of Administration, and the State Insurance Commissioner has nothing to do with the SSIF in any way. The Fund, at the time of the injury in this case, was administered by the office of the State Insurance Commissioner and, of course, the defendant in this case was the Insurance Commissioner at the time this claim arose.
Highly summarized (more detail will be added later in the opinion), the defendant was attending a meeting of the National Association of Insurance Commissioners in Kansas City, Missouri, on January 18, 1989. There is no question that the defendant was on the job and that he lifted a briefcase out of the trank of his automobile on this date. The defendant alleges that when he bent over and reached into the trank of his automobile to lift out a 30-40 pound briefcase, he felt immediate pain in his low back. The defendant filed a workers compensation claim based on his back injury from lifting the briefcase.
The defendant had been undergoing treatment with his orthopedic surgeon, Dr. John Wertzberger, for back and other problems, and he visited with Dr. Wertzberger on Januaiy 25, 1989, regarding this case. Dr. Wertzberger was of the opinion that prior to the January 25 appointment, the defendant’s low back pain problems were somewhat of an inconvenience that did not require any change in his work ór lifestyle. After the Januaiy 25 appointment, defendant had obvious nerve disfunction which was producing a potential footdrop and paralysis of the L-5 neuromuscular mechanism. Dr. Wertzberger recommended complete and total bed rest at that time and was of the opinion that surgery would probably be necessary in the future. Dr. Wertzberger was of the opinion that the defendant suffered a permanent partial disability of 25% to the body as a whole.
The SSIF had a number of people involved in reviewing the defendant’s workers compensation claim and finally determined that it would seek a second medical opinion. The SSIF contacted a doctor from the state of Missouri, Dr. Glenn Barr, because the SSIF felt it would be best to obtain a doctor who had no connection with the defendant and did not know him or any of the lawyers involved in the case. Dr. Barr examined the defendant and concluded that the defendant had a 37% permanent partial disability to the body as a whole. Thus, the State’s independent medical examiner found that the defendant had a 12% greater injuiy to the body as a whole than did the defendant’s treating physician. It is obvious from the medical testimony that the defendant has a substantial disabling back problem.
As the case progressed, Billy Newman was selected as the attorney to represent the SSIF. Newman was employed in the Department of Administration’s legal division. The person who ordinarily would have been handling the case, the chief attorney for the SSIF, disqualified himself because his wife did'some contract work for' the Insurance Department and he was concerned there might be an appearance of a conflict of interest. The State makes considerable argument about the inexperience of Billy Newman and contends that an experienced workers compensation attorney probably would have impleaded the Fund. Newman testified that he had no knowledge or information that the defendant had anything to do with his assignment to handle the claim or the manner in which, the claim was handled.
Chris Cowger was in charge of the Fund throughout the pen-dency of the defendant’s workers compensation claim. He testified that he talked to the defendant regarding the Fund’s potential involvement with the workers compensation claim. Both Cowger and the defendant recognized the potential' conflict if the Fund were to be impleaded, because the Insurance Department, which the defendant was the head of, was responsible for the administration of the Fund. The defendant and Cowger agreed orally arid in writing that if the Fund were impleaded, neither Cowger nor any other attorney in the Insurance Department would have anything to do with the handling of the claim.
According to Cowger, the defendant did not indicate that Cow-ger should keep the Fund from being impleaded, nor did the defendant indicate that he did not want die Fund impleadéd. Cowger and the defendant merely discussed the potential conflict and tile fact that no one from the Insurance Department would be involved if the Fund was impleaded.
George Welch is the director of the SSIF. Welch testified it was his responsibility to determine whether the Fund was to be im-pleaded, and he recommended to Newmari, the attorney representing die SSIF in the workers compensation case, that the Fund not be impleaded. Welch further testified that neither defendant, nor anyone on his behalf, contacted him in any manner or indicated any desire that the Fund not be impleaded". Neither the defendant nor anyone on his behalf had any input into Welch’s decision that the Fund should not be impleaded.
Newman testified that he recommended the Fund not be im-pleaded for tactical reasons. This would have put two attorneys on the State’s side. On the other hand, both Newman and Welch recognized they had no medical evidence before them (possibly because they asked the wrong questions or, more accurately, because they failed to ask the correct questions of the medical experts) that gave a basis to implead the Fund, and Welch was concerned that attorney fees would be assessed against the SSIF if it improperly impleaded the Fund. Thus, the Fund was not impleaded.
The administrative law judge who heard the case determined that defendant had a 30% permanent partial general bodily disability and made an award on that basis.
The defendant continued to draw workers compensation benefits until publicity concerning his claim drew attention to the claim, which was a public record open at all times to the public. The workers compensation case was then reopened and settled on a stipulation. The terms of the stipulated settlement aré of little or no importance to this decision. The State stipulated that the defendant was injured on the date alleged and suffered an injury. The defendant gave up the remainder of his monetary award but retained medical benefits.
Criminal charges were later filed.
Although we are not bound by the trial judge’s findings and decision, we agree with them. The trial judge found it was abundantly clear that the defendant did, in fact, sustain an injury and that the injury was consistent with the briefcase incident. Further, the trial judge pointed out that these findings are fully supported by both medical experts. The trial judge went on to cover the conflicting testimony and concluded that the State had not come forward With any evidence to show that something other than the briefcase incident caused the injury.
Basically, the State tends to rely on some discrepancies in dates which appear to have little, if any, significance and asks this court to hold that the discrepancies are sufficient to bind the defendant over for trial.
Little would be gained by setting forth in great detail the testimony in this case. The State did offer evidence of an eyewitness to the briefcase lifting incident. This eyewitness did not notice the defendant showing any signs of pain or discomfort when he lifted the briefcase out of the trank. However, the same person testified that the defendant had not exhibited signs of discomfort in his back prior to the date of the briefcase incident but did exhibit signs of great pain and discomfort after that date, all of which the defendant attributed to the lifting of the briefcase. Furthermore, the wife of this witness told a KBI agent that she could not recall when, but she had seen defendant in pain and discomfort either when he lifted the briefcase out of the trank or shortly thereafter. An official from the Missouri Highway Commission observed the defendant at the meeting on January 18 in obvious pain and discomfort. The defendant told the official that he had hurt his back lifting a briefcase. In fact, numerous other witnesses testified that they observed the defendant exhibit pain and discomfort after the date of the briefcase incident which they had not observed before.
Several dates given to the doctors by the defendant were not always consistent. However, the doctors all testified that they frequently make mistakes in recording dates and that the dates were not misleading to them and did not affect their opinion of the defendant’s injury.
There is a considerable amount of testimony concerning an MRI the defendant had taken. The defendant told one of the medical experts that it was taken on a date after the briefcase incident, when in fact it was taken before the briefcase incident. However, Dr. Wertzberger had taken the MRI and he knew what date the MRI was taken. The second medical expert had a copy of the MRI report, which clearly gives the date on which the MRI was taken. All of the attorneys either had this report indicating the proper date of the MRI or it could have been available to them had they asked to see it.
Without prolonging the opinion, our examination of the record de novo leads us to conclude the State did not sustain its burden of proof in showing that a crime had been committed under the standards set forth above.
Count II
The State contends that if there was a compensable injury it should have been paid by the Fund. Instead, the State asserts, the defendant caused the claim to be paid from the SSIF. As a result, the money was paid out of State funds when it otherwise would have been paid by insurance carriers and self-insurers.
In regard to Count II, the trial court stated:
“Count 2 accuses Mr. Bel of somehow engineering the payment of a worker’s compensation award from the pubic funds rather than the second injury fund. I have heard testimony at length from Mr. Newman, Mr. Welch and others as to how that came about. Apparently Mr. Newman and Mr. Welch have now afterward concluded that perhaps the fund should have been impleaded. But they I think have adequately explained the reasons why they concluded at that time that it would not have been appropriate to implead the fund because they didn’t want to subject themselves to possible attorney fees.
“The only evidence that’s been offered to support Count 2 is the memorandum and the testimony of Terry Bematis, and I am referring to State’s Exhibit Number 11 in which she states that Mr. Welch had informed her that it was Mr. Bel’s desire that the fund not be impleaded. Mr. Welch, of course, emphatically denies making such a statement.
“At a prelniinary hearing I am obliged to consider the evidence in the hght most favorable to the State. But assuming for the sake of argument that that testimony is tme, that being the testimony of Ms. Bematis, what does it prove? All it establishes is that Mr. Bell had that desire. That’s not a crime. Every witness has testified that had anything to do with making that decision that Mr. Bel had absolutely no input in any decision of whether or not to implead the fund. So I can’t conclude that any crime has been committed as far as the alegations contained in Count 2.”
The trial court concluded:
“I do not incidentaly regard this as a close case, counsel. Given all the pubic cry that has surrounded this affair I am frankly astonished after two and a half days of testimony that the State’s evidence is woefully inadequate to support the offenses charged.
“For those reasons, the Court finds that the State has failed to meet its burden of proof to establsh that a crime has been committed. The defendant is discharged and this case is dismissed.”
All of the evidence, other than the memo written by Ms. Ber-natis, who had never met the defendant or talked to him in any way, is to the effect that the defendant had absolutely nothing to do with the decision not to implead the Fund. Further, the defendant never suggested to anyone who testified in the case that he did not desire the Fund to be impleaded. The defendant’s conversation with Cowger merely determined that if the Fund was im- pleaded, the Insurance Department would not be involved in the case. The trial judge correctly concluded that, at most, the memo from Ms. Bematis only expressed a desire by the defendant that the Fund not be impleaded. Those responsible for impleading the Fund stated that it was their decision not to implead the Fund in this case. They testified that they made this decision without any input from the defendant or anyone in his behalf and that the defendant had never expressed a desire, directly or indirectly, to them that the Fund not be impleaded. We reach the same conclusion as the trial court: Even if it was the defendant’s desire that the Fund not be impleaded, this is not evidence of a crime because the defendant took no action to prevent the Fund from being im-pleaded and the defendant had no authority to do so.
The State again makes a number of arguments that have little if any relevance in showing that a crime was committed. It argues that the attorney the State appointed to handle the workers compensation claim for the SSIF had little experience in workers compensation cases. This is frequently trae. However, the defendant had no authority over and no connection with the State Department of Administration, which appointed the inexperienced attorney to handle the case. We have observed that it is not at all unusual for the State to be represented by young, inexperienced attorneys. This is a decision that the legislature has made in setting pay. It becomes a tradeoff. The State pays lower salaries and the inexperienced attorneys gain experience.
All of the attorneys and administrators in this case viewed the evidence available to them and determined not to implead the Fund. Hindsight now tells them they should have asked different questions and that if they had asked different questions, they probably would have impleaded the Fund. It is not the workers compensation claimant who has the duty to implead the Fund, and it would be an extremely rare case in which .the claimant would do so. Here, the claimant had filed a Form 88 and put the State on notice of his previous injuries. Further, the State had full access to all of the defendant’s medical reports (with the possible exception of a rough draft of a medical report that we do not deem significant). The defendant cannot be held criminally responsible for the negligence (if indeed there was any) of state employees who are not in the defendant’s employ or control.
We have examined the record, considered all of the State’s arguments, and conclude that the State has failed in its burden to prove that a crime has been committed under Count II. The State’s appeal is therefore dismissed as to Counts I and II. As a result of our having reached that decision, the defendant’s cross-appeal is moot.
Appeal dismissed.
Six, J., not participating
David Prager, C.J. Retired, assigned.
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The opinion of the court was delivered by
Larson, J.:
This case arises from the.contamination of the Ogal-lala aquifer under plaintiff United Proteins, Inc.’s (UPI) pet food plant by hexavalent chromium released by defendant Farmland Industries, Inc. (Farmland). UPI sought damages for holding costs it allegedly incurred due to its inability to sell.the plant on. theories of trespass and intentional private nuisance after its strict liability and negligence theories were dismissed as barred by the statute of repose. The trial court found Farmland liable but awarded-only nominal damages: Both parties appeal. Although there is merit to UPI’s contention that the trial court improperly computed damages, we agree with Farmland’s arguments that UPI has failed'to prove essential elements under both trespass or intentional private nuisance. Farmland is entitled to judgment as a matter of law.
Facts
UPI owns an 85-acre tract with a 10-acre pet food plant development outside of Dodge City, Kansas. UPI initially acquired an interest in the Dodge City property in August 1989. It acquired full ownership of the plant,upon exercising a purchase option by paying off industrial revenue bonds in 1993.. , - . . .
Farmland owns and operates a fertilizer plant adjacent to UPI’s property in which it used hexavalent chrortiiúm as a corrosion inhibitor in the cooling water system prior to June 1982. At some point while that system was in operation, approximately 1,200 gallons of hexavalent chromium was released, contaminating the Ogal-lala aquifer under Farmland’s property. This hazardous substance leached into the. groundwater under UPI’s property in concentrations in excess of regulatory limits. UPI knew óf this contamination at the time it acquired the property. ¡ ■
In June 1982, Farmland notified the Kansas Department of Health and Environment of the contamination and began a remediation program by drilling approximately 91 monitoring and recovery wells on and around Farmland’s property, including 15 wells on UPI’s property. The remediation program consists of recovery of the water in the aquifer through the above-described wells arid then treating the water and returning it to the aquifer. This “pump and treat” program will eventually reduce the chromium contamination tp within regulatory limits.
UPI has plugged its wells to the Ogallala aquifer and now draws water from the deeper Dakota aquifer. Although this reduced the amount of available water and the efficiency of the pet food plant, UPI discontinued pet food operations for reasons totally unrelated to the contamination of the aquifer and began efforts to sell the plant in early 1991. It had been unable to do so at the time of trial in August 1994, although it sold similar facilities in other parts of the country with no contamination in 3 to 15 months.
On August 27, 1993, UPI commenced the present action. UPI initially asserted claims under the theories of intentional nuisance, strict liability, intentional trespass, and negligence. In June 1994, upon Farmland’s motion for summary judgment, the trial court dismissed the strict liability and negligence claims as barred by the statute of repose. The trial court refused Farmland’s request for judgment on the remaining nuisance and trespass claims but limited recovery to.that available because of.the defendant’s activity within the limitations period under those two theories.. UPI contended it suffered $373,500 in, damages, because it was unable to sell the plant. • . ■ . .
In a trial to the court only UPI presented evidence. UPI’s real estate appraisal expert opined that a property like the UPI Dodge City plant would ordinarily be expected to sell within 1 year but had not sold in this instance because it was contaminated. The trial court ruled that Farmland was liable under the theories argued by UPI, but that the exclusive measure of damages was the decreased rental market value of the UPI plant. The court found UPI presented insufficient evidence of such damages and awarded nominal damages of $1.
UPI appeals the trial court’s determination that only damages measured by the reduced rental value of the property could be recovered. Farmland cross-appeals the determination that it was liable under either a trespass or intentional nuisance theory.
Because we reverse the trial court’s ruling that Farmland was liable under either the trespass or the nuisance theory and rule that judgment is to be entered in favor of Farmland and against UPI, we need not consider UPI’s appeal and will limit ourselves only to the contentions of Farmland’s cross-appeal.
Did the trial court apply the wrong legal standard to determine Farmland had the intent to trespass P
It is essential to first realize and understand that while this might have been a relatively simple case of negligence or strict liability, neither of those theories were available because of UPI’s delay in filing. With those two potentially winning theories lost by UPI’s untimeliness, UPI was left in the unenviable position of pursuing theories which alleged Farmland had engaged in some tortious conduct within the limitations period. Continuing trespass was one such possible theory. Although the original trespass was outside the limitations period, if UPI could prove that Farmland permitted the contamination to remain on UPI’s property within the limitations period and that the original intrusion was tortious, there might be culpable conduct on which recovery could be based. See Restatement (Second) of Torts § 161 (1963); Prosser and Keeton, Law of Torts § 13, p. 83 (5th ed. 1984).
On the trespass claim, Farmland argues the trial court used a legally improper standard to determine whether its conduct was intentional. The trial court held as á conclusion of law: “In the case of continuing trespass, the intent requirement may be satisfied by knowledge, either actual or inferred, that the substance was reaching the land of another.” As we will hereafter show, this is not the complete test under Kansas law.
“The concept of trespass should be used, if at all, only where defendant intends to have the foreign matter intrude upon the land, or where defendant’s ‘act is done with knowledge that it will to a substantial certainty result in the entry of foreign matter.’ ” 1 Harper, James, & Gray, The Law of Torts § 1.7, p. 1:30 (3d ed. 1996). Liability for a continuing trespass is premised on the original intrusion being trespassory. Harper, James, & Gray, § 1:7, p. 1:30. Thus, if the original intrusion is not trespassory, mere knowledge that a substance reached the land of another is insufficient to establish a continuing trespass.
Consequently, the question becomes whether Farmland’s mere knowledge that the substance reached UPI’s land would satisfy UPI’s burden to prove the original intrusion was intentional. UPI pled trespass as an intentional tort and asserted neither that Farmland was negligent nor that Farmland was engaged in an abnormally dangerous activity. We therefore start with the proposition provided by Restatement (Second) of Torts § 166 (1963): “Except where the actor is engaged in an abnormally dangerous activity, an unintentional and non-negligent . . . causing a thing ... to enter the land, does not subject the actor to liability to the possessor, even though the entry causes harm.” Consistent with this rule, Kansas has recognized intent is an element of a claim for non-negligent intrusion upon the land of another. Riddle Quarries, Inc. v. Thompson, 177 Kan. 307, 311, 279 P.2d 266 (1955); 75 Am. Jur. 2d, Trespass § 25 (“A trespass to real property is characterized as an intentional tort.”). Although in its historical development through the common law at certain times trespass has encompassed unintentional and non-negligent acts, Kansas follows the modem and near universal view that it is an intentional tort. See Prosser and Keeton, Law of Torts § 13, pp. 67-68 (5th ed. 1984).
Restatement (Second) of Torts § 164, Comment a (1963), explains the nature of the intent required: “In order to be liable for trespass [for an intentional intrusion] it is necessary only that the actor intentionally be upon any part of the land in question.” Am. Jur. 2d, Trespass § 29, relying on Restatement (Second) of Torts § 163, Comments b & c (1963), summarizes the intent required for actionable intentional trespass:
“[T]he intention required to make the actor liable for trespass is an intention to enter upon the particular piece of land in question, irrespective of whether the actor knows or should know that he is not entitled to enter. In order [that] an actor may intentionally enter a particular piece of land, it is not necessary that he act for the purpose of entering; it is enough that he knows that his conduct will result in such an entry, inevitably or to a substantial certainty. Further, the doing of an act which will almost certainly result in the entry of foreign matter upon another’s land, such as the operation of a cement plant which continuously deposits dust and other substances onto a neighboring property, suffices for an intentional trespass to land, regardless of the lack of an intent to harm.”
Thus, as with other intentional torts, UPI had to show either the misconduct, in this case entry, was purposeful, or that it was substantially certain to occur. In addition, it must also have been shown that Farmland intended the act which constituted the invasion of UPI’s rights. See Snow v. City of Columbia, 305 S.C. 544, 554, 409 S.E.2d 797 (1991) (where discharge of water was a result of accidental, involuntary act, no basis for a trespass claim existed.) The legal standard employed by the trial court fails to reflect the full scope of Farmland’s intent, which UPI was required to prove.
UPI’s reliance on Atkinson v. Herington Cattle Co., Inc., 200 Kan. 298, 436 P.2d 816 (1968), for the proposition that no- intent to invade the property of another is required in a trespass case, is misplaced. Atkinson is a strict liability case following the doctrine of Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). See Williams v. Amoco Production Co., 241 Kan. 102, 113, 734 P.2d 1113 (1987) (classifying Atkinson in long line of Rylands strict liability cases). In this case, as mentioned above, UPFs strict liability claim was dismissed because of the statute of repose.
Our case is similar to Moulton v. Groveton Papers Co., 112 N.H. 50, 54, 289 A.2d 68 (1972), in which the court rejected a claim that where the failure of defendant’s dam damaged the plaintiff’s land, an action for trespass could be supported through the plaintiff’s “constructive intent.” The court found this was an impermissible attempt to impose absolute liability.
Testimony before the trial court provided absolutely no basis to conclude the discharge of hexavalent chromium was either purposeful or substantially certain to occur. UPI presented no evidence whatsoever as to the cause or circumstances of the discharge. Thus, UPI failed to meet its burden of proof.
In sum, the trial court applied the wrong legal standard to determine whether UPI met its burden of proof on the element of intent on" the trespass claim. Even if the correct legal standard hád been applied, UPI could not have prevailed. Therefore, we áre compelled to reverse the judgment of the trial court on UPI’s trespass theory, and this case need’ not be remanded to the trial court for any further determinations on this issue.
Does the record support a presumption that the trial court found the nuisance created by Farmland was intentional?
Oil the nuisance claim, Farmland argues the trial court found it hable without malting any specific finding that the nuisance was intentional. Farmland suggests this presents1 a question of law for our review, considering whether liability" can be imposed without a finding that the conduct was intentional. See Horsch v. Terminix Int’l. Co., 19 Kan. App. 2d 134, 865 P.2d 1044 (1993), rev. denied 254 Kan. 1007 (1994).
UPI argues that Farmland misstates our standard of review. Although the trial court should state the controlling facts in its decision (Supreme Court Rule 165 [1995 Kan. Ct. R. Annot. 171]), where the court fails to do so and the litigants fail to object, the trial court is presumed to have found all facts necessaiy to support the judgment, and omissions in findings will not be considered on appeal. Galindo v. City of Coffeyville, 256 Kan. 455, 467, 885 P.2d 1246 (1994). Thus, UPI argues the appropriate standard of review is whether there is substantial competent evidence to support the trial court’s implied factual finding as to the- nuisance claim. See Southwest Nat'l Bank of Wichita v. ATG Constr. Mgt., Inc., 241 Kan. 257, 264, 736 P.2d 894 (1987).
In its reply brief, Farmland clarifies that it does not take issue with any of the trial court’s factual findings but only with the legal conclusion that intent may be established by “knowledge, either actual or inferred, that the substance was reaching the land of another.” The trial court used this reasoning only as to the trespass claim. Consequently, our scope of review over the nuisance claim is to determine whether substantial competent evidence establishes intent. ,
. We note that the trial court found: “Having contaminated the aquifer with a hazardous, substance, Farmland is unquestionably obligated to make good any temporary losses incurred by UPI as a result.” This could be read to imply that the trial court relied on a strict liability theory rather than, the intentional nuisance theory pled by UPI. The parties have not interpreted this statement in this way and we choose not to either.
Remember again that because .its, .claim was dismissed on summary judgment prior to trial, UPI could not rely on a theory of strict liability for an abnormally dangerous activity. This is not a Rylands v. Fletcher case. Nor did the trial court consider the elements of such a claim .or the factors for determining whether an activity is abnormally dangerous as set out in the Restatement (Second) of Torts §§ 519 and 520 (1976), adopted by this court in Williams v. Amoco Production Co., 241 Kan. 102, 115, 734 P.2d 1113 (1987). Not only was the strict liability theory dismissed by the time of trial and the elements of it not considered by the trial court, but also the evidence produced at trial did not support it. Similarly, there were no allegations of and no proof regarding any negligence by Farmland, as the negligence claim had also already been dismissed at the. time of trial.
Although a nuisance action can also be based on strict liability or negligence, UPI explicitly set out in. its petition that it sought relief on a theory of intentional nuisance. See Culwell v. Abbott Construction Co., 211 Kan,359, 364, 506 P.2d 1191 (1973). Under the rule synthesized in the Restatement (Second), of Torts § 825(a) and 825(b) (1965), intentional nuisance requires that the actor act with the purpose of causing the nuisance, or know that it is resulting or substantially certain to result from his or her conduct. Com ment c to Restatement (Second) of Torts § 825 provides: “It is not enough to make an invasion intentional that the actor realizes or should realize that his conduct involves a serious risk or likelihood of causing an invasion. He must either act for the purpose of causing it or know that it is resulting or is substantially certain to result from his conduct.”
Sandifer Motors, Inc. v. City of Roeland Park, 6 Kan. App. 2d 308, Syl. ¶ 11, 628 P.2d 239, rev. denied 230 Kan. 819 (1981), states the nature of the intent required in Kansas: “To create an ‘intentional’ nuisance, it is not enough to intend to create a condition causing harm; the defendant must either specifically intend to damage the plaintiff or act in such a way as to make it ‘substantially certain’ that damage will follow.”
Williams v. Amoco Production Co., 241 Kan. 102, controls this issue. In Williams, the plaintiff argued the trial court should have given an instruction on private nuisance. Plaintiff’s action claimed damages for natural gas leaking from the defendant’s wells into the aquifer and contaminating irrigation water. This court noted that the intent to interfere with the use and enjoyment of the land by one entitled to that use is an element of such a private nuisance claim. It concluded:
“There is no evidence in this ease that Amoco intended for natural gas to leak from its wells into the aquifer and eventually into appellees’ irrigation water. Nor is there any evidence that Amoco intended this condition to continue once discovered. Accordingly, one of the elements necessary to recover on a nuisance theory was not established. We hold the trial court did not err in failing to instruct on nuisance.” 241 Kan. at 118.
In this case, the pollution which migrated into the water table under UPI’s property was the result of a release of chromium from Farmland’s plant. There is no showing Farmland intended this leak into the aquifer and eventually under UPI’s land. There is no showing Farmland intended this release to continue after it was clear that it had damaged the aquifer under the UPI’s land. There was no showing the discharge was the result of any intentional act of Farmland. There was no showing of either purpose to cause an invasion or the substantial certainty of such invasion required to support an intentional private nuisance action. A review of the rec ord does not support the presumption that the trial court found all necessary facts. From the record, it is clear that a finding of intent, required by the law of intentional private nuisance, is not supported by substantial competent evidence. The trial court must be reversed.
In both the trespass and nuisance- claims, UPI essentially attempts to expand the scope of-strict liability beyond that outlined in the Restatement (Second) of-Torts §•§ 519 and 520 and adopted by this court. Having failed in its initial, strict -liability claim because of the statute of repose, UPI .will not be permitted to create new causes of action, for absolute continuing liability through traditionally intentional torts by eviscerating the element of intent.
: The trial court is reversed as to UPI’s claims for recovery on both the theories of continuing trespass and intentional private nuisance. This moots UPTs appeal as to the issue of damages.
Reversed.
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The opinion of the court was delivered by
Allegrucci, J.:
Defendant Lafayette Gayden was convicted by a jury of one count of first-degree murder, one count of attempted voluntary manslaughter, one count of possession of cocaine, four counts of aggravated battery, and one count of carrying a concealed firearm. He was sentenced to consecutive terms of imprisonment totaling life plus 68 months in prison and 1 year in jail. Issues raised on this direct appeal do not pertain to the drug charge.
There is no dispute as to the relevant facts. The night of December 4,1993, a number of the people patronizing the upstairs section of Bruff’s, a bar in Emporia, knew one another. Cindy Grant and her husband, Alexander Grant, were there, as were friends Faylene Carter, Faylene’s date Darrell Murray, and defendant,' who was there with his date Nicole Black, Alexander’s cousin.
Sometime shortly after midnight, Darrell and Faylene went out on the dance floor together. Defendant, Nicole, and Cindy remained seated in their booth. When Alexander Grant arrived at Bruff’s after work, he went to the booth where they were sitting. Darrell and Faylene were arguing as they were seen coming off the dance floor. Faylene testified that she had responded jealously when Darrell removed another woman’s hat. She poked his face with her finger, telling him he was no good, and then she slapped him. As she walked away, he slapped the back of her head.
Next, Darrell pushed Faylene down into a booth close to where the others were sitting. Cindy testified that Darrell grabbed Fay-lene and forcefully pushed or threw her down into an adjacent booth. Alexander Grant also described Darrell’s pushing Faylene into the booth. He added that there were other people seated in the booth and that Darrell grabbed Faylene by the neck and “just pushed her on the people [who] were sitting there.” Faylene testified that, after she slapped Darrell and turned her back, he slapped the back of her head, grabbed her, and pushed her down in a booth. She also thought that he might have slapped her again.
According to Faylene, Darrell told her never to hit him again. He immediately walked away from her and toward the booth where defendant sat. According to Cindy, without saying anything to Fay-lene, Darrell left her and approached defendant in an angry, violent-looking manner. Although at trial Cindy denied hearing defendant say anything, she testified that shortly after the incident she told police that defendant had said, “that was my cousin.” Officer Michael J. Heffron testified that Cindy had approached him at the hospital at approximately 2 to 2:30 a.m. on December 5, 1993, and said that she wanted to give a statement. At that time she told him that defendant "stood up and said, ‘[Djon’t be doing that to my family.’ ”
Cindy testified {fiat Darrell was really upset and looked like he wanted to fight with defendant when he walked over to stand directly in front of him. She described Darrell as “buffing” defendant. Asked to elaborate, she said: “Something like that where they do their hand up and they go like that, you know, trying to intimidate somebody.” She said that Darrell thrust his chest up and out. She further testified, “Well, I thought Darrell Murray was gonna hit [defendant] in some kind of way. And he pushed, [defendant], pulled — and Nicole off of him.” Although the meaning of this testimony is unclear, it might have been interpreted to mean that Darrell pushed defendant.
In her statement to Officer Heffron, Cindy said that, in response to defendant’s remark about his family, Darrell looked at him and said, “[W]hat are you gonna do about it?” She also said that at that time “she thought they were going to go man to man,” which Officer Heffron interpreted to mean “fight it out with fists.” When making her statement to the officer, she did not mention Darrell reaching toward or touching defendant.
Alexander Grant testified that Darrell came to within 3 to 4 feet of defendant; asked defendant something like, “[W]hat’s you gonna do”; “puffed” himself up into an intimidating, challenging stance; and, when defendant started to stand up, told him to “sit his punk ass down.” Alexander also testified that Faylene placed herself between Darrell and the booth where defendant was seated.
Faylene, too, testified that she went over to stand between Darrell and defendant. In addition, she testified that Nicole also was between the two men. Cindy testified that Nicole was sitting on defendant’s lap.
One of Bruff’s employees testified that he saw a standing man lean over a woman and try to strike a man sitting in the booth. Although in an earlier statement and testimony he had not expressed the opinion that physical contact was made and he still was uncertain, at trial he testified that he thought the standing man’s swing touched the sitting man. The sitting man pulled a gun with his right hand and shot at the standing man.
Faylene testified that she told Darrell to go on, but that “[h]e wasn’t gonna go, he wanted to fight [defendant].” Darrell pushed her out of the way, and then she heard a gunshot.
Alexander testified that defendant “pulled the gun and started shooting.” Alexander did not see from where the gun was pulled. Cindy said that she thought defendant pulled the gun out from “his waist.” She told Officer Heffron that “[defendant] reached in the front of his pants and pulled out a gun and started shooting at Murray.”
Darrell testified that, as he and defendant were standing a few feet apart with Nicole between them, he took a swing at defendant and missed him. Defendant reached into his pants, pulled out a gun, and pointed it at Darrell’s head. Darrell saw a flash of light, which momentarily blinded him, and he felt his face burning. A photograph taken at the hospital shows red powder bum marks on the left side of his face. The condition of his skin indicates that the gun was fired at very close range.
Darrell fell to the floor. He testified that he “got right back up.” Either as he was getting up or as he was running away from defendant, Darrell was shot through the arm. Darrell testified that he heard one more shot as he ran through the hallway and two more while he was on the stairs. He was not hit after being shot through the arm.
Alexander testified that he saw defendant point the gun at Darrell’s head and shoot. Darrell went down toward the ground but began turning to run before he hit the floor. Alexander saw defendant shoot at Darrell a second time. Defendant ran after Darrell, and Alexander remembered hearing one other shot from the stairs. Faylene testified that she saw defendant running after Darrell and shooting at him.
Jayson Adams and his wife, Kyla, were seated at a table near the dance floor. When he heard gunfire and realized what it was, he pushed her to the floor. Four or five shots were fired. When the shooting stopped and Kyla did not respond to his words or touch, Jayson realized that blood was pouring from a hole in her neck. Kyla was pronounced dead at the hospital after resuscitation efforts failed. Her death was caused by the bullet wound to her neck.
Also treated at the hospital were Earlene Thomas, Shawn Ellis, Darrell Murray, and Clarence Paschal. Darrell had a gunshot wound to his left arm with multiple fractures of the humems.
Defendant was on foot and carrying a revolver in his hand when he was spotted by pólice. He dropped the gun when told to do so. He also dropped bullets which he had in his other hand. People who had been at Bruff’s arrived soon and identified him as the person who had fired shots in the bar. The jailer who booked defendant testified that she found in his wallet a white cube in a plastic bag. The substance was cocaine.
We first consider whether the attempted voluntary manslaughter of Darrell Murray can be the collateral felony to support the felony-murder conviction for the death of Kyla Adams. Defendant was charged with the attempted firstrdegree murder of Murray and with the felony murder of Adams. Statutes, in effect at the time provided that “[m]urder in the first degree is the killing of a human being committed . . . [ijntentionally and with premeditation,” K.S.A. 1993 Supp. 21-3401(a), and that “[a]n attempt is any overt a!ct toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof,” K.S.A. 1993 Supp. 21-3301(a). The felony-murder statute provided: “Murder in the first degree is the killing of a human being committed ... in the . . . attempt to commit ... an inherently dangerous felony.” K.S.A. 1993 Supp. 2l-3401(b). Inherently dangerous felony is defined as including murder in the first degree, murder in the second degree, and voluntary manslaughter. K.S.A. 1993 Supp. 21-3436(a)(1)-(3).
With regard to Murray, the jury was instructed that it could find defendant “guilty of attempted murder in the first degree, attempted murder in the second degree, attempted voluntary manslaughter, or not guilty.” The jury was instructed on the elements of .the lesser included offenses. With regard to Adams, the jury was instructed that the following claims must be proved in order to establish the charge of felony murder: “1. Thát the defendant killed Kyla Renee Adams; 2. That such killing was done while committing an inherently dangerous felony,- to-wit: attempted murder in the first degree, attempted murder in the second degree or attempted voluntary manslaughter.” In addition, PIK Crim. 3d 56.09 was given: ‘When a homicidal act is directed against one other than the person killed, the responsibility of the actor is exactly as it would have been had the act been completed against the intended victim.” The jury found defendant guilty of the attempted voluntary manslaughter of Murray and guilty of the felony murder of Adams.
Defendant argues that the offense of attempted voluntary manslaughter will not support the felony-murder conviction, which was based on transferred intent. He concedes that this argument was not raised in the trial court. He views this as a matter of jury instruction and, accordingly, advocates that the standard of appellate review is “clearly erroneous.”
Defendant relies on the wording of the pattern instruction for the killing of an unintended victim. PIK Crim. 3d 56.09 advises the jury that where A intends to kill B but actually kills C, A is just as responsible for the death of C as he would have been if he had killed B. In other words, A’s intent to kill applies to his killing C. Defendant construes the pattern instruction to mean that, in these circumstances, A cannot be any more responsible for the death of C than he would be if he had killed the intended person, B. Here, the jury convicted defendant (A) of attempted voluntary manslaughter of Murray (B) and of first-degree murder, on a felony-murder theory, of Adams (C). Defendant’s contention is that he is improperly being held more culpable for Adams’ death than he would have been if he had killed Murray.
Defendant’s reliance on the language of a pattern instruction is augmented only by his citing State v. Moffitt, 199 Kan. 514, 431 P.2d 879 (1967). His reliance is misplaced. In Moffitt, the defendant was found guilty of possessing a pistol after conviction of a felony and of first-degree murder in using the pistol to kill a stranger. The court stated:
“It is no defense to the crime of murder in the first degree that the appellant may have mistaken [the deceased] for some other person ....
“The fact that the homicidal act was directed against one other than the person killed does not reheve the slayer of criminal responsibility. It is generally held that such a homicide partakes of the quality of the original act, so that the guilt of the perpetrator of the crime is exactly what it would have been had the assault followed upon the intended victim instead of another. (1 Wharton’s Criminal Law and Procedure, Homicide, §193, p. 438.) The same rule applies where the felony murder rule is asserted to sustain a conviction for murder in the first degree or felonious assault.” 199 Kan. at 535.
Moffitt is distinguishable from the present case in that Moffitt was not charged with a crime against the intended victim of his rampage, as defendant was in the present case. Nor was there a comparison of severity of offenses. The substance of this court’s statement was that the killing of X during perpetration of an intended crime against Y is a crime, even though it was unintended. Read in the context of the facts in Moffitt, the statement was not a comment on degrees of culpability but, rather, meant that the perpetrator would be held criminally accountable for the death of X.
What defendant postulates is a conflict between the legal doctrines of transferred intent and felony murder in the circumstances of his case. A review of application of the felony-murder principle by this court and relevant statutory provisions leads to the conclusion that there is no such conflict and thus no merit to defendant’s argument. K.S.A. 1993 Supp. 21-3401 provides in part:
“Murder in the first degree is the killing of a human being committed:
(a) Intentionally and with premeditation; or
(b) in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 1993 Supp. 21-3436 and amendments thereto.”
Killing a person while perpetrating or attempting to perpetrate another offense has long been recognized in the courts of Kansas as potentially constituting first-degree murder. See, e.g., State v. Fisher, 120 Kan. 226, 243 Pac. 291 (1926), and other cases discussed at State v. Jones, 257 Kan. 856, 864-69, 896 P.2d 1077 (1995). This court often has stated that, under the felony-murder principle, the State is relieved of the necessity of proving deliberation, malice, and premeditation, which are otherwise required for first-degree murder because they are deemed to be supplied by the felonious conduct. See, e.g., State v. Guebara, 220 Kan. 520, 553 P.2d 296 (1976), and State v. Goodseal, 220 Kan. 487, 553 P.2d 279 (1976). The most significant modification which has been made in this court’s application of the felony-murder rule appeared in State v. Underwood, 228 Kan. 294, 615 P.2d 153 (1980). There, the court overruled the specific holdings of several earlier cases (including Moffitt, Queb'ara, and Goodseal) in concluding that unlawful possession of a firearm by a defendant was not the sort of inherently dangerotis felonious conduct which would support a felony-murder conviction. 228 Kan. at 300-07. Although this- court previously had required that the collateral felony be inherently dangerous to human life, the change announced in Underwood reflected the court’s evolving perception of what constituted inherently dangerous conduct. Reasoning that it is the use of a firearm rather than its possession which is inherently dangerous, the court concluded that intent which encompassed deliberation, malice, and premeditation could not be found in the felonious conduct of unlawful possession’ of a firearm. 228 Kan. at 303-04. Subsequently, the legislature amended the first-degree murder statute so that the felony-murder provision specified that the underlying felony must be inherently dangerous. L. 1992, ch. 298, § 3. In the same session,' the legislature identified which felonies were inherently dangerous. L. 1992, ch. 298, § 77. K.S.A. 1993 Supp. 21-3436 is the version of the list of inherently dangerous felonies which applies in the present case, and it includes “voluntary manslaughter under section (a) of K.S.A. 21-3403 and amendments thereto.” K.S.A. 1993 Supp. 21-3436(a)(3).
There are two independent theories of transferred intent at work in any case, like the present one, which involves felony murder and a homicidal act that results in the killing of someone other than the intended victim. One is the foundation of the felony-murder rule:
“The felony murder rule has logic based on the theory of transferred intent. The malicious and premeditated intent of committing the inherently dangerous collateral felony is transferred to the homicide to supply the elements of malice and premeditation without further proof. Consistent with this thinking, most courts require that the collateral felony be inherently dangerous for the felony murder rule to be applicable.” 2 Wharton’s Criminal Law § 146, p. 210 (14th ed. 1979).
In Underwood, 228 Kan. at 303, the court quoted from Wharton:
“ In the typical case of felony-murder, there is no malice in “fact,” express or implied; the malice is implied by the “law.” What is involved is an intended felony and an unintended homicide. The malice which plays a part in the commission of the felony is transferred by the law to the homicide. As a result of the fictional transfer, the homicide is deemed committed with malice; and a homicide with malice is common law murder.’ 2 Wharton’s Criminal Law § 145, p. 204 (14th ed. 1979).”
The other theory is the transfer of intent from one person to another, which is the subject of PIK Crim. 3d 56.09.
Defendant’s specific contention is that the greatest offense he can be convicted of for the death of Adams is voluntary manslaughter because that is the felonious conduct which the jury found him guilty of directing toward the intended victim, Murray. K.S.A. 1993 Supp. 21-3401 and K.S.A. 1993 Supp. 21-3436 expressly provide otherwise. They make the killing of a human being, which is committed in an attempt to commit voluntary manslaughter, murder in the first degree. In more general terms, under 21-3401 and 21-3436, the killing of a human being committed in the commission or attempt or flight from any of the specified felonies is murder in the first degree. That is the felony-murder rule. It is the rule which is based on the theory of transferred intent, as discussed in the excerpt from Underwood quoted in the preceding paragraph. The transferred intent instruction of PIK Crim. 3d 56.09, which defendant contends is in conflict with the felony-murder rule, is instead utilized in charging premeditated and intentional first-degree murder where there is a killing of someone other than the intended victim. See, e.g., Moffitt, 199 Kan. at 535. In that case, the intent and premeditation are transferred to the killing of the bystander or unintended victim. See, e.g., State v. Jones, 257 Kan. at 860. In the present case, defendant was charged with the felony murder of Adams, and PIK Crim. 3d 56.09 is not relevant to that determination.
In Jones, the victim was a bystander killed in the exchange of gunfire between rival gang members. One count of first-degree murder was filed against Jones, charging him with killing the bystander intentionally and with premeditation or, in the alternative, while attempting to commit first-degree murder of the rival gang member. Jones challenged the use of the transfer of intent as to the first alternative and the use of the attempted first-degree murder as the underlying felony for the second alternative. This court found no merit in Jones’ challenge. Although his challenge was stated in terms of merger, our holding is controlling in the present case:
“In general, the lethal act cannot serve as the independent collateral felony necessary to support a felony-murder conviction. However, this rule does not apply where the deceased was not an intended victim of the lethal act. Where, as in the present case, the attempt to kill one person results in the death of another, the collateral felony of attempting to murder is so distinct from the homicide as not to be an ingredient of it. The collateral felony of attempted murder is not a lesser included offense of the homicide, and it does not merge with the homicide. Here, the attempted murder of the rival gang member(s) is an underlying felony which will support a felony-murder charge against defendant for the death of Halley.” 257 Kan. at 870.
This court’s response to Jones’ challenge of the jury’s general verdict of guilty is also instructive on this issue:
“Defendant contends that the district court’s permitting the jury to consider the felony-murder theory is error which requires reversal because it is impossible to tell from the general verdict form on which theory the jury based its finding of guilty of first-degree murder. In the circumstances of this case, however, the same evidence supports either charge, and both charges are first-degree murder. The evidence showed that defendant shot at the rival gang member(s) and killed a passerby. Under the transferred intent theory, this evidence supports the charge of first-degree intentional, premeditated murder of Halley. Under the felony-murder theory, precisely the same evidence supports the charge of first-degree felony murder of Halley committed in the attempt to commit the intentional, premeditated murder of another. Not being able to determine from the general verdict form on which theory the jury based its verdict, therefore, is immaterial. In order to reach the verdict, the jurors had to agree that the evidence necessary to support either charge had been shown.” 257 Kan. at 870.
In addition to running counter to the provisions of 21-3401 and 21-3436, defendant’s argument simply lacks rationality. For example, in defendant’s scenario it is arguable that a defendant who kills someone in a robbery attempt could be convicted of first-degree murder on a felony-murder theory, but a person who kills someone in a voluntary manslaughter attempt could not be. This is because the scope of the transferred intent idea which defendant relies on includes only transfers of the intent to commit a homicidal act against one person to the killing of another. If a homicidal act is construed to mean an act taken in furtherance of a homicide, it would not include most of the inherently dangerous felonies specified in 21-3436. Another anomaly is that the social puxpose which often has been stated for the felony-murder rule of deterring those engaged in felonies from killing negligently or accidentally, see State v. Lucas, 243 Kan. 462, Syl. ¶ 1, 759 P.2d 90 (1988), aff’d on rehearing 244 Kan. 193, 767 P.2d 1308 (1989), would not be served by a case like die present one. See Jones, 257 Kan. 856. Still another anomaly results from the concept advanced by defendant that, in a case such as Jones where the collateral felony has not been charged, the degree of culpability for the killing arguably would be undetermined. And in a case such as the present one, where defendant was charged with attempted first-degree murder of Murray but convicted of attempted voluntary manslaughter, the degree of culpability for the killing would remain undetermined until the verdict had been reached.
Generally, the lethal act is not an independent collateral felony which will support a felony-murder conviction. However, that is not true where the deceased is not the intended victim. Here,, the attempt to kill Murray resulted in the death of Adams and was an independent collateral felony, which will support the felony-murder conviction for the death of Adams.
Defendant next argues that the trial court erred in failing to instruct on the lesser included offense of attempted involuntary manslaughter of Murray and lesser degrees of murder of Adams. As to Murray, the district court instructed the jury on attempted first- and second-degree murder and on attempted voluntary manslaughter. The jury was told that the charge of attempted voluntary manslaughter would be established by proof .that defendant shot at Murray “upon a sudden quarrel or in the heat of passion.” The jury found that the elements of attempted voluntary ihanslaughter had been proved.
Defendant conténds that the district court breached its affirmative duty to instruct on all lesser offenses for which there is evidence on which he might be convicted. He contends that an instruction on attempted involuntary manslaughter also should have been given. The theory of involuntary manslaughter on which defendant relies is excessive force used in the exercise of self-de fense, as described in State v. Gregory, 218 Kan. 180, 542 P.2d 1051 (1975).
State v. Collins, 257 Kan. 408; 893 P.2d 217 (1995), is controlling in this issue. In Collins, the trial court failed to instruct on at- ‘ tempted involuntary manslaughter as a lesser included offense of attempted first-degree murder. We concluded such failure was not error, holding:
“The language of the attempt statute, K.S.A. 1991 Supp. 21-3301(a), requires that a person possess the specific intent to commit the crime. Therefore, to establish the crime of attempted involuntary manslaughter the person would be required to specifically intend to commit an unintentional crime. This is a logical impossibility. Although it is possible for an actor to use excessive force in self-defense, the actor cannot unintentionally act in self-defense. We conclude that Kansas does not recognize the crime of attempted involuntary manslaughter.” (Emphasis added.) 257 Kan. at 419.
For the purpose of discussing the jury instructions about the killing of Adams, defendant assumes that a felony-murder theory was proper. Relying on State v. Hobbs, 248 Kan. 342, 807 P.2d 120 (1991), he simply asserts that the jury also should have been instructed on lesser included offenses.
Hobbs does not help defendant. Hobbs’ conviction of felony murder was affirmed, and his argument that the jury should have been instructed on second-degree murder and voluntary manslaughter was rejected. The court stated the following rule:
“The general rule for giving lesser included offense instructions is not followed in the case of felony murder. In felony murder cases the trial court is not required to instruct on all lesser included offenses. If the undisputed evidence is not weak or inconclusive, but instead would convince a reasonable person that a felony had been committed, instructions on lesser offenses are not required.” 248 Kan. 342, Syl. ¶ 3.
The evidence of the collateral felony was neither weak nor incon-elusive, and, therefore, no instructions on lesser included offenses' for the felony-murder charge were required. The evidence that defendant drew his gun, pointed it toward Murray, and fifed is uncontroverted. Also uncontroverted is evidence that defendant fired more than once and that, when Murray fled, defendant pursued him and continued shooting. The evidence that the offense of attempted voluntary manslaughter occurred is not weak or inconclusive. Paraphrasing'the opinion in Hobbs, it can be said that the evidence convinced 12 reasonable jurors that an attempted voluntary, manslaughter had been committed and a death resulted; an instruction on lesser offenses of murder was not .required; See 248 Kan. at 348.
Defendant next contends that an instruction on self-defense should have been given. Defendant’s entire argument on this issue is as follows: “The defense requested a self-defense instruction. There was some evidence to support the giving of such instruction, as noted above. As a result, the instruction should have been given. State v. Hill, 242 Kan. 68, 744 P.2d 1228 (1987).” Defendant’s written request for jury instructions included. PIK Crim. 3d 54. Í7 on self-defense, which states:
“The defendant has claimed his conduct was justified as self-defense.
“A person is justified in the use of force against an aggressor when and to the. extent it appears to him and he reasonably believes that such conduct is necessary to defend himself against such aggressor’s imminent use of unlawful force. Such justification requires both a belief on the part of defendant and the existence of facts that would persuade a reasonable person to that belief.”
The instruction incorporates the language of K.S.A. 21-3211, which states: “A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force!”
In Hill, the court considered a trial court’s refusal to give the requested self-defense instruction. The duty involved was stated as follows: “The trial court must instruct the jury on self-defense if there is any evidence tending to establish self-defense even though the evidence may be slight and consist solely of the defendant’s testimony.” 242 Kan. 68, Syl. ¶ 4. Because there was some evidence of physical aggression on the part of the deceased and some evidence of a fear of assault on the part of Hill, it was error for the trial court not to have given the requested self-defense instruction.
The district court, in the present case, found that the subjéctive component of the self-defense test was’ satisfied. The evidence led the district court judge to conclude that defendant believed that it was necessary to defend himself against the imminent use of unlawful force by Murray. The objective part of the test, however, was found wanting. The district court judge concluded that a reasonable person would not have believed it necessary to defend himself by the use of deadly force because the confrontation was mutual and defendant’s pulling and firing his gun immediately followed Murray’s blow.
In reaching its decision, the district court referred more than once to State v. Burgess, 245 Kan. 481, 781 P.2d 694 (1989). Burgess was involved in a barroom brawl which began when Burgess or someone sitting with him used a racial epithet as Jari Wills walked past them. Thinking Burgess had spoken, Wills jabbed him several times in the chest with his finger and told Burgess not to call him that again. The fight began when someone threw a punch at Wills, and it ended within a short time when Wills was stabbed. All participants were charged with aiding and abetting second-degree murder; no one was charged as a principal. Burgess denied taking any aggressive action. Nonetheless, he challenged the trial court’s refusal to give an instruction on self-defense. This court concluded that there was no evidence which would justify the use of a deadly weapon against Wills. 245 Kan. at 487. Thus, the request for the self-defense instruction was properly refused. For the district court judge in the present case, the significance of Burgess was this court’s quoting the following excerpt from 40 Am. Jur. 2d, Homicide § 142:
“ ‘As a general rule, the doctrine of self-defense cannot be invoked to excuse a killing done in mutual combat willingly entered into, although the mere fact that one who kills another who seems to be about to make a murderous assault upon him was willing to enter into a fight with the decedent with deadly weapons does not destroy his right to rely on self-defense as justification for the killing, if he acted solely for the protection of his own fife, and not to inflict harm upon his adversary. But the view has been taken that one willingly entering into a mutual combat is not justified or excused in taking life unless he has withdrawn in good faith and done all in his power to avert the necessity of killing.’ ” 245 Kan. at 487.
According to the district court judge, the evidence clearly showed that the confrontation between defendant and Murray was mutual, that defendant stood up when Murray approached him, and that defendant drew and fired his weapon immediately after Murray hit him.
In addition to cases relied on by the trial court, the State quotes from and discusses State v. Marks, 226 Kan. 704, 602 P.2d 1344 (1979). According to a prior statement given by a cofelon, the victim used a racial epithet, raised his cane, started hitting Marks, and said, “get out of my place.” 226 Kan. at 712. The court stated:
“The words purportedly used by [the victim] do not indicate an intent to inflict bodily harm but only to compel the defendant to leave the premises. Here the use of a gun by a young man to repel an attack by a disabled 65-year-old man with a cane would be excessive as a matter of law. It was, therefore, not improper for the trial court to fail to instruct the jury on self-defense on the basis of prior statements made by [the cofelon], the truth of which he categorically repudiated at the trial.” 226 Kan. at 712-13.
Marks differs significantly from the present case in that the self-defense instruction was not requested by Marks’ trial counsel and on appeal this court was not constrained to view the evidence in the light most favorable to the defendant, as it is here. In the present case, too, the defendant and the intended victim were not so mismatched as they were in Marks. It may also be worth noting that the State’s theory of Marks was that the victim was shot in the course of an armed robbery and that Marks’ defense was that he was not present when the victim was shot. Thus, due to the tremendous differences in circumstances, Marks offers little guidance for a decision in the present case.
Where, as here, the trial court refused to give an instruction on self-defense, the evidence supporting the instruction must be viewed on appeal in the light most favorable to the defendant. See Hill, 242 Kan. 68, Syl. ¶ 2. And viewing the evidence in that light, this court’s task is to determine whether defendant believed that the force used was necessary to defend himself and whether facts exist which would support such a belief. See 242 Kan. at 78 (quoting State v. Childers, 222 Kan. 32, 48, 563 P.2d 999 [1977]).
With regard to the incident at Bruff’s, the evidence generally was that Murray went from where he had pushed Faylene into a booth to stand within a few feet of defendant, who was seated in an adjacent booth. Most witnesses reported that some words were exchanged between the two men, and there was general agreement that at least one person was at all material times between the two men. There were two witnesses who testified that Murray hit or struck at defendant, but there was no evidence that Murray was armed or appeared to be armed.
With regard to the social context in which the incident took place, the evidence showed that defendant and Murray knew one another and that a week and a half earlier, on Thanksgiving, they had played cards together at Faylene’s mother’s house. Cindy and Alexander Grant testified that the men seemed to be on friendly terms on that occasion. Faylene, however, testified that defendant had told her before the incident at Bruff’s that approximately a month earlier Murray had threatened to kill him. She also testified that defendant did not have a reputation in the community for carrying a gun but that Murray did. Alexander testified that Murray has a reputation for carrying a gun and that the reputation is deserved. He said that it is a rare occasion when Murray does not carry a gun.
.Even viewed in the light most favorable to defendant, evidence which would support a reasonable belief that deadly force was necessary to defend himself against Murray’s imminent use of unlawful force is missing. There was no evidence that Murray verbally threatened to seriously harm defendant, nor was there any evidence that Murray might be inclined to or able to make good on such a threat. There was no evidence that Murray was armed or displayed a weapon. There was no evidence that- Murray did more than strike one blow against defendant with his hand. There -is evidence that Nicole was positioned between defendant and Murray when Murray struck at defendant, but there is absolutely no evidence that defendant’s reaction was an attempt to defend her against Murray’s imminent use of unlawful force.
We conclude that the district court’s determination that the evidence did not support a finding that defendant’s belief that shooting at Murray was necessary to defend himself against Murray’s imminent use of unlawful force is correct.. There is no error, therefore, m the district court’s refusal, to -instruct the jury on self-defense.
Defendant next argues that there was insufficient evidence to support the conviction of carrying a concealed weapon. He asserts that the only evidence on the charge of carrying a concealed firearm “was that nobody saw a gun on [defendant] earlier in the evening.” He contends that this evidence would not allow a rational factfinder to find him guilty beyond a reasonable doubt. The State reminds the court that in its consideration of this question, all evidence must be taken in the light most favorable to die prosecution. See State v. Tucker, 253 Kan. 38, Syl. ¶ 3, 853 P.2d 17 (1993).
Although the State concedes that no one testified at trial that he or she actually saw defendant pull the gun from beneath his clothing, Murray did testify tiiat defendant “[rjeached into his pants” and “[p]ulled out a gun.” Furthermore, as the State contends, there is plenty of evidence from which it reasonably may be inferred that he did so. First, no one testified that they saw defendant with a gun before he pulled it on Murray. Several witnesses expressly denied seeing a gun before the shooting incident. Faylene testified that, when she saw defendant on the dance floor before the shooting, she did not see a gun on him. Cindy Grant testified that she did not see the gun before she saw it in defendant’s hand. She also testified, however, that she did not see him produce it. Officer Heffron testified that she told him that defendant “[r]eached in the front of his pants and pulled out a gun.” When considered in the light most favorable to the prosecution, the evidence seems more than sufficient to convince a rational factfinder beyond a reasonable doubt that the charge of carrying a concealed firearm had been proved against defendant.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Abbott, J.:
This is a consolidated appeal. All three offenders pled guilty or nolo contendere to their respective crimes. The offenders were convicted and sentenced prior to July 1, 1993, the effective date of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 1994 Supp. 21-4701 etseq. This case concerns the offenders’ eligibility for retroactive application of the KSGA, which would result in less severe sentences for the offenders. The offenders’ eligibility for sentence conversion is determined by the severity level of their crimes. However, the crimes with the specific elements which the offenders were convicted of no longer exist. These crimes were repealed on the day the KSGA became effective, and new crimes covering sexual assaults became effective on that date. Thus, it was necessary for the Kansas Department of Corrections (KDOC) to convert the offenders’ pre-guidelines crimes to guidelines crimes in order to determine the severity level of the crime under the guidelines. See K.S.A. 1994 Supp. 21-4724. Each of the offenders committed sexual crimes, and the severity level of the crimes under the KSGA depends upon the age of the victims at the time the crimes were committed.
To determine the age of the victims at the time the crimes were committed, KDOC relied on original complaints, amended infor-mations, county/district attorney reports, affidavits of victims’ parents, and presentence investigation (PSI) reports. After determining the ages of the victims, KDOC notified each of the offenders that their pre-guidelines criminal behavior had been converted to a guidelines crime with a severity level of 3. An offender whose crime severity level is 3 is not eligible for retroactive application of the KSGA.
To challenge this determination, each offender brought a K.S.A. 60-1501 action in the district court of Leavenworth County, which is the county in which they were incarcerated, not the county in which they were convicted. The trial court held that KDOC had violated the offenders’ constitutional rights by using documents which, in the court’s opinion, had not been subject to due process in determining the offenders’ crime severity level and disqualifying the offenders from retroactive application of the KSGA. The State appeals.
Appellee Larry Farris pled nolo contendere to two counts of aggravated sexual battery. The dates of birth of the victims were clearly stated in the information. Prior to the effective date of the KSGA, aggravated sexual batteiy required that the victim be less than 16 years of age.
The KDOC admittedly made a mistake and sent Farris a notification that he was not eligible for retroactivity because his pre-guidelines offense corresponded to a guidelines offense of rape, in violation of K.S.A. 1994 Supp. 21-3502. In the trial court, the State conceded that the notice was in error and that it should have stated Farris’ pre-guidelines criminal behavior was converted to the guidelines crime of aggravated indecent liberties with a child, in violation of K.S.A. 1994 Supp. 21-3504(a)(3). Aggravated indecent liberties with a child is a severity level 3 crime under the guidelines, thereby making Farris ineligible for retroactive application of the KSGA..
K.S.A. 1994 Supp. 21-3504(a)(3) requires that the victim be under 14 years of age. Unquestionably, the records show that the victims were under 14 years of age, and one of the children may have been as young as 4. Farris, in the record before us, including oral argument, has never contended that the victims were over the statutory age.
Appellee William Meier entered a plea of nolo contendere to two counts of aggravated incest. At that time, the age of the victim was not an element of the crime, but the date of birth of the victim was clearly stated in the information. The KDOC sent Meier a notification letter stating that his pre-guidelines offense corresponded to a guidelines offense in violation of K.S.A. 1994 Supp. 21-3504(a)(3), aggravated indecent liberties with a child, which has a severity level of 3. Thus, the KDOC found the offender’s crime made him ineligible for retroactive application of the KSGA. Aggravated indecent liberties with a child is lewd fondling or touching of a child who is under 14 years of age with intent to satisfy sexual desires. The KDOC relied on information provided in the original complaint, the amended information, the county/district attorney report to the Secretary of Corrections, affidavits of the victim’s parents, and PSI reports to show the victim’s age and that the offender lewdly touched the victim with the intent to satisfy sexual desires. Again, the offender never challenged the age of the victim or contended that he did not touch the victim with the intent to satisfy sexual desires. Although there is a period of time alleged in the information in which the offenses might have occurred after the victim had turned 14, there is also clear evidence that some of the offenses occurred prior to the victim turning 14.
Appellee Robert Dawson pled guilty to aggravated incest in violation of K.S.A. 21-3603. The KDOC sent Dawson a notification letter that his pre-guidelines offense corresponded with a guidelines offense of K.S.A. 1994 Supp. 21-3504, aggravated indecent liberties with a child, which has a severity level of 3. Thus, Dawson was ineligible for retroactive application of the KSGA.
The KDOC relied on affidavits of the victim’s parents and PSI reports to establish that the victim was under 14 years of age and that the offender possessed the necessary intent. The offender never challenged the age of the victim.
The trial court found that the KDOC relied on various “unsubstantiated documents which contain opinions and statements that were never made findings of fact by a court of law” in order to establish the elements of K.S.A. 1994 Supp. 21-3504. The trial court did not determine that the offenders were eligible for ret-roactivity, nor did it order the release of the offenders. The trial court simply remanded the case to the KDOC so that it could reevaluate tire offenders’ eligibility for retroactivity without using documents which the court felt had not been subject to due process.
This is a question of statutory interpretation and, thus, a question of law. The trial court’s interpretation of the statute being a question of law, this court’s scope of review is unlimited. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
We believe this case is governed by State v. Fierro, 257 Kan. 639, 895 P.2d 186 (1995). Fierro involved an offender who, prior to the effective date of the sentencing guidelines, pled nolo con-tendere to six counts of attempted indecent liberties with, a. child, contrary to K.S.A. 1992 Supp. 21-3503 and K.S.A. 1992 Supp. 21-3301. However, Fierro was not sentenced until after July 1, 1993,. when the KSGA became effective. By the time Fierro was sentenced, the elements of the crime which he was. convicted of had been amended. Pursuant to K.S.A. 1993 Supp. 21-4724(£),.the trial court computed both a pre-guidelines sentence and a guidelines sentence. ■ ; - ■
In order to compute a guidelines sentence, it was necessary for the trial court to convert the offender’s , pre-guidelines offense to á comparable guidelines offense, -In Fierro, this court analyzed how the trial court should convert the offénder’s pre-guidelines crime.. 257 Kan. at 648. Fierro points out that the same procedure used by the trial court when it converts a crime should also be us.ed by KDOC when it converts a crime of an.- offender, who was.- both convicted and sentenced prior to-July 1, 1993. As Fierro, states.
“We concentrate on the rules governing offenders who-committed crimes before July 1, -1993, but were not sentenced until after'July 1, ' 1993, although the •same rules would apply to persons sentenced before July 1, 1993, if the Statutory ..elements of the crime or crimes they, committed.cihanged on or before July 1,1993.” (Emphasis added.) 257 Kan. at 640;
“The reasoning of this appeal applies to all those crimes amended effective July 1,1993, plus any crimes amended after a prisoner commenced serving á sérítence, whether the amendment occurred before or after July 1,1993; They are countless and involve a large number of prisoners.” 257 Kan. at 649.
In Fierro, this court explained how pre-guidelines crimes .are.tp be converted to comparable guidelines crimes in order to. determine an offender’s severity level and eligibility for retroactivity. This rule is quoted below:
“The legislature clearly intended that the defendant’s sentence be modified by comparison with the sentencing guidelines as if the ‘crime’ had been committed on or after July 1,1993. In converting a sentence, the legislature intended that the Department of Corrections use records available to it.to determine what the defendant did when the crime was committed and'convert that crime to an analogous crime existing after July 1, 1993. This is reflected throughout the sentencing guidelines. See, for example, K.S.A. 1993 Supp. 21-4707(b), (c)(1), and.K.S.A. 1993 Supp. 21-4711(e).
“Here, Fierro pleaded guilty to crimes involving victims whose ages are not in dispute. The legislature has expressed great concern for criminal acts directed at young children as demonstrated by the number of new crimes involving sexual acts committed on minors and by increasing penalties for these crimes.
“We hold the legislature intended that the trial court compute the sentence under the sentencing guidelines by looking at actual conduct and by applying the actual acts committed to the comparable crime in effect after July 1,1993.” (Emphasis added.) 257 Kan. at 650-51.
Fierro clarifies that KDOC may use all records which it has access to in order to determine die precise nature of die offender’s pre-guidelines criminal behavior and to determine which guidelines crime is most analogous to the pre-guidelines behavior.
The appellees attempt to distinguish themselves from Fierro. In Fierro, the offender was convicted before July 1,1993, but was not sentenced until after July 1, 1993. At Fierro’s initial sentencing, the sentencing court, not KDOC, converted Fierro’s crime to a guidelines crime by referring to verified facts which had been subjected to due process safeguards while the defendant was represented by counsel. Appellees contend that they were not provided the same protection which Fierro received. In the appellees’ ret-roactivity determinations, KDOC, not a sentencing court, acted as a factfinder and utilized unverified information which had never been determined by a trial court to be factual under a reasonable doubt standard. The appellees argue that a sentencing court, as in Fierro, is in a better position than KDOC to evaluate the actual conduct of the offender. Furthermore, the appellees contend that when the trial court determined Fierro’s sentence, it computed his sentence “as the law existed prior to July 1, 1993,” pursuant to K.S.A. 1994 Supp. 21-4724(f). On the other hand, the appellees contend that their crimes were converted as if they had committed a new crime which became effective after July 1, 1993. Thus, they contend that their crimes were improperly converted because they were not converted “as the law existed prior to July 1, 1993.”
The appellees are mistaken in their arguments. They misunderstand the purpose of K.S.A. 1994 Supp. 21-4724(f). K.S.A. 1994 Supp. 21-4724(f) requires the sentencing court to calculate both a pre-guidelines sentence and a guidelines sentence at the initial sen tencing of an offender who is convicted of a crime prior to July 1, 1993, but is not sentenced until after July 1, 1993. In Fierro, the offender was convicted of a crime prior to July 1, 1993, and thus was sentenced under the law which was in effect at such time. However, the trial court also calculated the offender’s sentence under the guidelines as if the offender had committed the crime after July 1,1993, in order to determine if the offender was eligible for retroactivity under the KSGA. Thus, under K.S.A. 1993 Supp. 21-4724(f), the trial court calculated both the sentences at the same time simply to expedite the sentencing process and to “enable the trial court to resolve the guidelines issue while facts were fresh and readily available to both the offender and the prosecutor and to prevent subsequent appeals to the trial court should the [offender] or the prosecutor disagree with the Department of Corrections’ calculations on conversions.” 257 Kan. at 649. The legislature required the sentencing court, rather than KDOC, to go ahead and convert the offender’s crime at the initial sentencing and determine the offender’s eligibility for retroactivity for mere convenience sake. However, K.S.A. 1993 Supp. 21-4724(f), as used in Fierro, does not indicate that all crime conversions should be made by a sentencing court. 257 Kan. at 649-50. In fact, the KSGA specifically allows KDOC to make such retroactivity determinations. See K.S.A. 1994 Supp. 21-4724(b)(1), (c)(1). Moreover, Fierro specifically states that its holding, regarding documents which may be used to convert a crime, applies beyond the precise facts of the case. 257 Kan. at 649-50.
Thus, the case at issue and Fierro are not distinguishable. KDOC properly used records available to it to convert the offenders’ pre-guidelines criminal behavior into corresponding guidelines crimes which have severity levels of 3, thereby making the offenders ineligible for retroactivity. If the offenders object to the crime which KDOC converted them to, because KDOC relied upon documents with incorrect information, then the offenders have every right to contest the conversion in their respective sentencing courts under K.S.A. 1994 Supp. 21-4724(d)(1) or K.S.A. 60-1507. See State v. Randall, 257 Kan. 482, 486, 894 P.2d 196 (1995).
The appellees contend that they did not have an opportunity to contest KDOC’s recommendations in the sentencing court directly under K.S.A. 1994 Supp. 21-4724(c)(1). The appellees point out that their conversion crimes had a severity level of 3; thus, they only received a notification of findings from KDOC,- not a sentencing guidelines report. See K.S.A. 1994 Supp. 21-4724(d). The appellees contend that they'did not have standing to challenge KDOC’s recommendation in the sentencing court because they did not have a sentencing guidelines report. Moreover, Dawson asserts that even if the appellees could bring a direct action in the sentencing court, the 30-day time limitation ran out before they were ablé to file the motion. Presumably, the appéllees also thought they could not bring a K.S.A. 60-1507 action in the sentencing court because they had not directly challenged KDOC’s recommendation in the sentencing court first. According to the appellees, the only opportunity to challenge their notification of findings was to bring a K.S.A. 60-1501 action in the district court in the county of incarceration. Randall núllifies these arguments. ' ■ ’’
Randall holds that an offender may contest a notification of findings in the sentencing court pursuant to K.S.A. 60-1507 or “[m]islabeled pro se motions for sentence conversion under 21-4724(d) may be properly viewed as 60-1507 motions.” 257 Kan. at 486. Thiis, the appellees could have and still may contest KDOC’s recommendation and the facts it relied upon in the sentencing court under K.S.A. 60-1507. The offenders may request their sentencing courts to correct their sentences at any time under K.S.A. 60-1507 if the sentences are illegal even without a prior direct appeal pursuant to 21-4724. A sentence is illegal if KDOC has failed to retroactively apply the sentencing guidelines based upon incorrect information and documents which it relied upon. See Carmichael v. State, 255 Kan. 10, 16, 872 P.2d 240 (1994). Thus, the State contends that the district court ruling should be reversed and KDOC should be able to rely on all records available to it. If KDOC bases its retroactivity determination on incorrect information, the offender should challenge the determination and the information relied upon in the sentencing court.
The State contends that KDOC’s use of all records available to it in making retroactivity determinations does not violate the offenders’ right to due process. After all, the offenders have already been afforded due process because they “have been convicted and lawfully sentenced to indeterminate sentences.” As Fierro states:
“It is important to remember the trial court [or KDOC] at this stage is not dealing with guilt or innocence of a defendant. The defendant has been convicted and sentenced for the crime in effect when the defendant committed the crime. The issue before the court is whether the defendant will have a sentence reduction based on the severity level set by the legislature for crimes in effect on or after July 1, 1993.” 257 Kan. at 651.
The Kansas Constitution does not require that the more lenient criminal sentences provided under the KSGA be applied retroactively. The legislature’s grant of such retroactivity is an act of grace. See 257 Kan. at 649. As such, the retroactivity may be accompanied by any limiting procedure which the legislature provides, such as allowing the use of all documents available to KDOC when it determines an offender’s eligibility for retroactivity. The State then points to two other circumstances in which the State’s power to reduce an offender’s sentence is restricted by limitations which do not violate an offender’s due process rights — the Governor’s pardon and the Secretary of Corrections’ right to recommend a reduction of a criminal penalty. K.S.A. 1994 Supp. 22-3701; K.S.A. 22-3702; K.S.A. 22-3703; K.S.A. 22-3705; Goddard v. Kansas Dept. of Corrections, 16 Kan. App. 2d 408, 413-18, 824 P.2d 991 (1992). The fact that KDOC, in making a retroactivity determination, may use documents which the offender has not had an opportunity to defend against does not violate due process. If the offender disagrees with the retroactivity determination due to KDOC’s reliance on incorrect information, the offender may seek relief in the sentencing court. K.S.A. 1994 Supp. 21-4724(d); K.S.A. 60-1507.
The appellees also contend that when KDOC relies on documents which an offender has not specifically pleaded guilty to, then KDOC, an executive agency, is acting as a judicial trier of fact in violation of the separation of powers doctrine. According to Dawson, once a conviction has been reached through a plea, the evi-dentiary process is complete. Thus, the only facts which the KDOC should be able to use in a retroactivity determination are those which were specifically admitted to by the offender in the plea and accepted by the court. However, the State counters that the legislature has the power to create an “intermediate administrative procedure” in which KDOC relies on all records it has access to in order to ascertain the appropriate offense severity level of the offender’s behavior. According to the State, the legislature created this procedure as a means to promote judicial economy in that if KDOC’s retroactivity determination is uncontested, the need for further judicial proceedings in the sentencing court is avoided. KDOC’s conversion procedure does not allow KDOC to act as a ‘ trier of fact and to arbitrarily and unilaterally accept as true unverified information found in documents which have not been subject to due process. Rather, KDOC’s job is simply to collect ún-contested information in order to determine what the “actual conduct ” of the offender was. See Fierro, 257 Kan. at 650-51. If the information relied upon by KDOC turns out to be contested and the offender disagrees with KDOC’s retroactivity determination, then the offender has every right to challenge the determination to a true trier of fact — the sentencing court. K.S.A. 1994 Supp. 21-4724(d); K.S.A. 60-1507; see State v. Randall, 257 Kan. at 486; Carmichael v. State, 225 Kan. at 16.
Under K.S.A. 1994 Supp. 21-4724(c)(2), the legislature specifically allows KDOC to consult all the records available when determining criminal history for retroactivity purposes. K.S.A. 1994 Supp. 21-4724(c)(2) states.
“In determining the criminal history classification, the department of corrections shall conduct a reasonable search of the inmate’s file and available presentence report, and make a reasonable inquiry of the Kansas bureau of investigation and the federal bureau of investigation, for other records of criminal or juvenile convictions which would affect the criminal history classification.”
In Fierro, 257 Kan. at 650, this court supports its holding by specifically pointing out that the legislature allows KDOC to rely on all records available to determine an offender’s criminal history. This court treats crime severity and criminal history analogously. Thus, it makes -sense that if KDOC can use a broad range of doc uments to determine criminal history, then it should also be able to use a broad range of documents to determine crime severity.
However, the appellees point out that when KDOC determines an offender s criminal history for retroactivity purposes, the “[p]rior convictions of a crime defined by a statute which has since been repealed shall be scored using the classification assigned at the time of such conviction.” K.S.A. 1994 Supp. 21-4710a(d)(9). The appellees contend that if criminal history and crime severity are to be treated analogously, then an offender’s crime severity determination for a crime which has been repealed should be scored using the classification assigned at the time of the convictions. The appellees reason that the statutory classification number of the crime they were convicted of should dictate their crime severity level, not a completely different crime which contains elements different from those which the offenders were originally found guilty of. We disagree.
While criminal history and crime severity are treated analogously, there is still a distinction between the two. When converting a crime to determine crime severity for retroactivity purposes, KDOC and/or the sentencing court have access to all the documents concerning the offender’s conviction for that particular crime. Thus, KDOC or the sentencing court will be able to look back at these documents and this particular crime to determine the offender’s “actual conduct and [apply] the actual acts committed to the comparable crime in effect after July 1, 1993.” Fierro, 257 Kan. at 651. The legislature also wanted KDOC to use whatever documents it had access to in order to determine an offender’s criminal history. K.S.A. 1994 Supp. 21-4724(c)(2). However, the legislature realized that much of an offender’s criminal history may have occurred years ago in different counties and states. Thus, KDOC and/or the sentencing court may not have all of the documents on hand concerning an offender’s prior crimes. Consequently, it would be impossible for KDOC or a sentencing court to look back at all of an offender’s prior crimes and determine the “actual acts committed.” Hence, for mere convenience sake, the legislature decided that KDOC and/or the sentencing court should not have to determine what actually occurred in an offender’s crim inal history. All KDOC or the sentencing court has to do is look at verified convictions ánd convert those convictions to currently existing crimes with the same classification number. On the other hand, it is possible for KDOC and/or the sentencing court to look back at the one crime at issue for which the offender desires to be converted and determine what actually occurred. Thus, the crime should be converted to the most comparable guidelines crime and not simply converted to the guidelines crime based on the same classification number as the crime which the offender was initially convicted of or based only on tire facts which the offender specifically admitted.
Finally, according to Meier, even if this court allows KDOC to use all records available to it in a retroactivity détermination and the offender contests KDOC’s determination in the sentencing court, such challenge would be a nullity unless KDOC could prove beyond a reasonable doubt the facts it relied upon to convert the offender’s crime. Meier is incorrect. It is not necessary for sentencing factors to be proven beyond a reasonable doubt. “Facts” established for use in sentencing require less evidentiary weight than facts asserted for conviction. See McMillan v. Pennsylvania, 477 U.S. 79, 91-92, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986) (rea-sdning that the states may prescribe a burden of proof lower than beyond a reasonable doubt for sentencing factors).
In further support of the State’s argument, Fierro specifically affirms State v. Colston, 20 Kan. App. 2d 107, 883 P.2d 1231 (1994). 257 Kan. at 651. In Colston, the offender pled no contest to aggravated incest with a child. KDOC converted Colston’s pre-guidelines criminal behavior to the guidelines crime of aggravated incest, which has a severity level of 5. The State objected to KDOC’s determination, contending that by reference to tire charging instrument, plea transcript, trial transcript, and other documentation, Colston’s criminal activity should be converted to the guidelines. offense of aggravated criminal sodomy in violation of K.S.A. 1993 Supp. 21-3506, which has a severity level of 2. The Court of Appeals stated:
“We agree' with the State’s argument and conclude that the legislative intent of K.S.A. 1993 Supp. 21-4724(c)(1) is to look to the criminal acts committed prior to July 1, 1993, for which the defendant was convicted and then determine what crime those acts would constitute after July 1,1993, and the appropriate severity level.
“In this case, Colston pled nolo contendere, was found guilty, and was convicted of acts described in the amended information which, at the time of his plea, constituted the elements of aggravated incest contrary to K.S.A. 21-3603, but which acts constitute the elements of aggravated criminal sodomy after July 1, 1993, contrary to K.S.A. 1993 Supp. 21-3506.
“. . . Therefore, it was proper for the DOC and sentencing court to look to the well-pleaded facts of the information and to the journal entries to determine Colston’s post-guidelines crime of conviction.” 20 Kan. App. 2d at 112-15.
Meier attempts to distinguish Colston with three arguments. First, Meier points out that the offender’s behavior in Colston was converted to a severity level 5 crime; thus, both the offender and the sentencing court received guidelines reports concerning his eligibility for retroactivity. This is an irrelevant distinction. Meier may contest his notification of findings in the sentencing court just as Colston could have a contested the guidelines report in the sentencing court. See State v. Randall, 257 Kan. at 486.
Secondly, Meier asserts that there was no question in Colston, as there is here, that Colston pled guilty to each of the elements in his converted guidelines offense. Meier concedes that if he had been charged after July 1, 1993, he may have been charged with the crime which KDOC now wishes to convert his crime to, K.S.A. 1994 Supp. 21-3504(a)(3)(A). However, Meier points out that had he pleaded to the crime of 21-3504(a)(3)(A) in the same manner that he pleaded to the crime of which he was actually convicted, it would have been constitutionally impermissible for the sentencing court to accept his plea and find him guilty of violating 21-3504(a)(3)(A). Meier’s nolo plea to the 21-3603 charge was only an admission that the State would be able to prove beyond a reasonable doubt that the victim was under 18 when the offense occurred. This was the only age element which was important at the time. The crime which KDOC contends that the offender committed, 21-3504(a)(3), aggravated indecent liberties with a child, requires that the victim be under age 14. Meier contends that KDOC could not have determined the victim was under 14 at the time of the offense simply from the charging document and the date of birth of the victim.
Meier is incorrect. As Colston point out, when an offender enters a plea of nolo contendere, as Meier did, then the offender admits to all of the well-pleaded facts of the information for purposes of the case. 20 Kan. App. 2d at 114 (citing Lott v. United States, 367 U.S. 421, 426, 6 L. Ed. 2d 940, 81 S. Ct. 1563 [1961]; Lill v. State, 4 Kan. App. 2d 40, 42, 602 P.2d 129 [1979]). Meier’s well-pleaded information contained the date of birth of the victim and the dates between which the offenses occurred. Thus, Meier admitted to committing the offenses during a time in which the victim was under 14 years of age. KDOC may rely on this document and Meier’s accompanying admission to determine the actual criminal conduct which occurred and may convert Meier’s crime to a guidelines crime which contains as an element that the victim be under 14 years of age. If Meier contests this conversion because the victim was not actually under 14 years of age when the offense occurred, then Meier may bring a challenge in the sentencing court. K.S.A. 1994 Supp. 21-4724; K.S.A. 60-1507.
Meier makes a third attempt to distinguish his situation from the Colston case. Meier contends that, when KDOC converted the offender’s pre-guidelines crime in the Colston case, KDOC did not have various guidelines conversion crimes to choose from as it did in Meier’s case. Meier contends that KDOC could have converted his pre-guidelines crime to several different guidelines crimes, some of which would have resulted in retroactivity and some of which would not result in retroactivity. For instance, according to Meier, KDOC could have converted his criminal behavior to K.S.A. 1994 Supp. 21-3503(a)(1), indecent liberties with a child (requiring the victim to be between the ages of 14 and 16), which is a severity level 5 crime, or K.S.A. 1994 Supp. 21-3504(a)(2)(a), aggravated indecent liberties with a child (requiring the victim be between the ages of 14 and 16), which is a severity level 4 crime. Meier does not understand why KDOC automatically chose to convert his behavior to a guidelines crime which would result in a lower severity level so as to prevent retroactive application of the guidelines to him.
The fact that KDOC had more than one guidelines crime which it could have converted Meier’s crime to is not a reason to distinguish this case from Colston. Since the legislature gave KDOC the power to convert an offender’s pre-guidelines crime to a guidelines crime as “if the crime were committed on or after July 1, 1993,” then the legislature also gave KDOC the power to determine among several choices which conversion crime is the most comparable to of the offender’s pre-guidelines behavior. K.S.A. 1994 Supp. 21-4724(c)(1). This appears to be the intent of the legislature in all crime severity determinations. See K.S.A. 1994 Supp. 21-4707(a) (“If a person is convicted of two or more crimes, then the severity level shall be determined by the most severe crime of conviction.”); K.S.A. 1994 Supp. 21-4707(b) (“When the statutory definition of a crime includes a broad range of criminal conduct, the crime may be subclassified factually in more than one crime category to capture the full range of criminal conduct covered by the crime.”). Apparently, KDOC found Meier’s pre-guidelines behavior most analogous to the guidelines crime of aggravated indecent liberties with a child, K.S.A. 1994 Supp. 21-3504(a)(3). Again, if KDOC is mistaken as to which guidelines crime is most analogous to the offender’s pre-guidelines crime, the offender may challenge this determination in the sentencing court.
Instead of looking to the Colston case, Meier and Dawson suggest that this court look to State v. King, No. 71,448, unpublished Court of Appeals opinion filed December 16,1994, as an analogous case. The parties improperly cite to an unpublished opinion, and it will not be considered. See Supreme Court Rule 7.04 (1995 Kan. Ct. R. Annot. 40).
We conclude by pointing to Fierro, which specifically states that “[i]n converting a sentence, the legislature intended that the Department of Corrections use records available to it to determine what the defendant did when the crime was committed and convert that crime to an analogous crime existing after July 1, 1993.” 257 Kan. at 650. As such, KDOC properly relied upon the Farris and Meier charging documents to prove the victims were under 14 years of age at the time of the offenses. However, Fierro did not limit the records which may be used by KDOC to the charging document. Thus, KDOC also properly relied on the county/district attorney report to prove that Meier lewdly touched the victim with the intent to satisfy sexual desires. Furthermore, KDOC properly used Dawson’s PSI report to determine that the victims were under 14 years of age at the time of the offenses. In converting a defendant’s sentence, KDOC is authorized to rely upon all documents available to it, including, but not limited to, die complaint, the amended information, county/district attorney reports, affidavits of victims’ parents, and the PSI reports.
The trial court is reversed and the case is remanded to the trial court to enter an order denying the K.S.A. 60-1501 motions in each of the three cases.
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The opinion of the court was delivered by
Lockett, j.:
Plaintiff employer and defendant employee, both dermatologists, entered into an employment contract which included a covenant not to compete should the employment cease for any reason. Employee appeals the trial court’s enforcement of the noncompetition covenant, claiming that the noncompetition covenant is unenforceable as violative of public policy and that the trial court erred in calculating the liquidated damages of the non-competition covenant. The appeal was transferred to this court pursuant to K.S.A. 20-3017.
Dr. Wallace M. Weber, a physician board certified in the field of dermatology doing business as Heartland Dermatology Center, has practiced in Hays, Great Bend, and Smith Center, Kansas since 1977. Prior to 1992, Dr. Weber was the only dermatologist practicing in northwest or north central Kansas. The next closest dermatologists were located in Salina and Hutchinson.
In 1991 Dr. Weber recruited Dr. Donald K. Tillman to join his practice. Dr. Tillman, a doctor of osteopathic medicine who is now board certified in the field of dermatology, was completing his pre-ceptorship (similar to a residency) in Florida. They entered into an employment contract on September 9, 1991, and Dr. Tillman began practicing with Dr. Weber in July 1992. The contract was prepared for Dr. Weber by a Pennsylvania company. Neither party participated in drafting the contract.
The employment contract provided that the employment was “at will” and could be terminated by either Dr. Tillman or Dr. Weber upon 60 days’ written notice. The contract also included a noncompetition covenant. Although the employment contract is not included in the record on appeal, the noncompetition clause was detailed by the trial court in its journal entry:
“c. Paragraph No. 10. Restrictive Covenant: While you are an employee, and for a period of two (2) years after your employment ends (for any reason), you will not render any medical services on behalf of yourself or any business or entity engaged in providing professional dermatology services within a thirty (30) mile radius of any office or place of business of the practice at the time your employment ends. This promise includes your not practicing at any hospital within the area described.
“You agree that this restriction applies if your employment ends at any time and for any reason, until and unless a succeeding written agreement no longer contains this restriction. Alternatively, you may elect to practice medicine in the aforementioned area upon payment of an amount equal to six months salary and bonus.”
Dr. Weber’s practice is (and was when Dr. Tillman’s employment terminated) in Hays, Great Bend, and Smith Center, so the 30-mile radius referred to in the noncompetition covenant is 30 miles surrounding those cities. The covenant requires Dr. Tillman to refrain from practicing within that territory or, alternatively, he may practice in those areas upon payment to Dr. Weber of an amount equal to 6 months’ salary and bonus.
In his first year with Dr. Weber, Dr. Tillman earned $120,000 annually plus a bonus calculated every 6 months. The bonus was based on Dr. Tillman’s productivity and was determined according to a specified formula. For the first 6 months, Dr. Weber’s accountant calculated Dr. Tillman’s bonus to be $2,242.29. When Dr. Tillman disputed the calculation, Dr. Weber paid Dr. Tillman an additional $10,000, which the parties treated as a gift but which was shown as income for tax purposes. Dr. Tillman’s bonus the second 6-month period was approximately $20,000. His second year of employment, Dr. Tillman’s annual salary increased to $144,000 plus the bonus. For the third 6-month period Dr. Tillman received a bonus of $14,000.
On January 2, 1994, Dr. Tillman informed Dr. Weber that he was terminating his employment. Dr. Tillman continued to work for Heartland Dermatology until March 18, 1994, by agreement with Dr. Weber. Dr. Tillman was aware that the restrictive covenant would be effective when he left the employment of Heartland Dermatology Center. Nevertheless, upon leaving Dr. Weber’s employment, Dr. Tillman immediately commenced to practice dermatology in Hays in violation of the restrictive covenant. Dr. Tillman did not pay liquidated damages under the alternative provision of the restrictive covenant.
Dr. Weber initiated this action to enjoin Dr. Tillman from practicing dermatology in the restricted areas or, alternatively, to require him to pay liquidated damages under the contract. Although there was testimony concerning Dr. Tillman’s reasons for leaving the practice, the trial court found that the reasons were irrelevant because the employment could be terminated by either party for any reason.
At trial, Dr. Weber’s accountant, using what the trial court found to be generally accepted accounting principles, determined the amount of 6 months’ salary and bonus to be $82,226.32. The accountant testified that this amount was calculated by adding Dr. Tillman’s bonuses, including the $10,000 paid when Dr. Tillman disputed the first 6-month bonus, over the 1 V2 years of employment to determine the 6-month average of the bonuses plus Dr. Tillman’s salary for the last 6 months of his employment ($144,000 annually).
Dr. Tillman’s position at trial and on appeal is that the restrictive covenant is unenforceable as against public policy. He argues that the covenant is unenforceable and against public policy because (1) it is difficult to recruit new doctors to rural areas, (2) the dermatology needs of patients in northwest Kansas would be under-served if only Dr. Weber were practicing in those areas, and (3) Dr. Weber would hold a monopoly if he were the only practicing dermatologist in those areas. Dr. Tillman presented the testimony of Beth Bowerman, the Director of Medical Recruitment of Hays Medical Center, concerning the difficulty of recruiting new doctors to rural areas. She testified that using the most conservative model of evaluation, northwest Kansas needs three dermatologists and that the ability to serve those needs would be in jeopardy if Dr. Tillman were enjoined from practicing in Hays.
The trial court found that Bowerman’s testimony concerning the difficulty in recruiting new doctors to rural areas had no probative value in determining the effect of the restrictive covenant in the Dr. Weber-Dr. Tillman contract. The trial court concluded that the covenant not to compete was reasonable and enforceable and not against public policy. The court noted that the restrictive covenant is silent as to which 6-month period should be used to calculate the liquidated damages and as to the method of payment but found that a reasonable construction of the contract was a lump sum payment equal to the last 6 months of employment, plus all bonuses paid. The court granted a permanent injunction for a period of 2 years or, alternatively, ordered that Dr. Tillman pay Dr. Weber the sum of $82,226.32 within 10 days. Dr. Tillman timely appealed, and the appeal was transferred to this court on Dr. Tillman’s motion.
PUBLIC POLICY
The primary dispute in this appeal is whether the restrictive covenant is contrary to public policy and therefore unenforceable. The parties disagree as to this court’s standard of review. Dr. Tillman asserts that the question of enforceability is a matter of law over which this court’s review is unlimited. Dr. Weber, conversely, asserts that the trial court made a finding of fact that the restrictive covenant does not contravene public policy. As authority for his position, he cites Eastern Distributing Co., Inc. v. Flynn, 222 Kan. 666, 673, 567 P.2d 1371 (1977), where this court stated: ‘While the ultimate determination whether a legitimate interest subject to protection is shown may be a matter of law, the underlying facts are to be determined by the trial court after hearing the testimony presented.”
Dr. Weber stresses that this court’s review of findings of fact made by a trial court is limited to whether the findings are supported by substantial competent evidence, drawing all inferences in favor of the trial court’s findings, and that this court cannot set aside findings of fact unless clearly erroneous.
Although Dr. Weber is correct in his statements of our scope of review of findings of fact, the ultimate question whether a restrictive covenant is contrary to public policy is a question of law, and an appellate court’s review of that question is unlimited.
A noncompetition covenant ancillary to an employment contract is valid and enforceable if the restraint is reasonable under the circumstances and not adverse to the public welfare. Eastern Distributing, 222 Kan. at 670; see Puritan-Bennett Corp. v. Richter, 235 Kan. 251, 254, 679 P.2d 206 (1984); H & R Block, Inc. v. Lovelace, 208 Kan. 538, 543-44, 493 P.2d 205 (1972); EVCO Distributing, Inc. v. Brandau, 6 Kan. App. 2d 53, 58, 626 P.2d 1192, rev. denied 230 Kan. 817 (1981). The rationale for enforcing a noncompetition covenant is based on the freedom of contract. See Francis v. Schlotfeldt, 10 Kan. App. 2d 517, 518, 704 P.2d 381 (1985). However, it is well settled that only a legitimate business interest may be protected by a noncompetition covenant. If the sole purpose is to avoid ordinary competition, it is unreasonable and unenforceable. Eastern Distributing, 222 Kan. at 671; see EVCO Distributing, 6 Kan. App. 2d 53, Syl. ¶ 5. Additionally, noncompetition covenants included in employment contracts are strictly construed against the employer. Eastern Distributing, 222 Kan. at 671; Safelite Glass Corp v. Fuller, 15 Kan. App. 2d 351, 356-57, 807 P.2d 677, rev. denied 249 Kan. 776 (1991).
Cases evaluating noncompetition agreements between physicians have been published by Kansas appellate courts only once. In Foltz v. Struxness, 168 Kan. 714,215 P.2d 133 (1950), Dr. Foltz, a physician and surgeon with a well-established practice in Hutchinson, Kansas, recruited Dr. Struxness, a young doctor with less than 1 year’s experience following his training, to join his practice. The employment agreement entered into by the parties specified that upon termination of the agreement and the failure of the parties to agree to a partnership agreement, Struxness would not practice medicine or surgery within a radius of 100 miles from Hutchinson for a period of 10 years from the date of the agreement. The parties ultimately failed to reach a partnership agreement, though each acted in good faith. Two years after entering into the employment agreement, Struxness left Foltz’ practice and started his own. A substantial number of Foltz’ patients followed Struxness, and Foltz’ practice suffered accordingly. The trial court enforced the noncompetition agreement but reduced the territory restriction to a 5-mile radius from Hutchinson. 168 Kan. at 718-19.
In evaluating the reasonableness of the agreement, the Foltz court noted that the purpose and intent was to protect encroachment on the professional business Foltz had devoted most of his life to building. 168 Kan. at 721. Concerning the public policy, it stated:
“The instant contract is not violative of any positive statute or well-established rule of law. It is the duty of the courts to sustain the legality of contracts in whole or in part when fairly entered into, if reasonably possible to do so, rather than to seek loopholes and technical legal grounds for defeating their intended purpose. It has also been said, and we think rightly, the paramount public policy is that freedom to contract is not to be interfered with lightly. [Citation omitted.]” 168 Kan. at 721-22.
The Foltz court noted the trial court had found that Hutchinson had lost no doctors by death or retirement since the end of World War II and, further, 10 new doctors had begun practicing medicine and surgery in Hutchinson; thus, the city of Hutchinson was no more in need of doctors and surgeons than many other communities in Kansas. It found there was no attempt at a monopoly by Foltz because any other physician and surgeon was free to practice within the territory involved. The Foltz court found no reasonable basis to disturb the trial court’s finding that no public policy or public interest was affected by the restraint on Struxness’ practice of medicine and surgery. 168 Kan. at 722.
In H & R Block, 208 Kan. at 544, this court set out factors which are considered in evaluating the reasonableness of noncompetition covenants contained in employment contracts, stating:
“Although there is no rigid, absolute norm by which the reasonableness of a covenant against competition may be determined, rules evolving generally . . . are to the effect that the rights of the promisee, the promisor and the general public are to be taken into account; area and time limitations must be reasonable under the facts and circumstances of the particular case [citations omitted].”
Other jurisdictions have recognized similar factors in evaluating noncompetition covenants entered into between physicians. Phoenix Orthopaedic Surgeons v. Peairs, 164 Ariz. 54, 59, 790 P.2d 752 (Ct. App. 1989); Duffner v. Alberty, 19 Ark. App. 137, 139, 718 S.W.2d 111 (1986); Dick v. Geist, 107 Idaho 931, 933, 693 P.2d 1133 (Ct. App. 1985); Retina Services, Ltd. v. Garoon, 182 Ill. App. 3d 851, 855, 538 N.E.2d 651 (1989); Budoff, P.C. v. Jenkins, 143 App. Div. 2d 250, 252, 532 N.Y.S.2d 149 (1988); Iredell Digestive Disease Clinic v. Petrozza, 92 N.C. App. 21, 26, 373 S.E.2d 449 (1988); Gant v. Hygeia Facilities Foundation, 181 W. Va. 805, 807, 384 S.E.2d 842 (1989); Pollack v. Calimag, 157 Wis. 2d 222, 236-37, 458 N.W.2d 591 (Ct. App. 1990). See Berg, Judicial Enforcement of Covenants Not to Compete Between Physicians: Protecting Doctors’ Interests at Patients’ Expense, 45 Rutgers L. Rev. 1 (1992) for a recent review of noncompetition agreements between physicians. The analysis of whether the noncompetition clause is reasonable evaluates these factors: (1) Does the covenant protect a legitimate business interest of the employer? (2) Does the covenant create an undue burden on the employee? (3) Is the covenant injurious to the public welfare? (4) Are the time and territorial limitations contained in the covenant reasonable? The determination of reasonableness is made on the particular facts and circumstances of each case.
The trial court concluded that the noncompetition covenant was reasonable, enforceable, and not against public policy, but the court did not specifically evaluate the factors in its journal entry. Where the trial court made factual determinations, we must follow those determinations if supported by competent evidence. Where the trial court failed to make factual findings, we must presume that the trial court found all facts necessary to support its judgment because there was no objection that the findings of fact and conclusions of law were inadequate. See Galindo v. City of Coffeyville, 256 Kan. 455, 467, 885 P.2d 1246 (1994). We will review the record and address each factor, though not in the order stated.
Time and Territory Limitations
The noncompetition covenant precludes Dr. Tillman from prac ticing dermatology for 2 years within a 30-mile radius of any office or place of business of the Heartland Dermatology Center at the time Dr. Tillman’s employment ends. Dr. Tillman makes no argument on appeal, nor did he to the trial court, that these time and territory limitations are unreasonable.
The territory restriction is limited to the territory surrounding any clinic in existence at the time Dr. Tillman’s employment ended; the territory is not enlarged should Dr. Weber open a new location following the termination of Dr. Tillman’s employment. Cf Osta v. Moran, 208 Ga. App. 544, 547, 430 S.E.2d 837 (1993) (territory extended to a 50-mile radius of any office operated by the employer medical clinic and was not limited to offices in operation at the end of the employment; no matter where the physician set up practice during the period restricted, the clinic could move to within 50 miles of the physician). In Foltz, 168 Kan. 722, this court upheld a noncompetition covenant which restricted a physician’s practice for 10 years, though the original 100-mile territory was reduced to a 5-mile territory. There is no factual basis for finding that the time and territory restrictions of Dr. Tillman’s employment contract are unreasonable here.
Undue Burden on Employee
Dr. Tillman also does not argue that the noncompetition covenant creates an undue burden on him. Dr. Tillman is not restricted from pursuing his chosen profession altogether. He may practice dermatology anywhere and any time except within a limited territory and time. Moreover, the limiting covenant references “providing professional dermatology services,” which allows Dr. Tillman to practice other areas of medicine within the restricted territory. There is no undue burden on Dr. Tillman’s right to practice medicine.
For cases discussing undue burden on an employee’s clause of employment contract, see Phoenix Orthopaedic Surgeons, 164 Ariz. at 60 (physician not restricted from right to work in chosen occupation); Retina Services, 182 Ill. App. 3d at 857 (stating that Illinois Supreme Court has reasoned that there is no special hardship where the employee could practice elsewhere or resume prac ticing in the restricted area after the restricted period ended); Field Surgical Assoc., Ltd. v. Shadab, 59 Ill. App. 3d 991, 996, 376 N.E.2d 660 (1978) (no special hardship since physician can resume practice in 5-mile restricted area after 5 years and can practice anywhere else in the meantime); Lareau v. O’Nan, 355 S.W.2d 679 (Ky. 1962) (physician could practice anywhere in nation but Henderson County, Kentucky); Budoff,. 143 App. Div. 2d at 252 (no argument that covenant is unduly burdensome); Pollack, 157 Wis. 2d at 238-39 (agreement does not affect right to practice general medicine wherever and whenever physician chooses and does not affect right to continue specialty of treating chronic pain outside the restricted territoiy); Fields Foundation, Ltd. v. Christensen, 103 Wis. 2d 465, 480, 309 N.E.2d 125 (Ct. App. 1981) (covenant does not affect physician’s right to practice obstetrics and gynecology anywhere and anytime; court modified covenant to permit physician to perform second-trimester abortions where employer’s business was limited to first-trimester abortions); but see Damsey v. Mankowitz, 339 So. 2d 282, 283 (Fla. Dist. App. 1976) (unduly harsh and oppressive because the employee would have to leave the community).
Legitimate Business Interest of Employer
The next factor evaluates whether Dr. Weber has a legitimate business interest in the enforcement of the noncompetition covenant. The trial court did not specifically address this factor in its journal entry but did find the covenant reasonable; therefore, we presume the court found Dr. Weber did have a legitimate business interest to protect. The reasonableness of the time and territory restrictions is also part of the factor evaluating the legitimate business interests of the employer. The restrictions must be no greater than necessary to protect the employer’s interests. See Phoenix Orthopaedic Surgeons, 164 Ariz. at 60; Duffner, 19 Ark. App. at 139; Retina Services, 182 Ill. App. 3d at 855; Ellis v. McDaniel, 95 Nev. 455, 458, 596 P.2d 222 (1979); Gant, 181 W. Va. at 807; Fields Foundation, 103 Wis. 2d at 479.
In reviewing a noncompetition covenant between a wholesale liquor distributor ancl one of its route salesmen, this court recog nized that “customer contacts” is a legitimate interest an employer may protect. Eastern Distributing, 222 Kan. at 671. Other jurisdictions have recognized, in addition to customer contácts, that an employer has a legitimate business interest to protect in the special training of employees, trade secrets, confidential business information, loss of clients, good will, reputation, seeing that contracts with clients continue, and referral sources. See Odess v. Taylor, 282 Ala. 389, 394, 211 So. 2d 805 (1968); Duffner, 19 Ark. App. at 139-40; Frazier & Dallas v. Dettman, 212 Ill. App. 3d 139, 146, 569 N.E.2d 1382 (1991); Ellis, 95 Nev. at 458; Budoff, 143 App. Div. 2d at 252; Ippolito v. NEEMA Emergency Med. of N.Y., 127 App. Div. 2d 821, 822, 512 N.Y.S.2d 216 (1987); Gant, 181 W. Va. at 807-08; Pollack, 157 Wis. 2d at 237; Fields Foundation, 103 Wis. 2d at 471.
In Retina Services, 182 Ill. App. 3d at 855, the court first recognized that a professional’s medical practice is a protected business interest, then stated a two-part test for evaluating the employer’s legitimate interests: The employer must have a near-permanent relationship with customers, and the employee would not have come into contact with the customers were it not for his or her employment. 182 Ill. App. 3d at 856. Other courts have recognized that an employer’s relationship with customers is its most valuable asset. See Pollack, 157 Wis. 2d at 237.
Although it is agreed that preventing ordinary competition of the kind a stranger could give is not a legitimate business interest supporting a noncompetition covenant, see Eastern Distributing, 222 Kan. 666, Syl. ¶ 2; Osta v. Moran, 208 Ga. App. at 547; Hoddeson v. Conroe Ear, Etc., Assoc., 751 S.W.2d 289, 290 (Tex. App. 1988), courts have pointed out that a protected interest exists where the employee obtains an unfair competitive advantage. See Duffner, 19 Ark. App. at 139-40; Metropolitan Med. Group v. Eaton, 154 App. Div. 2d 252, 254, 546 N.Y.S.2d 90 (1989). In Fields Foundation, 103 Wis. 2d at 474, the court pointed out that the physician-employee’s identification with the employer’s goodwill made him a more formidable competitor, so the competition was unfair.
In evaluating noncompetition covenants, some courts have evaluated whether the employee solicited and took away former patients from the employer. See Duffner, 19 Ark. App. at 139-40; Budoff, 143 App. Div. 2d at 251; Gant, 181W. Va. at 807-08. Other courts have pointed out other relevant facts such as that the employee brought no patients to the association with the employer, had no connection to the community prior to or became known to the community through the employment, or had little practical experience before becoming associated with the employer. See Canfield v. Spear, 44 Ill. 2d 49, 51, 254 N.E.2d 433 (1969); Retina Services, 182 Ill. App. 3d at 858; Fields Foundation, 103 Wis. 2d at 472-73. Additionally, the Fields Foundation court mentioned the employer’s struggle in the early years of its existence as a factor to consider. 103 Wis. 2d at 472.
Dr. Weber testified that it cost approximately $150,000 plus time and effort to build his practice. Although Dr. Tillman testified that the noncompetition covenant was to recoup Dr. Weber’s investment in recruiting Dr. Tillman and setting him up in practice, Dr. Weber indicated that the covenant was designed to protect his investment of years, education, and effort in establishing his practice and the value of goodwill developed over 17 years. These are recognized protected interests. Moreover, Dr. Tillman had no connection to the community prior to his employment, and he brought with him no patients; rather, he took patients with him when he left Dr. Weber’s employment and started his own practice. Dr. Weber’s office manager testified that since Dr. Tillman’s departure, Dr. Weber has had some unfilled appointment slots. Dr. Tillman testified that 40% to 50% of his current patients were fonnerly patients of Dr. Weber’s. Dr. Tillman acknowledged that he benefited by beginning his career in an established practice rather than starting on his own.
Are the time and territory restrictions no greater than necessary for the protection of Dr. Weber’s legitimate business interests? Dr. Weber’s practice served patients from northwest and north-central Kansas. The nearest other dermatologists were located in Safina and Hutchinson, some distance away. The territory restriction of a 30-mile radius from Dr. Weber’s offices is reasonable because that is the territory from which Dr. Weber drew the majority of his patients. Further, the 2-year restriction is a reasonable period of time to obliterate in the minds of the public the identification of Dr. Tillman with Dr. Weber’s practice and for Dr. Weber to reestablish his relationship with patients referred to Dr. Tillman. See Fields Foundation, 103 Wis. 2d at 479. There is ample evidence in the record that Dr. Weber desired to protect legitimate business interests and did not merely seek to prevent ordinary competition by the inclusion of a noncompetition covenant in Dr. Tillman’s employment contract.
Injury to Public Welfare
The final factor in evaluating the reasonableness of a noncom-petition covenant is whether enforcement of the covenant is injurious to the public interest or welfare. Dr. Tillman argues that enforcing the noncompetition covenant would place the medical needs of northwest Kansas at risk. He points to the testimony of Beth Bowerman that Hays needs three dermatologists by the most conservative model of analysis. She also testified that the dermatology needs of the community would be in jeopardy if Dr. Tillman were not permitted to practice dermatology in Hays. Dr. Tillman points out that Dr. Weber admitted that Hays could support two or more dermatologists. Dr. Tillman concludes that Dr. Weber will have a monopoly if the covenant is enforced and Dr. Tillman is enjoined from practicing dermatology within the restricted area.
The trial court found that the testimony of Beth Bowerman concerning the difficulty in recruiting physicians to rural areas was irrelevant. Dr. Tillman asks us to consider her testimony not just for the general difficulty in recruiting physicians but also because it shows that Hays will have a shortage of dermatologists if he is enjoined from practicing there. Testimony by Bowerman, as well as by Dr. Tillman and even Dr. Weber, was that Hays can support two or more dermatologists. Bowerman’s testimony in this regard is relevant to the question of whether enforcement of the noncom-petition covenant here would be injurious to the public welfare. The trial court should have considered her testimony.
To support his argument, Dr. Tillman cites various cases from other jurisdictions which have held noncompetition covenants unenforceable as against public policy for various reasons. Dr. Weber distinguishes these cases and cites others supporting his position that public policy does not warrant ignoring this noncompe-tition covenant. Dr. Weber also points out that Dr. Tillman could set up a practice outside the restricted area and still serve the dermatology needs of the people of northwest Kansas.
Some cases discuss the public’s right to a choice of physicians. Other courts have focused on the shortage of physicians in general or in the employee’s particular specialty in the community.
In Duffner, 19 Ark. App. at 141, the court noted that the restrictive covenant unduly interfered with the public right of the availability of the orthopedic surgeon it prefers to use. The employee had not attempted to entice former patients to become patients of his new practice and had only requested the files of 28 patients, all of which were receiving only follow-up medical treatment. See Iredell Digestive Disease Clinic, 92 N.C. App. at 31.
In Dick, 107 Idaho 931, the trial court refused to enforce a non-competition covenant against two employees, pediatricians who specialized in neonatal care. There was testimony that without the two pediatricians, there was not a sufficient number of pediatricians to provide the necessary care in that area. Further, thé two pediatricians had played a significant role in developing a neonatal intensive care unit at the hospital. 107 Idaho at 934. The appellate court found that enjoining the pediatricians would have a very drastic impact in terms of providing care. It concluded that the welfare of the public in that community would be seriously impaired by enjoining the physicians from practicing their specialty and outweighed the public interest in enforcing the covenant. It denied the injunction. 107 Idaho at 935.
The Nevada Supreme Court considered a noncompetition covenant between a physician who specialized in orthopedic surgery and his employer, a clinic, which prohibited the physician’s practice of medicine within 5 miles of the city for 2 years. Ellis, 95 Nev. 455. The appellate court noted that fhe public has an interest in competition but also an interest in protecting the freedom to con tract. The court stated that the medical profession is not exempt from enforcement of a noncompetition covenant where the covenant is reasonable. 95 Nev. at 458. The court held, however, that a restraint on the doctor’s practice of his specialty of orthopedic surgery was beyond the scope of the employer-clinic’s legitimate protected interest because none of the doctors at the clinic were orthopedic specialists and that patients in need of orthopedic services would be forced to travel great distances at considerable risk and expense if the orthopedic specialist were enjoined from practicing in that community. The covenant was enforced to the extent it prohibited the physician from engaging in the general practice of medicine. 95 Nev. at 459-60.
In Damsey, 339 So. 2d at 283, the court recognized that there was a compelling need for the employee’s services as a surgeon in the community and that enforcing the covenant would jeopardize the public health of the community; thus, the noncompetition covenant would not be enforced by injunction.
Odess, 282 Ala. 389, involved an employee who was an otolar-yngology (ENT) specialist. Pointing out that it was common knowledge that there was an acute shortage of physicians and surgeons in Alabama, particularly specialists, and that the public in Jefferson County would suffer by the removal of a highly trained specialist from practicing his profession, the appellate court found that the trial court was justified in refusing to enjoin the employee from his practice. 282 Ala. at 394. The Odess court also found that the non-competition covenant was violative of an Alabama statute prohibiting contracts that restrain the practice of a profession.
Conversely, enforcing a noncompetition covenant in Phoenix Or-thopaedic Surgeons, 164 Ariz. 54, would not leave the community with a shortage of physicians in the employee’s specialty. There, a noncompetition covenant which prevented the employee from practicing orthopedic medicine and surgery for 3 years within a 5-mile radius of the employer’s offices was enforced.
At least one court has found a noncompetition covenant to be injurious to the public without specifying the availability of other physicians or specialists. In Hoddeson, 751 S.W.2d 289, a noncom-petition covenant prevented the employee from competing with the employer and from practicing medicine for 5 years in Montgomery County, Texas. The appellate court found that enjoining the employee from practicing medicine would be injurious to the public and that the noncompetition covenant sought solely to protect the employer from competition, so the appellate court dissolved the temporary injunction granted by the trial court. 751 S.W. 2d at 290-91.
Still other courts have focused on the shortage of physicians in other communities rather than the need for physicians in the community from which the employee will be enjoined. In Field Surgical Assoc., Ltd., 59 Ill. App. 3d at 995-96, the court noted that the employee could be equally useful to the public interest by practicing medicine in a location other than the restricted territory because the health of individuals living elsewhere is just as important. In Canfield, 44 Ill. 2d at 52, the court opined that if there is a severe shortage of physicians in any particular place, “young doctors will tend to move there, thus alleviating the shortage.” In Lareau, 355 S.W.2d at 680, the court noted a general nationwide demand for doctors. The court further stated that although that particular community was in need of physicians, enforcement of the noncompetition covenant would not deprive the community of any service it had before the covenant was made. 355 S.W.2d at 681; but see Dick v. Geist, 107 Idaho 931, 935, 693 P.2d 1133 (App. 1985) (consider only the needs of this community, not some hypothetical community where the physician might serve).
In a case factually similar to this case, the North Carolina appellate courts affirmed the trial court’s refusal to issue a preliminary injunction concerning a noncompetition covenant. Iredell Digestive Disease Clinic v. Petrozza, 92 N.C. App. 21, 373 S.E.2d 449 (1988), aff’d 324 N.C. 327, 377 S.E.2d 750 (1989). The covenant would restrain Dr. Petrozza from practicing in the general practice of internal medicine or gastroenterology for 3 years within a 20-mile radius of Statesville or within a 5-mile radius of any other hospital or office serviced by the clinic employer. The covenant further provided that if Dr. Petrozza violated the covenant, he would pay $50,000 for the breach, plus 15% of his gross income for 3 years. 92 N.C. App. at 23. The trial court had found that the clinic employer, with its lone remaining physician, could not maintain the established level of medical services in gastroenterology to which the public had become accustomed and entitled; that the health and welfare of the community would be harmed if only one gastroenterologist (the one remaining at the clinic) was available; and that there would be an undue burden on the delivery of all medical services in the community and on other medical professionals who might be called upon to provide the services normally provided by gastroenterologists. 92 N.C. App. at 25.
Although finding that the time and territory restrictions were reasonable, the North Carolina Court of Appeals found that the contract was not enforceable as to Dr. Petrozza’s practice of gas-troenterology. The court noted that having only one gastroenter-ologist available would not meet the community’s demand for those services, that restraining Dr. Petrozza would create an excessive workload on the remaining gastroenterologist and could create critical delays in services, and that the public would be forced to travel 40 miles if the remaining gastroenterologist were unavailable or the pubic preferred to see a different one. 92 N.C. App. at 28. The court found that the public health and welfare of the community would be harmed by the loss of Dr. Petrozza’s services. The Iredell court noted and distinguished our decision in Foltz v. Struxness, 168 Kan. 714, 215 P.2d 133 (1950), because in Foltz there were several other doctors practicing the specialty in the community. 92 N.C. App. at 30. The court held that under the facts, the public’s interest in adequate health care outweighed the parties’ freedom of contract. The court also noted that enforcing the covenant would create a monopoly, which would affect fees and the availability of a doctor at all times for emergencies. Because “[t]he doctor-patient relationship is a personal one,” the court was “extremely hesitant to deny the patient-consumer any choice whatsoever.” 92 N.C. App. at 31.
These cases indicate generally that where a shortage of physicians in the community would be created by enforcing a noncom-petition covenant, the covenant may not be enforced because it is contrary to the public interest. However, these cases concerned with a shortage of physicians involved specialties which were, for lack of a better term, medically necessary. See Iredell, 92 N.C. App. 21 (gastroenterology); Dick, 107 Idaho 931 (neonatal); Ellis v. McDaniel, 95 Nev. 455, 596 P.2d 222 (1979) (orthopedic surgery); Damsey, 339 So. 2d 282 (surgeon); Odess, 282 Ala. 389 (ENT).
Dr. Tillman notes that in Foltz, 168 Kan. at 722, the court recognized in enforcing a noncompetition covenant that one of the considerations was that there were ample doctors and surgeons in the community. Thus, Dr. Tillman reasons, it would be contrary to public policy to allow a shortage of doctors by enforcing a non-competition covenant. Dr. Tillman asserts that enjoining him from practicing dermatology permits Dr. Weber to monopolize dermatology services, contrary to the public’s right to a choice of physician and competitive fees. This argument is unconvincing because Dr. Weber is not attempting to prevent other dermatologists from competing with him; he is seeking only to prevent Dr. Tillman from competing with him within a specific geographical area for a limited time, which Dr. Tillman agreed to in his employment contract.
The applicable test is not whether there is any restraint but whether the restraint is reasonable under the facts and circumstances of the particular case. Where the territory designated in a contract, such as that designated in this contract, is found to be more extensive than necessaiy to provide reasonable protection against professional encroachment, courts of equity have the power to reduce such territory to the extent reasonably necessaiy to insure the contemplated protection and enforce the contract to that extent and deny enforcement as to the remainder of the territory. It is the duty of courts to sustain the legality of contracts in whole or in part when fairly entered into, if reasonably possible to do so, rather than to seek loopholes and technical legal grounds for defeating their intended purpose. Although restrictive provisions in contracts of employment must be reasonable and not such as to contravene the public welfare, the paramount public policy is that freedom to contract is not to be interfered with lightly. Foltz, 168 Kan. 714, Syl. ¶¶ 1, 3, 5, 6.
An agreement fairly entered into, whereby a dermatologist with an established practice employs a dermatologist without a practice on a salaiy basis with the understanding that, upon termination of die employment, the former employee will not engage in the practice of dermatology within a radius of 30 miles from any office or place of business of the practice at the time employment ends for a period of 2 years from the date of termination, is not invalid on its face. This court must weigh the potential injury to the public welfare by a shortage of dermatologists in Hays against the freedom to contract.
Dr. Tillman voluntarily and knowingly signed the employment contract. He knew the contract included a noncompetition clause as to practicing dermatology which would be effective upon the termination of his employment with Dr. Weber. Prior to joining Dr. Weber’s practice, Dr. Tillman had no experience beyond his education (including the preceptorship) in the field of dermatology, nor did he have any connection with the Hays community. Dr. Weber enabled Dr. Tillman to begin practicing dermatology with an immediate patient load, and he introduced Dr. Tillman to the Hays community.
Under the facts, we find that there is no substantial public injury which occurs if Dr. Tillman is enjoined from practicing dermatology in Hays. The noncompetition covenant is limited to the practice of dermatology and allows Dr. Tillman to practice dermatology in the restricted area upon payment of an amount equal to 6 months’ salary and bonus. Dr. Tillman posted a supersedeas bond of $90,000. Thus, as a practical matter, the people of Hays and the surrounding area may not lose Dr. Tillman’s services as a dermatologist. Further, their welfare is not injured if they have to travel further to obtain dermatology services should Dr. Tillman elect not to pay liquidated damages and continue practicing in Hays. We are required to enforce the noncompetition covenant and affirm the trial court’s grant of an injunction.
AMBIGUOUS CONTRACT
Dr. Tillman also argues that the trial court erred in determining the amount of liquidated damages. The noncompetition covenant called for damages in an “amount equal to six months salary and bonus.” The trial court found that the agreement was silent as to which 6 months and found that a reasonable construction was that the contract intended the last 6 months of employment be used to calculate the amount due.
Whether an instrument is ambiguous is a matter of law to be decided by the court. As a general rule, if the language of a written instrument is clear and can be carried out as written, there is no room for rules of construction. To be ambiguous, a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it generally uncertain which one of two or more meanings is the proper meaning. Simon v. National Farmers Organization, Inc., 250 Kan. 676, Syl. ¶ 2, 829 P.2d 884 (1992). Regardless of the construction of a written contract made by the trial court, on appeal a contract may be construed and its legal effect determined by the appellate court. Mark Twain Kansas City Bank v. Cates, 248 Kan. 700, 704, 810 P.2d 1154 (1991).
Contracts are to receive a reasonable construction to determine the intent of the parties at the time the contract was executed. The language of the contract is to receive a fair, reasonable, and practical construction. Construction of the contract is one that makes the contract fair, customary, and such as prudent persons would intend.
The contract here is uncertain as to which 6 months are to be used to determine liquidated damages. If the first 6 months of employment are used, a smaller amount of damages is due the employer. If the last 6 months of employment are used, the employee is required to pay a larger amount.
Although Dr. Weber did not himself draft the employment contract, it was prepared by his agent and, as the party with the greater bargaining power, if an ambiguity exists in the written instrument, the ambiguity should be construed against Dr. Weber. See Shelter Mut. Ins. Co. v. Williams, 248 Kan. 17, 23, 804 P.2d 1374 (1991). The trial court construed the liquidated damages provision to mean the last 6 months of employment, a construction most favorable to Dr. Weber. The question is whether that construction was reasonable, fair, and practical.
The parties agree that the amount of the bonus was the average of all bonuses Dr. Tillman received during the term of his employment. It is also fair, customary, and prudent that the parties would contract that the liquidated damages would be determined by using the salary the employee was receiving at termination. The trial judge’s interpretation of the method of determining the amount of liquidated damages is correct.
CALCULATING LIQUIDATED DAMAGES
For his breach of the noncompetition covenant, Dr. Tillman must pay liquidated damages of his salary for the last 6 months of employment and the average of his bonuses.
The appellate courts are not to reweigh the testimony or pass on the credibility of witnesses. McKissick v. Frye, 255 Kan. 566, Syl. ¶ 8, 876 P.2d 1371 (1994); Manhattan Mall Co. v. Shult, 254 Kan. 253, 257, 864 P.2d 1136 (1993); Taylor v. State, 252 Kan. 98, 104, 843 P.2d 682 (1992). In reviewing the decision of a trial court, this 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. 373, 377-78, 855 P.2d 929 (1993); see State v. Rowell, 256 Kan. 200, 213, 883 P.2d 1184 (1994); State v. Ratley, 253 Kan. 394, 398, 855 P.2d 943 (1993); State v. McKewm, 249 Kan. 506, 515, 819 P.2d 644 (1991).
Dr. Tillman’s salary for the last 6 months of employment was $72,000. Thus, the liquidated damages are $72,000 plus the bonus. The trial court accepted Dr. Weber’s accountant’s calculations as to the bonus, which included the disputed $10,000 from the first 6 months. The liquidated damages are $82,242.29.
Affirmed.
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In a letter dated March 28, 1996, to the Clerk of the Appellate Courts, respondent Robert W. Butcher, of Kansas City, Kansas, an attorney admitted to practice law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (1995 Kan. Ct. R. Annot. 219).
At the time respondent surrendered his license, there were seven separate complaints scheduled for hearing on May 8 and 9, 1996, before a panel of the Kansas- Board for Discipline of Attorneys. Four additional complaints had been received and docketed and were being investigated by the office of the Disciplinary Administrator. The complaints set for hearing on May 8 and 9, 1996, contained allegations of fading to return client files after respondent’s legal services had been terminated, failing to provide an accounting to clients of funds in respondent’s possession, failing to communicate with clients, failing to handle in a diligent fashion matters entrusted to respondent, preparing a journal entry containing false information and forging the signatures of a district judge and opposing counsel on the journal entry, and misrepresenting to a client and the court that a civil case had been settled when it had not.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that Robert W. Butcher 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 Robert W. Butcher 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
Abbott, J.:
We hold that the plaintiffs failed to first exhaust their administrative remedies before the State Board of Tax Appeals (BOTA); thus, neither the trial court nor this court has jurisdiction to decide the issue which is the subject of this appeal.
The issue decided by the trial court is when Sedgwick County “discovered” personal property that had “escaped” taxation, either in whole or in part. The trial court found that, under K.S.A. 1994 Supp. 79-1427a(a) and (c), the County had “discovered” the escaped property on the date that the assessments were placed on the Sedgwick County tax roll. Based on this interpretation of the term “discovery,” the trial court found that the statute of limitations had run on 1987 and prior year assessments and entered a permanent injunction against the County’s collection of the 1987 and prior year tax assessments.
The Court of Appeals affirmed the district court. We granted review.
In its unpublished opinion, the Court of Appeals stated the background facts as follows:
“In February 1991, the County retained the accounting firm of Allen, Gibbs & Houlik (AG&H), to conduct compliance reviews of the personal property tax renditions filed by certain taxpayers, including plaintiffs. In order to conduct the compliance reviews, the County sent letters to the plaintiffs informing them of the compliance review and requested that they send depreciation schedules, financial statements, federal tax returns, lease agreements and purchase contracts to AG&H or the County. A compliance review letter was sent to plaintiff Dillon Stores in 1990. Compliance review letters were sent to the remaining plaintiffs in 1991. [County’s proposed ‘discovery’ date.]
“After AG&H received the requested documents, asset lists were prepared. These lists contained all assets owned by a particular taxpayer as reflected by the taxpayer’s own books and records. The lists prepared by AG&H were then sent to the Sedgwick County Appraiser’s office.
“County employees valued the listed property. After applying ‘economic life’ and ‘trending factors,’ the County arrived at the net value or depreciated value of the property. The total value of the taxpayer’s property, based on the asset lists, was then compared to the total value originally rendered by the taxpayer. The difference was deemed ‘escaped valuation’ and additional taxes were assessed on that amount.
“In December 1992, the Sedgwick County Treasurer issued additional or ‘escaped’ tax bills for tax years 1987 to 1988 to plaintiffs. Plaintiff Dillon Stores also received a supplemental tax bill for the tax year 1986. [Plaintiffs’ proposed ‘discovery date.’] The escaped tax bills issued to all nine plaintiffs for the tax years 1986 and 1987 totalled approximately $997,000.”
After receiving tax bills, plaintiffs filed this injunction action in the District Court of Sedgwick County. Plaintiffs contemporaneously filed a challenge to the tax assessments with BOTA, raising the identical issues as in the injunction action. BOTA did not decide the case before it until after the trial court had already decided the case currently before us. We understand from oral argument that the BOTA case has been appealed. Thus, the district court ruled on the case and decided the “discovery” issue before BOTA ruled on the case. This raises the question of whether the plaintiffs needed to exhaust their administrative remedies and first present the case to BOTA in order to give the district court jurisdiction to decide the case.
This jurisdiction issue did not escape the Court of Appeals’ attention. The Court of Appeals carefully analyzed the issue and stated: “It would seem the district court did not have jurisdiction as plaintiffs did not exhaust their administrative remedies. Therefore, one would think this case should be reversed and remanded to the district court with directions to dismiss and dissolve the permanent injunction.”
However, the Court of Appeals did not reverse and remand the decision; rather, the Court of Appeals affirmed the district court’s decision on the merits as to the proper interpretation of “discovery.” In making this decision, the court stated:
“[S]omewhat to our amazement, we were informed offhandedly during a response to a question from the court during oral arguments, that BOTÁ had subsequently ruled on this statute of limitations question, in this case, in a written decision issued approximately two weeks before our oral argument.
. . To further confuse the matter, BOTA ruled in favor of the plaintiffs, essentially agreeing with the district court’s result. . . .
“We do not find [BOTA’s] interpretation and decision to be unreasonable.
“. . . . We therefore find ourself in a perplexing situation. The district court’s decision to grant an injunction was probably incorrect at the time, as the position taken by the County, although eventually rejected by BOTA, was not indefensible or tantamount to fraud. However, it is difficult to rule that the injunction should be dissolved in light of an administrative decision on the case which confirms the trial court’s result. The matter is further confused by the fact that the BOTA decision is still subject to further review, perhaps even by this court. . . .
“However, before us is a specific ruling by BOTA on the underlying issue before us. Due to the deference paid by the courts to administrative agency determinations and interpretations of their own procedures, we believe it appropriate to recognize that ruling for the purpose of resolving the precise issue before us. As the trial court based its ruling on what turned out to be reasoning eventually approved by BOTA, we therefore affirm the trial court’s decision.”
The County contends that the district court did not have jurisdiction to interpret the term “discovery” under 79-1427a and find that the statute of limitations had run on some of the tax assessments because the plaintiffs had not exhausted their administrative remedies by first presenting thjs issue to BOTA. See J. Enterprises, Inc. v. Board of Harvey County Comm’rs, 253 Kan. 552, Syl. ¶ 7, 857 P.2d 666 (1993)(“K.S.A. 1992 Supp. 79-2005, K.S.A. 74-2426, and K.S.A. 1992 Supp. 79-213 provide an exclusive administrative remedy before the Board of Tax Appeals in all cases involving a taxpayer’s claim for tax exemption, and exhaustion of the administrative remedy is a prerequisite for jurisdiction in the district court.”). The plaintiffs contend that they had standing to bring this issue directly to the district court before presenting it to BOTA, under K.S.A. 60-907(a), which states:
“Illegal tax, charge or assessment. Injunctive relief may be granted to enjoin the illegal levy of any tax, charge or assessment, the collection thereof, or any proceeding to enforce the same.”
Under this section, the district court only has jurisdiction to enjoin the collection of a tax assessment if it is illegal. This court has defined an “illegal” tax assessment as an “action of an administrative official . . . taken without authority, or action of an administrative official . . . that is permeated with fraud, corruption, or conduct so oppressive, arbitrary, or capricious as to amount to fraud in connection with the levy of any tax, charge or assessment.” (Emphasis added.) J. Enterprises, 253 Kan. 552, Syl. ¶ 3. See also Boeing Co. v. Oaklawn Improvement Dist., 255 Kan. 848, 857-58, 877 P.2d 967 (1994) (“for a tax to be illegal so as to vest jurisdiction in the courts under K.S.A. 60-907, the action of administrative officials must be without valid legislative authority, amount to fraud or corruption, or be so oppressive, arbitrary, or capricious as to amount to fraud”). (Emphasis added.)
Relying on the J. Enterprises and Boeing definition of an illegal tax assessment, the plaintiffs contend that the district court had jurisdiction to decide this case because the assessment of additional taxes for 1986 and 1987 by the County was “so arbitrary and capricious that it amounted to fraud.” In making its determination that it had jurisdiction to decide the statute of limitations issue, the district court did not specify which factor of J. Enterprises gave it jurisdiction to hear the case without the exhaustion of administrative remedies. In its opinion, the Court of Appeals assumed the district court based its jurisdiction under the first ground listed in Boeing and J. Enterprises — that the County acted without valid legislative authority. However, the only Boeing/J. Enterprises factor which the plaintiffs cite to in their brief as giving the district court jurisdiction to hear this case is the last ground — that the County acted in an arbitrary and capricious manner as to amount to fraud. We will consider the issue solely as briefed by the plaintiffs. See Pope v. Ransdell, 251 Kan. 112,119, 833 P.2d 965 (1992) (“Where [a party] fails to brief an issue, that issue is waived or abandoned.”).
“ ‘This court has defined arbitrary to mean “without adequate determining principles . . . not done or acting according to reason or judgment”; oppressive as “harsh, rigorous, or severe”; capricious as “changing apparently without regard to any laws.” (Eureka B. & L. Ass'n v. Myer, 147 Kan. 609, 78 P.2d 68.) In City of Clay Center v. Meyers, 52 Kan. 363, 365, 35 Pac. 25, we defined constructive fraud to mean “any act of omission or commission contrary to legal or equitable duty, trust or confidence justly reposed, which is contrary to good conscience, and operates to the injury of another.’ ” 208 Kan. at 430 (Fatzer, C.J., concurring and dissenting).” 253 Kan. at 560.
The plaintiffs contend that the County’s 1986 and 1987 tax assessments were arbitrary and capricious because they were not based on a factual foundation. According to the plaintiffs, the County’s position that “discovery” occurred when the investigation letters were sent out, thereby making the 1986 and 1987 tax assessments within the statute of limitations, was arbitrary and capricious because this date of “discovery” was not based on fact. In making this argument, the plaintiffs point to the testimony of Patricia Ismert, Sedgwick County Appraiser, and Jerry Clothier, Assistant Chief Deputy Appraiser for Personal Property, at trial. This testimony indicated that when the investigation letters were sent out, the County had not discovered any escaped property but simply felt that the taxpayers’ filings were “suspect.” In fact, the County did not discover any escaped property for 20% of the taxpayers who received investigation letters. The plaintiffs also point out that the County could not determine that any property had escaped taxation until the investigation letters had been sent out, the accounting firm had prepared the assets lists, and the County valued the assets and then compared this value to the reported value. Thus, the plaintiffs contend that in light of this testimony, the County’s position that the escaped property was discovered when the investigation letters were sent out is without factual foundation or any indicia of reason or judgment and thereby arbitrary and capricious. According to the plaintiffs, the County’s arbitrary sending out of investigation letters and the selection of this date as the discovery date when in fact the escaped property could not be discovered until much later was so arbitrary and capricious so as to amount to constructive fraud.
We hold the plaintiffs are mistaken both as to their definition of arbitrary and capricious and as to their application of the arbitrary and capricious standard. Plaintiffs rely on Zinke & Trumbo, Ltd. v. Kansas Corporation Comm’n, 242 Kan. 470, 474, 749 P.2d 21 (1988), to define arbitrary and capricious as “unreasonable or 'without foundation in fact.’ ” (Emphasis added.) (Quoting Pork Motel Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 381, 673 P.2d 1126 [1983].) However, Zinke does not concern the arbitrary and capriciousness which is needed to give a district court jurisdiction of a tax case without exhaustion of administrative remedies under K.S.A. 60-907. Rather, Zinke addresses arbitrariness and capriciousness, which is necessary for a district court to reverse an administrative agency ruling. 242 Kan. at 474-75. The plaintiffs only cite a partial sentence in the Zinke opinion which gives the definition for arbitrary and capricious. The full sentence refers to the district court’s review of an agency’s action under the Act for Judicial Review and Civil Enforcement of Agency Actions. The full sentence states: “An agency’s action is ‘arbitrary and capricious’ if it is unreasonable or ‘without foundation in fact.’ ” 242 Kan. at 475 (quoting Pork Motel, 234 Kan. at 381). If the sole problem with the tax authority’s assessment and discovery date is that it is not supported by facts, this is precisely the type of challenge which should be heard and decided by BOTA before the district court considers the problem. See J. Enterprises, 253 Kan. 552, Syl. ¶ 2 (“In the realm of taxes, matters of assessment . . . are administrative in character.”). Then, if BOTA’s ruling is not supported by the facts, the reviewing court may reverse it as arbitrary and capricious, just as the Zinke court states.
Further, the plaintiffs contend that Hurley v. Board of County Commissioners, 188 Kan. 60, 66, 360 P.2d 1110 (1961), stands for the proposition that when assessments are made without a factual basis, but instead are based upon the whim of an administrative officer, then the assessments are arbitrary, unreasonable, and discriminatory. Again, the plaintiffs’ reliance on Hurley is misplaced. In Hurley, the statute at issue stated that a tax for improvements may be assessed against landowners if it is found that all the landowners “benefited equally” from the improvements. The county found that the improvement benefited all landowners equally and assessed the tax. The plaintiffs then sought an injunction in district court to prevent collection of the tax, contending that the finding of equal benefit, a condition precedent to the assessment, was contrary to the facts. This court held that “the finding of the board of county commissioners that all lands within the district were ‘benefited equally’ simply is contrary to the facts; that the assessment . . . was therefore unjust, unreasonable, discriminatory and grossly disproportionate to the benefits received.” 188 Kan. at 66. The plaintiffs contend that the county acted unreasonably in Hurley because it failed to properly fulfill a condition precedent which was clearly defined in the statute before it assessed the tax; whereas, in this case, the County did not act unreasonably in interpreting discovery as it did and assessing the tax under this interpretation because 79-1427a does not define discovery. Moreover, Hurley does not use or define the arbitrary and capricious standard; rather, it found that the tax was “unjust, unreasonable, discriminatory and grossly disproportionate.” 188 Kan. at 66. Thus, Hurley does riot stand for the proposition that the County acted arbitrarily or capriciously in interpreting the undefined term “discovery” as it did.
Further, it is not clear that the County’s interpretation of discovery is actually contrary to the facts or testimony presented at the trial. It is true that County officials testified they did not know and could not have “discovered” whether any of the plaintiffs’ property had actually escaped taxation until well after the investigation letters were sent out. However, there are many terms in the English language which acquire a different definition from their common usage when used as legal terminology, e.g, “consideration” and “unavailable.” Thus, the County’s interpretation of the term discovery under 79-1427a is not necessarily consistent with the way in which the term discovery is used in everyday language. However, this does not mean the County acted arbitrarily and capriciously so as to amount to fraud when it interpreted the date of “discovery" to be the date the investigation letters were sent out. As Boeing states, “an erroneous interpretation of a statute by administrative taxing authorities does not, alone, render a tax arbitrary, capricious, and unreasonable so as to vest a court with jurisdiction.” 255 Kan. at 857.
Finally, even if the County acted in an arbitrary or capricious manner (which the record before it does not support) in determining the date of discovery because such determination was not supported by the facts, the County did not act so arbitrarily or capriciously “as to amount to fraud in connection with the levy of any tax, charge, or assessment.” (Emphasis added.) J. Enterprises, 253 Kan. 552, Syl. ¶ 3. See also Boeing, 255 Kan. at 857-58 (“for a tax tobe illegal so as to vest jurisdiction in the courts under K.S.A. 60-907, the action of administrative officials must . . . be so op pressive, arbitrary, or capricious as to amount to fraud”). (Emphasis added.) This court has defined constructive fraud to mean “ ‘any act of omission or commission contrary to legal or equitable duly, trust or confidence justly reposed, which is contrary to good conscience, and operates to the injury of another/ ”/. Enterprises, 253 Kan. at 560 (quoting Northern Natural Gas Co. v. Williams, 208 Kan. 407, 430, 493 P.2d 568, cert. denied 406 U.S. 967 [1972]).
At the trial of this case, the district court specifically found that Patricia Ismert, the Sedgwick County appraiser, did not act with bad faith. “In those cases where the county taxing authority acts in good faith and its action is taken in accordance with law but may involve an erroneous application of the law, administrative relief is provided for by statute.”/. Enterprises, 253 Kan. at 559-60. Thus, the action of the administrative official in this case was not so “arbitrary or capricious as to amount to fraud in connection with the levy of any tax, charge, or assessment.” 253 Kan. 552, Syl. ¶ 3; see Boeing, 255 Kan. at 858. Therefore, the district court did not have jurisdiction to hear the case or grant an injunction in the case.
The Court of Appeals agreed that the district court did not have jurisdiction to hear this case, stating:
“In this case, as in J. Enterprises, the County’s interpretation of ‘discovers’ and the resulting assessment of escaped property taxes was not arbitrary, oppressive, or capricious. Nor did the County’s action amount to constructive fraud. The County’s interpretation of ‘discovers’ may or may not have been erroneous, but it was not illegal at the time it was decided in the district court. The district court seemingly did not have jurisdiction over this case because plaintiffs failed to exhaust their administrative remedies before BOTA.”
We have no quarrel with the practicality of the Court of Appeals in deciding the case, despite having determined neither it nor the trial court had jurisdiction to do so. The problem is simply that if “a district court had no jurisdiction, an appellate court does not acquire jurisdiction over the subject matter upon appeal.” J. Enterprises, 253 Kan. 522, Syl. ¶ 2. It sounds appealing to say that eventually the identical issue will be before us, so we should go ahead and decide the issue now. However, an appellate court can never be certain that the exact issue will be presented to it with the same facts and procedural histoiy. In any event, the legislature has not given us the jurisdiction to address the issue presented. We have no authority to assume jurisdiction on tíre theory that it is the practical thing to do.
The trial court and Court of Appeals are reversed, and the appeal is dismissed for lack of jurisdiction. The case is remanded to the trial court with instructions to dissolve the injunction.
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the State from the trial court’s order dismissing criminal charges against each of the above-named defendants for one count of possession of marijuana and two counts of endangerment of a child (two separate children). The case was scheduled for trial on August 18, 1994. Instead of a trial, the defendants’ motions for an order of dismissal were heard.
The facts are not relevant in this case other than providing a background of what occurred. Law enforcement officers obtained a search warrant authorizing a search of the residence belonging to Jeffrey Lee Dennis and April Joy Dennis. The defendants were present in the Dennis home as guests when the warrant was executed. A total of nine adults, one juvenile, and at least one infant were present when the warrant was executed. The trial court heard evidence and found there was no probable cause to believe the defendants committed the crimes charged and dismissed all the charges filed against the defendants.
The State appealed..The problem in this case is the notices of appeal. The State filed its notices of appeal pursuant to K.S.A 22-3603. All of the notices of appeal are'identical and state: “Notice is hereby given that the State of Kansas, pursuant to K.S.A. 22-3603, appeals from the final decision of the District Court of Saline County, Kansas, entered on August 18, 1994, to the Court of Appeals of the State of Kansas.”
K.S.A. 22-3603 provides for interlocutory appeals. This was not an appropriate case for interlocutoiy appeals, and on November 7, 1994, this court ordered the State to show, cause why the appeals should not be dismissed. While the notices of appeal were filed on August 19,1994, the State did not respond to the show cause order until December 2, 1994. In its response, the State indicated for the first time that the cases were being appealed pursuant to K.S.A. 1994 Supp. 22-3602(b) instead of K.S.A. 22-3603. K.S.A. 1994 Supp. 22-3602(b) allows any order dismissing a complaint or information to be appealed directly to the Supreme Court; thus, the cases could have been properly appealed under this provision. However, the State did not attempt to amend its notices, of appeal at any time, and its response to the show cause order was filed after the time to amend the notices of appeal had expired. Thus, the State is before this court on notices of appeal which attempt to appeal under the interlocutory appeal statute. (K.S.A. 22-3603). This court retained the appeal, subject to further review after the parties submitted briefs.
In State v. G.W.A., 258 Kan. 703, 705-07, 906 P.2d 657 (1995), we said:
“[T]he defendant argues that a defendant must lay the foundation for his or her appeal by filing a notice of appeal which gives the appellate court jurisdiction to hear the appeal. See State v. Grant, 19 Kan. App. 2d 686, 875 P.2d 986, rev. denied 255 Kan. 1005 (1994) (finding the Court of Appeals did not have jurisdiction to address a ruling which wás riot included in thé notice of appeal). Since a defendant must lay such a foundation, the State must also lay a foundation-for its own appeal by filing a notice of appeal which gives the appellate court jurisdiction' to hear the appeal.. . .
“ ‘It is a fundamental proposition of Kansas appellate procedure that an appellate court obtains jurisdiction over the rulings identified in the noticé of appeal.’ Hess v. St. Francis Regional Med. Center, 254 Kan. 715, 718, 869 P.2d 598 (1994). . . .
“[I]n Anderson v. Scheffler, 242 Kan. 857, 860-61, 752 P.2d 557 (1988), the trial court entered summary judgment for the defendant. One issue was whether the notice of appeal appealing from an April 21, 1987, judgment entered by the court was sufficient to give the appellate court jurisdiction to consider a different summary judgment ruling entered by the court on December 29,1986. This court held that issue had not been properly designated in the notice of appeal; thus, the issue could not be considered on appeal.
“Here, the State’s notice of appeal referred solely to an appeal from the judgment of acquittal. It contained no general reference which could be liberally construed to include an appeal on a question reserved. See Hess, 254 Kan. at 719-20. As in Grant, 19 Kan. App. 2d at 691, there is no valid controversy as to whether the State complied with the statutory requirements. The notice of appeal was limited and specific and cannot be read to include an appeal on a question reserved. Because the only ruling referred to in the notice of appeal is one which is not subject to appellate review, this court lacks jurisdiction. See State v. Crozier, 225 Kan. 120, Syl. ¶ 4.
“We are unpersuaded by the State’s argument that its mention of K.S.A. 1994 Supp. 22-3602 in the notice of appeal gives this court jurisdiction. A liberal and common-sense reading of the State’s notice of appeal is as follows: The notice of appeal is two sentences long. The first sentence clearly and unquestionably gives notice that the State is appealing ‘from a Judgment of Acquittal.’ The second sentence tells us that the appeal from the judgment of acquittal is taken direcdy to the Supreme Court pursuant to 22-3602. K.S.A. 1994 Supp. 22-3602 is cited because it allows the State to appeal certain issues directly to the Supreme Court.
“The State did not respond in its brief to the defendant’s argument that the appeal should be dismissed for lack of jurisdiction. We can only presume that the State’s argument would be as follows: In its notice of appeal, the State contends it is appealing directly to the Supreme Court pursuant to K.S.A. 1994 Supp. 22-3602. K.S.A. 1994 Supp. 22-3602(b)(3), allowing the State to appeal a question reserved, is the only section of22-3602 which would permit a direct appeal to the Supreme Court. Thus, if the court did independent research and read the record, we could conclude that the State was appealing a question reserved. We think the State must give more guidance in its notice of appeal than that given in this case.”
In State v. G.W.A., this court found that the State’s notice of appeal was not sufficient because the court was required to search through the record to determine what the State’s appeal was actually based upon. This is what the State required the court to do in these appeals.
We see no distinction between this case and State v. G.W.A. and, therefore, dismiss this appeal for lack of jurisdiction.
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Per Curiam:
This is an original disciplinary proceeding filed by the Office of the Disciplinary Administrator against Charles E. Hill, arising from his failure to prevent the statute of limitations from running on various medical malpractice claims of his clients. At the hearing on the complaint (case No. B5916), the Disciplinary Administrator recommended to the hearing panel of the Kansas Board for Discipline of Attorneys (Board) that Hill’s license to practice law be suspended for 2 years while Hill is probated under certain terms of supervision proposed by Hill’s counsel. The panel did not adopt supervised probation, recommending a 2-year suspension. HiU filed exceptions to the final hearing report.
The question is whether we should adopt the panel’s recommendation or the recommendation of the Disciplinary Administrator.
A majority of the court adopts the recommendation of the panel. Respondent is suspended for a period of 2 years from October 16, 1995, the date of the panel’s report.
FACTS
Respondent graduated from law school in 1980. The facts as summarized in the panel’s report are:
"Respondent . . . initially worked in the office of the Kansas Commissioner of Insurance with his primary responsibility being as administrator of the Health Care Stabilization Fund. He then went to work for the Kahrs, Nelson firm in Wichita.
“Respondent became a partner in the firm within eighteen months of his employment. Eventually, some of the partners in the firm became dissatisfied with the number of hours billed by respondent. As a result respondent was demoted from partner to associate. In December of 1991, respondent resigned from the firm, to take effect in February of 1992. Respondent admitted that he had trouble with productivity during the latter part of his tenure with the Kahrs, Nelson firm.
“For a period of time after resigning from the firm, respondent was allowed to continue to go to the Kahrs, Nelson office while he looked for other employment. During this period he became increasingly dysfunctional and had suicide idea-tions. After an incident in which respondent contemplated suicide, his wife encouraged him to seek psychiatric help. He was admitted to St. Joseph Hospital for a ten-day period. He continued sporadically with outpatient treatment after the hospitalization. He had problems getting appointments and with insurance coverage.
“After being discharged from St. Joseph Hospital, respondent contacted Steve Foulston, a sole practitioner in Wichita. Mr. Foulston agreed to let respondent use an office in his building to attempt to find a job and eventually referred several cases to respondent. Mr. Foulston primarily was involved representing plaintiff in a personal injuiy litigation. He gave cases to respondent, helped finance the cases and supplied an office to respondent at no charge. Respondent characterized the association as being very enjoyable. They even discussed the possibility of forming a partnership.
“While officing with Steve Foulston, the respondent became involved with the five cases which form the basis for the Formal Complaint. The evidence presented with regard to each case was as follows:
“SILER CASE
“Dixie Siler was referred to respondent by someone other than Steve Foulston. She was involved in a medical malpractice case. The case had been reviewed and rejected by at least one other law firm prior to being taken by respondent. On the eve of the expiration of the statute of limitations, respondent requested that a malpractice screening panel be appointed to evaluate the case. Respondent failed to take any further steps with regard to the screening panel, it was ultimately dismissed, and the statute of limitations ran on plaintiff’s claim. Respondent failed to advise Ms. Siler that the case had been dismissed or that the statute had run. Ultimately, when he did talk with his client, respondent lied to her about the status of the case.
“Respondent’s malpractice insurance carrier has indicated that it will cover the claim of Ms. Siler.
“CONVERSE CASE
“The second case involved in the complaint involved both a medical malpractice claim and an automobile negligence claim on behalf of Myron Converse, a chiropractor from Junction City. The case was referred to respondent by Mark and Andy Hutton. The statute on one or both of the cases was on the verge of running. Respondent filed suit, hut failed to secure service-'on the defendants. The. statute then ran. Respondent admits knowing the procedure and time constraints involved in securing service and acknowledges that he just failed to properly handle the case.
“After respondent obtained representátion concerning his disciplinary problems he notified.Dr. Converse of the- running of the- statute. Dr. Converse hired an attorney and made a claim against respondent’s insurance company which was settled for $260,000.00.
“HAMILTON CASE
“The next case involves a malpractice case for Amy Hamilton which was referred to respondent by Steye Foulston. Respondent requested a malpractice screening panel which was dismissed for lack of prosecution. Thereafter respondent allowed the statute of limitations to run. He then lied to both the client and Steve Foulston about the status of the case. Upon inquiry by Mr. Foulston, Ms. Hamilton indicated she did not wish to pursue the matter further.
“MARTIN CASE
“The fourth case involves another malpractice case in which respondent requested a malpractice screening panel.for James Martin. Again, the panel was dismissed for lack of prosecution and the statute of limitations ran. Mr. Martin called respondent asking for a status report on the case and respondent told him that he was waiting for the screening panel report. Finally, Mr. Martin called once again and respondent once again told him he was awaiting the panel report. This time, Mr. Martin informed respondent that he had talked with Judge Corrigan and knew the case had been dismissed. Respondent went to Mr. Martin’s house that afternoon and told Martin and his wife what had happened. Both conversations were recorded by Mr. Martin. Respondent prepared a settlement agreement with Mr. Martin for $35,000.00, payable over a period of time. Mr. Martin had the agreement reviewed by an attorney and the agreement was signed. Respondent has paid one installment of approximately $5,000.00 on the agreement and has failed to make any further payments. The respondent has now received a discharge in bankruptcy and Mr. Martin’s debt appears to have been discharged. For that reason, respondent believes his malpractice carrier-will not pay the Martin claim.
“THOUVENELL CASE
“The last case involved in the complaint is the Thouvenell case, referred to respondent by Steve Foulston. It was another malpractice case involving another dismissed screening panel and lapsed Statúté of limitations. Again, respondent Bed to Foulston about the status of the case.
“After being confronted by Mr. Martin,-respondent told Steve Foulston of his situation. At Mr. Foulston’s suggestion, respondent’met with Foulston and Mike Stout and Bud Fanning of the Wichita Bar Association. His files wore taken over by the Bar Committee and respondent mailed a letter dated March 24, 1994, to the Disciplinary Administrator wherein he self-reported the incidents.
“After the meeting with Steve Foulston and the Wichita Bar representatives, respondent entered into therapy with Dr. Graff and was diagnosed as having major depression. He has continued therapy with Dr. Graff and Paxil has been prescribed for his depression. At the suggestion of Mark Anderson, Disciplinary Administrator, respondent was evaluated by Dr. Ted Moeller and his associates. He has been involved in a weekly therapy group with Dr. Moeller since May or June of [1995].
“Through Dr. Graff, respondent became acquainted with the owner of AAA Rentals. He has worked for $7.00 per hour for the rental store owner. He has found the work to be satisfying. Respondent also did research for Mark Hutton from July through October of 1994. He helped Bob Kaplan, another Wichita attorney, on a contract basis to prepare a malpractice case. He has continued to do contract case preparation for Mr. Kaplan. He has also done research for John Johnson. In none of these positions did he have client contact. He was assigned specific tasks which he carried out. During all of this time respondent continued to work for AAA Rentals. He testified that he quit that job the week before the hearing.
“The parties offered a stipulation that respondent has entered into discussions with a major medical center located in Wichita concerning the possibility of employment with the center in the general counsel’s office. The medical center is in the middle of a merger and a decision cannot be made about respondent’s employment until the merger is completed. Respondent was unsure whether the job required that he be licensed to practice law.
“Dr. Theodore Moeller testified that respondent has a unipolar mood disorder, which in respondent’s case means he suffers from depression. It was Dr. Moeller’s opinion that respondent has benefitted from and will continue to benefit from drug therapy with serotonin re-uptake inhibitors such as Prozac, Zoloft and Paxil. Gradually a person suffering from depression will experience a remission of his or her symptoms if treated with serotonin re-uptake inhibitors. Dr. Moeller went into a great deal of detail concerning the respondent’s condition and the treatment.
“In the end, Dr. Moeller was asked whether Mr. Hill can presently practice law where that term means ‘practicing as an independent practitioner representing the client’s interest in a court of law, filing appropriate documentation, that kind of thing.’ Dr. Moeller’s opinion was that respondent cannot presently practice law because he is stiE depressed. While Dr. MoeEer believes that respondent is getting better he does not feel he is well enough yet to practice law. He does believe that respondent can practice under supervision where ‘he does nothing independéndy.’ Pages 46 through 47 of the transcript contain a complete description of the type of supervision envisioned by Dr. Moeller. Dr. MoeEer did not think that respondent would be able to fully return to the practice of law for at least another year.
“Respondent testified that he does not think he can engage in the unsupervised practice of law at this time. He does, however, think he can practice law with supervision.
“Steve Foulston testified to his relationship with respondent and to his respect for respondent’s ability. He stated that he was a victim of respondent’s malpractice and deceptions since he referred cases to respondent which were handled improperly and respondent lied to him about the status of those cases. He had to contact the clients and tell them about the situation and attempt to help the clients resolve their difficulties. Nevertheless, he feels that respondent is a talented lawyer and a nice guy. He believes that if respondent gets his problems behind him he will be a credit to the bar.
“Judge David Kennedy testified that in his opinion respondent was a lawyer of ‘exceptional’ ability, approaching what he would call the ‘elite group of trial lawyers in Sedgwick County or the State of Kansas for that matter.’ He defines elite as being the top three, four, or five lawyers in the county. He believes that respondent has a very high reputation among the judges in the Eighteenth Judicial District. He describes respondent’s professionalism as being ‘the best.’
“Robert Kaplan, a practicing attorney in Wichita, testified that he has known respondent for some time. He holds him in high regard as an attorney. He called respondent to help him with a plaintiff’s malpractice case he was handling because of both his experience in malpractice cases and because of his defense perspective. He hired him on a contract basis to help prepare the case for trial. He was exceptionally satisfied with respondent’s work. He and his partner have continued to contract with respondent to handle various legal tasks for them.
“Mr. Kaplan testified that the relationship which he has with respondent is precisely the supervisor/supervisee relationship described by Dr. Moeller in his testimony. Mr. Kaplan testified that he was willing to supervise respondent’s practice; although, he would like to have the parameters of his supervision spelled out. He believes that respondent should be allowed to continue in the practice of law and is willing to assist in that endeavor.
“Respondent introduced as Exhibit 7 a proposal concerning supervised probation for respondent.
“FINDINGS OF FACT
“By clear and convincing evidence the panel unanimously finds that;
“1. The respondent is an attorney at law . . . with a last registration address filed with the Clerk of the Appellate Courts [in] Wichita ....
“2. In his improper handling of the five cases set out above, respondent failed to diligently and prompdy pursue each case, failed to accomplish work necessary to a successful representation, failed to keep his clients reasonably informed of the status of the subject of the representation, and failed to respond to the reasonable requests for information by his clients.
“3. In the course of his representation of his clients Siler, Hamilton, Martin, Converse and ThouveneU, respondent engaged in conduct involving misrepresen tation by making false statements to his clients about the status of the matters involved in the representation.”
The complaint is based upon Hill’s self-reporting of cases in which he allowed the statute of limitations to expire on his clients’ claims. The violations occurred over approximately a 16-month period. The complaint alleged that Hill violated MRPC 1.3 (1995 Kan. Ct. R. Annot. 257) (reasonable diligence in representing client), 1.4 (1995 Kan. Ct. R. Annot. 263) (keeping client reasonably informed and complying with reasonable requests for information), and 8.4 (1995 Kan. Ct. R. Annot. 340) (engaging in conduct involving misrepresentation). Hill’s answer stipulated to the factual allegations in the complaint. The Disciplinary Administrator recommended to the panel that Hill’s license be suspended for 2 years and probated for that time period, subject to the supervisory conditions proposed by Hill’s counsel, with the additional condition that the Disciplinary Administrator be allowed to approve in advance any other contract work to be done by Hill or any change in the structure of supervision.
The panel chose not to adopt the Disciplinary Administrator’s recommendation and instead recommended a 2-year suspension. In the panel’s view, the evidence indicated that Hill’s mental disability rendered him incapable of practicing law. The panel was also concerned that Hill was not making restitution to Martin.
Hill takes exception to several findings in the panel’s report. The Disciplinary Administrator has adopted Hill’s arguments and authorities and supports Hill’s position.
DISCUSSION
Standard of Review
Rule 212(f) (1995 Kan. Ct. R. Annot. 215) provides:
“The recommendation of the panel or the Disciplinary Administrator as to sanctions to be imposed shall be advisory only and shall not prevent tire 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).
Hill’s Exceptions to Report
Hill filed exceptions to the report concerning three issues: (1) Hill’s present ability to practice law with appropriate supervision; (2) the Martin settlement; and (3) the panel’s conclusion that the level of supervision requested by Hill and recommended by the Disciplinary Administrator would create a new type of limited law practice.
Hill contests the panel’s statements that both Dr. Moeller, the examining psychologist, and Hill testified that Hill could not presently practice law. According to Dr. Moeller, Hill remains incapable of “managing his own practice of law and meeting with clients and handling their affairs.” Hill stated: “I don’t think that I’m in any position to hang up a shingle and open my own office.” Hill felt he could “try a jury case as well as just about anybody around,” but “couldn’t handle the pressure and the stress of running an office and having to worry about making an income and paying the bills and keeping the files.” He felt he could handle the pressure and stress of meeting deadlines in a case “to a limited extent.”
Hill argues that the above testimony only indicated that he was not capable of engaging in solo law practice at this time. A fair reading of the testimony discloses that Hill’s problems go beyond lacking ability to cope with the pressures of a solo practice.
Hill disputed the panel’s conclusions that Hill’s indifference to making restitution to Martin was an aggravating factor, Hill’s partial payment to Martin was nullified as a mitigating factor by Hill’s subsequent bankruptcy, Hill’s attitude about Martin’s lack of remedy was “somewhat cavalier,” and restitution to Martin should be made a condition of Hill’s reinstatement.
When asked by the panel whether Hill intended to make any further payment to Martin, even though the indebtedness was discharged, Hill acknowledged a moral obligation but stated that financially he was not in a position to make any further payments: “Hopefully some day I would be in the position.” This statement does not indicate any present intent to do anything further for Martin.
The circumstances surrounding Hill’s settlement with Martin are troublesome. Had Martin pursued a legal malpractice claim against Hill instead of agreeing to Hill’s offer of a setdement, his claim may have been covered by Hill’s malpractice insurance. Had Hill made any effort to pay something more to Martin after the first and only payment, Hill’s acknowledgment of a moral obligation to make things right with Martin would appear more sincere. Hill’s offer induced Martin to remain silent, thus keeping Hill’s problems hidden for several more months. Hill succeeded in playing upon the sympathies of Martin.
The panel’s conclusion that Hill’s reinstatement should be conditioned upon further restitution efforts to Martin seems justified.
Level of Supervision
Hill disputes the panel’s statements that the level of supervision being requested is essentially that needed for a law clerk or intern and that Hill could perform the legal work he is currently doing without a license. Hill also disagrees with the panel’s conclusion that Hill is requesting the creation of “a new type of limited practice.”
Hill points out that the level of supervision requested is similar to that imposed in In re Jones, 253 Kan. 836, 861 P.2d 1340 (1993). Jones involved ethical violations comparable to those of Hill: allowing the statute of limitations to run on several cases and concealing that information from clients. Jones was in solo practice at the time of the violations and continued solo practice thereafter. The evidence indicated that he had a psychological problem — obsessive .compulsive personality disorder — for which he was in therapy. Jones received an 18-month suspension, probated subject to several conditions, including supervision by another attorney on a monthly basis and continued therapy. Jones remained in solo practice. However, Jones did not suffer from the severe depression that afflicts Hill. Jones never reached the point where he had to sur render his files and give up practice entirely for some period of time.
The Disciplinary Administrator cites several recent cases involving attorneys with psychological problems committing ethical violations comparable to Hill’s. Those attorneys were placed on supervised probation. See In re Betts, 257 Kan. 955, 895 P.2d 604 (1995) (nature of attorney’s psychological problems at time of violations not disclosed in opinion; 2-year suspension imposed with supervised probation); In re Pilgreen, 257 Kan. 949, 896 P.2d 389 (1995) (attorney in depressed state at time of violations; at time of hearing, attorney in treatment and practicing law in an office-sharing setting; attorney suspended for 1 year with supervised probation); In re Herman, 254 Kan. 908, 869 P.2d 721 (1994) (attorney diagnosed with bipolar mood disorder and depression; at hearing, attorney’s psychiatrist testified attorney can function effectively in practice if taking proper medication; attorney suspended for 24 months with supervised probation); In re Meyer, 251 Kan. 838, 840 P.2d 522 (1992)(attomey suffered from depression and sleep apnea at time of violations, but at time of hearing prognosis was good; attorney suspended and placed on supervised probation for 1 year).
In none of the above cases did the medical expert testify that the attorney was incapable of practicing law or did the attorney admit that he could not practice law in an independent setting. In addition, none of the above cases involved the level of supervision that Hill would need. Typically, the attorney supervision in the above cases involved monthly checks of the following: the status of each of the attorney’s cases; the attorney’s docketing system; management of discovery on all files; the status of client requests for information; and the trust account. Under that level of supervision, the supervised attorney is handling and fully responsible for his own cases. Someone else is merely checking the attorney’s actions on a monthly basis. Also, in all of the above cases, suitable provisions for restitution to harmed clients had been made.
The panel did not feel Hill should receive any harsher punishment than other attorneys who had received supervised probation:
“The panel does not reach this decision because it wishes to punish respondent. Dr. Moeller feels that respondent should not be punished for his transgressions since he suffers from a mental disability which is the cause of the actions complained of. The panel makes this recommendation because it is concerned about the clients who might be represented by respondent. The respondent is not capable of practicing law. Therefore, he cannot be given a license to practice. When he is capable of practicing law, the Supreme Court may restore his license to him.”
Two-Year Suspension
Hill argues that the panel’s recommendation of a 2-year suspension is not supported by the record. Hill refers to Dr. Moeller’s response to the question of when Hill would be ready to return to independent practice: “I think he probably — I’d say one more year. Like I said, he’s improving and by the end of that year, July of ‘96, we should see a recovery of just about all of what he is going to get back.”
Hill points out that if this court follows the panel’s recommendation and imposes a 2-year suspension, Hill will not be able to return to practice until sometime in 1998, a year and a half after Dr. Moeller indicated he would be ready. Hill also emphasized that he had voluntarily ceased active law practice beginning in March 1994 when he surrendered his files. '
In recommending the 2-year suspension, the panel stated:
“It may well be that respondent can seek reinstatement at the end of one year if at the end of this time period he can offer evidence that he no longer suffers from his mental disability, is able to enter into an unrestricted practice of law and has made satisfactory restitution to Mr. Martin.”
Under Rule 219 (1995 Kan. Ct. R. Annot. 229), Hill could petition for reinstatement before the 2-year suspension had expired, if he then felt capable of practicing law independently.
The Disciplinary Administrator attached to his brief a letter dated January 28, 1996, from Robert Kaplan. The letter indicates that Mr. Kaplan and the other two attorneys in his firm desire to have Hill become an associate, pending the disposition of his disciplinary proceeding. Kaplan is clearly anxious to get Hill back into the courtroom. The letter reiterates Kaplan’s willingness to undertake the duties of supervised probation for Hill.
Hill’s considerable skill and abilities as a lawyer are unquestioned. He apparently was able to function successfully in the courtroom, even at the time the violations occurred, because none of the attorneys working closely with him suspected anything was wrong until Steve Foulston learned of Hill’s inaction. Hill’s problems resulted from his inability to handle the stress of dealing with clients and the pressure of adhering to deadlines. The testimony at Hill’s hearing indicated that Hill remained incapable of handling that stress and pressure. Thus, regardless of how well Hill may perform in the courtroom, he remains disabled in practicing law.
In the panel’s view, even if Hill’s license is suspended, he can continue to do the contract work that he has been doing for Kaplan: analyzing fact situations, preparing pleadings and briefs, assisting in case preparation generally. He cannot argue cases in court, even though he appears capable of doing that. As indicated above, that is not what caused his troubles.
With reference to the Martin matter, the panel commented:
“The panel is also extremely concerned about restitution to Mr. Martin and respondent’s somewhat cavalier attitude about the fact that Mr. Martin is without remedy. Respondent was on the road to recovery when he discharged Mr. Martin’s debt. The respondent’s decision to discharge Mr. Martin’s debt was not the result of his disability. While the panel understands the desire of respondent to get his affairs in order, a part of getting his affairs in order should have been resolving Mr. Martin’s claim. The panel believes that respondent should not be reinstated to practice until restitution has been made to Mr. Martin or the Court has been given sufficient assurance that such restitution will be made in the very near future.”
We agree that respondent’s efforts towards restitution in the Martin matter should be considered at the time he seeks reinstatement.
Conclusion
Hill’s evidence in mitigation was impressive. A district judge and several prominent Wichita attorneys either testified or wrote letters on his behalf. The Disciplinary Administrator supports Hill’s request for supervised probation. Hill appears to have in place a strong professional safety net in place in Kaplan’s firm.
The panel’s report is also thorough and well reasoned. We find that the panel’s findings and conclusions are supported by clear and convincing evidence. The resolution of the appropriate sanction is difficult as evidenced by the division of this court. A majority of the court, guided by our standard of review in Carson, 252 Kan. at 406, adopts the recommendation of the panel.
It Is Therefore Ordered that Charles E. Hill be suspended from the practice of law for a minimum of 24 months from the date of October 16, 1995, the date of the panel’s report, under Rule 203(a)(2) (1995 Kan. Ct. R. Annot. 191).
It Is Further Ordered that respondent comply with Rule 218 (1995 Kan. Ct. R. Annot. 222), that the costs of the proceeding be assessed to the respondent, and that this order be published in the official Kansas Reports.
Allegrucci, J., dissenting.
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The opinion of the court was delivered by
Six J.;
This first impression child support case requires us to interpret K.S.A. 60-1610(a)(l)(C), which concerns support for a child who remains in high school beyond June 30 of the school year in which the child becomes 18. After the original child support order expired, the district court ordered Robert Bunting, the father, to pay Judith Bunting, the mother, child support, including retroactive payments, through the end of the school year in which their daughter, Tawnya, became 19. Robert appealed, and the Court of Appeals reversed, reasoning that no support was owing. 21 Kan. App. 2d 450, 900 P. 2d 862 (1995). We granted Judith’s petition for review. Our jurisdiction is under K.S.A. 20-3018(b).
We hold that Robert had no responsibility for the retroactive payments from July 1993 through April 1994. That part of the district court’s order requiring Robert to pay $928 for May 1994 is affirmed.
FACTS
Robert and Judith were divorced on April 19,1991. The divorce decree provided that Robert pay child support in the amount of $597 per month for Tawnya until she attained the age of majority. Tawnya became 18 on March 6,1993, while a junior in high school. When Tawnya was in first grade, her parents jointly participated in a decision to hold her back a year in school.
Robert paid the required child support through June 1993, then stopped any further payments. On April 28, 1994, Judith filed a motion for child support, seeking retroactive payments from July 1, 1993, until the end of May 1994, when Tawnya was to complete high school. On May 10, 1994, the district court ordered Robert to pay retroactive child support of $597 each month for the months of July 1993 through April 1994. For the month of May 1994, the amount was increased to $928. The district court granted Robert’s request for a rehearing, conducted an evidentiary hearing, and affirmed the original order.
The Court of Appeals reversed, determining that Robert’s obligation to pay child support had terminated as of June 30, 1993, after Tawnya had turned 18. Because Judith did not file her 60-1610(a)(1)(C) motion before June 30, 1993, the Court of Appeals reasoned, the district court had no jurisdiction to extend an already terminated support obligation. We disagree.
DISCUSSION
Interpretation of a statute is a question of law. Our review of a question of law is unlimited. Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
K.S.A. 60-1610(a)(1)(C) provides:
“(a) Minor children. (1) Child support and education. The court shall make provisions for the support and education of the minor children. The court may modify or change any prior order when a material change in circumstances is shown, irrespective of the present domicile of the child or the parents. The court may make a modification of child support retroactive to a date at least one month after the date that the motion to modify was filed with the court . . . .Regardless of the type of custodial arrangement ordered by the court, the court may order the child support and education expenses to be paid by either or both parents for any child less than 18 years of age, at which age the support shall terminate unless: . . . (C) the child is still a bona fide high school student after June 30 of the school year during which the child became 18 years of age, in -which case the court, on motion, may order support to continue through the school year during which the child becomes 19 years of age so long as the child is a bona fide high school student and the parents jointly participated or knowingly acquiesced in the decision which delayed the child’s completion of high school.” (Emphasis added.)
Judith argues that the Court of Appeals’ interpretation of 60-1610(a)(1)(C) arbitrarily creates two classes of 18-year-olds held back a year in school by mutual parental consent: those with parents who filed for divorce and requested child support after June 30 of the school year during which the child became 18 and those with parents who filed for divorce and requested child support before June 30 of the same year. The second class would be eligible to benefit from child support through the school year during which the child becomes 19. The first class is not. Robert counters that an equal protection claim is not present because the purported classification is determined by whether someone acted within a specified time.
Judith’s divorce decree was entered in 1991. She already had an order for child support at the time Tawnya became 18. Judith could have filed a motion at any time seeking to extend Robert’s child support obligation. She failed to do so until April 28, 1994, less than a month before then-19-year-old Tawnya completed high school. Under the facts of this case, we need not engage in an equal protection analysis.
Did the Court of Appeals interpret K.S.A. 60-1610(a)(1)(C) correctly? We think not. We turn to a commanding rule of statutory construction: 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). In our search for legislative intent, we consider the entire act. Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992). We are not limited to reviewing only the language used, but may look to the historical background of 60-1610(a)(1)(C), the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various suggested constructions. See State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994).
K.S.A. 60-1610(a)(1)(C) contains no express time limit for filing a motion to continue child support. Robert argues that because under 60-1610(a)(1)(B), his child support obligation automatically terminated on June 30, 1993, the obligation cannot be revived by a motion to continue support filed after June 30. Judith reasons, as did the district court, that 60-1610(a)(1)(C) should be compared to K.S.A. 60-1610(b)(2), pertaining to maintenance, which has an express time limit for filing motions.
“If the original court decree reserves the power of the court to hear subsequent motions for reinstatement of maintenance and such a motion is filed prior to the expiration of the stated period of time for maintenance payments, the court shall have jurisdiction to hear a motion by the recipient of the maintenance to reinstate the maintenance payments.” (Emphasis added.) K.S.A. 60-1610(b)(2).
According to Judith, 60-1610(b)(2) contains an express time limit and 60-1610(a)(l)(C) does not, so no time limit should be implied in 60-1610(a)(l)(C). Judith observes that because both the maintenance and child support provisions appear in 60-1610, the absence of an express time limit for filing die child support motion in 60-1610(a)(l)(C) persuasively shows that none was intended. We agree and accept the implication that the legislature did not intend to impose such a time limit.
Robert relies on several cases decided before K.S.A. 60-1610(a)(1)(C) was enacted: Brady v. Brady, 225 Kan. 485, 592 P.2d 865 (1979); Morrison v. Morrison, 14 Kan. App. 2d 56, 781 P.2d 745, rev. denied 245 Kan. 785 (1989); In re Marriage of Blagg, 13 Kan. App. 2d 530, 775 P.2d 190 (1989); and Hill v. Hill, 13 Kan. App. 2d 107, 763 P.2d 640 (1988). These cases offer litde, if any, guidance.
The Court of Appeals, in this case, applied Read v. Miller, 247 Kan. 557, 802 P.2d 528 (1990), in holding that the district court had no jurisdiction to continue child support unless the motion is filed by June 30 of the school year during which the child reaches 18 (the date child support otherwise automatically expires). Read, an automobile accident liability case, considered whether a motion for enlargement of time for service of process under K.S.A. 60-203(a) was timely. Read filed her lawsuit on the day the statute of limitations expired. She did not obtain service on defendant Miller until 119 days later (after several summonses were issued and returned not served). The day after service was obtained, Read filed a motion to enlarge the time of service, under K.S.A. 60-203(a).
The district court granted Read’s motion, enlarging the time for obtaining service by 30 days, and determining that the extension could be granted independent of 60-203(a) under K.S.A. 60-206(b)(2).
The Court of Appeals in Read determined that the specific provisions of 60-203(a) controlled over the more general provisions of 60-206(b)(2). The motion for enlargement of time for service had to be filed within 90 days after the petition was filed, and, therefore, the motion was untimely and the statute of limitations had expired. 14 Kan. App. 2d 274, 277, 279, 788 P.2d 883 (1990). We adopted the Court of Appeals’ opinion. 247 Kan. at 557.
Judith contends that Read does not apply because 60-203(a) is a statute with a specific provision regarding the extension of time after expiration of an initial period. In contrast, 60-1610(a)(l)(C) contains no such specific provision. Robert argues that Read applies because in Read, as in this case, the statute in question did not specify when the motion for enlargement of time should be filed.
Read analyzed a statute extending the time in which service of process will relate back to the date of fifing an action. We dealt in Read with both a plaintiff’s right to bring a claim and the defendant’s, corresponding right to raise the defense of the statute of limitations. 247 Kan. at 563.
The Read rationale does not transfer to the determination of how the fifing date of a 60-1610(a)(l)(C) motion affects the court’s statutory power to continue support for 18- to 19-year-old high school students.
K.S.A. 60-1610(a)(1)(C) grants the court, upon motion, authority to continue support for a qualifying high school student until the completion of the school year in which the child becomes 19. The legislature’s intent is to provide support through high school for children held back in school by mutual parental consent.
Robert cites the definitions for “continue” and “extend” in Webster’s New Universal Unabridged Dictionary 317, 504 (1992). Robert contends that “continue” is synonymous with “extend,” and “extend” means to stretch out or lengthen, not to “revive” or “reinstate.” However, one of the definitions listed for “continue” is: “to carry on from the point of suspension or interruption.” Use of “continue” in 60-1610(a)(l)(C) does not show legislative intent to limit the time for filing the motion.
After K.S.A. 60-1610(a)(l)(C) authorizes the court, upon motion, to continue support through the school year during which the child becomes 19, the statute provides:
“If an agreement approved by the court prior to July 1, 1992, provides for termination of support before the date provided by subsection (a)(1)(C), the court may review and modify such agreement, and any order based on such agreement, to extend the date for termination of support to the date provided by subsection (a)(1)(C).”
This provision applies to Robert and Judith. The district court had authority to modify the prior order to extend the termination date for child support through the 1994 school year. The language of 60-1610(a)(l)(C) does not place a time limit on the court’s authority to modify such an order.
K.S.A. 60-1610(a)(l) provides that the obligation to pay child support shall terminate when the child reaches 18 unless any one of three events occur: (1) the parents have agreed otherwise in a court-approved writing; (2) the child reaches 18 before completing high school, in which case child support continues to June 30 of that school year; or (3) a motion is filed to continue support through the school year in which the child, held back by mutual parental consent, becomes 19. The district court has jurisdiction to consider a motion to continue child support until the qualifying 19-year-old completes the school year.
Robert called Charles F. Harris, a Wichita attorney, as an expert witness. Harris drafted the 1992 amendment that became K.S.A. 60-1610(a)(l)(C) after adoption by the legislature. He also participated in the committee hearings on the amendment. Harris identified the purpose of the amendment:
“The underlying goal, obviously, was the perception that completion of high school is a very, very important part of our society and will enable these children to go on with — in life with a much greater chance of success, so that was — the underlying purpose was basically educational assistance and completion of high school.”
We interpret K.S.A. 60-1610(a)(l)(C) as giving the district court jurisdiction to continue child support for Tawnya, although the motion was filed after June 30 of the school year during which Tawnya became 18.
Retroactive Child Support
K.S.A. 60-1610(a)(l) provides in part: “The court may make a modification of child support retroactive to a date at least one month after the date that the motion to modify was filed with the court.” K.S.A. 60-1610(a)(l) codifies a longstanding common-law rule. See Teegarden v. Teegarden, 155 Kan. 195, 124 P.2d 464 (1942).
We have rarely allowed a retroactive order for child support. One exception involved a divorce decree entered at the time the mother was pregnant. Matlock v. Matlock, 223 Kan. 679, 576 P.2d 629 (1978). The decree in Matlock expressly reserved the issue of child support for the unborn child. The mother later filed a motion for child support, heard 5 months after the child was bom. The trial court ordered child support from the date of the order but did not provide for any retroactive support covering the 5-month period from the date of birth. We reversed, determining that under the Matlock facts, a lump sum award for that period was appropriate. 223 Kan. at 685.
In this case, the district court ordered Robert to pay retroactive child support from June 1993 to April 1994 at the same monthly amount previously paid, $597 per month. The payment for May 1994 was increased to $928 based on the child support guideline table. See K.S.A. 60-1610(a)(1)(C).
We reason that the retroactive modification is contrary to the language of 60-1610(a)(l) and prior case law. The district court’s order modified the parties’ written agreement and support order by continuing the prior obligation to pay through April 1994 and imposing a new obligation to pay increased child support for May 1994. Tawnya graduated from high school on May 22, 1994.
Because Judith did not file her motion until April 28,1994, Robert reasons that K.S.A. 60-1610(a) blocks her claim for the $928 payment for May. Retroactive support is only authorized “to a date at least one month after the date” the motion was filed. On May 28, 1994, Tawnya was not a bona fide high school student and, consequently, Robert asserts, was no longer under 6-1610(a)(1)(C).
Judith’s motion was heard and the order entered on May 10, 1994. The May 1994 payment was due on or before May 15,1994. We reason that this payment was not retroactive because: (1) Judith’s motion was heard 12 days after it was filed; (2) the order was entered early in the month (May 10); (3) Tawnya graduated late in the month (May 22); (4) child support is generally ordered to be paid in monthly amounts because bills often accrue monthly; and (5) the payment would not be past due until May 16, 1994, after the order was entered. A district court has discretion, within the perimeters of statutory policy and case law, in the determination of child support.
Affirmed in part, reversed in part, and remanded.
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The opinion of the court was delivered by
Lockett, J.:
Defendant was convicted of two counts of first-degree murder in the shooting deaths of his parents. On appeal he claims that he was denied his statutory right of allocution and that the trial court abused its discretion in imposing consecutive life sentences.
Kent Vanderveen lived with his parents. In April 1993, the 18-year-old Vanderveen shot each of his parents three times while they were asleep in adjoining rooms in their home. Vanderveen had purchased the ammunition that morning. After the shootings, Vanderveen hid the gun under a tree in a nearby field and went to Lawrence. He later directed police to the gun’s location.
Vanderveen told psychologists that he remembered having two fights with his father that evening. During the first fight his father punched him in the face. Vanderveen left the house and consumed approximately four drinks at restaurants. When Vanderveen returned home, his father was waiting for him, and a second fight ensued. Vanderveen claimed he could not remember the killings.
Vanderveen pleaded no contest to two counts of first-degree premeditated murder. The sentence for first-degree premeditated murder, a class A felony, is life imprisonment. The sole question at the sentencing proceeding was whether the sentences should run concurrently or consecutively. See K.S.A. 21-4501(a); K.S.A. 21-4608. If the sentences were concurrent, Vanderveen would be eligible for parole in 15 years; if consecutive, Vanderveen would be eligible for parole in 30 years. K.S.A. 22-3717(b)(3), (c).
K.S.A. 22-3422 and K.S.A. 22-3424(e) provide the defendant with statutory rights known as allocution. K.S.A. 22-3422 requires that before imposing judgment the court shall ask the defendant whether he or she has “any legal cause to show why judgment should not be rendered.” K.S.A. 22-3424(e)(4) requires that before imposing sentence the court shall “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 sequence of events at the sentencing hearing is crucial to the defendant’s claim that he was denied allocution.
To explain the reason for commission of the offense the defense presented the testimony of two psychologists. They testified that several stressors led to the shootings, including (1) 2 years earlier Vanderveen’s child was bom and adopted, and Vanderveen was also adopted; (2) a friend committed suicide a month earlier, and Vanderveen’s father controlled whether Vanderveen would drive bis parents’ car to the funeral or stay overnight; and (3) Vanderveen fought with his father the night of the shootings. The psychologists stated that Vanderveen appeared to have, been in a disassociative state at the time of the shootings. They also.testified that it would not have been predicted Vanderveen would kill his parents and that he was unlikely to kill again. A report prepared by the Topeka Correctional Facility (TCF) indicated that Vanderveen was suicidal. Although the TCF report could be interpreted differently, defense counsel and the psychologists suggested that TCF was recommending that the sentences be served concurrently due to the suicide risk. The psychologists agreed that the sentences should run concurrently. The State urged that the sentences be consecutive.
After presenting evidence in mitigation, defense counsel John Ambrosio addressed the judge on behalf of the defendant:
“It is my view based on the evidence, it is my argument based on the evidence, based on what the psychologists say, based on the uncontroverted SRDC report, based on the Lamed report, that these be run together. He’s not gonna be á young man when he gets out, he’s gonna be a changed man and he’s gonna live with what he did for the rest of his life. That is also punishment, maybe not enough, but it is punishment.”
The court then stated:
“The defendant stands before the Court having pled guilty to — or rather nolo contendere, to two counts of murder in the first degree. It seems to me having reviewed all of the reports from Lamed Reception and Diagnostic Center, Court Services, that the mental health professionals are somewhat puzzled about why this horrible tragedy occurred.”
At that point, Ambrosio asked to approach the bench. At oral argument, Ambrosio stated that at this bench conference he had informed the judge tihat his client would exercise his statutory rights of allocution. The judge acknowledged defense counsel’s comment and continued:
“It seems to me to impose concurrent sentences for two counts of first degree murder is to diminish the value of the fives of one or both of the victims. But perhaps more importantly, I am not persuaded that these types — this type of behavior might not occur again. All of us in our fives are subjected from time to time to stresses and conflicts, but we don’t react in this fashion. It seems to me that past behavior is a fairly good predictor of future behavior, it'certainly is important to consider. I’m not persuaded that Mr; Vanderveen does not impose a threat to society. I think the fairer statement, as far as Dr. Albott’s testimony is concerned, that in his present state he may very well constitute a threat to society, but given the individual he would not. Perhaps that’s true. Unfortunately, I doubt that individual psychotherapy is going to be available in our present correctional system.
“Having reviewed the criteria set forth in K.S.A. 21-4606 it does appear to me that these crimes were premeditated and he did go out and purchase fresh ammunition when old ammunition was available. It’s true that there was an altercation with his father the night before these crimes occurred, but the murders were not a spontaneous reaction to that. The victims were in effect executed, apparently that [sic] their sleep, and I don’t think it can be fairly said that the victims in anyway provoked what happened. For those reasons I feel it’s my duty to impose consecutive sentences in this case. Albeit a melancholy duty, but I feel it is my duty. ’ - . •
“Mr. Vanderveen, will you come forward, please.”
The defense counsel then asked to make a record, and the following exchange occurred. .
“[Mr. Ambrosio:] For the benefit of the record I believe that the Court has already determined the sentence before giving the defendant allocution. I think— I don’t think, the law says you make findings and then give allocution. I think he has a right to allocution and then you make findings, therefore at this point and time I’m gomia move for the Court not to sentence and I’m gonna move that this be transferred to another division for sentencing because I think you’ve made your mind up. And I apologize for having to say this, Judge, but I think you’ve made your mind up before my client has had a right to address the Court and it is my understanding, was it not, that you were gonna say something to the Court; is that correct?
“THE DEFENDANT: That is correct.
“THE COURT: I intend to give him a right of allocution and I did not mean to indicate that I had made my mind up before hearing what Mr. Vanderveen had to say. But—
“MR. AMBROSIO: I thought the need to make my record, Your Honor.
“THE COURT: I understand.
“Mr. Vanderveen, is there anything that you want to say to the Court or any further evidence that you want the Court to consider by way of mitigation?
“THE DEFENDANT: I stayed up last night trying to figure out what to say. I knew I was gonna say something, but I don’t really know what to say. I’d like to say that I am truly sorry for whát has happened. I wish I could explain in some how, give some sort of explanation why this happened. But I mean I don’t even understand myself really because doctors — I have told the doctors stuff, I don’t remember everything that’s happened. I don’t really understand myself why this happened, so I can’t really expect anybody else to understand either. I don’t think this reflects the type of person I am. Like I say, I can’t explain why this happened, I am truly sorry and whatever happens today, whether I’m in prison or whether I’m not, I still have to live with what I did. And to me as a person that’s greater than anything else, is me having to live with this.
“MR. AMBROSIO: I renew my objection for the record, if you could just rule on my objection.
“THE COURT: Is there any legal reason—
“MR. AMBROSIO: Yes, the legal reason is as follows: The defendant was not given his right of allocution before the Court made findings about the sentence, consequently it is my belief that this will be an improper sentence and it should be transferred to another division for a full sentencing hearing as the Court obviously made up his mind prior to the allocution.
“That’s all I have, Your Honor.
“THE COURT: All right.
“MR. AMBROSIO: I’d like a ruling on that.
“THE COURT: I’ll overrule your objection.
“It’s the judgment and sentence of the Court as to Count 1, that the defendant be incarcerated in the custody of Secretary of Corrections for life. Court will impose the same sentence as to Count 2. The sentences in this case are to be served consecutively.
“If there’s nothing further, the defendant’s remanded to custody.”
ALLOCUTION
Vanderveen argues that he was denied his statutory right to al-locution before sentence was imposed. Vanderveen points out that the trial judge did not ask him whether he wished to make a statement in mitigation of punishment until after the judge indicated it was his duty to impose consecutive sentences. He also contends that the judge did not ask him if there was any legal reason why sentence should not be imposed before imposing the sentence.
As authority to set aside his sentence and require resentencing by another judge, Vanderveen cites State v. Heide, 249 Kan. 723, 822 P.2d 59 (1991). Heide pleaded guilty to several crimes. At the sentencing hearing, the State made its argument and sentence recommendations. The trial judge then asked Heide’s counsel for his comments. Heide’s counsel emphasized Heide’s psychological problems and his low risk of recidivism if treatment continued and asked that a lesser sentence be imposed. The judge then asked Heide if there was any legal reason why sentence should not be imposed. When Heide responded negatively, the judge imposed the sentences recommended by the State. The judge then addressed the issue of probation. The prosecutor reminded the judge that Heide’s counsel had indicated Heide wanted to say something. The judge then asked Heide if he wanted to make a comment. The judge did not specifically ask if Heide wished to present evidence in mitigation of sentence prior to sentencing Heide.
On appeal, Heide claimed he was denied his right to allocution before sentence was imposed. The State asserted that Heide was given allocution when the judge asked him if there was any legal reason why sentence should not be imposed. 249 Kan. at 727. The Heide court disagreed, holding that the trial judge’s inquiry before sentencing pursuant to K.S.A. 22-3422 as to whether there was any legal reason why sentence should not be imposed was insufficient to satisfy Heide’s right under what is now K.S.A. 22-3424(e) to make a statement on his own behalf and to present evidence in mitigation of punishment. 249 Kan. at 730. The Heide court also rejected the State’s argument that a sentence is not “imposed” until the defendant is ordered into custody and held that sentence is imposed when pronounced by the trial judge. 249 Kan. at 730-31.
Although Heide is instructive as to Vanderveen’s argument that he was denied allocution under K.S.A. 22-3424(e)(4) before sentence was imposed, it is not authority for the relief Vanderveen requests here. One of the most important judicial responsibilities is that of sentencing. While there are general guidelines within the statutes, there are no hard and fast rules set out. The judge considers what sentence is required for the protection of the public, while examining what is in the best interest of the individual to correct his or her unacceptable conduct. Here, it was necessary for the judge to determine whether rehabilitative measures could be effected by imposing concurrent sentences or whether imposing consecutive sentences for the maximum period of incarceration was necessary to punish the defendant and protect society.
Each judge is allowed to develop his or her personal technique for imposing sentence. The judge should not add his or her personal condemnation of the offender or underemphasize the seriousness of the offense. The sentence must be pronounced in a careful, understandable manner. Prior to imposing sentence, the judge may explain to the defendant the seriousness of the offense and the burden the defendant must overcome to mitigate punishment.
The record here reveals that the sentencing judge satisfied K.S.A. 22-3424(e)(4). After explaining the seriousness of the offense and the burden necessary for the imposition of concurrent sentences, the judge addressed Vanderveen and asked if there was anything Vanderveen wanted to say or any further evidence he wanted the court to consider by way of mitigation. While the judge did not make this inquiry of Vanderveen until after the judge had indicated he felt it was his duty to impose consecutive sentences, the inquiry was made before the judge actually imposed the consecutive life sentences.
Vanderveen also argues that the inquiry required by K.S.A. 22-3422 as to whether there was any legal cause why judgment should not be rendered was not made until after sentence was imposed. The court asked, “Is there any legal reason — ,” and Ambrosio immediately responded, “Yes, the legal reason is as follows.” As with the inquiry required by K.S.A. 22-3424(e)(4), the 22-3422 inquiry whether there was any legal cause why judgment should not be rendered was made before the consecutive life sentences were imposed. There was no denial of allocution here.
SENTENCING
Vanderveen next argues that the judge abused his discretion in imposing consecutive life sentences. He stresses the testimony of the psychologists that concurrent sentences were appropriate. Van-derveen asserts that after evaluating the evidence presented at the sentencing hearing, a reasonable person would conclude that concurrent sentences should be imposed.
It is the sentencing judge alone who determines the appropriate sentence to be imposed or other disposition of the case by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant’s background, the facts of the case, and the public safety. A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court’s discretion and not a result of partiality, prejudice, oppression, or corrupt motive. See State v. McDonald, 250 Kan. 73, Syl. ¶ 4, 824 P.2d 941 (1992). However, the sentencing judge’s discretion “is not boundless and is to be exercised with regard to what is right and equitable under the circumstances.” State v. Bailey, 251 Kan. 527, Syl. ¶ 3, 834 P.2d 1353 (1992). The standard for determining whether a sentencing judge abused his or her discretion in sentencing is set out in State v. Heywood, 245 Kan. 615, 621, 783 P.2d 890 (1989): The party asserting that the court abused its discretion bears the burden of showing such abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. Stated another way, judicial discretion is abused only where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. See Taylor v. State, 251 Kan. 272, Syl. ¶ 3, 834 P.2d 1325 (1992); State v. Brown, 249 Kan. 698, Syl. ¶ 10, 823 P.2d 190 (1991).
After reviewing the transcript of the sentencing hearing, we find that reasonable persons could differ as to whether concurrent or consecutive sentences should be imposed. The trial court did not abuse its discretion by imposing consecutive sentences.
Affirmed.
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The opinion of the court was delivered by
Allegrucci, J.:
The Board of County Commissioners of Sedg-wick County, Kansas (County), appeals from the judgment of the district court which requires the County to pay the fees of appointed counsel and expert witnesses in actions brought by the State under the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq. (Act). The County also disputes the fee rates approved by the district court. Three actions brought by the State under the Act are consolidated on appeal as case Nos. 73,779, 73,781, and 73,782. The County is the intervenor/appellant in each of the actions; re spondents’ counsel have, filed the appellees’ briefs; and, even though it has filed an appellate brief,, the State takes no position with regard to which government entity should, .be responsible for paying fees associated with proceedings under the Act. The matter was transferred from the Court of Appeals to this court pursuant ‘ ’' to K.S.A. 20-3018(c).
Two issues are raised on appeal:
1. Should the County be held responsible for payment of fees for appointed counsel and expert witnesses under the Act?
2. Did the County acquiesce in the judgment of the district court by paying certain fee claims and paying .at the rates set by the district court?
Appointment of counsel was handled in a consolidated fashion in the district court in Sedgwick County for the respondents in four separate sexual predator cases. The request for approval of fees was handled in the same way, as was the district court’s order granting the requests.
The four respondents were James Rabom, Richard Beam, Leroy Hendricks, and Robert Nelson. The petitions against Rabom and Nelson were dismissed following evaluations at Lamed State Security Hospital. Hendricks was determined by a jury to be a sexually violent predator, and that decision was reversed on appeal when the Act was declared unconstitutional. In re Care & Treatment of Hendricks, 259 Kan. 246, 912 P.2d 129 (1996). According to appellees’ counsel, Beam was discharged when the jury failed to reach a unanimous verdict. The State filed a motion for new trial, which was pending at the time the district court’s journal entry awarding fees was filed. The appeal which had been filed in Beam’s case was dismissed by the Court of-Appeals in July 1995.
We first consider whether the County should be held responsible for payment of fees for appointed counsel and expert witnesses under tire Act. The district court judge adopted the findings and conclusions of the assigned district judge with regard to which'gov-emment entity should pay fees for appointed counsel and expert witnesses under the Act. Findings pertinent to. the issues on appeal include the following:
“5.. That the rate of payment for counsel in the above-captioned cases of one hundred dollars ($100.00) per hour- for out-of-court time and one hundred twenty five dollars ($125.00) per hour for in-court time is appropriate given the nature of the litigation and the uniqueness of the cases and so orders that rate of payment in the above captioned cases for all services rendered to date.
“6. That Sedgwick County do'es not object tó the amount of fees and expenses submitted by Dr. William Logan of Logan and Peterson, P.C., submitted for expert.witness services in the above captioned cases and therefore orders payment of five thousand three hundred thirty one dollars and eighty six cents ($5,331.86) to the same. - •
“7. That Sedgwick County has had an, opportunity to review the statements for legal fees and expenses submitted by the Movants, and has found the claims to be reasonable in their entirety.
“Therefore the Court orders that Sedgwick County shall pay attorney fees and expenses as follows: E. Jay Greeiio of Greeno & Boohár, fourteen-thousand four hundred twenty five dollars and seventy four cents ($14,425.74), Thomas J. Weil-ert, Attorney at Law, fourteen thousand five hundred seventy five dollars and fifteen cents'($14,575.15)', Laura B.. Shaneyfelt of Focht, Hughey & Calvert, sixteen thousand two hundred eight dollars and'fifty cents ($16,208.58) [sic], Roger L. Falk, Law Offices of.Roger L. Falk, P.A., one thousand three hundred eighty eight dollars and forty five cents ($1,388.45), and Paige A. Nichols, Monnat & Spurrier, Chartered, one thousand six hundred twenty five dollars ($1,625.00). The Movants shall be entitled to interest on the above judgments pursuant to K.S.A. l6-204(e)(l) and amendments thereto.
“The Court further finds that the cases-of Leroy V. Hendricks, 94 P 964, and Richard L. Beam, 94 P 963, are .currently in post-trial litigation and appeal and that the interest of justice requires that the above-mentioned Respondents have counsel for said litigation and appeal. Therefore the .Court orders that the trial counsel for the Respondents in all post trial litigation and appellate matters should be reimbursed by Sedgwick County for all reasonable expenses and attorney fees at the rate of fifty dollars ($50.00) per hour for preparation time; sixty five dollars ($65.00) per hour for in-court time.”
The assigned district judge held that the Act is civil in nature. With no additional reasoning, the assigned district judge concluded that “[o]n the matter of necessary and reasonable expenses, costs and attorney fees, as set out in the Act, Sedgwick County will be obligated to provide funds as per court orders to be issued herein.” This court’s review of conclusions of law’is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d .782 (1991).
• On appeal, the County first contends that the nature of this action can be. one of only two options^-civil or civil arising out of criminal. The County analogizes actions under the. Act to K.S.A. 60-1507 proceedings and relies on Stahl v. Board of County Commissioners, 198 Kan. 623, 426 P.2d 134 (1967). The conclusion which the County urges this court to draw is that an action under the Act is civil because it is collateral to a criminal conviction.
In Stahl, we held that 60-1507 proceedings function as part of the review process for criminal convictions and that the county was liable for payment of appointed counsel’s fees because it was liable for criminal defense fees. At that time, appointment of counsel was required by Supreme Court Rule 121 (194 Kan. xxviii) if a 60-1507 motion presented substantial questions, but there was no specific provision for compensation of appointed counsel. 198 Kan. at 624-25. K.S.A. 62-1304 (Corrick), however, provided that counsel appointed for a criminal defendant should receive a reasonable fee, which would be paid from the general fund of the county. 198 Kan. at 626. In Stahl, therefore, the county argued that a proceeding under K.S.A. 60-1507 was a civil matter to which 62-1304 did not apply. 198 Kan. at 626. The court disagreed:
“[W]e do not intend to say that the post-conviction remedy contemplated by K.S.A. 60-1507 is a criminal action in every respect. Indeed, procedurally, we believe it is governed by civil rules. In a substantive aspect, however, and especially in respect to the appointment and compensation of counsel for an indigent prisoner at trial and appellate levels, we deem the proceeding a part of the criminal cause from which the proceeding arose.
“Since K.S.A. 62-1304 provides that the county shall compensate trial counsel assigned to assist an indigent accused, we deem the court below was correct in ordering the defendant Board to allow Mr. Stahl’s claim.” 198 Kan. at 628.
K.S.A. 62-1304 (Corrick), which made counties liable for indigent criminal costs, was later repealed and replaced with the Indigent Defense Services Act, K.S.A. 22-4501 et seq., which shifted payment responsibility to the State Board of Indigents’ Defense Services. L. 1969, ch. 291. The County insists that 60-1507 actions and actions under the Act both are actions of a civil nature arising out of felony criminal convictions and that responsibility for fees incurred in these actions is determined by responsibility for fees incurred in defending against the criminal charges. Under K.S.A. 22-4501 et seq., fees incurred in an indigent’s defense against crim inal charges are borne by the State. Thus, the County’s argument concludes, the State pays for 60-1507 representation and, by analogy, also must pay for representation of indigent respondents in sexual predator proceedings.
We do not agree with the County’s analogy. The purpose of a 60-1507 action is to attack a criminal conviction or resulting sentence. It is prosecuted by the defendant and perpetuates the process of reviewing the conviction or sentence. The purpose of a proceeding under the Act is commitment of the respondent, who may or may not have been convicted of a criminal offense. It is prosecuted by the government, does not raise questions about respondent’s conviction and sentence, if they exist, and is not part of the review process. Even if both 60-1507 actions and proceedings under the Act could fairly be characterized as proceedings collateral to a criminal conviction, as the County urges, that label has not been shown to be a determining factor for funding. Thus,- the State’s being held responsible for paying fees of counsel appointed to represent indigent defendants in 60-1507 proceedings does not lead to the conclusion that the State also should be held responsible for fees incurred in proceedings under the Act.
We need not determine whether the Act is civil or criminal in nature in order to resolve responsibility for payment of the attorney fees. The County contends adamantly that the Act is civil, but the reasoning offered by the County with regard to fees does not depend on that determination. The touchstone for the County’s rationale is that representation in collateral proceedings should be paid for by the entity which paid for representation (or would have paid if indigency had been established) in the original criminal proceeding. That does not require a determination whether the collateral proceeding is civil or criminal in nature. Moreover, the County concedes “that the issue of the nature of the statute does not in and of itself determine the party responsible for indigent defense costs.” Appellees do not address the question whether proceedings under the Act are civil or criminal in nature.
The County declares that resolution of this issue depends on determination of legislative intent. According to the County, both the statute and the legislative history are silent on intent. That silence should not be interpreted as state delegation of liability for sexual predator fees to counties, the argument continues, because the legislature has shown that it knows how to specify when counties are to be liable. Examples of express assignment of liability for costs and fees to counties may be found in the statutes governing commitments due to drug and alcohol abuse and mental illness. K.S.A. 65-5216 and K.S.A. 65-5228; K.S.A. 65-4041 and K.S.A. 65-4053; K.S.A. 59-2922 and K.S.A. 59-2934.
We note that the Act was amended in 1995. L. 1995, ch. 193, §§ 1-10. Before being amended, K.S.A. 59-29a03(a) provided that notice of the anticipated release of a potential sexually violent predator would be given “to the prosecuting attorney of the county where that person was charged.” K.S.A. 59-29a04 provided that within 45 days of receiving the notice, “the prosecuting attorney of the county where the person was convicted or charged or the attorney general if requested by the prosecuting attorney may file a petition . . . alleging that the person is a sexually violent predator.” The current versions of the statutes require the notice to be given to the attorney general as well as to a multidisciplinary team established by the Secretary of Corrections, and now only the attorney general is authorized to file a petition. K.S.A. 1995 Supp. 59-29a03 and K.S.A. 1995 Supp. 59-29a04. In summary, the Act has been amended so that primary responsibility for commitment of sexually violent predators rests with the State rather than the counties. Even under the original design, the State could be made responsible at the request of a county prosecuting attorney.
The Indigent Defense Services Act did not provide for payment for attorneys appointed to represent defendants charged with misdemeanors. Several years after its enactment, the question of liability for the costs of defending indigents charged with misdemeanors was presented to this court in Board of Osage County Comm’rs v. Burns, 242 Kan. 544, 747 P.2d 1338 (1988). Starting from the premise that counsel is necessary where imprisonment is a possibility, we concluded that counties have a legal obligation to pay the fees of attorneys who are appointed to represent indigent defendants charged with misdemeanors and traffic infractions. 242 Kan. 544, Syl. ¶ 2. Here is the rationale of the court:
“The Board of Comity Commissioners of each county is responsible by law for all expenses incurred for the operation of the district court in the county except those expenses required by law to be paid by the state. K.S.A. 20-348. The legislature has provided for the payment of counsel for the indigent in felony cases but not in misdemeanor cases and, thus, that expense falls upon the counties. The entire expense of the court system, except the salaiy of judges and court reporters, was traditionally borne by the counties. The legislature has in recent years enacted laws requiring that the State shoulder more of that expense, including payment of most if not all salaries of court personnel, but it has not provided for the payment of the fees with which we are now concerned. We conclude that the county has a legal obligation to provide counsel for indigent defendants who are charged with misdemeanor offenses when imprisonment is a real possibility and to pay fees to such appointed counsel.” 242 Kan. at 549.
K.S.A. 20-348 remains unchanged: “Except for expenses required by law to be paid by the state, from and after January 10, 1977, the board of county commissioners of each county shall be responsible for all expenses incurred for the operation of the district court in the county.”
In the present case, the Act does not provide for the payment of fees of attorneys and expert witnesses which must be made available to persons against whom a petition has been filed. Under K.S.A. 20-348 and its construction in the Osage County case, each county is therefore responsible for those fees if they are expenses incurred in the operation of the district court in the county. Before the amendments to 59-29a03 and -29a04, there would seem to be no question that the fees for appointed counsel and expert witnesses in sexual predator commitment proceedings prosecuted by the county’s prosecuting attorney would be expenses incurred in the operation of the county’s district court. The County argues that K.S.A. 20-348 should be interpreted to cover only the costs of running the court, as distinguished from the expenses of indigent defense. The County’s argument ignores our holding in the Osage County case.
The County also argues that indigent persons against whom sexual predator commitment petitions have been filed should be provided counsel under the Indigent Defense Services Act. K.S.A. 22-4522(a) provides in part: “The state board of indigents’ defense services shall . . . [p]rovide . . . the constitutionally and statu torily required counsel and related services for each indigent person accused of a felony and for such other indigent persons as prescribed by statute .” (Emphasis added.) The County concedes that the regulation listing the matters to which the Indigent Defense Services Act applies does not specify commitment proceedings under the Act. The County argues, however, that proceedings under the Act fall within the reach of the catchall provision for “any other cases in which legal representation at state expense is required by law.” K.A.R. 105-l-l(a)(13). On the ground that counsel is statutorily required for commitment proceedings under the Act, the County would have the court conclude that sexual predator matters are “cases in which legal representation at state expense is required by law.” The County’s reasoning is faulty! Sexual predator matters are cases in which legal representation is required by law, but the question is whether legal representation at State expense is required. It appears that the County construes 22-4522(a) to mean that any time counsel is statutorily required, representation will be furnished by the State Board of Indigents’ Defense Services. Such a construction ignores the rationale of this court in deciding the Osage County case. We construe’K.S.A. 22-4522(a) to mean that representation and related services for'an indigent person must be provided by the State Board of Indigents’ Defense Services when a statute so requires. The County agrees that the Act is silent on responsibility for representation. The Act does not expressly require the State Board of Indigents’ Defense Services to provide representation and related services for indigent persons against whom sexual predator petitions are filed. Nor is it reasonable to conclude from the County’s argument that the state board’s responsibility may be implied in the Act.
The County finally argues that the fees of counsel and witnesses under the Act are expenses required by law to be paid by the State because pursuant to K.S.A. 22-4514a, Legal Services, Inc., represents indigent inmates. That statute, according to the County, represents the State’s assumption of responsibility for legal costs incurred by indigent inmates in civil matters. Because all respondents in sexual predator proceedings are confinéd, the argument contin ues, their legal service costs must be paid by or through Legal Services, Inc.
The plain language of the statute, however, establishes otherwise. K.S.A. 22-4514a provides, in part:
“(a) Any nonprofit corporation, organized under the laws of the state of Kansas for the purpose of providing legal services to indigent inmates of Kansas correctional institutions may submit its annual operating budget for the next fiscal year of the state ... to the state board of indigents’ defense services. .. .
“(b) If such budget is approved by the state board of indigents’ defense services, on July 1 of the next fiscal year the amount of the maximum obligation of financial aid to be paid by the state board of indigents’ defense services as set forth in the approved budget may then be paid in a lump sum to the corporation.”
This statute creates a procedure by which an organization such as Legal Services, Inc., may request money for its operation. It is apparent from the wording of subsection (b) that approval of the request is discretionary. It does not follow from the State’s providing money at its discretion for Legal Services, Inc., that the State thereby unqualifiedly committed itself to paying fees for sexual predator proceedings. Respondents assert, in addition, that there is no provision for the appointment of Legal Services, Inc., in sexual predator proceedings.
In summary, K.S.A. 20-348 makes each county responsible for all expenses incurred for the operation of its district court except expenses which the law requires the State to pay. Expenses incurred for the operation of the district court include fees for court-appointed counsel to represent indigent defendants in matters where the State is not required by law to pay. Board of Osage County Comm'rs v. Burns, 242 Kan. at 549. We find the County’s arguments that the State is required by law to pay the fees incurred in representing respondents in sexual predator proceedings are not persuasive. We conclude that the fees incurred in representing respondents in sexual predator proceedings are expenses incurred for the operation of the district court and, as such, are to be paid by the County. Because of our decision, we need not address the question of whether the County acquiesced in the judgment of the district court by paying certain fee claims and paying at the rates set by the district court.
Judgment of the district court is affirmed.
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The opinion of the court was delivered by
Davis, J.:
Darrick S. Harris appeals from his convictipns and sentence for one count of first-degree murder and one count of aggravated battery of a law enforcement officer. He contends the trial court erred in several matters involving admissibility of evidence, jury instructions, and further contends that there was lack of proper notice by the prosecutor on his hard 40 sentence. Finding no reversible error, we affirm.
This case centers around a disturbance in the recreation shack at the Lansing Correctional Facility on May 22,1993, in which 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 arraigned on November 12, 1993. The State filed with the court notice that it would be proceeding “under K.S.A. 21-4622 [sic]” and that notice of its intent had been provided to the defendant and the defendant’s attorney.
During voir dire, the State used one of its peremptory challenges to remove Chester Lewis, Jr., a black juror. When asked to supply a race-neutral reason for the strike, the State responded that the juror in question had lied on his juror questionnaire. According to the State, Lewis had stated in his questionnaire that no members of his immediate family had been a party in a civil or criminal case when in reality several criminal actions had been filed against a number of members in his immediate family. The defendant’s attorney protested that this information had not been brought out during voir dire and that there were no facts to back up the assertion that the juror, had lied. Nevertheless, the court allowed the peremptory strike, concluding that the Lewis family was well known to the court and that it would take judicial notice of its records.
The State called Officer Mike Bidatsch, one of the victims of the attack. Officer Bidatsch testified that he was working the recreation yard with three other corrections officers, including the murder victim, Officer Mark Aveiy, on the day of the attack. According to Officer Bidatsch, most of the inmates were inside the recreation shack that day because it was raining. However, Officer Bidatsch noticed that a group of Mexican inmates was in the softball dugout outside the recreation shack. He was surprised because this group usually played pool during rainy days on a specific pool table in the recreation shack. On this particular day, however, there was another group of inmates playing at that table.
Officer Bidatsch was standing inside the recreation shack by the ice machine when an inmate came up to him and inquired about the time. Officer Bidatsch told him that it was 3:05 p.m. Suddenly, Officer Bidatsch noticed an inmate named Chris Davis throwing a 5-pound weight plate in his direction. The plate hit Officer Bidatsch on the top of his head, bounced off, and struck an inmate named Reich in the face. Officer Bidatsch testified that the blow knocked him to his hands and knees. He reached for his radio, but it was not there so he got up and began chasing Davis.
Davis ran into the weight pit area and was lost in the crowd of inmates. As Officer Bidatsch went back to the main area, he was attacked by a group of inmates. As he was fighting them off, he was struck on the jaw and fell to the ground. Officer Bidatsch stated that he was able to crawl to a ping-pong table, but as he tried to get up, an inmate he identified as the defendant came up to him and kicked him twice in the ribs. Officer Bidatsch. testified that he managed to crawl around the comer but in doing so he was struck on the head by a pool ball thrown by one of the inmates. Officer Bidatsch was able to crawl out the recreation shack door to safety.
Officer Bidatsch stated that he was in intensive care at Providence Medical Center for 3 days as a result of injuries suffered in the attack. He was unaware until told later by investigators that Officer Aveiy had also been attacked.
Officer Ronald Clark, another officer working in the recreation yard during the incident, testified that there were approximately 400-450 inmates in the recreation shack. Officer Clark noticed that on that particular day, a gang called the Vice Lords were playing at a pool table usually used by a Mexican gang and the Mexican gang was sitting outside the recreation shack in a baseball dugout. He felt that this was strange and told Officer Avery to keep an eye on the Vice Lords. He stated that several of the Vice Lords had been put into segregation in February and that the Vice Lords were edgy because of pressure that the guards were exerting on them. Officer Clark stated that the guards were strictly monitoring the Vice Lords; including the defendant, who was a member of the gang-
Officer Clark was outside the recreation shack releasing an inmate from the yard to go back to his cell when he heard the alarm inside the recreation shack go off. He ran to the door of the shack but could not get in because of the mass of inmates just inside the door. Although he could not get in, he was able to see Officer Bidatsch attempt to rise from the floor and another inmate, Clifford Scales, hit him and knock him back down. He could not see Officer Aveiy although he did notice the defendant in the area where Avery was later found.
When other officers arrived, they were able to enter the recreation shack, where they found Officer Avery lying face down on the concrete in a pool of blood. Officer Clark and other officers carried Officer Avery to the clinic. At the clinic, Officer Bidatsch told him that Chris Davis had participated in the attack. Officer Clark then ordered that the Vice Lords be rounded up and put in confinement within the institution. He stated that he did this because the Vice Lords had previously threatened officers, including himself. Defense counsel objected to Officer Clark’s statement, claiming that it was a statement concerning prior bad acts in violation of K.S.A. 60-455. The court overruled the objection.
Tyrone Looney, an inmate, testified on behalf of the State. He stated that in early 1993, prior to the incident, he sometimes associated with the Vice Lords and was present when a conversation occurred between several members of the Vice Lords, an inmate called G-Money, an inmate called Valentine, and the defendant. Looney testified that during this conversation, there was talk about the fact that the prison guards were harassing the Vice Lords. The defendant’s attorney lodged a hearsay objection to any statements made during the conversation.
Earlier, outside the presence of the juiy, the defense counsel had objected to the expected testimony of Looney on the grounds that it was hearsay. Further, the defense counsel objected on the grounds that there was no evidence that the defendant had made any statements during the conversation or that he had adopted statements made by someone else. The trial court ruled that Looney’s anticipated statements were not offered to prove the truth of the matter asserted but merely offered to show that they had been said, and overruled the objection. The judge likewise overruled the objection when it was made in the presence of the jury.
Looney explained that both G-Money and Valentine were upset because the guards were “cracking down” on the Vice Lords. Looney stated that the defendant, whom he called “Yellow,” was simply standing there “look[ing] mean.” During this conversation, G-Money and Valentine discussed “getting even” with the guards.
Michael Madison, another inmate, was called by the State and testified that he was in the recreation shack when the incident occurred. Madison stated he was playing poker when he heard inmate Reich fall to the floor. Madison saw Officer Avery attempt to help Reich and noticed that several other inmates had attacked Officer Aveiy. Madison testified that the defendant hit Officer Avery in the head with a 25-pound weight plate and knocked him to the floor. Madison then stated that the defendant hit Officer Avery three more times with the plate and also kicked Officer Avery.
On cross-examination, the defendant’s attorney elicited testimony that when Madison first talked to investigators about the incident, Madison had stated that he was looking at Officer Avery’s body and saw a halo over Officer Aveiy’s head. According to Madison, a spirit rose out of Officer Aveiy’s body and quoted a Bible passage, Revelations 12:7 three times. Madison also admitted on cross-examination that on an earlier occasion he had been reading the Bible in his cell when the devil spoke to him and told him to quit reading.
Dondie Thomas, another inmate, then took the stand. He was reluctant to testify and asked the court to order him to take the stand. He stated that he had talked to investigators after the incident and had told them the truth. He testified that he saw the defendant involved in the incident with the officers but he stated: “I’m not going to say I seen [sic] him strike the officers.” Thomas said he wanted nothing to do with the case because his life “had been hell” since he had talked to the investigators. He stated that because of his involvement with the case, he was in protective custody away from the general prison population and it has been hard on him. He was given a chance to look at the statement he had previously given to investigators and affirmed that it was true and correct. On cross-examination, he stated that he did not see the defendant lay a hand on Officers Bidatsch and Avery.
The State introduced the written summary of the conversation that Thomas had earlier had with investigators. This summary indicated that Thomas told investigators he had been standing next to the door when he saw a white inmate get hit on the head with a weight. Thomas told investigators that the defendant had used a weight and had beaten both officers.
Byron Wash, another inmate, testified that he had been standing around talking in the recreation shack when he saw an inmate get hit with a weight. Officer Bidatsch attempted to assist the inmate and chased another inmate, who Wash identified as Travis Knigh-ten, into the weight area. Wash stated that Officer Avery then went over to assist the injured inmate and another inmate, Andrew Green, hit Officer Avery with a weight plate. Several other inmates, including the defendant, then began kicking and hitting Officer Avery.
Dr. H.C. Anderson, a forensic pathologist, testified that he had examined the body of Officer Avery. Dr. Anderson testified that Officer Avery’s death was caused by numerous blows to the head with blunt objects. Pictures taken of the deceased during Dr. Anderson’s autopsy were admitted over the defendant’s objection that the photographs were unduly gruesome, prejudicial, and not probative.
The defendant called Kansas Bureau of Investigation (KBI) special agent Timothy Dennis. Dennis testified that during the course of the investigation, at least four other persons were identified by witnesses as striking one of the officers with a weight plate.
Ronald Martin, an inmate, also testified on behalf of the defendant. Martin testified that he was shooting pool in the recreation shack and saw Officer Bidatsch standing by the ice machine. He noticed Officer Bidatsch duck quickly and saw an inmate who had been standing next to Officer Bidatsch fall to the floor with blood on his face. According the Martin, the whole recreation shack was in an uproar. Martin stated that Officer Bidatsch chased another inmate into the weight pit area and soon came crawling out of the weight room. Martin was certain that the defendant did not kick Officer Bidatsch because the defendant had been playing cards at the comer table and was not in the vicinity. Martin stated that he also saw the persons who battered Officer Avery and while he would not name names, he was positive that the defendant was not one of them.
Martin testified that he was questioned by investigators and they would not believe him when he told them that the defendant was not involved. Martin also testified that Darryl Perrin, a Department of Corrections investigator, pressured him to try to make him give statements against certain inmates, including the defendant.
The defendant testified on his own behalf. According to the defendant, when the incident occurred, he was due to be released in 9 days. The defendant admitted to being a member of the Vice Lords. He further stated that it was common for prisoners to be mad at guards, but he could not recall the specific conversation testified about by Tyrone Looney. He further denied having any part in any plan to injure any of the guards.
The defendant testified that he and another inmate, Chris Davis, went to the recreation shack to play cards and get out of the rain. He and Davis played cards with an inmate called “Little Lord” and another inmate they did not. know. The defendant stated that they stopped playing cards because the recreation shack began to fill with people, creating a dangerous situation. Instead, he and Davis sat on the card table and talked.
According to the defendant, while he was sitting on the card table, he saw Andrew Green throw a weight plate at Officer Bi datsch and saw Officer Bidatsch fall to the floor. Travis Knighten then began hitting Officer Bidatsch. The defendant testified that Officer Bidatsch then chased Knighten into the weight pit. When Officer Bidatsch came back into the main room, a group of inmates attacked him. Officer Bidatsch was knocked to the ground, and more inmates began hitting and kicking him as he tried to crawl away. The defendant denied ever kicking or hitting Officer Bidatsch.
The defendant stated that he then moved out of the vicinity and saw Officer Avery being attacked by an inmate called EDS, whose real name was Clifford Scales. Scales was armed with a weight plate. The defendant stated that Scales was the only person to hit Officer Avery with a weight plate. He also stated that an inmate named Mathenia was a participant in the attack on Officer Avery.
According to the defendant, some members of the Vice Lords felt that the guards were “cracking down” on them, but he did not. He admitted that Officer Avery once lodged a disciplinary complaint against him for horseplay but stated that he was found innocent of the charge and did not have to do time in segregation.
In rebuttal to the testimony of Ronald Martin, the State called Officer H.R. Woodcock, KBI Agent Jim Woods, and Department of Corrections Investigator Darryl Perrin, all of whom testified that they did not attempt to pressure Martin into testifying against the defendant.
At the conclusion of the evidence, a conference was held regarding jury instructions. Defense counsel objected to the court’s planned inclusion of an instruction regarding aiding and abetting, arguing that it was not supported by the evidence. He also asked that the court include an instruction on aggravated battery of a law enforcement officer as a lesser included offense of first-degree murder. His objection was overruled and the request was denied by the court.
The defendant assigns the following eight errors: (1) The court erred in admitting hearsay; (2) the court erred in admitting evidence to show the defendant’s participation in those statements: (3) the court erred in allowing testimony of prior bad acts committed by the Vice Lords, (4) the court abused its discretion in failing to give an instruction on aggravated battery as a lesser included offense of first-degree murder, (5) the court abused its discretion when it permitted the State to use a peremptory challenge to strike a black juror; (6) the State failed to comply with notice requirements regarding intent to' pursue the hard 40 sentence; (7) the court abused its discretion in admitting prejudicial and irrelevant photographs of the deceased; and (8) the court abused its discretion in giving an aiding and abettiiig instruction withdüt sufficient evidence.
(1) THE ADMISSION OF HEARSAY
The defendant argues that the district court erred in admitting testimony offered by Tyrone Looney that he heard certain members of the Vice Lords, a gang of which the defendant is a member, state in the defendant’s presence that they were unhappy that the guards were “cracking down” on them and that they should get even. The defendant contends that these statements were inadmissible hearsay. The State, at trial, argued that the statements were not hearsay because they were not offered to prove the truth of the matter asserted but simply to show that the statements themselves were said. The district court admitted the statements on this basis.
K.S.A. 60-460 states that absent certain exceptions, “[éjvidence of a statement which is made other than by a witness while testifying at the hearing, offered to .prove the truth of the matter stated, is hearsay evidence and inadmissible.” The theory behind the hearsay rule is that when a statement is offered as evidence of the truth asserted in it, the credibility of the asserter is the basis for the inference, and therefore the asserter must be subject to cross-examination. 6 Wigmore on Evidence § 1766 (Chadboum rev. 1976).
However, if such a statement is offered not to prove the truth of the matter asserted but to prove that the statement was made, it is not hearsay and therefore not inadmissible. See State v. Getz, 250 Kan. 560, Syl. ¶ 2, 830 P.2d 5 (1992); State v. Crowley, 220 Kan. 532, 536-37, 552 P.2d 971 (1976). If relevant, such a statement is admissible through the person who heard, it. State v. Getz, 250 Kan. 560, Syl. ¶ 2.
This is not the usual case in which statements which would otherwise be hearsay are offered, not to prove the truth of tire matter asserted, but merely to show that the statements were said. We have allowed the use of statements which would otherwise be hearsay to show that the defendant’s story had changed over time, to show the defendant’s state of mind, or to show that a Miranda warning was given. See State v. Wacker, 253 Kan. 664, 672, 861 P.2d 1272 (1993) (jury informed that statements made by the defendant were not admitted for truth of the matter asserted, but instead to show how the defendant’s story changed over time); State v. Getz, 250 Kan. at 566-68 (evidence that another person told defendant she owned horses and asked him to help her sell them not admitted for the truth of whether other person had purchased horse, but for proving that defendant thought he had permission to sell the horses); State v. McClain, 220 Kan. 80, 82, 551 P.2d 806 (1976) (testimony admitted not to show that the statements in the Miranda warning were true, but rather to show that Miranda was given). However in this case, the statements were offered by the State as evidence of premeditation on the part of the defendant, and the content of the statements themselves reflect such premeditation.
In State v. Oliphant, 210 Kan. 451, 454, 502 P.2d 626 (1972), we identified three types of statements exempted from the hearsay rule when offered, not for the truth of the matter asserted, but without reference to such a truth. These three groups are: (-1) those statements material to the case as part of the issue; (2) those statements which are verbal parts of an act; and (3) those statements used circumstantially as giving rise to an indirect inference but not as an assertion to prove the matter asserted. The State argues that the statements made in this case fall under the third categorization used in Oliphant. According to the State, the evidence was used indirectly to infer premeditation on the part of the defendant.
However, the only way in which the evidence can be used to infer premeditation on the part of the defendant is if the statements asserted were true, i.e., if the guards were actually cracking down on the Vice Lords and the Vice Lords felt that they should get even. In Oliphant, this court held that extrajudicial statements placing the defendant near the crime scene were hearsay even though the prosecution protested that they were merely introduced to show that the statements were made. 210 Kan. at 454-55. In reaching this conclusion, the court stated:
“In our opinion the utterances were testimonial in character despite the state’s protestations that they were not being offered with that in mind. If not offered as tending to establish the defendant’s presence in the community as a circumstance bearing on guilt, it would seem highly improbable that the state would have insisted on offering the statements at all.” 210 Kan. at 455.
The situation is the same in this case. The fact that the defendant merely heard these statements does not infer premeditation. Instead, the probative value of these statements is that they allow a jury to infer that the Vice. Lords were angiy and wanted to get even, thus providing a motive and evidence of premeditation. If not to show the truth of the matter asserted, there was no other reason for the State to offer the statements. Under these circumstances the statements were hearsay.
Simply because these statements were hearsay, however, does not mean that reversal is automatic. The admission or the exclusion of evidence is subject to the harmless error rule. State v. Winston, 214 Kan. 525, 530, 520 P.2d 1204 (1974). K.S.A. 60-261 provides:
“No error in either the admission or the exclusion of evidence ... is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
In this case, there was ample evidence that the Vice Lords were upset with the guards and that the guards were paying special attention to them. The defendant himself admitted that some members of the Vice Lords were upset and felt that the guards were “coming down” on them. Officer Clark also stated that members of the Vice Lords had previously threatened officers. Under these circumstances, the admission of the hearsay statements, although error, was simply cumulative evidence and therefore not reversible error.
(2) THE ADMISSION OF EVIDENCE SHOWING THE DEFENDANT’S PARTICIPATION IN THE HEARSAY STATEMENTS
In a related issue, the defendant argues that the district court erred in allowing Tyrone Looney to testify that the defendant was standing next to members of the Vice Lords when they were making the aforementioned comments regarding their anger at the guards and their wish to “get even.” He argues that there was no showing that he adopted the statements so that they cannot be admissible under the hearsay exception for adoptive admissions.
The defendant’s argument is correct in that the hearsay statements could not have been admissible under either the exception for adoptive admissions contained in K.S.A. 60-460(h)(2) or the exception contained in K.S.A. 60-460(i)(2). However, the district court did not use either of those exceptions as a reason for admitting the statements. Instead, the statements were admitted because the district court concluded that they were not hearsay. As stated above, this conclusion was in error. As also stated above, the error was harmless because the evidence contained in the statements was merely cumulative. Therefore, the defendant’s argument, while correct, is not sufficient to compel a reversal under the facts of this case.
(3) TESTIMONY OF PRIOR BAD ACTS COMMITTED BY THE VICE LORDS
The defendant contends that the district court erred in admitting Officer Clark’s statement that immediately following the incident he told another officer to round up the Vice Lords and put them in segregation because they had previously threatened officers. The defendant argues that these statements were evidence of prior crimes or wrongdoing and, therefore, not admissible under K.S.A. 60-455 because the State did not file notice of its intent to use prior crimes.
K.S.A. 60-455 provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person com mitted another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
However, the district court did not find in its discretion that the evidence was admissible under K.S.A. 60-455 but, rather, found that the evidence was admissible independent of K.S.A. 60-455 because it was not evidence of a crime or civil wrong committed on a specific occasion. Although the statement indicated that some members of the Vice Lords had previously threatened officers, there was no evidence that the defendant himself had ever threatened officers. The purpose of K.S.A. 60-455 is to forbid introduction or crimes or civil wrongs committed by the defendant in a criminal action or party in a civil action for the purpose of showing the party’s disposition to commit a crime or civil wrong. In a criminal action, it applies only to the defendant. See State v. Bryant, 228 Kan. 239, 245, 613 P.2d 1348 (1980). In this case, the prior actions of the Vicé Lords are not the actions of the defendant, and the evidence was properly admissible independent of K.S.A. 60-455.
(4) THE FAILURE TO GIVE AN INSTRUCTION ON AGGRAVATED BATTERY AS A LESSER-INCLUDED OFFENSE OF FIRST-DEGREE MURDER
The defendant argues that under the facts of his case, aggravated batteiy is a lesser included offense of first-degree murder which the trial court was duty bound to instruct upon. He contends that the jury could have found that although he might have kicked Officer Avery, his blow was not the cause of Officer Avery’s death.
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 evidencé, wheñ 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. See State v. Harmon, 254 Kan. 87, 92, 865 P.2d 1011 (1993); State v. Deav ers, 252 Kan. 149, 151, 843 P.2d 695 (1992), cert. denied 125 L. Ed. 2d 676 (1993).
In essence, the defendant claims that because Byron Wash testified that he saw the defendant kick Officer Aveiy in the ribs but did not see the defendant otherwise attack Officer Avery, and because Michael Madison’s testimony was unbelievable, a reasonable jury could have found that he only kicked Officer Avery. According to the defendant, because Officer Avery died of head wounds, a jury could have found that the defendant was only guilty of aggravated battery of a law enforcement officer rather than first-degree murder.
The defendant bases this argument on the premise that aggravated battery of a law enforcement officer is a lesser included offense of first-degree murder under the second test enunciated in State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988). The second test in Fike states that a lesser crime may be an included offense of the crime charged if the factual allegations in the charging document and the evidence which must be adduced at trial to prove the crime charged would also necessarily prove the lesser crime.
Under the second prong of Fike, as applied to the facts of this case, aggravated battery of a law enforcement officer would be a lesser included offense of first-degree murder because in order to show that the defendant murdered Officer Avery, it is necessary to prove that he battered him. Normally, however, because Officer Aveiy died as the result of the battery, the offense of aggravated battery of a law enforcement officer necessarily merges with that of first-degree murder. “Where a victim dies from an aggravated battery, a homicide has occurred and the battery merges into the homicide.” State v. Smith, 245 Kan. 381, 392, 781 P.2d 666 (1989).
The defendant’s argument, however, is that a jury could have found that while he did strike the victim, his action did not contribute to the victim’s death. In order to prove first-degree murder, the State had to prove that the defendant actually killed Officer Avery. Therefore, according to the defendant, if the jury believed that Officer Aveiy died as the result of blows struck by other prisoners but not by the defendant, then he is guilty only of aggravated battery of a law enforcement officer and the offenses would not merge.
The inherent problem with the defendant’s argument is that if his blows were a contributing factor in Officer Aveiy’s death, the offenses merge and he is guilty of first-degree murder. If, as he argues, his blows did not contribute to Officer Avery’s death, then he is guilty neither of first-degree murder nor of any lesser included offense associated with the count of first-degree murder. Instead, he is guilty of an entirely separate offense of battery of a law enforcement officer. The defendant was not charged with this separate offense. As to the charged offense of first-degree murder, the defendant was either guilty of first-degree murder or a lesser included offense which would necessarily merge with first-degree murder, or was not guilty. Therefore, the district court did not err in refusing to give the defendant’s requested jury instruction on aggravated battery of a law enforcement officer as a lesser included offense of first-degree murder.
(5) THE STATE’S USE OF A PEREMPTORY CHALLENGE TO STRIKE A BLACK JUROR
The defendant contends that the trial court erred in allowing the State to peremptorily strike Chester Lewis, Jr., a black juror. The defendant argues that the racially neutral reason for striking Lewis, that he answered untruthfully on his juror questionnaire, was never actually corroborated and that Lewis was not given a chance to explain his answer.
In Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the United States Supreme Court held that striking a black venireperson based on racial grounds or the belief that black jurors will be partial to a black defendant violates the Equal Protection Clause of the United States Constitution. In order to challenge the striking of a venireperson under the Batson methodology, the defendant must first make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race. If such a showing is made, the burden then shifts to the State to articulate a race-neutral reason for striking the venireper-son in question. The court must then determine whether the de fendant has carried the burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-59, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991); State v. Poole, 252 Kan. 108, 110, 843 P.2d 689 (1992).
The standard of review to be applied to a district court’s ruling that the State did or did not act with discriminatory purpose in exercising its peremptory strike is whether the court abused its discretion. 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 district court. 256 Kan. at 374.
In this case, the court asked the State to supply a race-neutral reason for striking Lewis. The State answered that Lewis had lied on his juror questionnaire, answering no to the question of whether he or any members of his family had been a party to any civil or criminal case. The State informed that court that cases had been filed or were currently on file against a number of Lewis’ immediate family. The trial court indicated that both Lewis and his father were known to the court and took judicial notice of its court file pertaining to the cases filed against members of Lewis’ family. The court then found that the reason given by the State was race neutral and allowed the strike.
The defendant does not deny that the reason given by the State is facially race neutral. However, he argues that Lewis was never asked during voir dire to explain his answer. According to the defendant, if such questioning had occurred, he would have been able to determine whether the State’s belief that Lews had lied on his questionnaire was accurate or whether Lewis made an unintentional mistake.
At trial, however, the defendant argued only that from the information in the record, he had no way of determining that members of Lewis’ family were actually involved in civil or criminal cases and there was no proof of such involvement. The district court took judicial notice of its own files and determined that members of Lewis’ family were indeed involved in a pending criminal case. The defendant presents no evidence that the district court erred in its finding but only argues that proof should have been brought out on the record during voir dire.
The trial court has the responsibility of determining whether the prosecution’s given race-neutral reason is merely a pretext for purposeful discrimination, and its finding is accorded great deference on appeal. See Hernandez v. New York, 500 U.S. at 364. As stated in Hernandez:
“Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding ‘largely will turn on evaluation of credibility.’ [Citation omitted]. In the typical peremptoiy challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutors state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’ [Citations omitted].” 500 U.S. at 365.
Without question, the better practice in this case would be for the district court to have made a record and substantiated the State’s claim that the witness had made a false statement rather than simply relying on its own knowledge of the persons involved. However, under the particular circumstances of this case, the failure of the district court to do so is not fatal.
The State proffered a reason for the strike that was race neutral. The court found that the State’s proffered race-neutral reason was not a pretext for discrimination, and this decision is not one with which no reasonable person would agree. Therefore, the district court did not abuse its discretion in allowing the strike.
(6) NOTICE REQUIREMENTS REGARDING INTENT TO PURSUE THE HARD 40 SENTENCE
The defendant contends that the State failed to comply with the notice requirements of K.S.A. 1992 Supp. 21-4624 and K.S.A. 60-205(e) when fifing its intent to seek the hard 40 sentence. He argues that this failure prevents the State from seeking the hard 40 sentence and, therefore, his sentence should be overturned.
K.S.A. 1992 Supp. 21-4624(1), which was applicable when the defendant committed the crime, provides that where the State in tends to seek the hard 40, it must file written notice of that intent with the court and serve such notice on the defendant or the defendant’s attorney at the time of arraignment. Absent compliance with this statute, the State is prohibited from requesting the hard 40. K.S.A. 1992 Supp. 21-4624(1).
We have required strict compliance with the statute. In State v. Peckham, 255 Kan. 310, 317-18, 875 P.2d 257 (1994), this court noted:
“We are dealing with what in 1992 was this state’s equivalent to the death penalty. Thus, the State should follow the statute. Sloppy, ineomplete records are insufficient to overcome the statutory mandate that if the State fails to file and serve the notice as required by K.S.A. 1993 Supp. 21-4624(1), the mandatory term of imprisonment of 40 years cannot be imposed.”
In Peckham, the defendant and his counsel were served with notice of the State’s intent to seek the hard 40 sentence 10 minutes prior to arraignment, but a copy of the notice was not file stamped until the following day. Both the district judge and the court reporter remembered that the notice was placed on the judge’s bench prior to arraignment. This court stated that although a copy of the notice was placed on the judge’s bench, there was no showing that it was placed on the bench with the intention that it would be filed with the court rather than as a courtesy copy. 255 Kan. at 317. As a result, we found that the requirements of 21-4624 had not been met. 255 Kan. at 318. In the same manner, in the recent case of State v. Collier, 259 Kan. 346, 913 P.2d 597 (1996), we found that where the record did not show that the State, at the time of the arraignment, filed notice with the district court of its intent to seek the hard 40, the sentence could not be imposed.
The first alleged procedural error of which the defendant complains is similar to the arguments in both Peckham and Collier in that he argues there is no indication in the arraignment record as to when the State filed the notice or served it to the defendant. When this matter was brought up at the defendant’s sentencing hearing, the court 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 the action was “all simultaneous.” A review of the record of the arraignment shows that at the very first, the State informed the court: “For the record, Your Honor, I would file with the Court notice of the Staté’s intent to proceed under K.S.A. 21-4622 [sic]. A copy has been provided to counsel and also tq the defendant.”
This excerpt from the record indicates that irrespective of the fact that the State mentioned the wrong statute section, the State did in fact give a copy to the court, with the intention that it be filed and did give a copy to the defendant. Therefore, the situation is unlike-the one which existed in Peckham, where there was no indication that the notice was actually given to the court with the intention that it be filed, or the situation in. Collier, in which there was no indication in the record that,the notice was provided to.the district court at arraignment. Instead, the record in the .case before us clearly indicates that the State intended to file notice with the court and actually did so. See State v. Williams, 259 Kan. 432, 913 P.2d 587 (1996).
Once it is established that the State properly served notice to the court with the intent that it be filed, the next question raised by the Statens procedure is whether the notice was properly served on the defendant and his counsel. The defendant, argues that K.S.A. 1992 Supp. 21-4624 clearly requires that the State must file notice of its intention prior to serving the defendant. According to the defendant, serving the defendant simultaneously with or prior to serving notice with the court does not comply with the statute.
K.S.A. 1992 Supp. 21-4624(1) states-that “notice shall be filed with the court and served on the defendant or the defendant’s attorney at the time of arraignment.” This would seem to indicate that the order is not particularly important as long as the service takes place at the time of arraignment. While we did note in Peck-ham that “[t]he filing of the service with the court is a prerequisite to serving the defendant,” this statement was made as. part of our conclusion that notice to the court could not be filed after arraignment. See 255 Kan. at 316. This does'not mean, and the statute does not indicate, that service and filing must be accomplished in a lockstep order so long as both service and filing are accomplished at the time of the arraignment.
Further, we have held that notice and filing of the intent to seek the hard 40 may be accomplished prior to the arraignment. State v. Richardson, 256 Kan. 69, 76-77, 883 P.2d 1107 (1994). The purpose of the notice requirement is to make the defendant aware of a hard 40 prospect so as to be in a position to devise his or her strategy. State v. Bailey, 251 Kan. 156, 169, 834 P.2d 342 (1992). This purpose is furthered, not hindered, by allowing the defendant to be served with notice prior to the time it is filed with the court. On that basis, both service on the defendant and filing with the court was accomplished in this case.
The next question, one on which the defendant focused at his sentencing hearing, is whether the judge’s failure to note on the filed copy the file date is in contravention of the statute. K.S.A. 1992 Supp. 21-4624(1) requires only that notice be filed with the court. The defendant argued at sentencing that the court had failed to follow the provisions of K.S.A. 60-205(e) governing the filing of documents with the court.
K.S.A. 60-205(e) states:
“The filing of pleadings and other papers with the court as required by this article shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the fifing date and forthwith transmit 'them to the office of the clerk.”
Although K.S.A. 60-250(e) is in the code of civil procedure, it may be considered applicable in criminal proceedings, there being no provision in the criminal procedures to the contrary. State v. Johnson, 255 Kan. 140, 155, 871 P.2d 1246 (1994); State ex rel. Owens v. Hodge, 230 Kan. 804, 808, 641 P.2d 399 (1982).
At sentencing, the defendant argued that the failure of the court to note the date on the filed copy and to deliver the filed copy to the clerk until 4:10 p.m. that day violated K.S.A. 60-250(e). However, in Tobin Constr. Co. v. Kemp, 239 Kan. 430, 435-36, 721 P.2d 278 (1986), we stated:
“K.S.A. 60-205(e) is similar to Rule 5(e) of the Federal Rules of Civil Procedure. Rule 5(e) provides that a judge may permit pleadings and other papers to be filed initially with him prior to their transmission to the clerk’s office for entry on the docket sheet. Under this procedure, fifing is complete when the judge has custody of the papers. The judge’s failure to forward the papers forthwith or to enter a necessary date does not prejudice the party attempting to comply with the filing requirement.”
Therefore, the State’s filing of the notice with the judge was all that was necessary to fulfill that part of the requirements of K.S.A. 1992 Supp. 21-4624, and the judge’s subsequent failure to file the papers until that afternoon or to note the date filed on the copy does not prevent the State from seeking the hard 40.
This is not a situation, as in Beckham, where it was impossible to determine whether the copy was provided to the judge with the intent that it be filed or whether the copy provided to the judge was actually the copy filed. In this case, the record clearly indicates that the State did file the notice with the court and serve notice on the defendant and that the court subsequently filed the notice with the clerk. As a result, there was no violation of K.S.A. 1992 Supp. 21-4624. See State v. Williams, 259 Kan. 432.
(7) THE ADMISSION OF PHOTOGRAPHS OF THE DECEASED
The defendant contends that the trial court abused its discretion in admitting photographs showing the injuries suffered by Officer Avery. The defendant argues that the pictures did not aid the jury in understanding the testimony of Dr. Anderson, the pathologist, and that they were prejudicial.
The admission of photographs in a homicide case is a matter within the trial court’s discretion and will not be disturbed absent a showing of abuse of that discretion. State v. Reed, 256 Kan. 547, 557, 886 P.2d 854 (1994). While photographs which are unduly repetitious, gruesome, and without probative value should not be admitted into evidence, demonstrative photographs are not inadmissible merely because 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).
While the admission of gruesome photographs is rarely held to be an abuse of discretion, this court has done so in cases where the probative value was slight and the prejudicial effect great. See State v. Boyd, 216 Kan. 373, 377-78, 532 P.2d 1064 (1975). In Boyd, -we held that the district court abused its discretion in admitting a photograph of a victim laid out like a “disemboweled beef in a packing plant,” where the photograph was repetitious and cause of death not in dispute. However; it is well settled that photographs which serve to illustrate- the nature or extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death. State v. Spears, 246 Kan. 283, 286, 788 P.2d 261 (1990).
The pictures in this case depict the head injuries suffered by Officer Avery. They show the Wounds to the officer’s head, with some blood, but are not so gruesome as compared to the pictures in Boyd. There is no indication that, the autopsy had made the pictures any more gruesome than they would be normally. The pictures accurately depict the riáture of the injuries suffered and are relevant to the testimony of Dr. Anderson as well as in corroborating the testimony of witnesses ás to the nature of the attack. Under these circumstances, the district court did not err in admitting them.
(8) THE AIDING AND ABETTING INSTRUCTION
The final argument made by the defendant is that the trial court erred in giving an instruction on aiding and abetting relating to the charge of the first-degree murder of Officer Avery. The defendant contends that there was insufficient evidence to prove that he aided and abetted in the murder. The defendant’s objection to the instruction was overruled.
Instruction No. 9, as given to the jury, stated:
“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.”
In Kansas, a defendant charged with the substantive offense may still be convicted of aiding and abetting. State v. Brinkley, 256 Kan. 808, 822, 888 P.2d 819 (1995). The" trial court does not err in instructing on aiding and abetting when the State has presented sufficient evidence for the jury to find aiding and abetting. 256 Kan. at 822.
In this case, there was ample evidence to support an aiding and abetting instruction. The evidence presented by the State showed that the defendant, along with a large number of other inmates, attacked and killed Officer Avery. While the defendant argues that a jury may have concluded that he acted alone in striking Officer Avery but did not kill him, so too could the jury have concluded that the defendant knowingly associated himself with other inmates to kill Officer Avery. As a result, the district court did not err in instructing the jury on aiding and abetting.
Affirmed.
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The opinion of the court was delivered by
Six, J.:
This case interprets the Kansas Constitution. Topeka Country Club and Shawnee Country Club (Intervenors) assert that Kan. Const. Article 11, § 1(a)(4) (the Amendment), adopted in 1992, lowering real estate tax assessment rates for certain nonprofit organizations, was self-executing. If the Amendment was self-executing, no enabling legislation was required, and Interven-ors should have received tax relief on January 1, 1993. Intervenors also seek to enjoin the assessment of real property taxes and claim reimbursement for taxes paid. Our jurisdiction is under K.S.A. 20-3017. (Intervenors’ motion to transfer to this court was granted.)
The district court held that the Amendment was not self-executing. We agree and affirm.
FACTS
On November 3, 1992, Kansas voters approved a change in the Kansas Constitution that created several new categories of real property for tax assessment purposes. Assessment rates for certain not-for-profit organizations were lowered from 30% to 12%. On November 4, 1993, plaintiffs The Most Worshipful Grand Lodge of Ancient Free and Accepted Masons of Kansas and various other lodges sued the Board of County Commissioners of Shawnee County (County). The petition alleged: (1) the Amendment lowering their assessment rate was self-executing, (2) the legislature had failed to act in a responsible manner by not implementing the Amendment, and (3) the County was illegally assessing taxes against the plaintiffs at the higher rate. The petition also sought to enjoin the County from collecting taxes under the higher assessment rate. The Intervenors entered the case and asserted their own prayer for declaratory and injunctive relief.
After the case was filed, House Substitute for Senate Bill 157, L. 1994, ch. 333, which was intended to enable execution of the Amendment as of January 1,1994, was enacted. The original plaintiffs were included in the 12% assessment category under the new law and abandoned their active role in the litigation. Intervenors’ land actually and regularly used for recreational purposes was also included in the 12% assessment category. However, the Interven-ors continued to seek relief for other real estate.
The parties submitted the case to the district court on the following joint stipulation of facts. The constitutional language at issue is in paragraph 1, section 1(a)(4) of the stipulation. The pertinent portion of the explanatory statement accompanying the Amendment is in paragraph 2 of the stipulation, subparagraph (1).
STIPULATION OF FACTS
“1. A proposed Constitutional Amendment to the Kansas Constitution was submitted to the voters and passed in a general election on November 3, 1992. The Amendment, now found at Article 11, Section 1 of the Kansas Constitution, provided in relevant portions:
“System of Taxation; Classification; Exemption.
“Section 1. ‘System of Taxation; Classification; Exemption.
‘(a) The provisions of this subsection shall govern the assessment and taxation of property on and after January 1,1993, and each year thereafter. Except as otherwise hereinafter specifically provided, the Legislature shall provide for uniform and equal basis evaluation and rate of taxation of all property subject to taxation. . . . Property shall be classified into the following classes for the purposes of assessment and assessed at the percentage of value prescribed therefor:
Class 1 shall consist of real property. Real property shall be further classified into seven subclasses. Such property shall be defined by law for the purpose of subclassification and assessed uniformly as to subclass at the following percentages of value:. . .
(4) Real property which is owned and operated by a not-for-profit organization not subject to federal income taxation pursuant to Section 501 of the federal internal revenue code, and which is included in this subclass by law — 12%. [Emphasis added.]
(6) Real property used for commercial and industrial purposes and buildings and other improvements located upon land devoted to agricultural use — 25%.’
See Constitution of the State of Kansas, Article 11, Section 1.
“2. The Public Notice which was published to explain the Constitutional Amendment, and which accompanied the Amendment on the ballot, provided in relevant portions:
Explanatory Statement. This amendment would revise the current property tax system providing for the classification and assessment of all property subject to taxation at different percentages of value.
A vote for the proposition would, as of January 1, 1993, continue the requirement that different classes of property are to be assessed for property tax purposes at different percentages of value. However, three new subclassifications of real property would be established, namely: ‘(1) Real property owned and operated by certain not-for-profit organizations the assessment rate for which would be decreased from 30% to 12%; . . .’ [Emphasis added.]
(3) ‘Real property used for commercial and industrial purposes and buildings and other improvements located upon land devoted to agricultural use the assessment rate for which would be decreased from 30% to 25%.’
A vote against the proposition would continue the current system of property taxation.
“3. Based upon the common language of the Amendment and Explanatory Statement, it was ambiguous that the Amendment required additional action by the legislature to give it effect — that the Amendment was not self-executing. In fact, following the adoption of the Amendment, it was not clear to all members of the Kansas Legislature whether the Amendment was self-executing, which prompted the solicitation by one legislator of an opinion by the Attorney General to determine whether the Amendment was or was not self-executing.
“4. Based upon the language of the Constitutional Amendment and of the Explanatory Statement provided, Kansas voters could reasonably believe, and some did actually believe, that, with the adoption of the amendment of Article 11, Section 1 of the Kansas Constitution, all Section 501 Organizations as classified and defined in the Internal Revenue Code would be assessed at 12%, from and after January, 1993. The information on the ballots did not include a statement on whether enabling legislation would subsequently determine which nonprofit organizations’ real estate was going to be assessed at the proposed 12% of its value.
“5. Organizations which are not subject to federal income tax pursuant to Section 501 actively campaigned for support of the Constitutional Amendment, including those under 501(c)(7) and those under Section 501(c)(2), (3), (4), (8) and (10). Members of these organizations were encouraged to vote for the tax relief provided in the Amendment. Voters who are members of the various 501(c) organizations voted for the Constitutional Amendment believing that the Amendment would provide tax relief for their organizations. [Reference to Appendix 1, which included affidavits from members and managers of 501(c) organizations that supported stipulated facts 4, 5, 6, and 8.]
“6. The intent of some of the voters in voting for the amendment of Article 11, Section 1 of the Kansas Constitution was to obtain tax relief for all not-for-profit organizations owning and operating real property in the State of Kansas, and not subject to federal income taxation pursuant to Section 501(c) of the internal revenue code.
“7. [Reference to Appendix 2, which included several Kansas newspaper articles published before the election that included discussion or explanation of the Amendment.]
“8. Based upon the language of the Amendment and Explanatory Statement, together with the published newspaper articles relating to the Amendment, some members of 501(c)(7) organizations believed, and voted for the Amendment based upon the belief, that the Amendment would provide tax relief for all 501(c) not-for-profit organizations which own and operate real property in the State of Kansas.
“9. The phrases, ‘and. which is included in the subclass by law,’ ‘as shall be provided by law,’ and ‘in a manner to be prescribed by law’ are technical legal terms of art, used by legislatures to condition the execution of a constitutional provision upon enabling legislation to be passed at a later time.
“10. In 1993, the House of Representatives of the State of Kansas proposed, debated and passed original House Bill 2035 which reduced the assessment level beginning in tax year 1993 from 30% to 12% on real property owned and operated by not-for-profit organizations not subject to federal income taxation pursuant to Section 501(c)(3), (4), (8), and (10). The bill, as passed by both houses of the Kansas Legislature, provided in relevant portions:
(1) (a) In accordance with and for the purposes of Section 1 of Article 2 of the Kansas constitution, real property, to the extent herein specified, which is owned and operated by a not-for-profit organization not subject to federal income taxation pursuant to paragraph (2), (3), (4), (8), or (10) of subsection (c) of Section 501 of the federal internal revenue code, as in effect on January 1, 1993, is hereby included in subclass (4) of class 1 for property tax classification purposes, and shall be assessed at the rate of 12% of its fair market value. With respect to real property owned and operated by a not- for-profit corporation not subject to federal income taxation pursuant to paragraph (2) of subsection (c) of Section 501 of such Code, this section shall only apply to real property leased to a not-for-profit organization not subject to federal income taxation pursuant to paragraph (8) of subsection (c) of Section 501 of such Code. Nothing in this subsection shall be deemed to affect exemption of property by law or Kansas constitution.
(b) The provisions of this section shall apply to all taxable years commencing after December 31, 1992.
“11. On May 20,1993, House Bill 2035 was vetoed by Governor Finney. Thus, in 1993 no legislation was implemented to effectuate Article 11, Section 1(a)(4) of the Kansas Constitution.
“12. As a result of the foregoing, real property used for commercial and industrial purposes and buildings, etc. (for profit) is being assessed at 25% of its value and all 501(c) entities’ real estate (not-for-profit) is assessed at 30% of its value.
“13. Although Article 11, Section 1 of tie Kansas Constitution was amended by the voters of Kansas, the Governor’s veto of the Trifecta Bill resulted in no change in the status quo concerning the level of real estate tax assessments for nonprofit organizations for the calendar year 1993.
“14. In April, 1994, both Houses of the Kansas Legislature passed House Substitute for Senate Bill 157, a bill relating to the classification of real property owned by not-for-profit organizations for recoupment of property tax, and submitted it for approval and signature to the Governor. House Substitute for Senate Bill 157 provided, inter alia: [For the full statute, see K.S.A. 1995 Supp. 79-1439a, K.S.A. 1995 Supp. 79-1439b.]
On May 11, 1994, Governor Finney signed House Substitute for Senate Bill 157 into law. The act was published in the Kansas Register on May 19, 1994.”
Intervenors are 501(c)(7) not-for-profit organizations. The original plaintiffs have filed an amicus curiae brief in this court, arguing that although the 1994 law provided the 1994 tax relief they believed they were entitled to, it did not do so for 1993.
DISCUSSION
“A self-executing provision of a constitution is a provision requiring no supplementary legislation to make it effective and leaving nothing to be done by the legislature to put it [into] operation.” State, ex rel., v. Board of Education, 212 Kan. 482, Syl. ¶ 3, 511 P.2d 705 (1973).
The interpretation of the Amendment is a question of law. Our review is unlimited. P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 831, 877 P.2d 430 (1994). The district court’s ruling is based on a stipulation of facts. We have the same opportunity to examine and consider the evidence as did the district court and to determine de novo what the facts established. Hudgens v. CNA/Continental Cas. Co., 252 Kan. 478, 481, 845 P.2d 694 (1993).
The District Court’s Decision
In the district court’s memorandum decision, it quoted the parties’ stipulated facts except for a portion of No. 3 concerning the ambiguity of the Amendment. Intervenors contend that the omission from the stipulated facts set out in the district court’s decision indicated the court’s failure to construe the Amendment as ambiguous. They also claim the district court failed to address the authorities they cited concerning construction of ambiguous constitutional provisions. The portion of stipulated fact No. 3 omitted from the district court’s decision is set out below in italics:
“Based upon the common language of the Amendment and Explanatory Statement, it was ambiguous that the Amendment required additional action by the legislature to give it effect — that the Amendment was not self-executing. In fact, following the adoption of the Amendment, it was not clear to all members of the Kansas Legislature whether the Amendment was self-executing, which prompted the solicitation by one legislator of an opinion by the Attorney General to determine whether the Amendment was or was not self-executing.”
The County responds that the district judge’s omission was unintentional. According to the County, Intervenors could easily correct the problem with a motion pursuant to K.S.A 60-260(a). The omission appears to have been unintentional. The district court noted the ambiguity by observing: “[I]t was not clear to all members of the Kansas Legislature whether the Amendment was self-executing, which prompted the solicitation by one legislator of an opinion by the Attorney General to determine whether the Amendment was or was not self-executing.” The district court did address the authorities cited by Intervenors in making its determination that the Amendment was not self-executing.
The Amendment
Intervenors contend that the Amendment phrase “and which is included in this subclass by law” must be self-executing because the parties stipulated the phrase was ambiguous. According to In-tervenors, when the rules of construction are applied to the ambiguous phrase, the intent of the voters is obvious, and we must construe the phrase as self-executing. We disagree. Intervenors also stipulated that the phrase is a “technical” term of art used by legislatures to condition execution of a constitutional provision upon enabling legislation. (Stipulation, ¶ 9.) In addition, Interven-ors contend that because voters would not understand the technical meaning of this phrase, the Amendment must be interpreted as self-executing. As the district court pointed out, even if some voters may not have understood the distinction between a self-executing and non-self executing provision, all voters are charged with understanding what they may be voting for. If the phrase has a clearly understood meaning, even though it may include technical terms, those technical terms should not make the phrase ambiguous. Regardless of what the parties have stipulated, this court defines constitutional provisions. State v. Nelson, 210 Kan. 439, 445, 502 P.2d 841 (1972).
Intervenors’ analysis is flawed. The phrase “which is included in this subclass by law” cannot be ignored. Intervenors argue that: (1) the only ambiguous portion of the Amendment is the subclass phrase; and (2) without the “ambiguous” subclass phrase, the reduced assessment clearly applies to all 501(c) not-for-profit organizations. Intervenors argument violates a cardinal rule of construction: “When interpreting the constitution, each word must be given due force and appropriate meaning.” Colorado Interstate Gas Co. v. Board of Morton County Comm’rs, 247 Kan. 654, 660, 802 P.2d 584 (1990).
Intervenors sidestep the Amendment’s explanatory statement, which said that the new subclassification of real property would decrease the assessment rate from 30% to 12% for “real property owned and operated by certain not-for-profit organizations.” (Emphasis added.) Intervenors disregard the word “certain,” reasoning that “certain” refers only to “not-for-profit organizations not subject to federal income taxation pursuant to § 501 of the federal internal revenue code,” conveniently avoiding the Amendment’s phrase “which is included in this subclass by law.” (Emphasis added.)
Intervenors submit various voter affidavits as intent indicators on the meaning of the Amendment. Of the 14 affidavits, all but 3 are associated with 501(c) organizations. Intervenors do not indicate how the affiants were selected. These affidavits are not a representative sample of Kansas voters and have little value as evidence of voters’ intent.
Legislative History
Intervenors misinterpret the legislative history of the Amendment and also the contemporaneous construction the legislature gave to the Amendment. “The importance of understanding the intentions of the legislature in proposing the amendment cannot be understated.” State ex rel. Stephan v. Finney, 254 Kan. 632, 655, 867 P.2d 1034 (1994).
The legislative history is significant. Beginning in 1990, certain fraternal organizations requested property tax relief from the legislature. These organizations were generally classified as 501(c)(8) or 501(c)(10) organizations under the Internal Revenue Code. The Kansas House Committee on Taxation introduced a proposed constitutional amendment, 1991 House Concurrent Resolution 5007, which reduced the tax assessment rate for 501(c)(8) and 501(c)(10) organizations. See House J. 1992, p. 2652. A representative of the Topeka Woman’s Club, a 501(c)(4) organization, testified before the committee, requesting tax relief. The committee then revised the proposed amendment to the present form. An explanation of this revision stated:
“House Taxation Committee amendments included . . . changing the eligibility for the proposed assessment level for certain not-for-profits from only those organized under 501(c)(8) and 501(c)(10) to only those defined by statute which are organized under any provision of 501(c) and reducing the proposed assessment level from 15 to 12 percent . . . .” Supplemental Note on House Concurrent Resolution No. 5007 (1992), as amended by Senate on Final Action. (Emphasis added.)
We find nothing in the legislative history to support the contention that all 501(c) organizations were to be granted the reduced assessment rate.
After the Amendment was adopted, the legislature twice attempted to pass enabling legislation. See stipulation of facts 9 through 14. The Governor vetoed the first attempt in 1993 but signed the second attempt in May 1994. Neither bill granted the reduced assessment rate to all 501(c) organizations. The enabling legislation in 1993 and 1994 indicates legislative intent that the Amendment was not self-executing.
Other Sections of Art. 11, § 1(a)
Intervenors argue that because other portions of Art. 11, § 1(a) are clearly self-executing, the Amendment must also be self-executing. For example, Article 11, § 1(a)(6) reduces the assessment rate for “[r]eal property used for commercial and industrial purposes and buildings and other improvements located upon land devoted to agricultural use” to 25%. This provision is self-executing. A constitutional provision may be self-executing in one part and not self-executing in another part. State, ex rel, v. Board, of Education, 212 Kan. at 486.
The fact that other portions of Article 11, § 1(a) may be self-executing does not control the character of the Amendment.
Attendant Circumstances
Intervenors also submit newspaper articles published before the election as evidence of the “attendant circumstances” surrounding the adoption of the Amendment. The newspaper article quotations do not say that all not-for-profit organizations were to be granted the reduced assessment rate. The articles generally indicate that the reduced assessment was to be granted to fraternal organizations, not to all 501(c) organizations.
The attendant circumstances relating to the legislature’s drafting of the resolution proposing the Amendment require examination when construing the Amendment. See Higgins v. Cardinal Manufacturing Co., 188 Kan. 11, 19, 360 P.2d 456 (1961),
The movement to propose the Amendment began through the efforts of fraternal organizations. The legislature’s objective was to propose an amendment that granted the requested relief but left the legislature, through enabling legislation, a way to limit the relief to certain — not all — not-for-profit organizations.
Analysis
Intervenors argue that when there is a conflict between the legislative intent behind a constitutional amendment and the intent and understanding of the voters, the latter must control. However, Intervenors have failed to show that the common understanding of Kansans adopting the Amendment differs from the language of the Amendment or the legislative intent of its drafters. In construing a constitutional provision, we consider the circumstances attending its adoption and what appears to have been the common understanding of the voters. See Colorado Interstate Gas Co., 247 Kan. at 660. Based on what Intervenors have presented, there is no conflict between the voters’ understanding, the language of the Amendment, and the legislative intent behind it.
In Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331 (1900), we considered whether the following constitutional provision was self-executing: “Dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law.” 61 Kan. at 572. A group of creditors filed suit in equity against the stockholders of an insolvent bank, seeking payment from the stockholders, to be applied to the bank’s indebtedness to the creditors. There was no statutory authority for such a lawsuit. The creditors argued the above constitutional provision was self-executing, authorizing the lawsuit. We reversed the district court’s judgment for the creditors, determining that the provision was not self-executing:
“When the constitution declares that a right shall be secured or a thing shall be done, it means that it shall be secured or shall be done, by the legislature. In such case, the constitution places upon the legislature the obligation to carry out its ordinances by appropriate enactment.” 61 Kan. at 574.
The Amendment’s phrase “which is included in this subclass by law” means “which is included in this subclass by the legislature.”
We acknowledge a degree of ambiguity in the interplay of the Amendment and the explanatory statement. Although the explan atory statement could have benefitted from that skillful wordsmith “Professor Hindsight,” we encounter no difficulty in holding the Amendment is not self-executing. Enabling legislation is required. The House Substitute for Senate Bill 157 (K.S.A. 1995 Supp. 79-1439a and K.S.A. 1995 Supp. 79-1439b) was that enabling legislation and is constitutional.
Affirmed.
Lockett, Abbott, and Larson, JJ., not participating.
Jerry G. Elliott, Gary W. Rulon, and Robert L. Gernon, Judges of the Kansas Court of Appeals, assigned.
“The parties are without sufficient information to stipulate as to whether ‘some’ of the voters referenced herein would equate to a majority, plurality or a minority of the voters in the 1992 election.”
“The parties are without sufficient information to stipulate as to whether ‘some’ of the voters referenced herein would equate to a majority, plurality or a minority of the voters in the 1992 election.”
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The opinion of the court was delivered by
Six, J.:
This first impression case requires us to interpret the definition of “prior conviction” in K.S.A. 1994 Supp. 21-4710(a) for purposes of determining the criminal histoiy score under the Kansas Sentencing Guidelines Act (the guidelines), K.S.A. 1994 Supp. 21-4701 et seq.
Michael L. Roderick, on the same day in the same district court, entered guilty pleas in three separate criminal cases for four offenses committed on different dates. At sentencing, the district court determined that none of the convictions could be included in Roderick’s criminal histoiy score. The State appeals upon a question reserved by the prosecution under K.S.A. 1994 Supp. 22-3602(b)(3), the statute conferring our jurisdiction.
“An appeal on a question reserved 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 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.” City of Wichita v. Basgall, 257 Kan. 631, Syl. ¶ 1, 894 P.2d 876 (1995).
We find that this case has sufficient statewide importance to warrant entertaining the appeal, in that it involves interpretation of the guidelines provisions.
The question reserved is as follows: Does the fact that a defendant enters guilty pleas for multiple offenses in separate cases on the same date preclude the use of those convictions in determining the defendant’s guidelines criminal history score for sentencing on those offenses? The answer is, “No.”
We sustain the appeal. The district court erred in declining to include in Roderick’s criminal history score convictions entered on the same day in separate cases for offenses committed on different dates.
FACTS
On May 20,1993, Roderick pled guilty to: (a) one count of theft, K.S.A. 21-3701(a), in No. 92 CR 826; (b) one count of aggravated failure to appear, K.S.A. 21-3814, in No. 92 CR 1373; and (c) one count of theft and one count of burglary, K.S.A. 1992 Supp. 21-3715(1), in No. 93 CR 873. The district court suspended sentencing for 3 years.
Roderick’s suspended sentences were revoked on September 27, 1994, and he received a controlling 1- to 5-year prison term. Under K.S.A. 1994 Supp. 21-4724(f), a hearing was held to determine Roderick’s guidelines presumptive sentence for conversion purposes. (Roderick appeared to be eligible for conversion of his sentence under the limited retroactivity provision in K.S.A. 1994 Supp. 21-4724[f].) The State agreed that Roderick had no criminal convictions other than those for which he was being sentenced.
Roderick contended that none of the convictions entered on May 20, 1993, the date he pled guilty, should be counted in his criminal history. The State disagreed.
The sentencing court agreed with Roderick, reasoning that none of the convictions could be counted because they had all been entered on the same date. The judge stated:
“It is my belief and opinion under the law of the State of Kansas, as it had existed for a number of years under the old Habitual Criminal Act, for example, if an individual pled to cases on the same day, those were considered one conviction for the purposes of the Habitual Criminal Act.”
The sentencing court used criminal history category I under K.S.A. 1994 Supp. 21-4709 and the mid-range on the K.S.A. 1994 Supp. 21-4704 grid for Roderick to determine a guidelines controlling presumptive sentence of 12 months.
DISCUSSION
K.S.A. 1994 Supp. 21-4710(a)
Resolution of the criminal history sentencing issue involves the interpretation of various provisions of the guidelines. The interpretation of statutes is a question of law, and, thus, our scope of review is unlimited. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
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 and 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). From our reading of K.S.A. 1994 Supp. 21-4710(a), the key statute, we conclude that it means what it says. We reason that a plain reading of 21-4710(a) effects legislative intent.
A “prior conviction” is defined at K.S.A. 1994 Supp. 21-4710(a) as
“any conviction which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.”
The general rule is that a criminal statute must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. Cox, 258 Kan. 557, Syl. ¶ 7.
K.S.A. 1994 Supp. 21-3110(4) provides that the term “ ‘[cjonviction’ includes a judgment of guilt entered upon a plea of guilty.”
K.S.A. 1994 Supp. 21-4710(d)(ll) provides in relevant part: “Except as otherwise provided, all other prior convictions will be considered and scored.”
Roderick points out that K.S.A. 1993 Supp. 21-4710 was amended twice by the legislature in 1994, first at L. 1994, ch. 291, § 54 (K.S.A. 1994 Supp. 21-4710), and then at L. 1994, ch. 341, § 15 (K.S.A. 1994 Supp. 21-4710a). K.S.A. 1994 Supp. 21-4710a does not contain the “prior conviction” definition, nor does it contain the language of 21-4710(d)(ll) referencing prior convictions. Roderick argues those omissions from K.S.A. 1994 Supp. 21-4710a indicate that the legislature intended to eliminate the definition of “prior conviction” from the statute.
The legislative history indicates that two separate amendments (Senate Substitute for House Bill 2332 and House Bill 2788) to K.S.A. 1993 Supp. 21-4710 proceeded through the legislative process in 1994, and both were approved near the end of the session, before the separate amendments were reconciled.
Repeal by implication is not favored, and acts will not be held to have been repealed by implication unless a later enactment is so repugnant to the provisions of the first act that both cannot be given force and effect. City of Salina v. Jaggers, 228 Kan. 155, 169, 612 P.2d 618 (1980). Such a repeal is not to be found when both statutes may operate independently without conflict. Pederson v. Russell State Bank, Executor, 206 Kan. 718, 724, 481 P.2d 986 (1971).
K.S.A. 1994 Supp. 21-4710 and 21-4710a do not conflict with one another. Each contains amendments to different portions of K.S.A. 1993 Supp. 21-4710. Both can be read and applied together. Therefore, the definition of “prior conviction” and K.S.A. 1994 Supp. 21-4710(d)(11) should not be considered as repealed by implication.
We note that the 1995 legislature amended the “prior conviction” definition in 21-4710 at L. 1995, ch. 251, § 16:
“A prior conviction is any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in the current case pursuant to K. S.A. 22-3203 and amendments thereto, which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.” (Emphasis in original.)
Under the 1995 amendment, multiple convictions in separate cases consolidated for trial pursuant to K.S.A. 22-3203 cannot be counted as “prior convictions” for guidelines criminal history purposes.
The Wilson Rule
The trial court in sentencing Roderick drew the analogy to the way multiple simultaneous convictions are treated under the Habitual Criminal Act (HCA) (K.S.A. 1994 Supp. 21-4504) in determining that the prior convictions should not be counted for criminal history purposes under the guidelines. Roderick correctly identifies die rule, as stated in State v. Wilson, 6 Kan. App. 2d 302, 306, 627 P.2d 1185, aff’d 230 Kan. 287, 634 P.2d 1078 (1981):
“Our case law has pronounced that where there are convictions for multiple offenses growing out of a single act or transaction, or where there are multiple convictions obtained on the same date for offenses committed at different times or places, the multiple convictions can be used only as a single conviction for the purpose of sentence enhancement. . . . The common denominator of these rules is that sentence enhancement requires conviction prior to commission of the subsequent offense . . . .”
We applied Wilson in State v. Grissom, 251 Kan. 851, 934, 840 P.2d 1142 (1992).
The HCA authorizes the sentencing court to double or even triple the sentence when a defendant being sentenced for certain felony convictions has previously been convicted for the same or comparable felony on one or more occasions. The HCA has been characterized as a recidivist statute. See Wilson, 6 Kan. App. 2d at 305. The objectives of the guidelines are broader than those of the HCA. See State v. Grady, 258 Kan. 72, 89, 900 P.2d 227 (1995). The guidelines were intended to standardize sentences so that similarly situated offenders would be treated the same, limiting the effects of racial or geographic bias. 258 Kan. at 89-90 (citing State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 [1994]).
Under the nondrug grid shown at K.S.A. 1994 Supp. 21-4704, the sentence increases for an offense of a given severity level as the criminal history category classification becomes more serious. Under K.S.A. 1994 Supp. 21-4709, the classification of the criminal history category becomes more serious as the number and typé (person versus nonperson) of prior convictions increases. To a limited extent, the guidelines and HCA share the common purpose of discouraging recidivism by increasing the punishment for those failing to learn from past encounters with the criminal justice system. . .
However, the “prior conviction” definition in K.S.A. 1994 Supp. 21-4710(a) indicates that the legislature intended that the Wilson rule not apply in the context of a guidelines criminal history determination.. Under Wilson, the prior conviction must take place before the commission of the offense for which the defendant is being sentenced. The guidelines provisions, K.S.A. 1994 Supp. 21-4710(a) and (d)(11), expressly indicate that for purposes of determining the criminal history category, a prior conviction is to be considered, whether it occurred before or after commission of the current offense or conviction in the current case. See State v. Austin, 20 Kan. App. 2d 950, 901 P.2d 9, rev. denied 257 Kan. 1093 (1995).
“The KSGA defines 'criminal history’ as convictions possessed by an offender at the time such offender is sentenced.’ K.S.A. 1994 Supp. 21-4703(c).” State v. Chronister, 21 Kan. App. 2d 589, 596, 903 P.2d 1345 (1995) (no contest plea to sexual exploitation of a child in case pending in one county counted in defendant’s guide-fines criminal history at time defendant sentenced in'case pending in another county for aggravated incest and sexual’ exploitation of the same child).
Multiple Conviction Case
Roderick argues that his situation should be treated as a guidelines “multiple conviction case” under K.S.A. 1994 Supp. 21-4720(b). K.S.A. 1994 Supp. 21-4720(b) describes the procedure for determining sentences when consecutive sentences may be imposed in “multiple conviction cases.” The term “multiple conviction case” is not defined, although subsection (b)(4) begins: “The total prison sentence imposed in a case involving multiple convic tions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence.”
Legislative history answers the question of whether Roderick’s situation should be treated as a K.S.A. 1994 Supp. 21-4720(b) “multiple conviction case.” K.S.A. 1993 Supp. 21-4720(b)(4) provided in part: “The total sentence assigned for a current conviction event cannot exceed twice the base sentence.” The term “conviction event” was defined at K.S.A. 1993 Supp. 21-4703(c) (the guidelines definition section) as
“one or more felony convictions occurring on the same day and within a single court. These convictions may result from multiple counts within an information or from more than one information.”
In 1994, the legislature deleted all references to conviction events from the guidelines (from 21-4703 in L. 1994, ch. 291, § 49; from 21-4720(b)(4) in L. 1994, ch. 291, § 59). The legislature provided that the limits on the total sentence would apply to “multiple convictions arising from multiple counts within an information, complaint or indictment.” K.S.A. 1994 Supp. 21-4720(b)(4). The legislature changed a same day, single court requirement to a same information or complaint requirement to invoke the double rule limit. The change was made for the purpose of “limiting the application of the ‘double rule’ limit for consecutive sentence^] to multiple [counts] in the same case rather than all counts for which the defendant was convicted at one time, regardless of whether from different cases.” Kansas Report on Legislative Interim Studies, p. 116 (1994).
Roderick’s situation would have fit within the definition of “conviction event” in K.S.A. 1993 Supp. 21-4703(c). The double rule limit in K.S.A. 1993 Supp. 21-4720(b)(4) also would have applied. However, the 1994 amendments indicate that the legislature intended to remove situations like Roderick’s from the double rule limit. The double rule limit applies only to cases involving multiple convictions arising from multiple counts within an information, complaint, or indictment, not multiple convictions arising from separate cases pled to on the same date. K.S.A. 1994 Supp. 21-4720(b) does not apply to Roderick’s situation.
The question remains, however, whether multiple convictions entered on the same date in different cases should be counted in the guidelines criminal history when the sentences for those convictions are determined. Under a plain reading of the “prior conviction” definition in K.S.A. 1994 Supp. 21-4710(a), we conclude that they should be. We acknowledge, as Roderick points out, the potential for disparities in sentencing results.
The Inclusive Rule
The State argues that when a defendant pleads to three separate crimes in separate cases on the same date, each crime is counted against the others for purposes of determining the criminal history score and presumptive sentence from the grid. We adopt the State’s interpretation as the “inclusive rule.” When the presumptive sentence for the first crime is being determined, the second and third crimes are included in the criminal history score. When the presumptive sentence for the second crime is being determined, the first and third crimes are included in the history score, and so on. We have considered the supplemental brief from Roderick’s counsel addressing the State’s position. The inclusive rule fits within the plain language of the guidelines.
The inclusive rule avoids the problem of having to arbitrarily determine the order in which sentencing should occur for several crimes pled to on the same date. If each crime is counted against the other, the order in which each crime is counted does not matter. The same presumptive sentence will result, regardless of the order in which the crimes are considered. However, as Roderick’s counsel points out in his supplemental brief, the inclusive rule nonetheless may create different sentencing results. If one defendant pleads to three crimes in separate cases on different dates and is sentenced separately for each crime, the total presumptive sentencing range will be less than for a defendant who pleads to the same three crimes in separate cases on the same date.
Under the inclusive rule, a defendant will face the possibility of a stiffer sentence if pleading to separate crimes in separate cases on the same date, rather than on separate dates. On the other hand, if the inclusive rule is not applied, the reverse occurs: A defendant convicted separately for three crimes will be exposed to a stiffer sentence than one who pleads to the same three crimes at the same time. Neither the State’s nor Roderick’s interpretation will eliminate the potential for disparate sentencing results.
The definition of “prior conviction” in K.S.A. 1994 Supp. 21-4710(a) indicates that the legislature did not intend for the HCA Wilson rule to apply to the criminal history classification under the guidelines. K.S.A. 1994 Supp. 21-4720(b), which applies to multiple convictions arising from multiple counts within an information, complaint, or indictment, should not apply to multiple convictions entered on the same date in different cases. K.S.A. 1994 Supp. 21-4710(a) is not ambiguous. A “prior conviction,” as defined in K..S.A. 1994 Supp. 21-4710(a), includes multiple convictions entered on the same date in different cases for purposes of sentencing for any of those convictions.
In State v. Harpool, 246 Kan. 226, 788 P.2d 281 (1990), we sustained the State’s appeal on a question reserved and, under K.S.A. 22-3602(b)(3), remanded for resentencing. We emphasized our authority to correct the illegal sentence under K.S.A. 22-3504. 246. Kan. at 229. However, in this case, the trial court determined that Roderick should have a controlling presumptive sentence of 12 months (none of the convictions included in his criminal history score). The inclusive rule we have adopted in interpreting K.S.A. 1994 Supp. 21-4710(a) establishes a controlling presumptive sentence of 18 months.. We have not been informed of Roderick’s current status; however, it appears that a remand for resentencing would be moot. Generally, appeals by the State on questions reserved presuppose that the case at hand has concluded. City of Wichita v. Basgall, 257 Kan. 631, Syl. ¶ 1, 894 P.2d 876 (1995). We.apply the general rule here.
The State’s appeal on the.question reserved is sustained.
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The opinion of the court was delivered by
Lockett, J.:
Patient filed a medical liability action against a medical doctor for alleged negligent treatment of a jaw injury. The jury found that the doctor was negligent and awarded damages. The medical doctor appealed the district court’s admission of the expert testimony of a dentist who performed similar operations but was not licensed as a medical doctor. The Court of Appeals found that K.S.A. 60-3412 requires that an expert witness in a medical malpractice action be licensed in the same profession in which the defendant health care provider is licensed and reversed the district court in Tompkins v. Bise, 20 Kan. App. 2d 837, 893 P.2d 262 (1995). This court granted the patient’s petition for review.
Plaintiff William Tompkins was injured in a motorcycle accident on November 5, 1990. He suffered two fractures to his jaw, which were treated by Dr. Roger N. Bise. Bise had completed medical school, 5 years of surgical and plastic surgery training, and a 6-month fellowship in cranial maxillofacial surgery. He also had been a licensed dentist and had practiced dentistry in Kansas while attending medical school. At the time of trial Bise’s Kansas dental license was inactive, though he was licensed to practice dentistry in Missouri.
Bise performed surgery on Tompkins on November 7, 1990, using a “closed” reduction procedure (without making additional incisions). Tompkins was released from the hospital on November 9, 1990. Tompkins saw Bise for several follow-up visits.
On April 19, 1993, Tompkins initiated this medical liability action against Bise, alleging that Bise’s treatment of Tompkins’ jaw injury was negligent and below the acceptable standard of care. Tompkins designated Dr. Anthony M. Captline, a certified oral and maxillofacial surgeon, as his expert witness. Captline has a Doctor of Medical Dentistry degree, and he completed an additional 3 years of training in oral and maxillofacial surgery. Bise designated John W. Canady, M.D., Steven L. Thomas, D.D.S., and Paul Manson, M.D., as his expert witnesses.
Bise filed a motion to strike Captline as an expert witness. Bise argued that K.S.A. 60-3412 requires that an expert witness devote at'least 50.%-of his or her professional time tp actual clinical practice in the same profession in which the defendant is licensed. Bise argued that because Captiine is a dentist and Bise is a medical doctor, Captiine was not licensed in the same profession and, therefore, did not meet the requirements of K.S.A. 60-3412 to. be an expert witness. The district court denied Bise’s motion and found that the professional standard of care of oral and maxillofa-cial surgery" was at issue and both Bise and Captiine were qualified to practice in that field. Bise preserved his objection to Cáptline’s qualifications to testify as an" expert witness:
At trial, Captiine .testified that Bise performed oral, and maxil-lofacial surgery, not plastic surgery, on Tompkins: Captiine opined that Bise’s treatment of Tompkins fell, below the standard of care of án oral and maxillofacial surgeon. Captiine asserted that Bise should have used an open, rather than closed, reduction procedure and that Bise failed to correct problems which developed due to musclé pull. Captiine stated that he did not have an opinion as to the standard of care of a plastic and reconstractive surgeon.
Bise testified that his primary concern in treating Tompkins was to treat the entire patient, not just the jaw injury. He opted against an open reduction procedure due to the risks anticipated because Tompkins had a possible head injury and pulmonary contusion. As his expert witnesses, Bise called Dr. Canady, a physician certified in ear, nose, and throat treatment and in plastic surgery, and Dr. Thomas, who is trained as a dentist (D.D.S.) and is a board certified oral and maxillofacial surgeon. Both Canady and Thomas opined that Bise properly used a closed reduction procedure because of the possibility, that Tompkins had a closed head injury or pulmonary contusion and because that, procedure was the least intrusive and would avoid the potential .risks associated with an open reduction procedure. Both experts testified that Bise met the standard of care both in his treatment of the jaw injury and in the followup care. . . ■
The jury returned a verdict in favor of Tompkins. The jury found that Tompkins’ total damages were $195,390.89 and that Bise was 33.75% at fault. Bise timely appealed.
In a 2-1 decision, the Court of Appeals reversed the trial court’s determination that Captline qualified as an expert witness under K.S.A. 60-3412. The majority pointed out that Bise is licensed by the State Board of Healing Arts in the field of medicine, whereas Captline is licensed by the State Dental Board in the field of dentistry. The majority also noted Captline had admitted that to his knowledge the standard of care of oral surgery may be different than the standard of care of plastic surgery. After reviewing the legislative history and the language of K.S.A. 60-3412, the majority held that the statute requires that the expert must be licensed in the same profession as the defendant is licensed. The majority concluded that the statute does not permit experts who are licensed in a different profession but who practice in similar or related areas to testify as expert witnesses in medical malpractice actions. 20 Kan. App. 2d at 841-42.
The dissent observed that K.S.A. 60-3412 states: “[N]o person shall qualify as an expert witness on such issue unless at least 50% of such person’s professional time within the two-year period preceding file incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed.” (Emphasis added.) The dissent pointed out that the trial court determined Bise was engaged in the practice of oral surgery, not plastic surgery, in treating Tompkins. It noted that Captline was a dentist qualified to practice oral and maxillofacial surgery and spent more than 50% of his time in actual clinical practice performing oral and maxillofacial surgery, the field in which Bise was licensed. The dissent reasoned that to disqualify Captline from testifying solely because of the nature of his license strains the meaning of the plain language employed by the legislature in K.S.A. 60-3412. The dissent concluded that Captiine’s licensure as a dentist rather than a physician went to the weight, not the admissibility, of his testimony. 20 Kan. App. 2d at 843-44. This court granted Tompkins’ petition for review.
A medical malpractice action for damages for personal injury arising out of the rendering of professional services by a health care provider is governed by K.S.A. 60-3401 et seq. The question is, does K.S.A. 60-3412 require that an expert witness in a medical malpractice action be a health care provider licensed by the same professional board as the defendant, or does it require the expert witness to be engaged in performing a similar medical procedure as the defendant health care provider?
Interpretation of a statute is a question of law. An appellate court’s review of questions of law is unlimited. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). The rules of statutoiy construction have been often stated. It is a fundamental rule of statutoiy construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). 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). 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).
K.S.A. 60-3412 provides:
“In any medical malpractice liability action, as defined in K.S.A. 60-3401 and amendments thereto, in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue unless at least 50% of such person’s professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed.”
The Court of Appeals stated that K.S.A. 60-3412 sets out four requirements for expert testimony concerning medical malpractice. First, the case must be a medical malpractice action. Second, the standard of care of a practitioner of the healing arts must be at issue. Third, the proposed expert witness must practice in the same profession in which the defendant is licensed. Finally, the proposed expert must have devoted at least 50% of his or her professional time in the 2 years preceding the alleged malpractice to actual clinical practice in that profession.
The primary dispute between the parties concerns the application of the term “profession.” The parties do not dispute that Capt- line is a licensed dentist who spends at least 50% of his professional time practicing oral and maxillofacial surgery.
K.S.A. 60-3412 applies to medical malpractice liability actions, which are definedin K.S.A. 60-3401(e) as actions arising out of the rendering of or failure to render professional services by a health care provider. “Health care provider,” defined in K.S.A. 60-3401(c), has the meaning set forth in K.S.A. 1994 Supp. 40-3401(f), which, in addition to physicians, surgeons, osteopathic physicians, and chiropractors,. includes, a person licensed to practice any branch of the healing arts by the State Board of Healing Arts, a podiatrist licensed by the State Board of Healing Arts, an optometrist licensed by thé Board of Examiners in Optometry, a pharmacist licensed, by the State Board of Pharmacy, a licensed professional nurse who is authorized to practice as a registered nurse anesthetist, a licensed professional nurse who has been granted a temporary authorization to practice nurse anesthesia under K.S.A. 65-1153, a dentist certified by the State Board of Healing Arts to administer anesthetics under K.S.A. 65-2899 and amendments thereto, and a physical therapist registered by the State Board of Healing Arts. Although a dentist certified by the State Board of Healing Arts to administer anesthetics is listed, K.S.A. 1994 Supp. 40-3401 is silent as to dentists generally licensed by the State Dental Board. We note that in his deposition, Captline testified he is certified in Pennsylvania to give anesthetics.
Bise points out that he is a physician and a practitioner of the healing arts and that Captline is a dentist and not a practitioner of the healing arts. He asserts that dentists practicing their professions and dentists administering anesthesia to facilitate medical procedures conducted by a person licensed to practice medicine and surgery are not licensed or engaged in the practice of the healing arts. See K.S.A. 65-2872(k), (q). Bise concludes that in the malpractice action against him, only a licensed physician can qualify as an expert witness under K.S.A, 60-3412. To support this conclusion, Bise highlights the fact that he and Captline are licensed by different boards. Bise is licensed as a physician by the State Board of Healing Arts, whereas Captline, as a dentist, would be licensed by the State Dental Board if he practiced in Kansas. Bise observes that the rules of the board governing dentists do not apply to physicians, who are governed by a different board, and vice versa. Bise reasons that as a dentist, Captline cannot be deemed to practice in the same profession in which Bise, a physician, is licensed. He stresses that a dentist, unlike a physician, is not qualified to care for other health concerns of the patient. Bise concludes that because he is a plastic and reconstructive surgeon and Captline admitted he was unfamiliar with the standard of care of a plastic surgeon, Captline cannot qualify as an expert witness.
Tompkins points out that the medical procedure used by Bise was oral and maxillofacial surgery, not plastic surgery. Tompkins stresses that, although a dentist, Captline routinely performed oral and maxillofacial surgery, the same procedure Bise, a physician, performed on Tompkins. Tompkins also notes that Bise’s dentist expert witness, Thomas, testified that the standard of care of a dentist performing oral and maxillofacial surgery and of a plastic surgeon performing oral and maxillofacial surgery would be similar if not identical. He concludes that it is the specialty of oral and maxillofacial surgery, not the fact that one is a dentist or a physician, that qualifies both Bise and Captline to perform the procedure on Tompkins.
We agree that under the statutes Captline, a dentist, is not a practitioner of the healing arts. However, does K.S.A. 60-3412 require that the proposed expert witness also be a practitioner of the healing arts? There are two cases which have interpreted the requirements of K.S.A. 60-3412: Wisker v. Hart, 244 Kan. 36, 766 P.2d 168 (1988); and Denton by Jamison v. U.S., 731 F. Supp. 1034 (D. Kan. 1990).
In Wisker, 244 Kan. 36, the issue was whether a general practitioner of medicine could testify as to the standard of care of a surgeon and vice versa. The Wisker court noted:
“K.S.A. 1987 Supp. 60-3412 is intended to prevent the use of ‘professional witnesses.’ That is, practitioners of healing arts who spend less than 50 percent of their professional time in actual clinical practice in their profession are considered to be ‘professional witnesses’ rather than practitioners of their profession. The statute was not intended to require that only a surgeon could testify as to the standard of care of another surgeon, etc. The weight afforded the testimony of physicians testifying outside their area of professional specialization is a matter to be determined by die jury.” 244 Kan. at 43-44.
Bise points out that the Wisker court used the language “practitioners of healing arts” and “physicians testifying outside their area of professional specialization.” He infers from this that the Wisker court’s holding that practitioners of different specialties could testify against one another applies only when the proposed expert witness and the defendant are both practitioners of the healing arts.
If one were to follow Bise’s argument to its conclusion, one would conclude that any physician, surgeon, osteopathic physician, chiropractor, or other practitioner of the healing arts, defined in K.S.A. 60-3401, could testify as an expert witness in a medical malpractice case even though the practitioner was not qualified to perform the medical procedure performed by the defendant. That is not what Wisker holds. Although the Wisker court used the terms “physicians” and “practitioners of healing arts,” the focus of the court’s statement was to point out that the primary concern of the legislature in K.S.A. 60-3412 was with prohibiting the use of professional witnesses, not with the licensure of the expert witness.
In Denton, 731 F. Supp. 1034, the plaintiffs sought to have a doctor of osteopathy who had served only on the staffs of osteopathic hospitals testify concerning the defendant medical hospital’s treatment of plaintiffs’ decedent. The Denton court concluded that the doctor of osteopathy met the minimum qualifications of K.S.A. 60-3412 because both medical and osteopathic hospitals provide health care, both may be held to the same standard of care concerning the providing of health care, and both are licensed and regulated by the State of Kansas. The court recognized that the defendant would have the opportunity to attack the credibility and the accuracy of or authority for the witness’ opinions and that the witness’ credibility was a question for the trier of fact. 731 F. Supp. at 1036-37.
This court’s discussion in State v. Willis, 256 Kan. 837, 888 P.2d 839 (1995), is informative. Willis involved the testimony of a licensed social worker that the alleged victim of a rape suffered from post-traumatic stress disorder and that her behavior was consistent with rape trauma syndrome. Post-traumatic stress disorder is a medical diagnosis and mental illness, and rape trauma syndrome is one of many syndromes which attempt to designate or pinpoint the event or condition that may have led to the post-traumatic stress disorder. The Willis court recognized the admissibility of testimony concerning rape trauma syndrome and post-traumatic stress disorder but held that a licensed social worker is not qualified to diagnose medical and psychiatric conditions such as post-traumatic stress disorder. Rather, only a psychiatrist with training in the field of post-traumatic stress disorder and rape trauma syndrome and with professional qualifications to make appropriate diagnoses thereof may testify as an expert in the psychiatric field of post-traumatic stress disorder and rape trauma syndrome. 256 Kan. at 846-47.
The Willis court recognized that to qualify as an expert witness in the field, the witness must have the training in the field and the professional qualifications. Here, unlike in Willis, Captline and Bise were both qualified to diagnose and treat Tompkins’ jaw injury. Their licensure procedure may have differed, but both were trained in and practiced oral and maxillofacial surgery.
Following the Court of Appeals’ analysis of Wisker, a general medical practitioner with no training in oral and maxillofacial surgery would be qualified to testify as an expert witness as to Bise’s performance of oral and maxillofacial surgery on Tompkins. Certainly Captline is better qualified than a general practitioner to testify as to the professional standard of oral and maxillofacial surgery. Unless K.S.A. 60-3412 specifically prohibits it, there is no rationale to exclude Captline’s testimony in this action merely because he is licensed as a dentist rather than licensed as a physician.
It is elementary that if the meaning of a statute is plain, the sole function of the court is to enforce it according to its terms. Where a statute may be of doubtful meaning and is susceptible to two constructions, the court may look at the legislative history of the statute to assist in determining the meaning of the statute. If the legislative history does not assist the court as to which of the two constructions is correct, the court must select the reasonable con struction so as to avoid unreasonable or absurd results. If the legislature disagrees with the court’s interpretation of the statute, the legislature has the power to set aside the court’s interpretation by amending the statute.
Prior to the enactment of K.S.A. 60-3401 et seq., the prerequisites for expert testimony in a medical malpractice case were stated in K.S.A. 60-419. In addition to the testimony being relevant and material, the statute states that the expert witness must have personal knowledge thereof, or experience, training, or education if such be required. The judge may receive conditionally the testimony of the witness as to a relevant or material matter, subject to the evidence of knowledge, experience, training, or education being later supplied in the course of the trial.
Medical malpractice reform occurred in 1985 with the enactment of Substitute S.B. 110. The legislature enacted K.S.A. 60-3412 as part of its efforts to check the rising cost of medical malpractice insurance. See Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 340, 789 P.2d 541 (1990). The original version of S.B. 110 included the following provision:
“In an action for malpractice against a physician or hospital, no person shall testify as a medical expert as to the standard of care unless that person is licensed to practice medicine and surgery in Kansas or a contiguous state, has current personal experience and practical familiarity with the medical subject forming the basis of the litigation and is actively engaged in direct patient care.” S.B. 110, New Sec. 4(a)(2).
This provision was deleted when the substitute for S.B. 110 was adopted.
An interim committee on medical malpractice studied the need for further reform in 1985. The committee reported the arguments concerning what is now K.S.A. 60-3412 as follows:
“The [Kansas Medical Society argued] that Kansas health care providers should be judged by those familiar with standards of practice here and should not be subject to scrutiny from so-called experts from large urban centers or universities far from Kansas. Some such experts were said to make their livelihood from court testimony.” (Emphasis added.) Proposal 47, Medical Malpractice, Report on Kansas Legislative Interim Studies to the 1986 Legislature, pp. 817, 849 (December 1985).
The minority report concurred, stating that the goal of the new- law was to “[q]ualify expert witnesses based upon a certain percentage of clinical practice to assure the setting of a fair and reasonable standard of care.” Proposal 47, Medical Malpractice, Report on Kansas Legislative Interim Studies to the 1986 Legislature, Minority Report, p. 866.
Following the interim committee report, additional medical malpractice reform occurred in 1986. The provisions of K.S.A. 60-3412 were found in Section 16 of H.B. 2661. That section originally included the language currently found in K.S.A. 60-3412 with the additional requirement that the expert practice “in the same specialty if the defendant is a specialist.” .
, .Does K.S.A. 60-3412 require that the expert witness be licensed by the same board by which the defendant is licensed before the witness can testify in a medical malpractice action? The majority of the Court of Appeals panel in this case stated that K.S.A. 60-3412 requires that “the expert [witness] must be licensed in the same profession [a's the defendant].” 20 Kan. App. 2d at 842. This statement is incorrect. K.S.A. 60-3412 is silent concerning the li-censure of the expert witness. The statute only requires that’ the expert engage in “actual clinical practice in the same profession in which the defendant is licensed.”
Although the language of K.S.A. 60-3412 could be interpreted to mean that the definition of “profession” is related to the licen-sure of the defendant, the statute does not contain any limitation on licensure. It is important to note that the language requiring that the witness practice the same specialty as the defendant was not included in the final version of the statute. Bise did not have to be licensed as a physician to treat Tompkins’ jaw injury. Any physician or dentist trained in oral and maxillofacial surgery was qualified to treat Tompkins’ injury. The definition of “profession” must be related to whether the expert is qualified to perform the procedure at issue and is not limited to the particular licensure of the defendant or the expert.
K.S.A. 60-3412 sets forth the minimum requirements of expert witnesses in medical liability cases. The statute requires that an expert witness in a medical malpractice action be engaged in. a similar or related area of practice as the defendant health care provider. K.S.A. 60-3412 does not require that a proposed expert in a medical malpractice liability action be licensed by the same professional board in which the defendant health care provider is licensed.
Captline satisfied the minimum requirements of K.S.A. 60-3412. Captline is a licensed professional who spent more than 50% of his practice treating jaw injuries similar to Tompkins’. The fact that Capthne is licensed as a dentist, rather than as a physician, goes to the weight, not the admissibility, of his testimony. Captline’s credibility and the weight of his testimony were matters for the jury to determine. Bise was amply able to point out to the jury the deficiencies he claimed in Captline’s testimony by showing that Capt-line was not a physician, was not qualified to treat the entire patient, and was unfamiliar with the standard of care of a plastic surgeon. The trial court did not err in permitting Captline to testify as an expert witness under the facts of this case.
We need not reach the other issues raised by the parties.
The judgment of the Court of Appeals is reversed, and the judgment of the district court is affirmed.
Larson, J., not participating.
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The opinion of the court was delivered by
Lockett, J.;
Defendant 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) became effective, the district court found defendant ineligible for retroactive sentence conversion based on his criminal history score, which included a juvenile adjudication for burglary. Defendant appealed to the Court of Appeals, arguing that the Kansas Juvenile Offenders Code (the Code), K.S.A. 38-1601 etseq., prohibited juvenile adjudications from being used to calculate an offender’s criminal history under the KSGA. The Court of Appeals affirmed the consideration of juvenile adjudications and remanded for further proceedings in State v. LaMunyon, 21 Kan. App. 2d 281, 898 P.2d 1182 (1995), and this court granted defendant’s petition for review.
Steven W. LaMunyon, Jr., an adult, pleaded nolo.contendere to possession of marijuana with intent to sell, a class C felony. He was sentenced to a term of incarceration of 3 to 10 years on May 7, 1993. After the KSGA became effective, the defendant’s crime of conviction was determined to be a severity level 3 crime on the drag grid; The Department of Corrections (DOC) noted that the defendant’s criminal history included two juvenile adjudications for theft and' one for attempted criminal damage to property. Based on. a criminal'history of 3 person and selected misdemeanors (level “H”), the DOC issued a sentencing guidelines report showing the defendant to be eligible for sentence conversion. See K.S.A. 1993 Supp. 21-4724(b) (level 3-H on the drag grid is eligible for sentence conversion).
The State filed a motion challenging LaMunyon’s eligibility for conversion and the criminal history as stated in the guidelines report. The district court found that the defendant’s criminal history included an additional juvenile adjudication for burglary that had not been considered by the DOC, an adjudication which raised his Criminal history score to “D” (juvenile adjudication for one person felony). The district court held that the defendant was not eligible for retroactive sentence conversion under the KSGA because of the juvenile adjudication for burglary. See K.S.A. 1993 Supp. 21-4724(b) (only levels 3-H, 3-1, 4-G, 4-H, and 4-1 on the drag grid are eligible for sentence conversion).'The defendant appealed.
In the Court of Appeals, LaMunyon acknowledged that the legislature provided in the KSGA that juvenile adjudications would be considered in calculating criminal history and agreed that he was ineligible for conversion if his juvenile adjudication for burglary was considered as part of his criminal history. However, LaMunyon argued that under the Code, juvenile adjudications cannot be considered in calculating an adult’s criminal history. The Court of Appeals rejected the defendant’s arguments and determined that LaMunyon’s prior juvenile adjudications were to be considered in determining his criminal history score forretroactive sentence conversion under the KSGA and, under the facts, the district court had correctly concluded that the defendant was not eligible for' a sentence conversion. 21 Kan. App. 2d at 282-86. This court granted the defendant’s petition for review of this issue.
Consideration of juvenile adjudications in calculating an offender’s criminal history under the KSGA could result in an increased criminal history score and therefore an enhanced sentence for the adult conviction under the KSGA. Can prior juvenile adjudications be used in calculating an offender’s criminal history score under the KSGA? The question is one.of first impression for this court.
The defendant acknowledges that the KSGA requires consideration of his juvenile adjudications. However, the defendant makes three arguments against the KSGA’s consideration of juvenile adjudications: (1) Use of prior juvenile adjudications conflicts with the Kansas Juvenile Offenders Code; (2) consideration of juvenile adjudications violates the due process clause because there is no right to a jury trial in juvenile proceedings; and (3) consideration of juvenile adjudications violates the prohibition against ex post facto laws.
Juvenile Code
When enacting the KSGA in 1992 the legislature expressly required the consideration of certain juvenile adjudications when determining an offender’s criminal history score. See K.S.A. 1993 Supp. 21-4703(d), K.S.A. 1993 Supp. 21-4709, K.S.A. 1993 Supp. 21-4710, K.S.A. 1993 Supp. 21-4711, K.S.A. 1993 Supp. 21-4714(b)(5). The defendant’s first argument is that the KSGA provision requiring consideration of juvenile adjudications in calculating criminal history conflicts with the Code. K.S.A. 38-1601 states:
“In no case shall any order, judgment or decree of the district court, in any proceedings under the provisions of this code, be deemed or held to import a criminal act on the part of any juvenile . . . .”
The defendant argues this language prohibits juvenile adjudications from having any criminal implications whatsoever. In State v. Muhammad, 237 Kan. 850, Syl. ¶ 2, 703 P.2d 835 (1985), this court noted that under Kansas statutes, a juvenile proceeding is considered a civil proceeding of a protective nature totally divorced from any criminal implication. Based on a similar rationale, the defendant contends prior juvenile adjudications under the Code, cannot be used to calculate an adult offender’s “criminal” history score under the KSGA.
In support of this argument the defendant relies on the rule of statutory construction that where a statute dealing generally with a subject and a statute dealing specifically with a certain phase of the subject are conflicting, the,more specific statute generally corn trols unless the legislature intended otherwise. State v. Reed, 254 Kan. 52, Syl. ¶ 1, 865 P.2d 191 (1993); see Carmichael v. State, 255 Kan. 10, 15, 872 P.2d 240 (1994). The defendant reasons that the Code, which was enacted prior to the KSGA, is more specific than the KSGA because the Code deals specifically with the prosecution and disposition of juvenile offenders, whereas the KSGA deals generally with adult criminal acts.
In addressing this argument, the Court of Appeals noted that State v. Ward, 20 Kan. App. 2d 238, 886 P.2d 890 (1994), rev. denied 257 Kan. 1096 (1995), had held that juvenile adjudications are not “convictions” for purposes of the Habitual Sex Offender Registration Act (the Act), K.S.A. 1993 Supp. 22-4901 et seq. In reaching this conclusion, the Ward court noted that where the language of a statute is plain and unambiguous, courts are required to give effect to that language without considering what the law should or should not be. K.S.A. 1993 Supp. 22-4902 defined habitual sex offenders as persons who are “convicted a second or subsequent time in separate criminal actions for commission of any of a sexually violent crime set forth in subsection (b).” (Emphasis added.) The Ward court then concluded that the legislature clearly intended that juvenile adjudications were not criminal convictions to be included as convictions under the Act.
The Court of Appeals noted that the Code was adopted in 1982, prior to the KSGA. Using the rationale of Ward, the Court of Appeals observed that in writing the KSGA, the legislature made specific provisions in K.S.A. 1993 Supp. 21-4710 to include juvenile adjudications as part of an offender’s criminal history score in some instances. It concluded that because the legislature specifically provided in the KSGA, the subsequent enactment, that juvenile adjudications would be used in calculating an offender’s criminal history score, it logically followed that the legislature intended the KSGA to be the controlling act. LaMunyon, 21 Kan. App. 2d at 283.
The defendant argues that the fact the KSGA was more recently enacted than the Code does not make the provisions of the KSGA controlling. LaMunyon asserts that the Court of Appeals failed to recognize that the provisions of the Code remained unchanged despite the provisions enacted by the legislature in the KSGA. Therefore, according to the defendant, if the legislature had intended to include juvenile adjudications under the Code in calculating a criminal history score under the KSGA, the legislature would have amended the Code in the sections that specifically deal with juvenile adjudications and their consequences.
The fallacy with this argument is that the defendant equates the term “criminal act” or “criminal conviction” with “criminal history.” It is well established that a juvenile adjudication is not a “criminal conviction.” See State v. Fountaine, 196 Kan. 638, 414 P.2d 75 (1966) (construing Federal Juvenile Delinquency Act [FJDA] in harmony with the predecessor to the Code; juvenile adjudication under the FJDA is not a “prior conviction of a felony” under the Kansas Habitual Criminal Act); In re J.E.M., 20 Kan. App. 2d 596, 890 P.2d 364 (1995) (juvenile adjudications cannot be counted as prior “convictions” for purposes of enhancing the crime severity level of theft); Ward, 20 Kan. App. 2d 238 (juvenile adjudication is not a prior “conviction” under Habitual Sex Offender Registration Act); State v. Smith, 18 Kan. App. 2d 297, 851 P.2d 397 (1993) (person with a juvenile adjudication for an offense which would be a felony if committed by an adult has not been “convicted” of a felony and is entitled to the statutory presumption of probation or community corrections unless the presumption is overcome). 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. See Ward, 20 Kan. App. 2d at 244. 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.
Other courts have reached similar conclusions. See e.g., U.S. v. Bucaro, 898 F.2d 368 (3d Cir. 1990) (Pennsylvania law treats a juvenile adjudication differently than a criminal conviction, but the juvenile law does permit the use of juvenile adjudications for the purposes of inclusion in a presentence investigation upon conviction of a felony; juvenile adjudications properly factored into cal culation of defendant’s criminal history category under -the’ federal sentencing guidelines); State v. Little, 423 N.W.2d 722 (Minn. App. 1988) (use of juvenile adjudications in computing criminal history score is not inconsistent with the purpose of the Minnesota Juvenile Court Act; Act itself permits use of juvenile adjudications to determine a proper sentence); Com. v. Smith, 333 Pa. Super. 179, 481 A.2d 1365 (1984) (Pennsylvania Juvenile Act itself carves out an exception to the use of a juvenile’s record in a subsequent adult.proceeding; senténcing court required to consider juvenile adjudications under sentencing guidelines). . • '
We note that the Kansas Legislature permitted consideration of juvenile adjudications in the sentencing of adult offenders prior to the adoption of the KSGA. K.S.A. 1993 Supp. 21-4606a has provided since its enactment in 1984 that in determining whether the presumption for probation applies for certain offenders, “the court shall consider any prior: record of the person’s having been convicted or having been- adjudicated to have committed', while a juvenile, an offense which wpuld constitute a felony if committed by an-adult.” Likewise, K.S.A. 1993 Supp. 21-4606b used similar language when enacted in 1989 for determining whether presumptive assignment to community corrections applied to certain offenders by requiring the court, to consider “any prior record of the person’s having been, convicted of a felony or having been adjudicated to have committed, while a juvenile, an offense which would constitute a felony if committed by an adult.”
Finally, since its enactment in 1982 the Code has permitted use of expunged juvenile records i.n the sentencing of subsequent juvenile dispositions- and. adult criminal ..convictions. K.S.A. 38-1610(e) states:
“Upon entry of an order.expunging records or’files, the offense which the records or files concern .shah be treated as if it never- occurred, except that ... (2) upon conviction of a crime or adjudication in a subsequent action under this code the offense may be considered in determining the .sentence to be imposed or disposition to be made.”
Thus, the legislature permitted consideration of even expunged juvenile adjudications in both future juvenile dispositions and adult sentencing before the KSGA was enacted. When enacting K.S.A. 38-1610(e) the legislature recognized that juvenile adjudications would be considered in determining the sentence to be imposed on adult offenders despite the statement in 38-1601 which the defendant contends is to the contrary.
The fact that a juvenile adjudication is not a “criminal act” has not been interpreted to mean that a juvenile adjudication can have no impact upon the sentence for a subsequent “criminal conviction.” 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” simply 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 fact that a juvenile adjudication cannot be deemed to import a “criminal act” under K.S.A. 38-1601 for purposes of the juvenile proceedings does not preclude consideration of an adjudication in determining a defendant’s sentence according to the KSGA.
The defendant also argues that when enacted, the Code was not intended to be punitive or have a subsequent effect upon those who were no longer subject to it. He asserts that juvenile adjudications had no such effect until the KSGA was later enacted, bringing juvenile adjudications back to haunt those who had been subject to the Code and had relied on the Code’s provision that they had no criminal effect. Presumably, the defendant’s appellate counsel asserts, when the defendant was subject to the Code his attorney advised him that his juvenile adjudications would have no future effect. The defendant argues that the KSGA has rendered his reliance on his prior counsel’s advice meaningless and that a procedure designed to achieve the best interests for the juvenile has become a punitive act with consequences for subsequent adult criminal convictions.
This argument is similar to one made in Ingraham v. State, 502 So. 2d 987 (Fla. Dist. App. 1987). There, an adult defendant sought to set aside his pleas to prior juvenile adjudications if they were considered in determining his sentence for a subsequent adult crime. The Florida court held that the defendant’s guilty pleas-entered in the juvenile adjudications upon his attorney’s correct advice that the legislature had provided that juvenile adjudications could not be used in enhancing a subsequent adult conviction would be rendered involuntary if the juvenile adjudications were subsequently considered in determining the adult sentence.
Ingraham is distinguishable. The defendant’s argument is correct as to Florida law and the Kansas Habitual Sex Offender Registration Act but is flawed as to the KSGA. As previously discussed, the Kansas Legislature permitted consideration of juvenile adjudications in subsequent adult sentencing proceedings before the defendant’s juvenile adjudications occurred (1986 and 1987) and before the KSGA was adopted. Due process does not require that a defendant be informed of all collateral consequences which may result from a guilty plea. See Cox v. State, 16 Kan. App. 2d 128, 130-31, 819 P.2d 1241 (1991), rev. denied 250 Kan. 804 (1992). One of the collateral consequences of which a defendant need not be informed is the possibility that the conviction may be used to enhance the sentence for a later crime. See City of Ottawa v. Lester, 16 Kan. App. 2d 244, 246-47, 822 P.2d 72 (1991). Similarly, due process does not require that a juvenile be informed that an uncontested or stipulated adjudication could be used to determine the sentence for a future crime.
We disagree with the defendant’s argument that the Code is a more specific legislative statement than the KSGA. The Kansas Legislature was well aware of the Code when it subsequently allowed prior juvenile adjudications to be included in the guidelines of the KSGA. The Code is a general statement of public policy as to the effect of juvenile adjudications, whereas the KSGA sets out specific exceptions to K.S.A. 38-1601.
Jury Trial
A juvenile has no constitutional right to a jury trial. McKeiver v. Pennsylvania, 403 U.S. 528, 543, 29 L. Ed. 2d 647, 91 S. Ct. 1976 (1971). Kansas law permits a jury trial in juvenile proceedings only for offenses which would be felony offenses if committed by an adult. K.S.A. 38-1656; see Findlay v. State, 235 Kan. 462, 463-64, 681 P.2d 20 (1984).
In the Court of Appeals, the defendant contended that the KSGA’s consideration of a juvenile adjudication which lacked the right to a jury trial is analogous to the use of an uncounseled conviction to enhance the sentence imposed for a subsequent crime. In Baldosar v. Illinois, 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585 (1980), the United States Supreme Court held that a constitutionally valid but uncounseled misdemeanor conviction could not be collaterally used to convert a second misdemeanor conviction into a felony conviction under the applicable Illinois sentencing enhancement statute. Following the Baldosar rationale, the defendant asserted that if a prior uncounseled conviction cannot be used to enhance his sentence for a subsequent conviction, a prior non-jury juvenile adjudication cannot be used to enhance the sentence under the KSGA for a subsequent adult conviction.
The defendant urged the Court of Appeals to follow the reasoning of the dissent in State v. Stewart, 123 Or. App. 147, 859 P.2d 545 (1993), aff’d State v. Stewart/Billings, 321 Or. 1, 892 P.2d 1013 (1995), in which a majority held that juvenile adjudications could be used to calculate an offender’s criminal history score under the Oregon sentencing guidelines even though there was no right to a jury trial in the juvenile proceeding. The Stewart dissent argued that there was no distinction between enhancing a sentence based on a juvenile adjudication which, though constitutional, did not have the protection of a jury trial and enhancing a sentence based on an uncounseled, though constitutional, misdemeanor conviction which was prohibited by Baldosar. 123 Or. App. at 154-56.
In rejecting the defendant’s argument, the Court of appeals recognized that the flaw in the defendant’s argument was the reliance on Baldosar. The Court of Appeals pointed out that Baldosar was overruled by the United States Supreme Court in Nichols v. United States, 511 U.S. 738, 128 L. Ed. 2d 745, 114 S. Ct. 1921 (1994). In Nichols, the Supreme Court determined that an uncounseled conviction could be used to enhance the sentence for a subsequent offense even though the subsequent sentence entails imprisonment. (See Scott v. Illinois, 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158 [1979]). The Court observed that enhancement statutes, whether in the nature of criminal history provisions such as those contained in sentencing guidelines schemes, or recidivist statutes which are common in state criminal laws, do not change the penalty imposed for the earlier conviction. 511 U.S. at 747. The Court concluded that while imprisonment could not be imposed for a constitutional but uncounseled conviction, that uncounseled conviction could be used at a later sentencing hearing even though a sentence of imprisonment yvould result.
In his petition for review, the defendant acknowledges that Bal-dosar was overruled by Nichols. However, he asserts that “it continues to be Kansas law that úncounseled convictions are not used to enhance a subsequent sentence.” This assertion is also flawed. Two weeks before LaMunyon filed his petition for review, this court decided State v. Delacruz, 258 Kan. 129, 899 P.2d 1042 (1995).
The Delacruz court held that an uncounseled misdemeanor conviction could properly be used in determining an offender s criminal history under the KSGA. Using the rationale expressed in Nichols, the court concluded that the use of an uncounseléd misdemeanor conviction which was constitutional could be used in determining a defendant’s criminal history under the KSGA even though it has the effect of enhancing a subsequent sentence under the KSGA. See Nichols, 511 U.S. at 747-48. The Delacruz court noted that prior uncounseled misdemeanor convictions are constitutional if no jail time was imposed. If such convictions are constitutional, those convictions can be used for subsequent proceedings under the KSGA. The Delacruz court recognized that while the uncounseled misdemeanor conviction is used to enhance the present sentence, the sentence imposed for the present crime does not increase the penalty for the prior misdemeanor conviction. Under such circumstances, the defendant is being punished based on the current conviction. 258 Kan. at 135-36. The Delacruz court did recognize that an uncounseled misdemeanor conviction which resulted in a sentence of imprisonment for the uncounseled crime was unconstitutional and could not be used in calculating a defendant’s criminal history for a subsequent crime. 258 Kan. at 136.
Other courts reached the same conclusion despite arguments similar to the defendant’s, even before Baldosar was overruled. See McCullough v. Singletary, 967 F.2d 530 (11th Cir. 1992) (defendant’s due process rights not violated by using prior, nonjury, juvenile adjudications to enhance criminal history level under Florida sentencing guidelines); United States v. Williams, 891 F.2d 212 (9th Cir. 1989) (same, under federal sentencing guidelines); State v. Little, 423 N.W.2d 722 (same, under Minnesota sentencing guidelines).
Here, the defendant’s juvenile adjudications were constitutional even if he had no right to a jury trial in those proceedings. Because the juvenile adjudications were not constitutionally infirm, they may be used in calculating the defendant’s criminal history score under the KSGA.
Ex Post Facto
The defendant’s final argument is that using juvenile adjudications in calculating criminal history violates the constitutional prohibition against ex post facto laws. An ex post facto violation occurs when a new law is retroactively applied to events that occurred before its enactment and the new law disadvantages the offender affected by it. State v. Fierro, 257 Kan. 639, 646, 895 P.2d 186 (1995). See Weaver v. Graham, 450 U.S. 24, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981).
The defendant argues that the KSGA operates retroactively because it gives criminal effect to juvenile adjudications which occurred prior to the enactment of the KSGA. He contends that he is disadvantaged because if his juvenile adjudications were not included in his criminal history score, he would be entitled to the benefit of a sentence conversion. The Court of Appeals rejected the defendant’s argument by concluding that LaMunyon was not being punished for his prior juvenile adjudications when calculating his criminal history under the KSGA. Moreover, the court noted that the inability to convert a sentence under the KSGA results in the defendant serving only the sentence imposed under the prior law and not an enhanced sentence. LaMunyon, 21 Kan. App.2d at 286.
A similar argument was addressed in Bucaro, 898 F.2d 368. After observing that the defendant was not being punished for his juvenile conduct and that his current sentence was based on the law in effect at the time he committed the current offense, the Búcaro court rejected an ex post facto argument as to the use of prior juvenile adjudications in calculating criminal history for adult offenders under the federal sentencing guidelines. 898 F.2d at 371.
The Búcaro analysis is similar to that previously used by Kansas appellate courts in addressing prior Kansas habitual criminal laws. In State v. Jones, 214 Kan. 568,521 P.2d 278 (1974), the defendant was convicted in 1971 of driving with a suspended license, a misdemeanor. In 1972, the Kansas Legislature amended the classification of the offense to provide that a first conviction was a class B misdemeanor, a second was a class A misdemeanor, and a third or subsequent conviction was a class E felony. The defendant was convicted a second time in 1972, and he committed a third offense in 1973. At his trial for the third offense, the defendant stipulated to the two prior convictions. Upon his third conviction, he was sentenced as a felon. 214 Kan. at 569. In holding that the statute classifying the crime based on the number of prior convictions was a self-contained habitual criminal statute, the Jones court stated that a showing of prior convictions goes only to the question of defendant’s status. The court noted that the prior conviction or convictions under the statute prescribes sequentially increased punishment for repeat offenders. It pointed out that a repeat offender was not punished for the prior offense or offenses, but the legislature declared that repeated violations justified an enhanced penalty. 214 Kan. at 570. Without further discussion, the Jones court rejected the defendant’s argument that the retroactive application of the statute rendered it an ex post facto law. 214 Kan. at 570. See State v. Campbell, 9 Kan. App. 2d 474, 681 P.2d 679 (1984) (a provision mandating increased penalties for repeat drunk driving offenders is not an ex post facto law even though the prior convictions are for violations of statutes or ordinances which contained no similar provisions).
In State v. Landon, 21 Kan. App. 2d 486, 900 P.2d 254 (1995), the Court of Appeals considered an argument that classifying two prior burglaiy convictions as person felonies in calculating an offender’s criminal history score under the KSGA violated the prohibition against ex post facto laws because the offense was a property, not a person, crime at the time the prior crimes were committed. Classification of the prior burglaries as person, rather than nonperson, crimes resulted in a higher criminal history score and therefore an increased sentence under the KSGA. The Landon court rejected this argument, concluding that the defendant was not being punished for his prior burglary convictions; rather, his prior convictions were used to establish a sentencing classification for the current offense. 21 Kan. App. 2d at 488.
The defendant is correct that the KSGA was not in effect at the time of his juvenile adjudications. He is also correct that consideration of juvenile adjudications in calculating an offender’s criminal history could result in an increased criminal history score and therefore an increased sentence for the adult offense under the KSGA. However, the KSGA does not operate retrospectively to punish the activity which occurred prior to the effective date of the KSGA and therefore does not violate the prohibition against' ex post facto laws.
The analysis applied in Bucaro, Jones, Campbell, and Landon applies here as well. The defendant is not being punished for his juvenile adjudications. The adjudications are merely being used to calculate the defendant’s criminal history score for the purpose of determining the guidelines sentence for his current offense. That the guidelines sentence is greater upon inclusion of the juvenile adjudications in his criminal history score than it would be without considering the adjudications does not mean the defendant is being punished for the prior adjudications. The defendant’s ineligibility for sentence conversion is not a punishment for his prior juvenile adjudications but rather is a result of his current status as a repeat offender. The consideration of juvenile adjudications which occurred before the effective date of the KSGA in calculating an offender’s criminal history score under the KSGA is not a violation of the prohibition against ex post facto laws.
Conclusion
The Court of Appeals correctly held that the defendant’s juvenile adjudications may properly be used in determining his criminal history score under the KSGA.
We additionally note, as pointed out by the Court of Appeals, that the record is not clear whether the defendant’s prior juvenile adjudication for burglary was of a dwelling. The matter must be remanded to the district court to determine whether the juvenile adjudication for burglary was a person or nonperson felony.
Judgment of the Court of Appeals is affirmed; judgment of the district court is affirmed in part and remanded for further proceedings.
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The opinion of the court was delivered by
Davts, J.:
This is the second appeal by Curtis L. Turner and follows our remand in State v. Turner, 257 Kan. 19, 891 P.2d 317 (1995), on the sole issue of whether the police activity in making a false statement in the course of obtaining a search warrant was so egregious as to require application of the exclusionary rule to Turner’s probation revocation proceeding. The present appeal is from the district court’s finding that the police activity was not so egregious as to warrant application of the exclusionary rule.
The facts are not in dispute and are contained in our initial opinion. It is helpful to include in this opinion some of the underlying facts and procedural history of this case. On November 3, 1992, Detective Alan Prince of the Wichita Police Department filed an application with the Sedgwick County District Court for a search warrant to search the defendant’s residence. In his affidavit for a search warrant, Detective Prince stated that he gave money to a confidential informant, who then paged the defendant. The defendant called the informant and agreed to sell him cocaine at a nearby car wash. Detectives then followed the defendant from his residence to the car wash, where the defendant met with the confidential informant and gave the informant a bag of white powder, later identified as cocaine, in exchange for $300. In his affidavit, Detective Prince also stated that a separate confidential informant had told him that the defendant kept an inventory of cocaine at his house and was selling cocaine from his house.
Based on information contained in the affidavit, the district court issued a search warrant. However, the warrant was never served and was returned on November 10.
On November 6, 1992, Troy Derby, an agent for the Drug Enforcement Agency, filed an application in federal court for a search warrant. In his affidavit, Agent Derby stated that various sources had informed him that the defendant was involved in narcotics trafficking and that the defendant distributed large quantities of marijuana. Derby also stated that his source had purchased cocaine from the defendant approximately 10 times. Derby related: “On October 30, 1992, a Confidential Informant purchased cocaine for Wichita Police Department Detective Alan Prince from person or persons at 2460 Winstead Circle.” No mention was made that the buy actually occurred at the car wash, not at the defendant’s residence. A federal search warrant was issued on the basis of the affidavit.
On November 6, 1992, law enforcement officers executed the federal search warrant on the defendant’s house and recovered marijuana and cocaine. The defendant was charged with possession of cocaine and marijuana with intent to sell, as well as tax stamp violations. A warrant to revoke the defendant’s probation was also filed.
The defenclant was bound over for trial, and his probation was revoked. Several months later, the prosecution discovered that the affidavit supporting the search warrant contained a false statement in that it alleged that the controlled buy was made at the defendant’s house rather than the car wash. As a result, the prosecution determined that the evidence discovered in the search was inadmissible and dismissed the charges.
The defendant filed a motion to reconsider revocation of his probation based on the fact that the search warrant was illegally obtained and thus, the evidence uncovered should have been suppressed pursuant to the exclusionary rule. The district court denied the request, finding that the exclusionary rule did not apply to a hearing on probation revocation.
Upon appeal, the Kansas Court of Appeals determined that the district court had erred in finding that the exclusionary rule did not apply and reversed the district court. State v. Turner, 19 Kan. App. 2d 535, 540, 873 P.2d 208 (1994). We granted review and determined generally that the exclusionary rule does not apply to probation revocation proceedings. We held:
“Generally, evidence illegally seized from a probationer is not barred from a probation revocation proceeding by the exclusionary rule. The bare fact that the officer or officers acting unlawfully knew of the defendant’s probationary status is insufficient to create an exception thereto. However, an exception may be warranted if the court finds, under the totality of the circumstances, that the police misconduct is so egregious that its deterrence outweighs the court’s need for information.” State v. Turner, 257 Kan. 19, Syl. ¶ 1.
Consistent with our decision, we remanded Turner’s case to the district court for an evidentiary hearing to determine whether the unlawful police activity was so egregious as to warrant application of the exclusionary rule. 257 Kan. at 27.
Proceedings Upon Remand
The evidentiary hearing required by this court was conducted on three separate days. Detective Prince testified that he did not execute the original state search warrant because the investigation became a joint state/federal matter. Due to the anticipated amount of cocaine involved, he anticipated federal charges and decided to call in federal investigators and pursue a federal search warrant.
According to Detective Prince, he met with Agent Derby and Assistant United States Attorney Blair Watson, and Watson drew up the federal search warrant affidavit with their input. Detective Prince testified that one of the major concerns in drawing up the affidavit was the protection of the confidential informant. He stated that the confidential informant was frightened of his name becoming known to the defendant and that the confidential informant had reported witnessing the defendant beat someone and stuff the person in the trunk of the defendant’s car. Detective Prince testified that he, Agent Derby, and Watson decided not to mention in the affidavit that the controlled buy took place at the car wash in case the informant was the only person to whom the defendant was selling drugs at that location.
Detective Prince insisted that the search warrant was factually correct. He stated that the way he read the affidavit, it simply stated that the drugs were purchased from persons who resided at the defendant’s house, not that the drugs were actually purchased at the defendant’s house. Agent Derby testified that the major concern in drafting the affidavit was protecting the identity of the confidential informant. Derby also stated that he did not consider the affidavit to be misleading.
Doug Roth, Deputy District Attorney for the 18th Judicial District, also testified. Roth stated that, after reviewing the search warrant affidavit, his office determined that there was a significant problem with the statement because it erroneously suggested that the drugs were purchased from the defendant’s home. Roth testified that he discussed the problem with the United States Attorney’s office and finally determined to go ahead and dismiss the criminal charges against the defendant. Roth stated that his office did not want to take the position that the statements in the search warrant affidavit were truthful and valid because they did not want to undermine the office’s credibility with the court.
The district court determined that a reasonable magistrate would have interpreted the search warrant to mean that the drugs were purchased at the home of the defendant and that the affidavit would have caused validity problems with any search warrant issued based upon it. However, the court further determined that a valid search warrant could have been obtained had the search warrant truthfully recited the facts and that this was not a case where the false statements were made to induce the issuing of a search warrant. The court found that while the behavior of the agents was “an ill-informed, ill-conceived, and poorly executed attempt to protect a confidential informant,” it was not so egregious that the need for its deterrence outweighed the court’s need for information. Accordingly, the district court denied the defendant’s request to suppress the information.
Egregious Conduct
We are called upon to review the district court’s determination that the defendant does not fit within the limited exception for those cases where the conduct of the officer involved is so egregious that the need for its deterrence outweighs the court’s need for information.
The resolution of this question involves both questions of fact and law. The district court made a factual finding that the officers were motivated by their concern for the confidential informant. The court also determined that the information, if truthfully presented, would have been sufficient to justify the issuance of a search warrant. Finally, the court concluded that as a matter of law, under the totality of the circumstances, the conduct of Detective Prince, Agent Derby, and Watson was not so egregious as to require the application of the exclusionary rule.
Where the district court has made findings of fact and conclusions of law, this court’s standard of review is to determine whether the findings of fact are supported by substantial competent evidence and whether the findings of fact are sufficient to support the district court’s conclusions of law. State v. Ratley, 253 Kan. 394, 398, 855 P.2d 943 (1993).
This court has not attempted to set out what such egregious conduct entails. Because of the factual nature of such a determination, the determination of whether such conduct is so egregious must be made on a case by case basis. However, it is apparent from our earlier decision in Turner that the conduct must go beyond simply knowing that the subject is a probationer. See 257 Kan. at 27.
The defendant urges us to hold that any intentional false statement made by the prosecution should be considered egregious conduct sufficient to justify the application of the exclusionary rule. He argues that intentional factual manipulation by law enforcement officers in a search warrant affidavit is a great constitutional evil, as magistrates generally assume that the affiant is being truthful.
It is clear that the officers in this case intentionally inserted false information in their search warrant affidavit. The affidavit stated: “On October 30, 1992, a Confidential Informant purchased cocaine for Wichita Police Department Detective Alan Prince from person or persons at 2460 Winstead Circle.” The obvious conclusion that a magistrate would draw from this statement is that the drug buy was conducted in the defendant’s apartment. The assertions by both Detective Prince and Agent Derby that the statement was not false and only meant to convey that the seller lived at 2460 Winstead Circle are not credible.
At the same time, there was no evidence presented to support a conclusion that the officers made these false statements in an attempt to convince the federal magistrate to issue a search warrant because the true facts would not have supported a warrant. In fact, the district court concluded otherwise. Nor was there any evidence that the officers presented false evidence for the sole purpose of obtaining evidence to revoke Turner’s probation, knowing the false evidence would not support criminal charges. The district court did find that the intention of the officers in making the false statement was simply to protect the identity of the confidential informant.
In this case, there was substantial competent evidence to support the district court’s finding that the officers were motivated by con- cem for the safety of the confidential informant rather than a desire to bolster the evidence supporting the search warrant application. Both Detective Prince and Agent Derby testified that the purpose in disguising the location of the controlled buy was to protect the informant. While the defendant argues that the officers’ testimony was not credible, it is the duty of the district court, not this court, to weigh the evidence and pass on the credibility of the witnesses. See State v. Rowell, 256 Kan. 200, 213, 883 P.2d 1184 (1994).
There was also substantial competent evidence to support the trial court’s finding that had the officers simply recited the truth as contained in Detective Prince’s first affidavit, a warrant could have been secured. This factor supports the conclusion that the officers acted out of a desire to protect the confidential informant rather than to illegally obtain' a valid search warrant.
The defendant argues that the motives of Detective Prince, Agent Derby, and Watson are suspect and, rather than being inspired by the necessity to protect the confidential informant’s identity, they could have just as easily been seeking to establish a more favorable basis to support their request for a search warrant. The officers’ motives, however, were questions of fact for the district court to decide, and it did so, concluding that the officers’ motivation was indeed to protect the informant. This court’s standard of review for questions of fact is simply to determine whether they are supported by substantial competent evidence. See State v. Ratley, 253 Kan. at 398.
The defendant also argues that, in light of the attitudes of Detective Prince and Agent Derby on the stand, the exclusionary rule should apply in this case. The defendant contends that both officers still failed to recognize that they had committed a wrongdoing and that this shows that the simple deterrent effect of having the defendant’s criminal prosecution dismissed did not make an impact on them.
While the officers’ statements in the affidavit were misleading and false, this does not necessarily justify the use of the exclusionary rule. We have held that deciding whether to apply the exclusionary rule .must be determined by weighing the extent to which the rule will deter unconstitutional conduct with the cost to the truth-finding process. See State v. Turner, 257 Kan. at 22. In this case, where the motives of the officers were simply to protect the identity of the confidential informant, applying the exclusionary rule will not effectively deter officers from including false statements in the hope of obtaining a search warrant, which is the main evil inherent in the making of false statements on a search warrant affidavit. While we do not condone the use of such false information in a search warrant affidavit, we agree with the trial court that the officers’ conduct was not so egregious as to require application of the exclusionary rule in the defendant’s probation revocation proceeding.
Finally, the defendant argues that continuing, widespread police corruption nationwide also shows the need for deterrence in cases such as this one. Turner presented no evidence to support this assertion. In any event, application of the exclusionary rule under the facts as found by the district court would not fit within the narrow exception set forth in Turner.
The district court determined that although the officers in this case intentionally provided a false or misleading statement in their affidavit, their intentions were not to bolster the information contained in the affidavit in hope of getting a search warrant where one would not normally be granted, but instead were simply to protect the identity of their confidential informant. This finding is supported by substantial competent evidence. Looking at the totality of the circumstances, it is clear that this finding supports the district court’s conclusion that under the facts of this case, the officers’ conduct was not so egregious as to require the application of the exclusionary rule.
Affirmed.
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The opinion of the court was delivered by
Six J.:
The primary issue is the district court’s denial of David L. Williams’ motion to withdraw his plea of nolo contendere. Williams pled to first-degree premeditated murder, aggravated kidnapping, rape, aggravated criminal sodomy, and other charges. Our jurisdiction is under K.S.A. 22-3601(b)(l) (Williams was convicted of first-degree murder, an off-grid crime).
Additional issues are whether the district court erred in: (a) denying Williams’ request for funds to hire a psychologist to present evidence in mitigation; (b) finding that Williams’ counsel was effective; (c) determining that the notice requirements of K.S.A. 1993 Supp. 21-4624 (the hard 40) were complied with; and (d) completing the pronouncement of sentence after Williams was removed from the courtroom for disruptive behavior. Williams also contends he was denied an opportunity to present evidence in mitigation at the time of his sentencing.
We find no error and affirm.
FACTS
Williams was charged in a multi-count complaint alleging criminal possession of a firearm, aggravated burglary, seven counts of kidnapping, three counts of aggravated criminal sodomy, three counts of rape, and premeditated murder. On July 26, 1993, carrying a semiautomatic handgun, Williams entered die home of Mildred Adams, with whom he had a discordant common-law marriage. Later, he told the police he took the gun to Adams’ home to kill her. Adams was not present. Seven persons in the home, all females or young children, were forced into the bathroom at gunpoint; one of the children was Williams’ 12-year-old daughter. The girls were ordered to remove their clothes. Williams took one of the girls into the bedroom, raped her, forced her to perform oral sex, and then tied her up. Williams raped and sodomized his daughter. When Adams’ teenage son arrived home, Williams tied and gagged him at gunpoint while repeatedly saying that he intended to kill Adams. Williams raped a third girl and forced her to perform oral sex. When Adams entered the house with a female friend, the friend was ordered into the bathroom. Adams struggled with Williams. He killed her by striking her repeatedly in the head with the butt of his gun and a glass lamp. The killing occurred in full view of some of the children.
Williams was on parole, having previously served 10 years in prison for convictions of rape and aggravated sodomy. The week before Adams was killed, she had obtained a protection from abuse order against Williams.
On January 20, 1994, Williams was arraigned. The prosecutor handed defense counsel and the judge copies of the notice of intent to seek the hard 40 sentence and requested that the judge accept filing of the notice with the court. The judge did accept the filing, but did not write the time and date of receipt on the notice handed to him by the prosecutor. The notice was date-stamped by the clerk of the district court on January 24, 1994.
Williams entered into a plea agreement on the day his jury trial was to commence. Williams’ counsel discussed the plea agreement with him for an hour before he decided to accept it. The State agreed to drop three kidnapping charges and seek a hard 40 sentence, with the recommendation that sentences for all other crimes be served concurrent with the hard 40.sentence. Williams agreed to plead “no contest” to the remaining charges. After the judge questioned Williams at length, the district court accepted the plea and scheduled a sentencing date. The State then presented evidence of aggravating factors, including: (1) having a prior conviction' for a felony (rape) in which Williams inflicted great bodily harm, disfigurement, of death; (2) knowingly or purposely killing or creating a great risk of death to multiple persons; (3) committing the offense to avoid or prevent a lawful arrest or prosecution; (4) committing the crime in an especially heinous, atrocious, or cruel manner; and (5) killing the victim because she was a witness in a criminal proceeding..
Williams, through his counsel from the Public Defender’s office, offered in mitigation: (1) The crime occurred while he was under the influence of extreme mental or emotional disturbances; (2) the victim had treated him poorly in the past; (3) he killed the victim in the heat of passion rather than in cold blood; and (4) he is a good worker and has a family to support. The court determined that the aggravating factors outweighed the mitigating factors, ordered a presentence investigation (PSI) report, and scheduled sentencing for July 7, 1994.
Williams filed a pro se motion to withdraw his plea on the ground that his attorneys coerced him to enter into the plea agreement against his will. New counsel was appointed. Williams, through his new counsel, contested the sufficiency of the hard 40 notice and filed an amended motion to withdraw the plea, asserting that it was unknowing, involuntary, and the result of ineffective assistance of counsel. New counsel also filed a motion to reopen the disposi-tional phase of the case to present additional evidence in mitigation and to cross-examine the State’s evidence of aggravating factors.
The judge denied new counsel’s oral request for funds to employ a psychologist to examine Williams for purposes of presenting ev idence in mitigation. At the hearing on the motion to withdraw the plea, Williams’ original counsel, Jillian Waesche, and her second chair testified about informing Williams of his rights when he decided to accept the plea agreement. The district court denied Williams’ motions, determining that his plea was knowing and voluntary, counsel was not ineffective, and sufficient evidence of aggravating and mitigating factors was presented.
The judge proceeded with the sentencing and gave Williams his right of allocution before imposing sentence. Williams declined to make any statement. The judge indicated that the sentence recommended in the plea agreement would be imposed and began reading the sentences for the crimes to which Williams pled. At that time, Williams became verbally abusive and, after repeated warnings from the judge, was found in contempt and escorted out of the courtroom. The judge finished pronouncing sentence. The court imposed a controlling sentence of life imprisonment without parole eligibility for 40 years. Williams also received a sentence of 1 year for the contempt citation, to be served consecutively.
DISCUSSION
The Nolo Contendere Plea
Statutory guidance for accepting a nolo contendere plea is furnished by K.S.A. 22-3210, which embodies the requirements of due process set forth in Boykin v. Alabama, 395 U.S. 238, 243, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969).
A district court has discretion to allow withdrawal of a plea for “good cause” before sentencing and to correct “manifest injustice” after sentencing. K.S.A. 22-3210(d); State v. Solomon, 257 Kan. 212, 219, 891 P.2d 407 (1995).
Our standard in reviewing a district court’s ruling on a motion to withdraw a plea is abuse of discretion. State v. Morris, 254 Kan. 993, 1001, 869 P.2d 739 (1994).
Williams contends that his nolo contendere plea was not knowing or voluntary because neither his counsel nor, the district court informed him that by entering the plea, he was waiying his right to have a jury determine if the hard 40 sentence should apply. The record establishes that Williams was advised by counsel that a plea of nolo contendere would result in waiver of his right to have a jury participate in the hard 40 sentencing proceeding. In addition, the right to a sentencing jury is statutory, not constitutional. A waiver on the record is not necessary, because a waiver of the right to a jury trial includes a waiver of the right to have the jury participate in the hard 40 sentencing proceeding.
K.S.A. 1993 Supp. 21-4624(2) provides in part:
“The jury at the sentencing proceeding may be waived in the manner provided by K.S.A. 22-3403 [by submission of the parties with the court’s consent] and amendments thereto for waiver of a trial jury. If the jury at the sentencing proceeding has been waived or the trial jury has been waived, the sentencing proceeding shall be conducted by the court.’’ (Emphasis added.)
Once a hard 40 defendant is convicted by a jury, the right to have the jury participate in the sentencing proceeding may be waived. However, a defendant cannot waive the jury trial and then insist upon a jury for the sentencing proceeding. K.S.A. 1993 Supp. 21-4624(2) is not ambiguous.
During the hearing on Williams’ motion to withdraw his plea, his initial counsel, Waesche, was called to testify as to the advice she gave him at the time of the plea agreement. The following is, in part, the State’s cross-examination:
“Q. All right. So we know that you at least spent numerous other occasions with him during the course of time he was incarcerated?
“A. Yes.
“Q. And during those other occasions, did you ever have the opportunity to discuss with him the Hard 40 and the legal implications specifically with regard to a jury?
“A. Yes, I told him exactly how that would go.
“Q. Okay. Can you tell us what you told him?
“A. I told him that we’d go to jury trial on — the jury would decide whether he was guilty or not guilty on all counts. That if he was found to be guilty on the murder count, that the jury would decide what sentence to recommend to the Court.
“Q. How many times did you have that discussion with him, if you recall?
“A. I would say at the most twice.
“Q. And Mr. Rathbun [Williams’ later counsel], on his direct examination, asked you if you had specifically advised the defendant that waiving jury trial would waive his sentencing jury; do you recall that question?
“A. Yes.
“Q. Do you recall your response, ‘Not in those terms?’
“A. That is correct.
“Q. What terms were they that you advised him?
“A. I told him that if he entered a plea that the judge would sentence him.
“Q. Now, you indicated that on more than one occasion that you discussed the Hard 40 and the jury sentencing and the court sentencing; is that correct?
“A. I discussed the Hard 40 procedure on at least one occasion. I discussed the procedure of jury trial on more than one occasion.
“Q. And on the date of May the 23rd, did you also discuss these issues with him in the library?
“A. Yes.
“Q. And can you tell me what you discussed with him? What did you tell him about that and the plea?
“A. I told him that it was my recommendation that he accept the recommendation by the State to recommend a life sentence with 40 years being eligible for parole as opposed to going to trial and potentially getting three times the amount of sentence. And I recommended that he do it in this court in particular because this judge, in my professional opinion and in my experience, was more compassionate and more sensitive, and we would have a chance for mercy from this court.”
In addition, the record shows that Williams made a knowing and voluntary waiver of his right to a jury trial.
After the judge questioned Williams and was satisfied that Williams had knowingly and voluntarily waived his constitutional rights, the prosecutor stated there would be a bifurcated type of proceeding: evidence would be presented with the nolo conten-dere plea, followed by presentation of the State’s evidence on the hard 40 sentence.
The State then presented a summary of its witnesses’ testimony. After the summary, the judge asked Williams if it was his decision to plead nolo contendere, and Williams said it was.
The judge accepted Williams’ plea of nolo contendere, determined he had knowingly and voluntarily waived his constitutional rights in entering his plea, and found Williams guilty of each count to which he pled. The judge set the sentencing hearing for July 7, 1993, indicating that he was obligated to order a PSI report.
The State then moved forward into the hard 40 sentencing phase, presenting evidence of aggravating factors by relying on the previously presented summaries of State’s witnesses’ testimony. Af ter the State finished, the judge gave Waesche the opportunity to speak. She began as follows:
MS. WAESCHE: “Thank you, Your Honor. Your Honor, it’s our position that there are extreme mitigating factors in this case. Mr. Williams was under an extreme mental and emotional condition when he committed these crimes. This is a tragic story, Your Honor, of a man devastated by rejection of his only true love.”
Waesche then continued with a lengthy, detailed recitation of facts and argument to support the existence of mitigating factors.
After reviewing what had been presented, the judge determined the aggravating factors had been proved and outweighed the mitigating factors, and imposed the hard 40 sentence under K.S.A. 1993 Supp. 21-4624 and K.S.A. 1993 Supp. 21-4625.
Williams and his counsel: (1) observed and acquiesced as the State requested to move into the hard 40 sentencing phase (the hard 40 hearing was held approximately 5 months after Williams was served with the hard 40 notice), (2) participated as Waesche presented Williams’ evidence of mitigating factors, and (3) stood mute after the district court made its finding that the aggravating factors were proven and outweighed any mitigating factors.
The only thing left to be done on Williams’ sentencing was to receive the PSI report and pronounce his sentence under K.S.A. 1993 Supp. 21-4628, which provides for the terms of the hard 40 sentence. Neither Williams nor his counsel indicated at the hearing on his plea agreement that they wished to present anything further regarding mitigating circumstances. Waesche, during her presentation of the mitigating circumstances, stated, ‘We will go more into detail at the presentence investigation.” Waesche’s statement does not suggest she was requesting any further opportunity for a hearing on mitigating evidence. Williams declined to participate in the presentence investigation.
Williams concedes that there is no constitutional right to a sentencing jury. A defendant has no constitutional right to a jury in a hard 40 determination. State v. Gideon, 257 Kan. 591, Syl. ¶ 3, 894 P.2d 850 (1995).
Williams relies on U. S. v. Robinson, 8 F.3d 418, 420 (7th Cir. 1993). Robinson was convicted of RICO conspiracy and tax and bankruptcy fraud. The district court imposed criminal forfeiture. Robinson appealed on the grounds that he had not knowingly and voluntarily waived his statutory right to a jury determination on the forfeiture issue. The government contended that during a conference in chambers (Robinson was not present), Robinson’s counsel agreed to submit the forfeiture issue to the court, thus waiving the jury. The Seventh Circuit Court of Appeals disagreed because the record did not indicate that Robinson had been consulted or that Robinson had made the decision to waive the jury determination. 8 F.3d at 423. Robinson is distinguished on its facts from this case. Williams, by entering his nolo contendere plea, expressly waived his right to a jury trial. We find no abuse of discretion in denying Williams’ motion to withdraw his plea.
Mitigating Circumstances
Williams contends the district court refused to allow him to present mitigation evidence under K.S.A. 1993 Supp. 21-4624 during the hard 40 hearing. We disagree. The record indicates that Williams was given ample opportunity to present mitigation evidence. Williams utilized that opportunity at the time of his plea agreement through his counsel, Waesche. Williams elected not to offer anything in mitigation to the presentence investigator. Williams’ new counsel, Kiehl Rathbun, filed a motion to reopen the dispositional phase of the case to present mitigating evidence; however, the motion did not indicate that there was any additional mitigating evidence to present.
The hearing on Williams’ motion to withdraw his plea took place over the course of 3 days. Near the conclusion of die second day (July 21,1994), Ratirbun asked the judge whether Williams would be given the opportunity to present further evidence in mitigation if the judge denied Williams’ motion to withdraw his plea. The State indicated that it would not oppose granting Williams such an opportunity, if the mitigation matter could be handled on the final day of the hearing on the motion to withdraw the plea. Rathbun said that he did not believe he would have time to prepare for the mitigation hearing, if it were to occur that soon. The judge requested Rathbun to visit with Williams and determine the number of mitigating witnesses so the judge could determine when the hearing could be scheduled. Rathbun advised the judge that there would be two witnesses, but he did not feel he would have time to interview them before the next hearing date. As the judge recessed the hearing and announced the time when the hearing would continue (July 25,1994), he authorized Rathbun, before the next hearing date, to interview any mitigation witnesses and requested that Rathbun advise the judge of the number of witnesses needed for the mitigation hearing.
At the conclusion of the hearing on the motion to withdraw the plea on July 25, 1994, the judge asked Rathbun for the status of his preparation for a mitigation hearing.
Counsel responded:
“As I understand your previous ruling, you have instructed the [defense] that if we have evidence that is other than what has been placed in the record that we would be given an opportunity to present that to the Court. The evidence that is available has been presented within this record. And if the Court was regarding that hearing as a fact hearing — as you apparently were — then I have to tell you as an officer of the Court that I would be putting on the same evidence. It would— I would — like any trial lawyer, 1 think I can do it better, but it would be essentially the same thing. In other words, I have nothing new other than what’s covered in there.” (Emphasis added.)
Rathbun then requested a 6-week extension to prepare for a new mitigation hearing. The request was denied. The record fails to show any additional mitigating circumstances to present. Rathbun said that there were none. The district court’s decision to deny Williams an additional opportunity to look for mitigation evidence, absent any indication there would be any, was sound.
Williams was given another opportunity to present mitigating circumstances at the time the district court pronounced his sentence. He declined.
“THE COURT: Mr. Williams, would you like to address the Court before your sentence, sir? Mr. Williams is shaking his head—
“[MR. RATHBUN]: Can I have just a moment, Your Honor?
“THE COURT: Yes, you may.
“[MR. RATHBUN]: Your Honor, as to my client’s right of allocution in these matters, first of all, there is the Hard 40.
“THE COURT: Yes, sir.
“[MR. RATHBUN]: And I think the Coiirt has made a finding that this is a Hard 40 case, which is in effect that the Court is finding that the sentence is a life sentence with a 40-year parole deferment. ... I think the defendant’s opportunity to speak to the Court in mitigation on that count was covered by the mitigation hearing held by the Court at that time wherein defendant’s counsel said things on the defendant’s behalf. So I think that’s as to that count. The right to— The Court at that time basically said it’s a Hard 40 case, I’m going to impose the 40-year parole deferment and require to apply and imposed said sentence, and the defendant’s right to speak with the Court was covered by counsel in the hearing. As to all other remaining counts, the defendant has nothing he wants to say to the Court.”
We find no abuse of discretion.
Williams' Request for Funds to Hire a Psychologist
Rathbun requested funds to employ a psychologist to evaluate Williams for presenting expert testimony in mitigation concerning Williams’ state of mind at the time the crime was committed. Rath-bun made the request in the event the district court denied the motion to withdraw the plea.
The district court denied the request for funds, but left open the issue of whether a pro bono psychologist could testify. At a later hearing, the judge clarified the basis for his ruling. The district court was satisfied that Williams had already been psychologically evaluated, Williams had access to that evaluation, and any further psychological evaluation would be unnecessary.
Williams cites Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985), in support of his contention that he should be entitled to the assistance of a psychologist, as a matter of due process. Ake held, in part, that when the State presents psychiatric evidence of an indigent defendant’s future dangerousness in a capital sentencing proceeding, due process requires that the State provide the defendant with the assistance of an independent psychiatrist. 470 U.S. at 83-84. Ake does not apply. The State did not present any psychiatric evidence during the hard 40 sentencing proceeding. The district court did not abuse its discretion in denying Williams’ request. See State v. Zuck, 21 Kan. App. 2d 597, 607, 904 P.2d 1005 (1995) (denial of defendant’s request for independent examination by an expert of minor victims of sex crimes to prepare against State’s motion for departure not an abuse of discretion).
Assistance of Counsel
An abuse of discretion standard of review is applied to the district court’s ruling that Williams received effective assistance of counsel concerning his plea agreement. See State v. Rowell, 256 Kan. 200, 213, 883 P.2d 1184 (1994).
Williams cites Chamberlain v. State, 236 Kan. 650, Syl ¶ 3, 654-55, 694 P.2d 468 (1985), as providing the standard for establishing a claim of ineffective assistance of counsel. Chamberlain considers a claim that ineffective counsel denied the defendant a fair trial.
Williams did not have a trial. He entered a plea agreement. State v. Solomon, 257 Kan. at 223, sets forth the standard for a claim of ineffective assistance of counsel concerning a plea agreement:
“To set aside a guilty plea because ineffective assistance of counsel has rendered the plea involuntary, the 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, he would not have pleaded guilty and would have insisted on going to trial.’ ” (Quoting Hill v. Lockhart, 474 U.S. 52, 58-59, 88. L. Ed. 2d 203, 103 S. Ct. 366 [1985].)
Williams contends his original counsel was ineffective because she failed to: (1) advise him that he would waive his right to a sentencing jury if he entered a plea of nolo contendere and (2) present evidence in mitigation at the time the State requested the hard 40.
Williams first raised the issue of ineffective assistance of counsel in his motion to withdraw his plea. Williams did not assert any ineffective counsel claim at the district court level concerning his mitigation hearing.
An allegation of ineffective assistance of counsel will not be considered for the first time on appeal. State v. Hall, 246 Kan. 728, Syl. ¶ 9, 793 P.2d 737 (1990). We observe the claim lacks merit. Williams has failed to show that Waesche’s efforts concerning the presentation of mitigating circumstances were other than reasonable.
The only evidence presented by Williams at the hearing on his motion to withdraw his plea was the testimony of his former counsel, Waesche, and her second chair. The record fails to provide ány evidence supporting either prong of the two-prong test in Solomon. Waesche’s advice to Williams about the sentencing if Williams waived his right to a jury trial was reasonable and correct. Williams did not testify, so there is no evidence that Williams would not have entered into the plea agreement had Waesche’s advice been any different.
The Hard 40 Notice
K.S.A. 1993 Supp. 21-4624(1) provides in relevant part:
“If a defendant is charged with murder in the first degree, the county or district attorney shall file written notice if such attorney intends, upon conviction or adjudication of guilt of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be required to serve a mandatory term of imprisonment of 40 years. Such notice shall be filed with the court and served on the defendant or the defendant’s attorney at the time of arraignment. If such notice is not filed and served as required by this subsection, the county or district attorney may not request such a sentencing proceeding and the defendant, if convicted of murder in the first degree, shall be sentenced as otherwise provided by law, and no mandatory term of imprisonment shall be imposed hereunder.”
The notice provisions in 21-4624(1) are mandatory. State v. Collier, 259 Kan. 346, 913 P.2d 597 (1996); State v. Deavers, 252 Kan. 149, Syl. ¶ 6, 843 P.2d 695 (1992), cert. denied 125 L. Ed. 2d 676 (1993).
Williams argues that the State’s hard 40 notice did not comply with the mandatory notice provisions because the notice filed with the court was not file-stamped by the clerk of the district court until 4 days after the arraignment. The record indicates that counsel for the State handed the judge the hard 40 notice at the time of the arraignment hearing, stating: “The State files with the Court the original document.” The judge responded: “Thank you, Ms. Foulston. It will be filed in the court clerk’s office.”. However, the judge did not write the date and time he received it on the document, as required by K.S.A. 60-205(e), which provides:
“(e) Filing with the court define¿L .Tfy.fijmgof pleadings and other papers with the court as required by this article snall-be- made by filing them with the clerk of the court, except that the judge., mayfpermit the papers to be filed with the judge, in which event, the. judge shall note, therepn the filing date and forthwith transmit them to the office of the qlerk.” (E-jpphasis. added.)
The question' is- whether the júdge’s.failureto bote the daté, and time of receipt of the hard 40 notice invalidates the filing of the notice. State v. Peckham, 255 Kan. 310; 875 P.2d 257 (1994), answers the question. In Peckham, we said:
“As noted by the trial judge, the transcript of arrajgnrpent does not show that the State gave a copy of its notice to the court. According to the trial judge, a copy — not the original — Was placed on the judgeV bench. The State did "not indicate on the record fhat'it'was placing d copyofthe notice on the judge’sbench wifh-the intent to satisfy the ftling requirement of K.S.A. 1992 Supp. 21-4624 rather than as a courtesy to the judge.
“. . . The record before us gives) no indication the copy placed on the judge’s bench was for any purpose Other than'as á Courtesy, ánd the trial judge made no finding or comment that gives-any irididátíon'thé trial judge intended or'contemplated that the copy placed*on.his«'bench' was .offered or accepted for filing pursuant to 60-205(e).” 255 Kan. at 317-18.
See State v. Johnson, 255 Kan. 140, 154, 871 P.2d 1246 (1994) (hard 40 notice deemed 'invalid; transcript of arraignment'proceedings did not indicate t written notice was given to either thé court or defense counsel at that time).
The judge in Williams’' case accepted custody of the hard 40 notice filed, by the State at .'the' tíme df the arraignment hearing. Although the' judge' did.mót; expressly say'that the .filing was accepted pursuant to 60-205(é)/he cléárly. accepted-the document for filing with the court, .The fact that, the judge, failed to. write the date and time the document.was received does not invalidate the filing. The filing is'complete1 when the judge personally accepts custody. Failure to' forward the notice forthwith or to' enter a necessary date does not prejudice the State. Peckham, 255 Kan. at 316-17. The journal entry overruling. Williams-’ objection to the hard 40 notice recfies; “The Cpurt.states thatfit accepted the State’s filing of the notice to seek the Hard Forty as a filing with the .Court at the time of arraignment”,
Sentencing
Williams argues that his sentence should be vacated because he was not present at the time the judge pronounced his sentence. Williams declined to speak when afforded his right of allocution. The judge began to pronounce the sentences for the various counts to which Williams pled. As the judge discussed Counts 14 and 15 (dealing with Williams’ rape and sodomy of his 12-year old daughter), Williams became disruptive. The judge warned Williams that he would be found in contempt and removed from the courtroom. Williams made the offending remarks after the court had pronounced sentence on 9 of the 17 crimes of conviction.
Williams continued with his outburst and was removed by several deputies. Williams’ remarks were vulgar, contemptuous, profane, debasing, and scatological.
Williams’ counsel requested a continuance until his client could be present, either personally or by television. The judge denied the request; continued with the sentencing, including the hard 40 sentence for Count 20; and imposed a sentence of 1 year in the county jail for the contempt.
K.S.A. 22-3405 provides in part:
“(1) The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.”
The Court of Appeals considered disruptive behavior in State v. Hartfield, 9 Kan. App. 2d 156, 161, 676 P.2d 141 (1984) (quoting Illinois v. Allen, 397 U.S. 337, 343, 25 L. Ed. 2d 353, 90 S. Ct. 1057, reh. denied 398 U.S. 915 [1970]).
“[A] defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner So disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.”
The issue before us concerns Williams’ absence at the time of sentencing. We reviewed a claim based on sentencing in absentia in State v. Braun, 253 Kan. 141, 145, 853 P.2d 686 (1993) (no error where defendant waives the right to be present by affidavit). Wil liams was not in absentia during a substantial position of his sentencing. His disruptive conduct caused his removal after he was warned by the judge.
In State v. Kelly, 213 Kan. 237, 243, 515 P.2d 1030 (1973), we emphasized that the requirement of a defendant’s presence at sentencing benefitted the defendant by insuring the right of allocution. Williams had been given and declined his right of allocution. The judge was well into pronouncing the sentence at the time of Williams’ removal. The length of the transcript after removal indicates the hearing continued only a few more minutes before the sentencing was completed. At the point of Williams’ outburst, the court had already been in session to hear evidence on Williams’ motion to withdraw his plea and the oral arguments of respective counsel. Williams knew the terms of his plea bargain, terms that formed the sentence he received. The victim’s family members were present in court. One of them spoke in open court before pronouncement of the sentence, offering a compelling victim impact statement on behalf of the family.
Under the circumstances, a continuance would have served no purpose except to reward Williams for his disruptive behavior. District judges must have discretion to control the courtrooms of this state. As the United States Supreme Court has observed in Allen, 397 U.S. at 343-46: “No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. ... It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated and their orderly progress thwarted and obstructed by defendants brought before them charged with crimes.”
The record indicates that Williams was in an agitated state, and safely considerations were also involved in his removal. Under the facts of this case, we find no error in sentencing.
Affirmed.
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The opinion of the court was delivered by
Davis, J.:
The question posed by this appeal is whether the Board of Tax Appeals (BOTA) possesses the statutory authority to order a statewide reappraisal of agricultural property. Johnson County Board of County Commissioners and Paul A. Welcome, Johnson County appraiser, appealed from a Shawnee County District Court decision (1) denying in case No. 95-CV-158 their request for an order of mandamus requiring the Kansas Department of Property Valuation (DPV) to comply with the orders of BOTA to perform a statewide reappraisal of agricultural land and (2) holding that the Shawnee County District Court in case No. 92-CV-796 “has jurisdiction of the entire real estate appraisal system extant in Kansas under the current consent decree.”
On January 31, 1994, the then-director of the DPV, David C. Cunningham, filed a complaint with BOTA, stating that the current statewide agricultural land values were not defensible. The director asked BOTA to order him to reappraise the agricultural land values. BOTA entered such an order, requiring the DPV to complete the reappraisal of agricultural land by December 1, 1994, so that the new values could be used in 1995.
On December 1, 1994, however, the DPV appeared before BOTA and requested permission to certify the 1994 agricultural real estate values for proposed 1995 values. The DPV explained that while the new values were based on new data more defensible than the 1994 values, the new values were not as defensible as the director would want them to be. Thus, the DPV asked BOTA to modify its earlier order and permit the director to use the 1994 values for 1995.
In response to this request, BOTA appointed an independent appraiser to review the data and issue a recommendation as to whether the 1994 values or values based on the new 1995 data should be used. The appraiser concluded that values based on the new data, with certain modifications, should be used for 1995. BOTA, therefore, denied the DPV request to modify its earlier order and further denied a petition for reconsideration filed by the DPV.
On February 8, 1995, the Board of Commissioners of Johnson County and Paul A. Welcome, Johnson County appraiser, filed a motion for a peremptory order of mandamus. In their motion, the petitioners asked the district court to require the DPV to release the 1995 agricultural land values as mandated by the BOTA order in time for the county to provide notice of the values as required by law.
Upon the motion to transfer filed by the Director of the DPV, the Shawnee County District Court transferred but did not consolidate the petitioners’ petition for writ of mandamus, case No. 95-CV-158, with an earlier 1992 case styled State of Kansas, ex. rel. Stephan v. Kansas Dept, of Revenue (case No. 92-CV-796). This latter case involved an order entered by the Shawnee County District Court consistent with the consent of all parties to implement a plan for the correction of problems relating to the valuation of real property throughout the state. The petitioners were not, and are not now, parties in case No. 92-CV-796. Indeed, as noted by the trial court in its memorandum decision, Johnson County would not be an appropriate party to questions involving statewide property appraisal concerns. See State ex. rel. Stephan v. Kansas Dept. of Revenue, 253 Kan. 412, Syl. ¶ 5, 856 P.2d 151 (1993) (appellate review denying intervention in case No. 92-CV-796).
The petitioners’ interest in case No. 92-CV-796 involved the question of whether the original consent decree involved all agricultural land in the state. The Shawnee County District Court held in the part of the journal entry concerning case No. 92-CV-796 that the original consent decree in that case conferred “jurisdiction of the entire real estate appraisal system extant in Kansas under the current consent decree.” However, the petitioners are not parties to case No. 92-CV-796 and have no standing to raise any issue involving that case in this appeal.
The district court addressed the petitioners’ arguments for mandamus and concluded that BOTA’s orders concerning appraisal of agricultural land were void because BOTA had no statutoiy authority to order the ,DPV to reappraise agricultural land statewide. The court concluded that “[t]he request of Johnson County for an Order of Mandamus compelling the DPV to follow the orders of BOTA is denied, such orders having been found void for lack of jurisdiction.”
On appeal, the petitioners raised the following three issues: (1) Whether the district court erred as a matter of law in concluding that BOTA lacked jurisdiction to order the DPV to reappraise agricultural land statewide; (2) whether the district court erred as a matter of law in refusing to grant an order of mandamus requiring the defendant to issue the 1995 agricultural land schedules in accordance with K.S.A. 1994 Supp. 79-1476 and as ordered by BOTA; and (3) whether the district court erred as a matter of law in concluding that it has exclusive jurisdiction of “the entire real estate appraisal system extant in Kansas” under the current consent decree in case No. 92-CV-796.
The first two issues involve but one question — whether a writ of mandamus should have been granted directing the DPV to issue the agricultural land values for 1995 using values directed by BOTA. In effect, the issue becomes whether BOTA possesses the statutory authority to order a statewide reappraisal of agricultural land in Kansas.
Because the DPV has already issued the 1995 values for real estate property throughout the state using the same values as were used in 1994, any decision by this court on this issue would be moot. Both parties agree that the precise issue raised on appeal in the mandamus action is moot; nevertheless, both parties urge this court to consider the issue on the merits because it is an issue of statewide importance that may arise again even though it evades review this time.
The general rule is that this court does not decide moot questions or render advisory opinions. The mootness doctrine is one of court policy which recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive. However, where a particular issue, although moot, is one capable of repetition and one of public importance, an appellate court may consider the appeal and render an opinion. Reece Shirley & Ron’s, Inc. v. Retail Store Employees Union & Local 782, 225 Kan. 470, 471-72, 592 P.2d 433 (1979). This court has sometimes entertained issues which, although moot, were subjects of real controversy and included issues of statewide interest and public importance. See Smith v. Miller, 213 Kan. 1, 5, 514 P.2d 377 (1973); In re Liquidation of Nat’l Colonial Ins. Co., 20 Kan. App. 2d 802, 804, 892 P.2d 926 (1995).
This case concerns the statewide property tax reappraisal of agricultural property and the statutory powers conferred upon BOTA and the DPV. While the issue is brought to us in the form of a petition for writ of mandamus, which by the passage of time has become moot, the issues involved in this case are capable of repetition and are of statewide interest and public importance. We, therefore, elect to retain this appeal and consider this case on its merits.
The district court ruled that BOTA has no authority to conduct a statewide reappraisal of agricultural land and further concluded that the promulgation of valuation schedules was purely a matter within the discretion of the DPV. The resolution of this issue involves the interpretation of statutes granting power to BOTA and the DPV. The interpretation of a statute is a question of law, and this court’s review is unlimited. Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, 844, 863 P.2d 364 (1993).
The petitioners, and BOTA in its amicus curiae brief, claim that BOTA has the power to order the DPV, under the provisions of K.S.A. 1994 Supp. 79-1413a, to conduct a statewide appraisal of agricultural property. The district court disagreed and concluded as follows:
“BOTA claims authority under K.S.A. [1994 Supp.] 79-1413a, but a simple reading of the statute reveals it only covers county-wide or district-wide reappraisals ordered upon application by the DPV in cases where the DPV alleges the local appraiser is refusing to follow the directives of the DPV. In such limited cases, the statute authorizes BOTA to employ, at county expense, outside appraisers to do the job under the directives of the DPV. The statute contains no language whatsoever authorizing BOTA to order the DPV to appraise anything— let alone the entire state.
“. . . [N]o order of BOTA is necessary to authorize the DPV to reappraise anything. Correct, uniform and equal constitutional appraisals and reappraisals are the statutory duty of the DPV, without further orders, directives or authorizations from anyone. This is the nature of the power possessed exclusively of the DPV. [Citation omitted.]”
K.S.A. 1994 Supp. 79-1413a provides in part:
“Whenever upon complaint made to the state board of tax appeals by the county or district appraiser, the director of property valuation, the board of county commissioners, any property taxpayer or any aggrieved party, and a summary proceeding in that behalf had, it shall be made to appear to the satisfaction of the board that the appraisal of real property or tangible personal property in any county is not in substantial compliance with law and the guidelines and timetables prescribed by the director-of property valuation, and that the interest of the public will be promoted by a reappraisal of such property, the state board of tax appeals shall order a reappraisal of all or any part of the property in such county to be made by one or more persons, to be appointed by the state board of tax appeals for that purpose, the expense of any such reappraisal to be borne by the county in which is situated the property to be reappraised.”
The language in K.S.A. 1994 Supp. 79-1413a supports the decision of the district court. The statute allows BOTA to order reappraisal of property within a county whenever the previous appraisal was not conducted in substantial compliance with state law and the guidelines and timetables prescribed by the DPV. In other words, K.S.A. 1994 Supp. 79-1413a allows either the DPV or other aggrieved party to file a complaint alleging that the appraisal was not properly conducted under Kansas law and the DPV guidelines. Under those circumstances, the DPV may file a complaint and BOTA may order an independent appraiser to conduct a reappraisal of the property contained in the complaint, and the expense of that appraisal is borne by the county where the property is located.
The term “county” appears numerous times within the statute, while the ability to order statewide reappraisal is not mentioned within the statute. The petitioners argue that the phrase “any county” is broadly inclusive and should be construed to apply to all counties in Kansas in which the problem is the same. However, this interpretation ignores the plain intent of the statute, which is to allow for reappraisal of certain properties when the county has not followed the law or the directives of the DPV.
The DPV is empowered by K.S.A. 1994 Supp. 79-1476 to administer and supervise a statewide program of reappraisal of real property within the state, with each county appraiser reappraising all of the real property in the county pursuant to guidelines and timetables prescribed by the DPV and updating those appraisals on an annual basis. K.S.A. 1994 Supp. 79-1476 also requires the DPV to make an annual determination of the value of land within each of the various classes of land devoted to agricultural use within each county and to furnish this determination to county appraisers who will then apply the value applicable to such land according to these valuation schedules.
Examination of K.S.A. 1994 Supp. 79-1476 establishes that the DPV has the authority to establish the valuation schedules and to update them on an annual basis. The DPV has the power to issue new valuation schedules based upon whatever data the DPV itself deems reliable without any order from BOTA directing it to do so. In fact, the order promulgated by BOTA recognizes this:
“Therefore, the Director [of Property Valuation] had and has the statutory authority to compile whatever research was required to make agricultural land values defensible without Board intervention under the provisions of K.S.A. 79-1413a. However, the Director decided to file a complaint and if the evidence warranted it, have the Board order him to reappraise agricultural land.”
In this case, BOTA ordered the DPV itself to issue new valuation schedules for agricultural land statewide in accordance with certain data and the recommendations of an independent appraiser appointed by BOTA. This action by BOTA constitutes an infringement on die power of the DPV to prescribe the guidelines under which property is to be appraised, which is granted to the DPV exclusively under the provisions of K.S.A. 1994 Supp. 79-1476. The limited power conferred on BOTA under the provisions of K.S.A. 1994 Supp. 79-1413a allows BOTA to intercede in cases where property within a county is not correcdy appraised according to the law and the schedules promulgated by the DPV. This power and authority, however, is very different from the authorization to order the DPV, in contravention of K.S.A. 1994 Supp. 79-1476, to promulgate new valuation schedules based on data approved by BOTA. Promulgation of new valuation schedules is a matter solely within the power and authority of the DPV.
The petitioners further argue that the statute authorizing the DPV to administer and supervise a statewide reappraisal program is limited in nature and does not confer continuing authority on the DPV to initiate subsequent appraisals at will. According to the petitioners, this grant of power was designed merely to allow the DPV to conduct an initial statewide reappraisal of all real property. However, this interpretation ignores the plain language of K.S.A. 1994 Supp. 79-1476, which orders the DPV to make an annual determination of agricultural land values and furnish .the same to county appraisers.
In its amicus curiae brief, BOTA makes reference to earlier questions involving agricultural land and values in January 1992 in Finney County, Meade County, and Scott County. BOTA states that it refrained from taking any action in adjusting the values based upon its belief and reliance that the DPV would correct the situation by a statewide reappraisal of agricultural values. These earlier decisions are not included in the record, and the actions taken in those cases have no bearing on the question we must now resolve.
BOTA cites both K.S.A. 74-2439, concerning BOTA sitting as a state board of equalization, and K.S.A. 79-1409 as authority for BOTA to conduct a statewide reappraisal. BOTA argues that “[i]f the BOTA has statutory authority to equalize property statewide, then it would follow that BOTA has the jurisdiction and authority to order reappraisal of agricultural land statewide.” Nothing in K.S.A. 79-2439 or K.S.A. 79-1409 authorizes BOTA to order a statewide reappraisal of real estate. The issue we deal with involves the reappraisal of agricultural property statewide and does not arise within the context of K.S.A. 79-2439 or K.S.A. 79-1409.
In Vaughn v. Martell, 226 Kan. 658, 660, 603 P.2d 191 (1979), we said:
“The State Board of Tax Appeals is a creature of the legislature. Its authority and power is only such as is expressly or impliedly given by legislative enactment. If it attempts to exercise jurisdiction over a subject matter not conferred by the legislature, its orders with respect thereto are without authority of law and void. [Citations omitted].”
The trial court was correct. The orders of BOTA requiring a statewide reappraisal of agricultural land are void on jurisdictional grounds. No order of BOTA is necessary to authorize the DPV to reappraise agricultural property. Even though the DPV may have requested BOTA to issue such an order, such requests, being beyond the statutory authority of BOTA, cannot confer jurisdiction on BOTA to order a statewide reappraisal of agricultural property. Thus, the request of the petitioners for an order of mandamus compelling the DPV to follow the orders of BOTA was properly denied by the trial court.
Finally, the petitioners contend that the consent decree entered in case No. 92-CV-796 among the DPV, the Secretary of Revenue, and the State of Kansas through the attorney general, did not confer jurisdiction on the Shawnee County District Court over all the real estate appraisal system in Kansas. Therefore, the petitioners argue, since the district court does not have specific authority in this case over reappraisal of agricultural property, BOTA retains jurisdiction to order a statewide reappraisal of agricultural property. A resolution of the first issue demonstrates that BOTA had no authority under law to order such a reappraisal.
Moreover, the consent decree entered in case No. 92-CV-796 was an agreement among the parties concerning the statewide correction of the appraisal of real property. The petitioners were not, and are not now, a party in case No. 92-CV-769. We do not, therefore, decide the question of whether the consent decree entered in case No. 92-CV-796 confers jurisdiction on the Shawnee County District Court over all agricultural land in this state.
Affirmed.
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The opinion of the court was delivered by
Larson, J.:
This is an appeal from the amount of attorney fees awarded under 42 U.S.C. § 1988 (1988) by the trial court to the prevailing parties in a class action suit resulting in á favorable settlement where widespread statutory and constitutional violations of the Kansas child welfare system were alleged.
Although the four issues raised by this appeal involve only, the amount of attorney fees and .expenses allowed to the prevailing parties after a settlement occurred subsequent to 4Vz years of bitterly contested and contentious pretrial proceedings, a fairly comprehensive history of the litigation is essential to an understanding of the trial court’s decision and our opinion herein.
In January 1989, Rene Netherton, a Topeka attorney and guardian ad litem, sued the Secretary of the. Kansas Department óf Social and Rehabilitation Services (SRS) .on behalf of eight' minor plain: tiffs then in the care, custody, and control of SRS. The suit requested class action status, alleged SRS failed to provide the least restrictive environment necessary to meet the needs of the children, failed to promptly remove children from abusive or dangerous homes because of a lack of adequate placement facilities, failed to provide adequate social worker Staffing, and failed to provide statutorily required reports to the court. The suit further alleged that because of the policies and procedures formulated-by SRS, the children were being returned to an abusive home environment, not provided treatment for severe mental disorders, and not provided with a regional runaway center.
The plaintiffs’ claim was that the “[defendants’ failure to provide appropriate placements for Plaintiffs and to meet the emotional and psychiatric needs of the Plaintiffs violates the Plaintiffs’ constitutional rights to appropriate treatment in violation of 42 U.S.C. § 1983, The United States Constitution and the. Bill of Rights of the State of Kansas.”
The defendants responded with a motion to dismiss. In March 1989, the plaintiffs amended their petition, adding detailed factual allegations regarding the experiences of each plaintiff with SRS custody and asserting as legal theories (1) violation of the plaintiffs’ Fourteenth Amendment rights not to be deprived of state and federally created benefits, property, and liberty interests without due process; (2) the plaintiffs’.rights to.“liberty, privacy and family integrity in violation of the First, Eighth, Ninth and Fourteenth Amendments”; (3) the plaintiffs’ Fourteenth Amendment rights to placement in the least restrictive setting; and (4) the plaintiffs’ rights “pursuant to the Adoption Assistance, and Child Welfare Act, P.L. 96-272,42 U.S.C. sec. 670, et seq., and the state plan pursuant thereto, to preventive and protective services, to child welfare services, to case planning, to periodic review, to reunification and adoption services, [and] to placement in the most appropriate setting.”
The defendants again responded with a motion to dismiss, which precipitated,a flurry of responses and replies by both sides. In July 1989, the trial court denied the defendants’ motion to dismiss, finding the petition stated a claim for relief under 42 U.S.C. § 1983 (1988).
In September 1989, after attempting to obtain additional counsel in Northeast Kansas and Wichita, attorney Netherton convinced Christopher Hansen and Christopher Dunn of the American Civil Liberties Union Children’s Rights Project in New York to enter appearances as co-counsel for the plaintiffs. In December 1989, Marcia Robinson Lowry, also of the Children’s Rights Project, entered her appearance on the plaintiffs’ behalf.
In February 1990, the plaintiffs filed a motion for class action certification, which was opposed by the defendants. In March 1990, the plaintiffs filed an additional amended petition, significantly expanding both the factual details and the legal claims.
This amended petition named the Governor of Kansas, Secretary of SRS, Commissioner of Youth Services, Director of the Kansas Child in Need of Care (CINC) program, and SRS. The petition was brought on behalf of children who have been in CINC custody or are at risk of being placed therein and alleged violations of (1) the plaintiffs’ federal and Kansas constitutional rights, (2) the plaintiffs’ rights under the federal Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-627, 670-679 (1994), (3) the plaintiffs’ rights under the federal Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101 et seq. (1988), and (4) the plaintiffs’ rights under the Kansas Code for Care of Children, K.S.Á. 38-1501 et seq.
The petition alleged systematic failures to (1) timely and adequately protect children (failing to timely and adequately investigate and respond to reported abuse and neglect); (2) appropriately place children in SRS custody (failure to remove from homes, overly restrictive placements, inadequately restrictive placements, overcrowded foster homes, inappropriate use of juvenile detention facilities, etc.); (3) provide adequate case plans for children in SRS custody (no case plans, substandard case plans, inadequate efforts to reintegrate children with families, inadequate services to resolve problems, failure to facilitate adoptions); (4) provide proper care for children for whom SRS is responsible (missed doctor appointments, lack of medical records); (5) provide federally mandated dispositional hearings; (6) provide adequately trained staff (too few social workers, poor or no training); and (7) have an information system to record data on children in foster care.
In short, the amended petition attacked nearly eveiy phase of the Kansas child welfare system. Yet, it did so in the limited context of asserting claims for violations of two specific federal statutes, plus the Kansas Code for Care of Children and'the Fourteenth Amendment. . . . . •
In August 1990, the trial court issuéd a memorandum decision on the defendants’ motions to dismiss some or all of the plaintiffs’ claims. The trial court dismissed SRS. from the suit, leaving its Secretary as a party, but otherwise denied the defendants’ requested relief. In September-1990, the trial court certified the proceeding as a class action.
As part of the discovery process, the parties conducted case readings, whereby experts reviewed the files of a representative sample of children in SRS custody to gather statistical information from SRS’s records. Both parties retained experts for this purpose.
In October 1992, in response to the election of a new governor, new public officers were substituted for those originally named as defendants. In March 1992, a different judge was assigned the case.
In June 1992, the defendants moved to dismiss or in the alternative for summary judgment. The motion was principally addressed to the effect of the recent United States Supreme Court case of Suter v. Artist M., 503 U.S. 347, 118 L. Ed. 2d 1, 112 S. Ct. 1360 (1992), on the pending action. The Suter decision reversed Artist M. v. Johnson, 917 F.2d .980 (7th Cir. 1990), which had affirmed the federal district court. See 726 F. Supp. 690 (N.D. Ill. 1989). Suter held that a provision, of the federal Adoption Assistance and Child Welfare Act, similar to the provision alleged in this case to have been violated, did not provide a private right of action enforceable through 42 U.S.C. § 1983. The defendants further argued the reasoning of the Suter case also applied to the Federal Child Abuse Prevention and Treatment Act, which the plaintiffs also relied on.
In August 1992, the trial court dismissed the then Governor of Kansas from the action after finding there was no remedy obtainable against her. This ruling was appealed to our court and was the subject of Sheila A. v. Finney, 253 Kan. 793, 861 P.2d 120 (1993), wherein we summarily held that since at the time of argument a settlement agreement with the remaining defendant (SRS) had disposed of all matters in controversy, the appeal was moot.
In October 1992, the trial court ruled that based on Suter, the statutory claims under the Adoption Assistance and Child Welfare Act of 1980 and the Child Abuse Prevention and Treatment Act were dismissed. The court further determined that the plaintiffs’ constitutional claims remained in that the involuntary placement of á child into foster care by SRS invokes the Due Process Clause of the Fourteenth Amendment. The nature and extent of that due process right was elucidated.
The court noted that children in foster care are entitled to basic physical needs of food, clothing, shelter, and medical care. The court explained that the level of care that is constitutionally adequate depends on the characteristics of each individual and may vary from person to person. As representatives of a class, the petitioners were not entitled to litigate the constitutional adequacy of the care given to individual class members with special needs, but only those common to the class, and thus the focus would be on the minimum constitutional standards required of the child welfare system. Neither ordinary nor gross negligence would be relevant to constitutional deficiencies, only systemic problems.
The court further ruled the minimal constitutional adequacy of the level of foster care would be that generally recognized and accepted in the field of foster care by qualified professionals. The court summarized: “[T]he elements which must be proven to establish a violation of a foster child’s constitutional rights are state action which exposes a child to known danger or a substantial de parture from generally recognized professional standards or professional judgment and that such action is the proximate cause of demonstrable injury,” The court then held:
“[T]here is no inherent constitutional right of a child in foster care to a normal childhood, sibling visitation, case planning, reunification plan, stable placement, adequate social workers, or placement in the least restrictive environment. These programs are desirable goals of good foster care. But, whether or not the children in foster care in- Kansas are being unreasonably and unnecessarily harmed as a class, by the policies or operations of SRS in a demonstrable way, is a matter of fact. The absence or mismanagement of these kinds of programs may be part of the plaintiff’s proof to show exposure to known danger or substantial departure from professional standards or judgment, but they are not established constitutional rights.”
The trial court further ruled that the plaintiffs’ 42 U.S.C. §1983 action could only be based on their constitutional claim and not on their claims arising under state law.
In Match 1993, the trial court ruled on another motion by the defendants for summary judgment, dismissing any remaining claims based on deprivation of food, shelter, clothing, medical treatment for physical injury or illness, or placement in a foster home in which there is a known danger. It ruled the constitutional claim could not be summarily dismissed. It held that while none of the plaintiffs’ allegations regarding case management, placement, permanency planning, foster parent and child supervision, counseling and medical services, visitation, or adoption services established Fourteenth Amendment violations taken individually, collectively they might support a conclusion that the Kansas foster care system as a whole substantially departs from generally accepted standards for child welfare.
The court noted the record contained no expert opinion linking emotional and developmental harms of the plaintiff children to the foster care system with any degree of medical certainty. However, the court found that testimony from the plaintiffs’ experts was sufficient to preclude summary judgment; those experts believed research would bear out the requisite causal link. The court denied the defendants’ motion to decertify the class.
In March 1993, the trial court ordered the parties to enter into mediation before retired Judge Michael Barbara in an attempt to resolve the remaining issues and reach a settlement. Mediation began, and by the end of March, the parties resolved all major issues in a settlement approved by the court. SRS Secretary Donna Whiteman remained as the sole defendant in this case.
The parties’ settlement agreement contained substantive terms relating to protective services, preventive services, case planning and reviews, placements, services, adoption, staffing, staff training, the implementation of an information system, and a program to monitor compliance. The parties acknowledged the agreement came about as a result of their mediation and would result in the dismissal of the pending action without prejudice. The agreement recited that it confirmed the goals of SRS as expressed in its family agenda policy manual. Many of the. provisions of the agreement simply expressly commit SRS to compliance with the provisions of its policy manual. ' ■ ■
Each phase of this litigation continued to be bitterly and contentiously contested. The filings of the parties in the trial court up to this point reached nearly 7,000 pages.
In April 1994, the plaintiffs filed a motion seeking attorney fees and expenses pursuant to 42 U.S.C. § 1988. The motion requested, inter alia, fees for ACLU attorney Christopher Dunn of $583,925 based on a billing rate of $250 per hour; fees for ACLU attorney Christopher Hansen of $673,410 based on a billing rate of $300 per hour; fees for ACLU attorney Marcia Robinson Lowry of $61,075 based on a billing rate of $350 per hour; fees for Topeka attorney Rene Netherton of $119,430 based on a billing rate of $100 per hour; and fees for Kansas City attorney David Waxse of $21,114 based on a billing rate of $175 per hour. Reimbursement of costs and expenses was also requested.
The defendant opposed the plaintiffs’ motion for fees and asserted a fee claim of her own. The defendants argued that the plaintiffs were not the prevailing party and were not substantially successful; the fees requested were unreasonable because much of the billed time related to unsuccessful, dismissed claims or dis missed defendants; and any fees which might be allowed should be at local, not New York, rates.
In partial response, the plaintiffs submitted an affidavit of Rene Netherton, the attorney who began the litigation. Netherton stated that after working on this case for 5 months, she realized she had neither the expertise nor the resources to successfully litigate the case. She contacted other attorneys and organizations in an attempt to find experienced local co-counsel. She discussed the case with Kansas Legal Services; Marla Luckert of Goodell, Stratton, Ed-monds, Palmer, and Wright; Jerry Levy; and Jerold E. Berger; the Washburn Legal Clinic and various Washburn professors; Elizabeth Herbert of Irigonegaray & Associates in Topeka; and Mark Hutton of Michaud, Hutton, Fisher, and Anderson, in Wichita. None of these parties were willing to act as co-counsel, citing such reasons as a lack of expertise, a lack of resources, or conflicts. Eventually, Netherton contacted the Children’s Rights Project of the American Civil Liberties Union in New York, which after investigation agreed to become involved in the case.
The defendant responded to the plaintiffs’ fee request by arguing that the changes wrought in the foster care program were the result of factors other than the lawsuit. The defendant traced the history of legislative oversight of SRS foster care programs through the legislative division of post audit. A 1987 performance audit report identified a lack of appropriate placement resources. SRS argued the expansion of the foster care program memorialized in the settlement agreement resulted from this critique of placement resources. Another performance audit report in October 1990, “Kansas’ Foster Care Program, Part I: An Overview of the Program” criticized the accuracy of the information in SRS tracking system, the rate of multiple placements, the caseload of social workers, and the training provided for foster parents. The defendant argues that as a result of this report, the 1992 legislature significantly increased staffing and provided funding for an automated child tracking system.
The November 1990 performance audit “Assessing How Effectively the Department of Social and Rehabilitation Services Handles Reports of Child Abuse and Neglect” addressed the need for training Child Protective Services staff, the need for supervision and documentation of their decisions, and the need to clarify or revise their procedures, and policies. This report provided the impetus for SRS’s family agenda policy manual, which clarified and revised investigatory and supervisory procedures, and new training programs for social workers. .
Further post audit reports in March 1991, April 1991, and June 1991 dealt with issues of information management, monitoring and supervision, staffing and funding levels, and expanded prevention services. The result of the post audit reports, the defendant argues, was increased funding by the Kansas Legislature in 1992. The defendant provided the trial court with documentation of the recommendations of the performance audit -reports and the initiatives implemented in response'thereto.
The defendant further submitted evidence regarding the prevailing local rate of attorney fees and the availability of local coünsel to assist in complex class action litigation. As were the other aspects of the lawsuit, the attorney fees issues were hotly contested, with both sides submitting multiple written arguments and significant supporting documentation.
In November 1994, the trial court issued its. order on attorney fees from which this appeal is taken. In the 16-page order, the trial court dealt with the issues raised by the parties in considerable detail. The trial court recounted a brief history of the case. It noted that as the case progressed, the viable claims of the plaintiffs steadily decreased until, at the time of trial, they were about at the same point in terms of parties and claims as when attorney Netherton filed the original petition. Since fees under 42 U.S.C. § 1988 are appropriate only when the plaintiff vindicates federal constitutional or statutory rights, and not rights secured by state law, the trial court noted that the only constitutional claim remaining at the time of settlement was that the foster care system as a whole fell below constitutional minimums — a claim the court noted would be difficult to prove. The court found the state claim, that SRS operated the foster care system in violation of state laws and guidelines, to be the plaintiffs’ strongest claim. Consistent with these findings, the court held: “The causal connection between this lawsuit and the settlement agreement are the claims based upon state law.”
The trial court also noted the similarity of the settlement agreement to the post audit reports and the role of the legislature’s own review in bringing about the changes memorialized in the settlement agreement. The court stated: “It is impossible to differentiate whether the legislature was motivated more by its own Post Audit reports, the attitude of the legislative leadership at the time, or this litigation.”
Nevertheless, the court determined the children of Kansas were benefitted by the settlement of the case in that SRS became bound to follow its own rules, regulations, and standards in the future, preventing “downward drift” in the foster care program. Insofar as the settlement provided this benefit, the trial court found the plaintiffs obtained some of the relief sought.
The court specifically held that “[t]he filing of this lawsuit brought positive changes and improvements in the foster care system which probably would not have occurred absent this litigation.” (Emphasis added.)
The court went on to hold:
“In settlement of a lawsuit, it is usually the case that the discovery, preparation and other work done in connection with preparation for trial contributes to the settlement. The Court is not convinced that the lawyers’ efforts which preceded the settlement added much here. The legal position of S.R.S. was stronger at the time of pre-trial than ever before, certainly as to the U.S. Constitutional claims. The deficiencies in the foster care system had been described by the legislative post auditor. Not much illumination was added on the problem by all that preceded the court-imposed settlement process.”
Nevertheless, the trial court made the following specific finding which was not appealed by the defendant:
“At the time the settlement process began the State remained threatened by a viable constitutional claim in this case. As a result of the settlement of the lawsuit it is reasonably assured the State will continue to keep its foster care programs above standard. For these two reasons, it is my conclusion that plaintiffs should be considered to be sufficiently successful that they should be compensated by the State for their attorneys’ fees that are directly attributable to achieving the settlement of this case.”
The court then turned to the question of quantifying the attorney fees. The court determined the billings by Kansas attorneys Waxse and Netherton were reasonable and that their involvement was important to the settlement of the case. It then considered the fees due for the ACLU counsel and stated:
“[T]he statement submitted by counsel for the Children’s Rights Project is more problematic. It includes travel time between New York and Topeka; work on an interlocutory appeal taken in this case, which they lost; work on legislative issues unrelated to this case and time spent with the press. Also, plaintiffs’ statements include a substantial number of intra-office conferences where counsel conferred with one another, A.C.L.U. staff and other advisors, and conferences which give insufficient details of what was occurring. Although communications between co-counsel, staff and advisors may be necessary, when there are dual billings for essentially the same work product or for what amounts to training, supervision or policy direction from organizational leadership, an opposing party should not be requested to pay. The Court has disallowed fees requested by Marcia Robinson Loweiy for these reasons and reduced the requests for Mr. Hansen and Mr. Dunn accordingly.
“Some of the entries in plaintiffs’ itemized fee requests are vague, ambiguous or incomplete, thereby making it impossible for the Court to determine what specific task was billed or what relevance it had to settlement of this case. When the explanation is inadequate, the Court has resolved the question against the plaintiffs. [Citations omitted.] ....
“The court is not required, nor will it undertake to identify and justify every specific hour disallowed for impermissible vagueness and ambiguity. [Citation omitted.]. Rather this Court shall, based upon its complete review of the records submitted, and upon its experience and judgment, reduce the number of hours claimed to allow compensation only for those hours which the Court can find were directly contributed to the settlement of this case.”
The court reduced Dunn’s hours by 35 percent and allowed billing at the Topeka rate of $100 per hour. Hansen’s hours were reduced from 428.5 to 215 to be billed at the Topeka, Kansas City, and Wichita rate of $175 per hour. The rates were based on the court’s conclusion that there were experienced, capable attorneys available locally for the type of work that was billed. The court also denied the defendant’s claim for fees and the plaintiffs’ claim for expenses.
Plaintiffs appeal from the order awarding attorney fees and expenses, contending (1) the trial court erred as a matter of law in denying the plaintiffs fees for all work that preceded the settlement negotiations, (2) the trial court erred as a matter of law in denying the plaintiffs reimbursement for all expenses, (3) the trial court erred as a matter of law in denying the plaintiffs appropriate rates for the work of lead counsel, and (4) the trial court erred when it reduced the reimbursable hours of the plaintiffs’ lead counsel in a discriminatory and arbitrary manner.
We affirm in part and reverse in part.
Did the trial court err in denying attorney fees for all the work that preceded the settlement negotiations?
The plaintiffs argue that our standard of review is de novo over whether a given category of attorney time is reimbursable under the Civil Rights Attorney’s Fees Awards Act. Webb v. Dyer County Bd. of Ed., 471 U.S. 234, 243, 85 L. Ed.'2d 233, 105 S. Ct. 1923 (1985). However, the trial court did not rule as a matter of law that presettlement fees were not eligible for reimbursement; rather, it found they should not be reimbursed under the facts of this case.
The trial court’s decision regarding the amount of fee reimbursement is subject to the more deferential abuse of discretion standard of review. See Webb, 471 U.S. at 242-44; Carter v. Sedgwick County, Kan., 929 F.2d 1501, 1506 (10th Cir. 1991). An appellate court has a duty to affirm those awards which fall within the broad discretion of the trial court, but it must remand the case where the trial court applies the wrong standard such that the award is inadequate as a matter of law. Daly v. Hill, 790 F.2d 1071, 1085 (4th Cir. 1986).
In light of this standard of review, we reverse the trial court’s exclusion of all work that preceded the settlement negotiations and remand for a determination of the reasonable amount of fees to be awarded.
Our resolution of this issue is aided by our previous statements of when attorney fees may be awarded and the bounds within which a trial court may exercise discretion in making a fee award. In Allison v. Board of Johnson County Comm’rs, 241 Kan. 266, 273, 737 P.2d 6 (1987), in discussing the award of attorney fees under 42 U.S.C. § 1988, we stated:
“The Civil Rights Attorney’s Fees Awards Act of 1976,42 U.S.C. § 1988, provides:
“ ‘In any action or proceeding to enforce a provision of Sections 1981,1982,1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. 1681 et seq.], or title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.’
“Under 42 U.S.C. § 1988, the prevailing party should ordinarily be awarded attorney fees unless there are special circumstances making such an award unjust. A person is a ‘prevailing party’ within the context of 42 U.S.C. § 1988 when he essentially succeeds in obtaining the relief he seeks in his claims on the merits. Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507.
“For a party to ‘prevail,’ a judicial determination is not necessary. Parties are considered to have prevailed when they vindicate a right through a consent judgment, a settlement, or without formally obtaining relief. Maher v. Gagne, 448 U.S. 122, 129, 65 L. Ed. 2d 653, 100 S. Ct. 2570 (1980). In suits alleging § 1983 violations which result in settlements or consent decrees favorable to relief requested by the plaintiff, the district court, on a § 1988 application for attorney fees, must first determine whether the lawsuit, as a matter of law, involved the vindication of the plaintiff’s rights secured by the Constitution or laws of the United States. J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1475 (10th Cir. 1985).”
Thus, the first step in considering a request for attorney fees under 42 U.S.C. § 1988 is to determine whether the plaintiff is a “prevailing party” within the terms of the statute. The trial court held that the ability to enforce the SRS family agenda in contract was sufficient relief to classify the plaintiffs as a prevailing party. Defendant does not cross-appeal tíre trial court’s determination that the plaintiffs were prevailing parties. This issue is therefore resolved in the plaintiffs’ favor as the law of this case. The plaintiffs were and are “prevailing parties.”
If the party seeking fees under 42 U.S.C. § 1988 is proved to be a prevailing party, as the trial court found here, and thus eligible for attorney fees under the statute, the court should award fees in a civil rights action unless special circumstances would make such an award unjust. Blanchard v. Bergeron, 489 U.S. 87, 96, 103 L. Ed. 2d 67, 109 S. Ct. 939 (1989). The relevant question becomes the reasonable amount of the award:
“Attorney fees are awarded only to counsel of the prevailing parties. The attorney for the prevailing party is then entitled to a reasonable fee set by the court. The factors to be considered include: (1) the number of hours spent on the case by the various attorneys and the manner in which they were spent; (2) the reasonable hourly rate for each attorney; (3) the extent, if any, to which the quality of the attorney’s work mandates increasing or decreasing the amount to which the court has found the attorney reasonably entitled; and (4) the benefit produced by the lawsuit . . . Allison, 241 Kan. at 278.
Where the trial court calculates the reasonable fees using these factors, its conclusion will be reviewed only for an abuse of discretion. However, in this case, rather than simply applying these factors to figure the amount of fees due the plaintiffs, the trial court excluded all fees for work done prior to settlement.
The trial court attempted to justify the denial of fees for preset-tlement work by saying it added little to the case. However, the record presented to us clearly shows that legitimate claims were made based on then-existing (although later reversed) United States District and Circuit Court of Appeals rulings and that the pleadings, motion practice, and discovery provide some basis for the settlement which was ultimately reached.
In determining the reasonable amount of fees to be awarded, the court should exclude hours which were not reasonably expended on the litigation. Blanchard, 489 U.S. at 89 n.2. A legitimate and important factor in determining an appropriate fee is the necessity of the services for which the fee is sought. See Stone v. City of Wichita Falls, 668 F.2d 233, 234 (5th Cir. 1982). “If the court has the impression that a plaintiff spent an excessive amount of lawyer time and simply overwhelmed the defendant in a case in which the litigation onslaught was unnecessary, the court should consider this factor in determining what amount of time was reasonably expended in the litigation.” Ramos v. Lamm, 713 F.2d 546, 557 (10th Cir. 1983).
However, in computing the fee, the court should compensate the prevailing party for all time that is reasonably expended in advancing the successful claims, so that the fee reflects the “reasonable worth of the services rendered in vindication of a plaintiff’s civil rights claim.” Blanchard, 489 U.S. at 96.
The reasonable fee award usually is calculated as the product of the time reasonably expended and the prevailing rate. The United States Supreme Court has approved the use of 12 factors in adjusting the fee award so calculated to arrive at a final determination of the reasonable fee:
“(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.” Blanchard, 489 U.S. at 91 n.5.
The trial court may award attorney fees substantially less than those actually incurred where the degree of the plaintiff’s success is disproportionate to fees requested or the level of success is not high.
“Once civil rights litigation materially alters the legal relationship between the parties, ‘the degree of the plaintiff s overall success goes to the reasonableness’ of a fee award under Hensley v. Eckerhart, 461 U.S. 424[, 76 L. Ed. 2d 40, 103 S. Ct. 1933] (1983). [Citation omitted.] Indeed, ‘the most critical factor’ in determining the reasonableness of a fee award ‘is the degree of success obtained.’ Hensley, supra, at 436. . . . We have already observed that if ‘a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.’ Hensley, supra, at 436.” Farrar v. Hobby, 506 U.S. 103, 114, 121 L. Ed. 2d 494, 113 S. Ct. 566 (1992).
In Texas Teachers Assn. v. Garland School Dist., 489 U.S. 782, 789-90, 103 L. Ed. 2d 866, 109 S. Ct. 1486 (1989), the United States Supreme Court explained:
“Where the plaintiff’s claims are based on different facts and legal theories, and the plaintiff has prevailed on only some of those claims, we indicated that ‘[t]he congressional intent to limit [fee] awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.’ [Citation omitted.] In the more typical situation, where the plaintiff’s claims arise out of a common core of facts, and involve related legal theories, the inquiry is more complex. In such a case, we indicated that ‘the most critical factor is the degree of success obtained.’ [Citation omitted.] We noted that in complex civil rights litigation, ‘the plaintiff often may succeed in identifying some unlawful practices or conditions,’ but that ‘the range of possible success is vast,’ and the achievement of prevailing party status alone ‘may say littlé about whether the expenditure of counsel’s time was reasonable in relation to the success achieved.’ [Citation omitted.] We indicated that the district courts should exercise their equitable discretion in such cases to arrive at a reasonable fee award, either by attempting to identify specific hours that should be eliminated or simply reducing the award to account for the limited success of the plaintiff.”
See Cunningham v. County of Los Angeles, 859 F.2d 705, 711-13 (9th Cir. 1988).
In Poston v. Fox, 577 F. Supp. 915, 921-22 (D.N.J. 1984), the prevailing plaintiff’s attorney fees were reduced by 40 percent because the benefits of the litigation over prison conditions did not merit the entire award. See also Sanders v. Brewer, 972 F.2d 920, 922-23 (8th Cir. 1992) (fees reduced nearly by half where damages totalled $11). Similarly, in Knop v. Johnson, 712 F. Supp. 571, 575-77 (W.D. Mich. 1989), even though the claims were factually related where the plaintiff class prevailed only in part, the fee award was reduced proportionately.
In the present case, any reduction based on claims that were dismissed, an excessive amount of time expended by the plaintiffs, or the plaintiffs’ limited success is within the discretion of the trial court. However, the trial court clearly abused that discretion by excluding all presettlement time, including that spent drafting petitions, motions, and oppositions to motions, without which the case would never have reached the settlement stage.
The court need not engage in an hour-by-hour analysis of a voluminous record of billing statements to determine the reasonable hours compensable under 42 U.S.C. § 1988, but their reduction must be concisely and clearly explained so that a reviewing court may determine if the reduction is justified. See Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir. 1994).
While the trial court might properly determine that many of the hours spent by the plaintiffs’ attorneys prior to settlement were not “reasonably expended” or that the plaintiffs’ limited success in actualizing substantial change merited a reduced award, the trial court erred in eliminating all time expended prior to settlement negotiations. Therefore, we remand the case to the trial court to determine the reasonable attorney fees for the presettlement effort and service reasonably expended.
Did the trial court err in denying the plaintiffs reimbursement for expenses?
We find the trial court erred as a matter of law in denying the plaintiffs’ entire claim for expenses and remand the case for a determination of what expenses were reasonable.
A prevailing plaintiff in a civil rights case is ordinarily entitled to recover compensation for expenses reasonably incurred in preparing the case. Daly v. Hill, 790 F.2d 1071, 1084 (4th Cir. 1986); Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), amended on other grounds 808 F.2d 1373 (9th Cir. 1987); see Allison, 241 Kan. at 278. Expenses are part of the reasonable attorney fees:
“Clearly, a ‘reasonable attorney’s fee’ cannot have been meant to compensate only for work performed personally by members of the bar. Rather, the term must refer to a reasonable fee for the work product of an attorney. Thus, the fee must take into account the work not only of attorneys, but also of secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client; and it must also take account of other expenses and profit.” Missouri v. Jenkins, 491 U.S. 274, 285, 105 L. Ed. 2d 229, 109 S. Ct. 2463 (1989).
As we said in Allison, 241 Kan. at 278:
“Items that are normally itemized and billed in addition to the hourly rate should be included in fee allowances in § 1983 claims if reasonable in amount. Expenses for long-distance telephone charges, copying costs, and other expenses should be allowed as fees only if the expenses are usually charged separately in the area. Out-of-pocket costs not normally absorbed as part of law firm overhead may be reimbursed.”
The trial court denied all the plaintiffs’ claimed expenses without explanation. Under the facts of this case, such is not justified. See Bergquist v. County of Cochise, 806 F.2d 1364, 1371 (9th Cir. 1986); Durett v. Cohen, 790 F.2d 360, 363 (3d Cir. 1986). While it may be that the typical practice in the relevant area is that such costs are absorbed as part of the firms’ overhead, and thus incorporated in the hourly rates and not separately recovered, the trial court made no such finding. See Ramos v. Lamm, 713 F.2d at 559.
On remand, the trial court must determine what expenses are reasonable, applying the same guidelines as govern the reasonable amount of attorney fees in light of the typical billing practices in the relevant area.
Did the trial court err in awarding fees for the plaintiffs’ lead counsel at local rates rather than those prevalent in New YorkP
We affirm the trial court’s decision to base the attorney fees paid to the plaintiffs’ lead counsel on local market rates.
The market rate on which an award of attorney fees will be based is in the sound discretion of the trial court and is subject to review only for an abuse of that discretion. See Wayne v. Village of Sebring, 36 F.3d 517, 530 (6th Cir. 1994); Gates v. Deukmejan, 987 F.2d 1392, 1405 (9th Cir. 1993). “ ‘[Reasonable fees’ under § 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or non-profit counsel.” Blum v. Stenson, 465 U.S. 886, 895, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984). The relevant community is that of the forum, in the absence of unusual circumstances. See Ramos v. Lamm, 713 F.2d at 555.
The fee applicant has the burden to justify the rate sought:
“To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence — in addition to the attorney’s own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum, 465 U.S. at 895 n.11.
Some courts have permitted the award of attorney fees to reflect higher out-of-town rates where the plaintiff establishes that qualified counsel are not locally available. See Gates, 987 F.2d at 1405; Reazin v. Blue Cross & Blue Shield of Kansas, Inc., 663 F. Supp. 1360, 1454 (D. Kan. 1987), aff’d in part and remanded in part 899 F.2d 951 (10th Cir.), cert. denied 497 U.S. 1005 (1990). Nevertheless, the trial court’s broad discretion to determine what constitutes a reasonable hourly rate is not abused by applying local market rates, even when the fee claimant produces some evidence no local attorney was willing to take the case. Wayne, 36 F.3d at 533.
In another recent case, Judge Rogers found that Christopher Hansen’s expertise in complex civil rights cases was not so unique that adequate local counsel were unavailable in Topeka. Brown v. U.S.D. No. 501, Shawnee County, Kan., 878 F. Supp. 1430, 1432-34 (D. Kan. 1995). In addition, Judge Rogers reasoned: “[I]t does not seem logical that the relevant community for determining the market rate for counsel should be decided by the location of the headquarters of the organization advancing money for the lawsuit.” 878 F. Supp. at 1435. He also said: “The court firmly believes the local bar was competent to tackle whatever factual and legal difficulties this case presented. In fact, local attorneys have represented plaintiffs since the beginning of this case. Local attorneys alone have represented defendant.” 878 F. Supp. at 1433.
We agree with Judge Rogers’ assessment of the local market. The trial court did not err in basing the plaintiffs’ lead counsel fee awards on prevailing local market rates.
Although the plaintiffs submitted evidence that some attempts by Netherton to secure qualified local counsel were unsuccessful, the defendant submitted contrary evidence and the trial court was not persuaded such local counsel were unavailable. The trial court did not abuse its discretion.
Did the trial court err in reducing the number of hours of the plaintiffs’ lead counsel for which fees would be awarded while awarding fees of local attorneys for all hours submitted?
The trial court reduced the hours of Hansen, Dunn, and Lowry which could have been included in an attorney fee award. It based the reduction on the attorneys’ insufficient recording of the tasks they worked on, their duplicative efforts, time unrelated to this litigation, and time spent on travel. We affirm the trial court’s decision on this issue.
The addition of co-counsel to an action already initiated warrants careful scrutiny for duplicative effort, which should not be charged to the losing party. Hinkle v. Christensen, 548 F. Supp. 630, 632-33 (D.S.D. 1982). The unnecessary use of multiple attorneys justifies a reduction in the fee award to reflect the duplication. See Daly v. Hill, 790 F.2d at 1080. In addition, the fees due prevailing plaintiffs may be reduced for duplicative time, excessive review time, nonproductive travel time, time spent on issues on which plaintiff does not prevail and clerical time. See Goodwin v. Metis, 973 F.2d 378 (4th Cir. 1992); Jane L. v. Bangerter, 828 F. Supp. 1544 (D. Utah 1993); Hart v. Bourque, 608 F. Supp. 1091 (D. Mass. 1985), rev’d on other grounds 798 F.2d 519 (1st Cir. 1986).
In DeGidio v. Pung, 920 F.2d 525, 533 (8th Cir. 1990), the trial court did not err in reducing the fee requested by 65 percent where plaintiff’s time records were deficient and success was limited. Although the lawsuit served as a catalyst for remedial action, constitutional violations were remedied before the start of the trial.
Where billing records contain insufficient detail, the amount requested may be reduced significantly. Lipsett v. Blanco, 975 F.2d 934, 937-38 (1st Cir. 1992).
The plaintiffs argue the trial court was discriminatory in reducing only the hours of out-of-state attorneys based on the vagueness of their billing statements. The trial court found the billing statements of Netherton and Waxse to be reasonable in light of the extent of their involvement in the case and their importance to its resolution. The trial court did not find the hours spent by other counsel to be reasonable, and the billing statements were insufficiently detailed to establish their reasonableness.
The plaintiffs bore the burden to establish the claimed hours were reasonable. Brown, 878 F. Supp. at 1436. Further, the plaintiffs have the burden of establishing that the trial court abused its discretion. In re Application of City of Great Bend for Appointment of Appraisers, 254 Kan. 699, 707, 869 P.2d 587 (1994). The mere disparity in the number of billable hours of each attorney that was held sufficiently proven does not establish an abuse of discretion in light of the varying number of hours claimed, varying duties, and varying methods of recording billable time. The record presented to us does not require the reversal of the trial court as to the amount of attorney fees awarded to plaintiffs’ lead counsel in the settlement phase of this litigation. The trial court did not abuse its discretion as to this issue.
Affirmed in part, reversed in part, and remanded for further determinations in accordance with this opinion.
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In a letter dated January 21, 1996, to the Clerk of the Appellate Courts, respondent Robert W. Young, of Kansas City, Missouri, an attorney admitted to practice law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (1995 Kan. Ct. R. Annot. 219).
At the time respondent surrendered his license, there were two complaints scheduled for a hearing on February 21, 1996, before a panel of the Kansas Board for Discipline of Attorneys. The complaints against respondent contained allegations' of defrauding an individual, who was not a client, out of a substantial sum of money and neglecting to handle client affairs.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that Robert W. Young 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 Robert W. Young 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
Larson, J.:
Vertie Bolyard, as father of Verüe Lance Bolyard, Veronica Bolyard, and Patricia Shannon Bolyard, appeals from the trial court’s order of summary judgment in favor of the defendants Kansas Department of Social and Rehabilitation Services (SRS) and SRS caseworker Ruth Sherlock in an action for damages arising from their alleged negligence in the temporary placement of the plaintiff children with their mother.
The plaintiffs contend the trial court erred in determining that SRS and Sherlock are immune from liability under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. Plaintiffs had originally included in the suit Cheyenne County Attorney Scott Condray, who was dismissed with prejudice after he was granted summary judgment. Further, Patricia Shannon Bolyard, upon learning that the case had been filed on her behalf without her permission, withdrew with prejudice.
Because this action is based upon a factual scenario which occurred in 1982, we will briefly chronicle its background.
An acrimonious divorce action between Vertie Bolyard and his wife, Marguerite Allen Bolyard, commenced in 1978. It resulted in an October 1979 divorce decree wherein custody of the children was given to Vertie with visitation rights for Marguerite to be fixed upon her release from incarceration.
After a November 1981 hearing on Marguerite’s motion for temporary visitation, the trial court ordered a home study, and Marguerite was granted visitation on six specific occasions.
Vertie refused to permit the visitation ordered by the court, prompting Marguerite to seek a citation for contempt in January 1982. Vertie failed to appear before assigned Judge Keith Wil-loughby. Judge Willoughby found Vertie in contempt and placed the children in SRS custody but allowed a January 14,1982, weekend visitation with Marguerite in Gorham, Kansas, to continue.
The social worker, SRS employee Sherlock, based upon a recent favorable home study report, called Judge Willoughby the weekend the father was in jail for contempt of court. The judge approved SRS’s plan, outlined by Sherlock, to leave the children with the mother while the father remained in jail.
Judge Willoughby held a hearing and released Vertie from jail based on his promise to comply with further court orders. Judge Willoughby then recused himself based on an affidavit Vertie filed alleging partiality. In a January 20, 1982, letter to Judge Charles Worden, Judge Willoughby recounted his actions and stated that he had advised Vertie that he had placed the children in the custody of SRS, who in turn had placed them with their mother, and they were not in Russell County.
Judge Steven P. Flood was assigned to the case in early February 1982 and notified all parties that he would hear all pending motions at one time on a later agreed date.
Between January and March of 1982, the Russell SRS had three telephone contacts with Marguerite, visited Shannon’s teacher at school, and conducted one home visit. As a result of those contacts, SRS concluded that Marguerite and Will McCurley’s (Marguerite’s current husband) home was a fit home for the children and more than adequate for their physical, emotional, and mental well-being.
Vertie did nothing for 6 months, but in August 1982, Marguerite, her husband, and the children left Kansas for Florida, without informing SRS or Marguerite’s parole officer.
Marguerite did not return to Kansas until January 1984, when she was arrested and pled guilty to aggravated interference with parental custody. The children were returned to Vertie.
In January 1990, the present action was filed in Russell County by Vertie on behalf of the three children, seeking $5,000,000 in damages and contending that SRS and Sherlock were negligent in placing the children with Marguerite and permitting them to remain there in violation of an alleged ministerial duty not to place the children in the home of a parent without the written permission of a district court judge. In addition, the petition alleged that from January 14,1982, until August 24,1982, SRS was negligent in failing to regularly inspect Marguerite’s home and monitor the children’s placement, in violation of an alleged ministerial duty to do so.
In July 1994, the trial court held as a matter of law that SRS and Sherlock were immune from liability since all of the actions they had taken were discretionary functions under the Kansas Tort Claims Act. The trial court rejected the plaintiffs’ claim that under the SRS Kansas Manual of Services to Children and Youth, written consent of a district court was required before the children could be placed with a parent, because the manual provisions cited by the plaintiffs did not apply to the present fact situation.
Vertie appeals on behalf of his children. We affirm.
Did SRS and Ruth Sherlock have a ministerial duty not to place the children with Marguerite under the provisions of the SRS manual such that they cannot claim immunity from liability under the Kansas Tort Claims Act?
We review this matter under the well-known standard of review for orders of summary judgment set forth in Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995), whereby we resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling was sought. Summary judgment is appropriate where the plead ings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law; an adverse party must come forward with evidence to establish a dispute as to a material fact; and the facts subject to the dispute must be material to the conclusive issues. If we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994).
Vertie, on behalf of his two children remaining in the case, contends the trial court erroneously concluded, as a matter of law, that the actions of SRS and Sherlock in placing the children with Marguerite were discretionary acts subject to immunity under the Kansas Tort Claims Act.
The version of the Kansas Tort Claims Act in effect at the time of the alleged improper placement set forth exceptions to liability in K.S.A. 1981 Supp. 75-6104, which reads in applicable part:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be hable for damages resulting from:
“(d) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused.”
The 1987 amendment to 75-6104 added the phrase “and regardless of the level of discretion involved” and designated the discretionary function exception as subsection (e). The 1987 amendment does not affect the instant case.
The Kansas Tort Claims Act is an open-ended act making governmental liability the rule and immunity the exception. Dougan v. Rossville Drainage Dist., 243 Kan. 315, 318, 757 P.2d 272 (1988). K.S.A. 75-6103(a) provides that each governmental entity shall be liable for the negligent or wrongful acts or omissions of its employees acting within the scope of their employment under the same circumstances that a private person would be liable. See Collins v. Board of Douglas County Comm’rs, 249 Kan. 712, 720, 822 P.2d 1042 (1991).
The governmental entity bears the burden to establish immunity under one of the exceptions in 75-6104. Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 364, 819 P.2d 587 (1991).
In Hopkins v. State, 237 Kan. 601, 610, 702 P.2d 311 (1985), we said:
“Discretion implies the exercise of discriminating judgment within the bounds of reason. [Citation omitted.] It involves the choice of exercising of the will, of determination made between competing and sometimes conflicting considerations. Discretion imparts that a choice of action is determined, and that action should be taken with reason and good conscience in the interest of protecting the rights of all parties and serving the ends of justice.”
In Robertson v. City of Topeka, 231 Kan. 358, 361-62, 644 P.2d 458 (1982), we determined that in deciding whether the discretionary function exception applies, it is the nature and quality of the discretion exercised which should be the focus rather than the status of the employee exercising the discretion. The test is whether the judgment of the governmental employee is of the nature and quality which the legislature intended to put beyond judicial review.
"The more a judgment involves the making of policy the more it is of a ‘nature and quality’ to be recognized as inappropriate for judicial review.” Kansas State Bank & Tr. Co., 249 Kan. at 365. The discretionary function exception is applicable only when no clearly defined mandatory duty or guideline exists which the government agency is required to follow. Collins, 249 Kan. at 721; Dugan, 243 Kan. at 322.
Thus, if specific mandatory guidelines are adopted by the agency regulating the conduct of its employees, thereby removing discretion by imposing a legal duty, 75-6104(d) would be inapplicable. See Fudge v. City of Kansas City, 239 Kan. 369, 375, 720 P.2d 1093 (1986).
In Carpenter v. Johnson, 231 Kan. 783, 788, 649 P.2d 400 (1982), we held that failure to erect a warning sign on a curve was not an exercise of discretion in part because the Kansas Department of Transportation Maintenance Manual on Signs and Markers for Highways was used to determine when signs should be erected. We held: “Rules and regulations adopted by an administrative board, here the Department of Transportation, to carry out the policy declared by the legislature in the statute, have the force and effect of laws.” 231 Kan. at 789.
Similarly, in Jackson v. City of Kansas City, 235 Kan. 278, 287-88, 680 P.2d 877 (1984), we held that an action arising from the collision of two fire trucks was not subject to the discretionary function exception, in part because the drivers had no discretion to disregard traffic statutes, regulations, ordinances, and the departmental policies. Plaintiffs base their extremely tenuous argument that the placement with Marguerite was not discretionary on provisions of the SRS manual in effect at the time of the placement requiring written authorization from the district court judge before placing a child with a parent in certain circumstances.
We are not convinced that the oral approval of the district judge followed by his written report to the administrative judge of the judicial district as to his actions in approving the SRS placement would be insufficient to satisfy the requirement in the SRS manual for written consent of a district court judge. We need not decide the case on that basis because an examination of the manual provisions clearly shows that no written authorization was required.
The SRS manual upon which the plaintiffs rely reads under the general heading of “CUSTODY” at § 6020.8 “Placement with the Secretary of SRS in a Divorce Action”:
“Placements with the Secretary pursuant to K.S.A. 60-1610(a) are considered custody only placements until the court grants authority to the Secretary to consent to adoption of the children. This authority can be obtained only after one year has elapsed and a hearing held. If such hearing results in the Secretary being given authority to consent to adoption, guardianship results. (See section 6021.3)”
This provision applies to the placement of the Bolyard children with SRS in the present case. It contains no prohibition on placement of the children with a parent. Further, there is no requirement for written permission of the district judge in order to make a parental placement.
There is a provision elsewhere in the manual requiring written permission of the district judge, but only when the placement is under § 6021 of the SRS manual which specifically states that it pertains to guardianship. There, under § 6021.3, when a hearing has already resulted in the Secretary being given authority to consent to adoption and guardianship results, SRS is prohibited from placing the child in the home of a parent without the written consent of the judge of the district court. Such is not the factual situation in our case. Neither Vertie or Marguerite had been found to be an unfit parent, and SRS had only temporary custody of the children, not guardianship.
Further, the only other provision where SRS placement of a child in the home of a parent requires the written consent of the judge of the district court is under § 6020.1. This section is not applicable to our case because it relates only to a Chapter 38 placement under facts entirely different from those we face here. In this case, the children were never adjudicated to be deprived, and thus § 6020.1 and its subparts do not apply.
We reach the same result here as this court reached in G. v. State Dept. of SRS, 251 Kan. 179, 191, 833 P.2d 979 (1992), where we held that the decision of SRS to remove a child from his home after a finding of sexual abuse is discretionary. As in this case, an argument that SRS had taken action prohibited by its manual was found to be flawed. Justice Six specifically stated: “We cannot endorse such a restrictive concept. SRS carries a responsibility to act in the best interests of the children in its custody regardless of whether the harm is specifically defined in its guidelines.” 251 Kan. at 191.
G. v. State Dept. of SRS utilizes Pickett v. Washington County, 31 Or. App. 1263, 572 P.2d 1070 (1977), as authority and endorses the Pickett court’s conclusions as to: (1) the importance of the government function involved and (2) the extent to which governmental liability might impair the exercise of that function. The Pickett court reasoned a more important governmental function is hard to imagine than when government undertakes to protect the welfare of children by placing them in a wardship. In caring for children within its custody, the government and its agents are continually called upon to make delicate and complex judgments, often involving weighing and balancing individualized risks. The Pickett court stated: “ ‘Decisions of this nature rank high in the continuum of discretion and should not be subject to hindsight scrutiny by courts and juries.’ ” 251 Kan. at 192.
There is no doubt that summary judgment was properly granted under the facts of this case. We need not reach or consider the additional arguments made by the appellees as to the lack of foreseeability, other exemptions from liability, and the lack of negligence as a matter of law.
It appears that in their reply brief, for the first time on appeal, the plaintiff children assert that their placement with Marguerite was not within SRS’s discretion because existing visitation arrangements remained in place and SRS was bound to retrieve the children after the court-ordered visitation period was over. This new legal theory may not be asserted for the first time on appeal or raised in a reply brief. See Sharp v. State, 245 Kan. 749, 753, 783 P.2d 343 (1989), cert. denied 498 U.S. 822 (1990).
Additionally, the children remained in the temporary custody of SRS and they were merely placed with Marguerite. There was no court order for a different disposition before the children were improperly transported out of the state of Kansas and no basis for requiring different action on the part of SRS.
Finally, the contention that the trial court erred in ruling SRS and Sherlock did not breach a ministerial duty to inspect and monitor the children’s placement with Marguerite is without merit. While this argument is mentioned in plaintiffs’ initial brief, it is not discussed or bolstered by any citation of meaningful authority. It is conceded that there is no provision in the SRS manual regarding supervision which imposes a specific ministerial legal duty. Instead, the children contend only that supervision is required regardless of whether the manual contains any controlling provision.
The trial court ruled that all of the defendants’ actions at issue were within the discretionary function exception of the Kansas Tort Claims Act. Plaintiffs complain specifically that SRS was negligent in failing to talk to Marguerite’s parole officer and failing to adequately monitor the household. The means by which placements are monitored and the people to whom social workers converse in supervising placements are not subject to any carefully drawn, precise legal standard, but involve discriminating judgment between competing interests and are clearly beyond the nature and character of acts the legislature intended to be subject to judicial review.
The trial court did not err in granting summary judgment.
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The opinion of the coúrt was delivered by
Allegrucci, J.:
Leroy Hendricks appeals from a jury finding that he is a sexually violent predator as defined in the Sexually Violent Predator Act (the Act), K.S.A. 59-29a01 et seq., and from the district court’s order of commitment, which was issued pursuant to that finding. The Act establishes a procedure, which is stated to be civil, for involuntarily committing sexually violent predators for long-term care and treatment. Hendricks challenges the constitutionality of the Act and also raises various other grounds for reversing the finding and order of the district court. The case was transferred to this court from the Court of Appeals pursuant to K.S.A. 20-3018(c).
This case was initiated by the district attorney’s filing on August 17, 1994, of a petition in the district court seeking commitment of Leroy Hendricks as a sexually violent predator under the Act. The petition recited that it anticipated Hendricks’ release from confinement on September 11,1994, and stated the following criminal history:
“That on the 26th day of November, 1984 respondent Leroy V. Hendricks was convicted in the Eighteenth Judicial District, District Court, Sedgwick County, Kansas, Case No. 84CR1463 of a sexually violent offenses [sic] involving two victims as defined by law, to wit: K.S.A. 21-3503 Indecent Liberties with a Child; and K.S.A. 21-3503 Indecent Liberties with a Child; and has a history of prior sexual offenses from other jurisdictions, to wit: 1960 Spokane, Washington, Indecent Liberties with a Child; Seattle, Washington (1963 and 1967) Indecent Liberties with a Child (two separate cases).”
The petition further alleged that Hendricks “suffers from a mental abnormality or personality disorder which makes him likely to engage in predatory acts of sexual violence.”
At the time the petition was filed, Hendricks was serving a sentence of 5 to 20 years’ imprisonment. The sentence had been imposed in accordance with the State’s recommendation pursuant to a plea agreement. Under the agreement, Hendricks pled guilty in November 1984 to two counts of indecent liberties, with a child. The State dismissed a third count of indecent liberties and refrained from requesting imposition of the Habitual Criminal Act.
On August 19,1994, Hendricks appeared with counsel in district court. At the beginning of the hearing, Hendricks presented a motion to dismiss the petition. Counsel argued the following grounds for dismissal: insufficient factual allegations, failure to serve Hendricks with the petition, unconstitutionality of the Act, and breach of the plea agreement. The district court allowed the State to present evidence. In a journal entry filed on August 23, 1994, the district court found no fatal flaws in the petition or its service and reserved ruling on the constitutionality of the Act and the argument that the State was estopped by virtue of the plea agreement. The district court concluded that there was probable cause to believe that Hendricks is a sexually violent predator as defined in the Act and that he should be evaluated at Lamed State Security Hospital to determine if he is.
Upon advice of counsel, Hendricks did not participate in the evaluation at the state hospital. As a result, the first report issued by the hospital was based on available records and behavioral observations during his stay. After ruling that the nature of the Act is civil rather than criminal or quasi-criminal so that the privilege against self-incrimination does not apply, the district court granted the State’s request for an order compelling discovery. The district court ordered another evaluation and ordered Hendricks to cooperate in it.
A jury trial was conducted October 3-5, 1994. Hendricks was called as a witness by the State. He testified that he was 60 years old, that his history of sexual involvement with children began with his exposing himself to two girls in 1955, and that he had spent approximately half the time since then in prison or in psychiatric institutions. He explained that when he gets “stressed out,” he is unable to control the urge to engage in sexual activity with a child. Hendricks agreed that he is a pedophile and that he is not cured of the condition.
The State also called Charles Befort, the chief psychologist at Lamed State Hospital. He testified that a personality disorder consists of traits or characteristics which tend to produce in most situations predictable but unacceptable or abnormal behavior. He testified that a pedophile is predisposed to commit sexual acts with children and that pedophilia in and of itself is not considered to be a personality disorder. Dr. Befort testified that during the previous week he had performed an evaluation of Hendricks. Dr. Befort believed it likely that Hendricks would engage in predatory acts of sexual violence or sexual activity with children if permitted to do so. The factors upon which he based this opinion were the aphorism that “behavior is a good predictor of future behavior,” his professional knowledge that pedophiles tend to repeat their behavior, and Hendricks’ poor understanding of his behavior. He testified that he did not believe Hendricks was mentally ill or had a personality disorder but that, as he interpreted the Act, pedophilia was a mental abnormality. He agreed that his interpretation of the statute was open to debate.
William Logan, a forensic psychiatrist, testified on behalf of Hendricks. He testified about re-offense rates for sex offenders, as shown by various studies. Re-offense rates for persons who had received treatment ranged from 3 to 37Vz percent; for untreated persons the range was 10 to 40 percent. Dr. Logan expressed the opinion that, based on current knowledge, “a psychiatrist or psychologist cannot predict whether an individual is more likely than not to engage in a future act of sexual predation.”
The jury found that Hendricks is a sexually violent predator. He was committed to the custody of the Secretary of Social and Rehabilitation Services (SRS). Hendricks filed a motion to dismiss or, in the alternative, for a new trial which was based in part on evidence that apart from the regular staff of Lamed State Hospital, professionals specifically dedicated to a treatment program for sexually violent predators were not available at the hospital. Although it had negotiated with two bidders who proposed to provide care and treatment under the Act, as of October 20, 1994, SRS had not entered into a contract with either. The motion was denied, and the district court ordered that Hendricks be transported to Lamed State Security Hospital.
The Act is a product of the 1994 legislative session. It is patterned on a very similar statutory scheme enacted in the state of Washington in 1990. Wash. Rev. Code § 71.09.010 et seq. (1992). A divided Washington Supreme Court held that that state’s act was constitutional in Personal Restraint of Young, 122 Wash. 2d 1, 857 P.2d 989 (1993). Thereafter, the United States District Court for the Western District of Washington disagreed with the Washington Supreme Court and granted Young’s petition for writ of habeas corpus. Young v. Weston, 898 F. Supp, 744 {W.D. Wash. 1995). The district court concluded that the Washington act “violates the substantive due process component of the Fourteenth Amendment, the Ex Post Facto Clause, and the Double Jeopardy Clause.” Young, 898 F. Supp. at 754. We will revisit these cases later in this opinion.
The legislature’s stated reasons for enacting a comprehensive scheme for commitment of sexually violent predators appear in K.S.A. 59-29a01:
“The legislature finds that a small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the treatment act for mentally ill persons defined in K.S.A. 59-2901 et seq. and amendments thereto, which is intended to provide short-term treatment to individuals with serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment under K.S.A. 59-2901 et seq. and amendments thereto, sexually violent predators generally have antisocial personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior. The legislature further finds that sexually violent predators’ likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment procedure pursuant to the treatment act for mentally ill persons defined in K.S.A. 59-2901 et seq. and amendments thereto is inadequate to address the risk these sexually violent predators pose to society. The legislature further finds that the prognosis for rehabilitating sexually violent predators in a prison setting is poor, the treatment needs of this population are very long term and the treatment modalities for this population are very different [from] the traditional treatment modalities for people appropriate for commitment under the treatment act for mentally ill persons defined in K.S.A. 59-2901 et seq. and amendments thereto, therefore a civil commitment procedure for the long-term care and treatment of the sexually violent predator is found to be necessary by the legislature.”
This section is virtually identical to Wash. Rev. Code § 71.09.010 (1992).
In K.S.A. 59-29a02, terms are defined as they are used in the Act. The following are relevant to our determination:
“(a) ‘Sexually violent predator’ means any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.
“(b) ‘Mental abnormality’ means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.
“(e) ‘Sexually violent offense’ means:
(2) indecent liberties with a child as defined in K.S.A. 21-3503 and amendments thereto.”
The legislature apparently anticipated that the principal use of the commitment procedure would follow incarceration. K.S.A. 59-29a03 provides that 60 days before the anticipated release of a person who may meet the criteria of a sexually violent predator, the agency with authority over the release must notify the prosecutor in the county where the person was charged. K.S.A. 59-29a04 prescribes initiation of the commitment procedure:
“When it appears that the person presently confined may be a sexually violent predator, the prosecuting attorney of the county where the person was convicted or charged or the attorney general if requested by the prosecuting attorney may file a petition, within 45 days of the date the prosecuting attorney received the written notice . . . alleging that the person is a sexually violent predator and stating sufficient facts to support such allegation.”
In the next step, a judge determines whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If so, the person is transferred to an appropriate facility for a professional evaluation. K.S.A. 59-29a05.
K.S.A. 59-29a06 provides that “[w]ithin 45 days after the filing of a petition . . . the court shall conduct a trial to determine whether the person is a sexually violent predator.” It further provides that the person is entitled to counsel and professionals “to perform an examination [on] such person’s behalf.” Last, it provides that trial will be to the court in the absence of a jury demand, but that a written jury demand filed at least 4 days before trial by petitioner, respondent, or the judge will be honored. K.S.A. 59- 29a07(a) provides that a determination that the person is a sexually violent predator must be made “beyond a reasonable doubt” or the person must be released. Where die court or jury is satisfied beyond a reasonable doubt that the person is a sexually violent predator,
“the person shall be committed to the custody of the secretary of social and rehabilitation services for control, care and treatment until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large. Such control, care and treatment shall be provided at a facility operated by the department of social and rehabilitation services.” K.S.A. 59-29a07(a).
K.S.A. 59-29a08 requires an annual “examination of the person’s mental condition” and an annual court review of the status of the committed person for the purpose of determining whether “probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large and will not engage in acts of sexual violence if discharged.” If so, the court will schedule a hearing at which the burden of proof “shall be upon the state to prove beyond a reasonable doubt that the committed person’s mental abnormality or personality disorder remains such that the person is not safe to be at large and if released is likely to engage in acts of sexual violence.”
Another means of release is set out in K.S.A. 59-29al0:
“If the secretary of the department of social and rehabilitation services determines that the person’s mental abnormality or personality disorder has so changed that the person is not likely to commit predatory acts of sexual violence if released, the secretary shall authorize the person to petition the court for release. . . . The hearing shall be before a jury if demanded by either the petitioner or the county or district attorney or attorney general.”
The burden of proof is the same as it would be at a hearing on an annual review. K.S.A. 59-29al0. The committed person may file a petition seeking release at any time, but broad restrictions apply to petitioning for discharge without approval of the Secretary of SRS and make release through this avenue seem improbable. See K.S.A. 59-29a11.
K.S.A. 59-29al3 provides that “prior to the release of a person committed under this act, the secretary of the department of social and rehabilitation services shall give written notice of such release to any victim of the person’s activities or crime.”
Hendricks challenges the constitutionality of the Act on various grounds, alleging the Act violates both the United States and Kansas Constitutions. He argues the Act violates the prohibition against double jeopardy and ex post facto laws, fails to provide equal protection and procedural or substantive due process, and is void as overly broad and vague.
We first consider Hendricks’ substantive due process challenge. In so doing, we must presume the Act is constitutional and resolve all doubts in favor of the Act’s validity. If there is any reasonable way to construe the Act as constitutionally valid, we must do so. The Act must clearly violate the Constitution before it may be struck down. See Sedlak v. Dick, 256 Kan. 779, 793, 887 P.2d 1119 (1995); Chiles v. State, 254 Kan. 888, 897, 869 P.2d 707, cert. denied 130 L. Ed. 2d 88 (1994); Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 243, 834 P.2d 368 (1992). The burden of proof is on the party challenging the constitutionality of the Act.
The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits a State’s depriving any person of liberty “without due process of law.” It “contains a substantive component that bars certain arbitrary, wrongful government actions 'regardless of the fairness of the procedures used to implement them.’ ” Zinermon v. Burch, 494 U.S. 113, 125, 108 L. Ed. 2d 100,110 S. Ct. 975 (1990).
Hendricks contends that his substantive due process liberty interest is violated by indefinite confinement under K.S.A. 59-29a01 et seq. He relies on Foucha v. Louisiana, 504 U.S. 71, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992). He represents the case as holding that due process prohibits a person’s being involuntarily committed by a civil proceeding absent a finding that the person is both mentally ill and dangerous. It is his contention that the Act’s requirement of a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence falls short of a finding of mental illness. He points out that “[t]he express purpose of the statutory scheme ... is to confine persons who do not have a mental disease or defect that renders them appro priate for involuntaiy treatment pursuant to the treatment act for mentally ill persons . . . .’ K.S.A. 59-29a01.”
As a criminal defendant charged with aggravated burglary and illegal discharge of a firearm, Foucha, in 1984, had been found by a Louisiana trial court not guilty by reason of insanity. Under Louisiana law he was committed to a psychiatric hospital, whether or not he was then insane, absent proof that he was not dangerous. Release under the Louisiana law depended on proof by Foucha that he was not dangerous. In the United States Supreme Court it was Foucha’s contention “that this scheme denies him due process and equal protection because it allows a person acquitted by reason of insanity to be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness.” 504 U.S. at 73.
In 1988, the superintendent of the facility in which Foucha was confined recommended that he be discharged or released. A three-member panel recommended that he be conditionally discharged. The two doctors appointed by the trial judge as a “sanity commission” agreed that Foucha’s psychosis probably had been drug-induced, that he had recovered from that temporary condition, and that he showed no signs of psychosis or neurosis, but that he has “an antisocial personality, a condition that is not a mental disease and that is untreatable.” 504 U.S. at 74. Thus, the doctors declined to certify that Foucha would not be a danger to himself or others. His confinement, therefore, was continued.
The Supreme Court’s analysis began with Addington v. Texas, 441 U.S. 418, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979), in which it was
“held that to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others.” Foucha, 504 U.S. at 75-76.
A person who has been found not guilty of a criminal offense by reason of insanity, however, may be committed by a State “without satisfying the Addington burden with respect to mental illness and dangerousness.” 504 U.S. at 76, citing Jones v. United States, 463 U.S. 354, 363, 77 L. Ed. 2d 694, 103 S. Ct. 3043 (1983), where the Supreme Court reasoned that guilt by reason of insanity established that (1) because of mental illness, (2) the defendant committed an act which constituted a criminal offense. Therefore, the Foucha Court held, it “could be properly inferred that at the time of the verdict, the defendant was still mentally ill and dangerous and hence could be committed.” 504 U.S. at 76. Under the Constitution, confinement could continue until the person regained his sanity or no longer presented a danger to himself or others. See 504 U.S. at 77-78-Jones, 463 U.S. at 368.
Foucha had regained his sanity; the basis for confining him as a defendant who was not guilty by reason of insanity no longer existed. The State perpetuated his confinement on the basis of his potentially being dangerous due to his antisocial personality. The Supreme Court concluded that Foucha’s liberty interest in being freed from indefinite confinement in a mental facility could not be defeated on that basis.
In distinguishing United States v. Salerno, 481 U.S. 739, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987), the Supreme Court emphasized the strict limitations of pretrial detention of persons who pose a danger. Foucha, 504 U.S. at 82. In this context the Court stated:
“Here, in contrast, the State asserts that because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he may be held indefinitely. This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term. It would also be only a step away from substituting confinements for dangerousness for our present system which, with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are proved beyond reasonable doubt to have violated a criminal law.” (Emphasis added.) 504 U.S. at 82-83.
The Washington Supreme Court found that Washington’s sexual predator statute conformed to the due process standard of Ad-dington and Foucha — clear and convincing proof of mental illness and dangerousness. Personal Restraint of Young, 122 Wash. 2d 1, 27, 857 P.2d 989 (1993). The requirement that commitment be predicated on dangerousness is said to be satisfied under the def inition of sexually violent predator. Wash. Rev. Code § 71.09.020(1) (1992) defines a sexually violent predator as a person “likely to engage in predatory acts of sexual violence.”
With regard to the requirement of mental illness, the court reasoned that the terms “mental abnormality,” “mental disorder,” and “mental illness” “are largely synonymous.” 122 Wash. 2d at 27 n.3. Thus, the reasoning continues, by defining a sexually violent predator as a person who suffers from a mental abnormality or personality disorder, the requirement is satisfied. At the heart of the court’s reasoning is a selective and inconsistent use of the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (3d ed. rev. 1987) (hereafter cited as DSM-III-R). On the one hand, the court reasons that because “anti-social personality disorder” is defined in the DSM-III-R, it is a mental disorder, 122 Wash. 2d at 30, and on the other hand, that “mental abnormality” is a mental disorder, notwithstanding that it is not defined as such in the DSM-III-R. Simply stated, mental illness means whatever the Washington court says it means; it is this reasoning which was the basis for the court’s conclusion that the Washington act did not conflict with Foucha.
The apparent inconsistency with Foucha’s having an antisocial personality rather than being mentally ill was at first glossed over by the Washington majority, which noted that Young suffered from an antisocial personality disorder, which “is classified as a mental disorder in the DSM-III-R.” 122 Wash. 2d at 30. In a subsequent footnote, the majority offered the following justification:
“Petitioners raise the issue that, under Foucha, it is impermissible to civilly commit someone who has an ‘antisocial personality,’ because that condition is not a mental disorder. According to petitioners, the sex predator Statute violates this holding. This argument belies a careless reading of the Foucha facts. First, the condition in Foucha was an ‘antisocial personality.’ This condition falls within the DSM-III-R section entitled “V Codes for Conditions Not Attributable to a Mental Disorder’ and is formally designated ‘antisocial behavior’; it is not a mental disorder. As such, anti-social behavior cannot form the basis for civil commitment. Foucha v. Louisiana (112 S. Ct. 1780). The sex predator Statute, however, requires proof of a ‘personality disorder as one of the alternative means of commitment. (Italics ours.) RCW 71.09.020. Unlike ‘antisocial behavior,’ an ‘antisocial personality disorder’ is a recognized mental disorder which is defined in the DSM-III-R, at 342.” Young, 122 Wash. 2d at 37 n.12.
The Washington court’s dissenters disputed this rationale. Their precept was that “the Statute . . . fails to meet the mental illness requirement.” 122 Wash. 2d at 61. Thus, “[l]ike the statute in Fou-cha, [the Washington statute] violates substantive due process because it requires only dangerousness and not mental illness as a prerequisite to commitment.” 122 Wash. 2d at 63. It was suggested in the dissenting opinion that the majority indulged in “psychiatric incantations.” 122 Wash. 2d at 65. The dissenting justices warned that “by authorizing the indefinite confinement in mental facilities of persons who are not mentally ill, the Statute threatens not only the liberty of certain sex offenders, but the liberty of us all.” 122 Wash. 2d at 60. The dissenting justices recognized the insidious effect of sanctioning the separation of the commitment of sexually violent predators from the statutoiy procedure for the commitment of the mentally ill. Once that is accomplished, the same reasoning could be applied to anyone who commits any designated offense and is labeled “mentally abnormal” or suffering from an “anti-social personality disorder.”
Foucha also was a focus for the federal district court in Young, which agreed with the dissenting Washington justices that there is no mental illness requirement in the statute. 898 F. Supp. at 749. The district court noted:
“The absence of a mental illness requirement is apparent both in the statutory language and in its legislative history. First, the legislature’s findings expressly disavow the notion that the targeted group of persons are mentally ill. As explained in Wash. Rev. Code § 71.09.010, the target group is made up of individuals ‘who do not have a mental disease or defect that renders them appropriate for the existing involuntary treatment act.’ Unlike persons with serious mental disorders, the legislature concluded, sexual predators ‘have antisocial personality features which are unamenable to existing mental illness treatment modalities,’ and for which the prognosis of cure is poor.” 898 F. Supp. at 749.
After examining the statutoiy language and legislative histoiy, the district court concluded
“that the Sexually Violent Predator Statute, allowing as it does the indefinite confinement of persons who are not mentally ill, violates the substantive protections of the Due Process Clause. Predictions of dangerousness alone are an insufficient basis to continue indefinitely the incarceration of offenders who have completed their prison terms.” 898 F. Supp. at 751.
It is clear that the overriding concern of the legislature is to continue the segregation of sexually violent offenders from the public. Treatment with the goal of reintegrating them into society is incidental, at best. The record reflects that treatment for sexually violent predators is all but nonexistent. The legislature concedes that sexually violent predators are not amenable to treatment under K.S.A. 59-2901 et seq. If there is nothing to treat under 59-2901, then there is no mental illness. In that light, the provisions of the Act for treatment appear somewhat disingenuous. The federal district court in Young observed:
“The Statute forecloses the possibility that offenders will be evaluated and treated until after they have been punished. Of course, it defies reason to suggest that the mental abnormalities or personality disorders causing violent sexual predation surface only at the termination of a prison term. Common sense suggests that such mental conditions, if they are indeed the cause of sexual violence, are present at the time the offense is committed. Setting aside the question of whether a prison term exacerbates or minimizes the mental condition of a sex offender, it plainly delays the treatment that must constitutionally accompany commitment pursuant to the Statute. The failure of the Statute to provide for examination or treatment prior to the completion of the punishment phase strongly suggests that treatment is of secondary, rather than primary, concern.” 898 F. Supp. at 753.
It is clear that the primary objective of the Act is to continue incarceration and not to provide treatment. Protecting the public is a legitimate exercise of the State’s police power. Although the Act is a well-intentioned attempt by the legislature to accomplish that objective, it cannot be done in a constitutionally impermissible manner. Having said that, we need to point out that the legislature has provided the State with other options to achieve that objective and, in addition, has the authority to increase the penalty for sex crimes committed against children.
The record indicates that Hendricks had at least three felony convictions prior to being charged in the present case. Under the Habitual Criminal Act, Hendricks’ sentence could have been tripled. Also, Hendricks could have been sentenced to the maximum rather than the minimum sentence. Additionally, the sentences could have been ordered to run consecutively rather than concurrently. The State chose not to pursue any of these options. Instead, the State opted to enter into a plea bargain with Hendricks. The State agreed to dismiss one count, to recommend the statutory minimum sentence of 5 to 20 years, and to not seek imposition of the Habitual Criminal Act.
The State now chooses to pursue the option under the Act to continue Hendricks’ incarceration. The State contends that commitment under the Act requires “a finding of mental illness and dangerousness . . . consistent with Foucha.” The only authority cited by the State is a passage from Young in which the Washington Supreme Court addresses only the element of dangerousness, never mentioning mental illness.
We find no support in the Act that a finding of mental illness is required. As noted by the federal district court in Young, there is an absence of a mental illness requirement in the language of the Washington act. K.S.A. 59-29a01 states that sexually violent predators do not have a mental illness which “renders them appropriate for involuntary treatment pursuant to the treatment act for mentally ill person defined in K.S.A. 59-2901 et seq.” The statute then contrasts sexually violent predators with “persons appropriate for civil commitment under K.S.A. 59-2901 et seq.” in that they have “antisocial personality features which are unamenable to existing mental illness treatment modalities.” By such language, the legislature recognizes that sexually violent predators are not mentally ill but, rather, have an “antisocial personality feature” or a “mental abnormality.”
Hendricks takes the position that, on the record in this case, the reasoning employed by the Washington court in upholding the constitutionality of its statute has no support. In other words, the record in this case will not support a finding that the statutory requirement of a mental abnormality or a personality disorder is equivalent to the constitutional standard of mental illness. We agree.
The State’s principal evidence concerning Hendricks’ mental state was the testimony of Charles Befort, the chief psychologist at Lamed State Security Hospital. He testified that he did not believe Hendricks was mentally ill or had a personality disorder. Dr. Befort described a person with a personality disorder as
“an individual who has a set of characteristics or traits that are enduring; that is, traits or characteristics that tend to result in their behaving in fairly standard predictable ways through most situations. Now, we all have those things, those traits and characteristics. It becomes a disorder when those traits and characteristics result in the person behaving or thinking, perhaps, or otherwise acting in such a way that it causes them trouble, causes society trouble, is considered abnormal, then it becomes a disorder.”
Dr. Befort testified that an example of a personality disorder is antisocial personality. He described persons with antisocial personalities as
“individuals who have disregard for social expectations, social values, social norms. Their behavior indicates that disrespect or unconcern about staying within acceptable boundaries of behavior. Usually these behaviors include disregard for others’ rights. They may exploit other people to those persons’ detriment. In the worst cases, of course, they turn to crime, criminal behavior. In non-criminal things, they tend to be untrustworthy. They’re egocentric, those types of things.”
He testified that pedophilia is not considered a personality disorder, but is considered a mental abnormality. As already noted, in Dr. Befort’s opinion, Hendricks does not have a personality disorder. Personality disorder is not defined in the Act.
With regard to the term “mental abnormality,” Dr. Befort said that it is a phrase used by clinicians to discuss abnormality or deviance, but that it is not a diagnosis. The term is not defined in DSM-III-R. It therefore could not be used appropriately in a formal diagnosis. “Mental abnormality” is not a psychiatric or medical term but, rather, a legal term defined in the Act. K.S.A. 59-29a02(b) provides: “ ‘Mental abnormality’ means a: congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.” Dr. Befort testified that this definition is circular in that certain behavior defines the condition which is used to predict the behavior. In a similar regard, the federal district court in Young stated that in the Washington statute’s use of “personality disorder,” “the only observed characteristic of the disorder is the predisposition to commit sex crimes.” 898 F. Supp. at 750.
We must determine if Hendricks is denied substantive due process based not on his lack of character but, rather, on the merits of his challenge. Mental illness is defined in K.S.A. 59-2902(h) as meaning any person who: “(1) [i]s suffering from a severe mental disorder to the extent that such person is in need of treatment; (2) lacks capacity to make an informed decision concerning treatment; and (3) is likely to cause harm to self or others.” Here, neither the language of the Act nor the State’s evidence supports a finding that “mental abnormality or personality disorder,” as used in 59-29a02(a), is a “mental illness” as defined in 59-2902(h). Absent such a finding, the Act does not satisfy the constitutional standard set out in Addington and Foucha. Justice White, speaking for the majority of the United States Supreme Court in Foucha, clearly stated that to indefinitely confine as dangerous one who has a personality disorder or antisocial personality but is not mentally ill is constitutionally impermissible. 504 U.S. at 78. Similarly, to indefinitely confine as dangerous one who has a mental abnormality is constitutionally impermissible.
In addition, the State’s own evidence is that Hendricks was being committed even though he does not suffer from mental illness. Hendricks is not mentally ill, and the criminal offenses for which he was imprisoned were not the result of mental illness. Therefore, as applied to Hendricks, the constitutionality of the Act depends upon a showing of dangerousness without a finding of mental illness. Clearly, the due process standard of Addington and Foucha is not met by the Act as applied to Hendricks. We conclude that the Act violates Hendricks’ substantive due process rights.
We hold that the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Having so held, we need not consider the other issues raised by Hendricks in this appeal. We note that the dissenters have chosen to consider and decide those issues, notwithstanding that they have not been addressed or decided by the majority. That part of the dissent is dicta and for that reason does not warrant a response.
The judgment of the district court is reversed.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Kenneth M. Cook, from his conviction for first-degree murder (K.S.A. 1992 Supp. 21-3401[a]) and from his “hard 40” sentence.
Cook raises five issues. Three issues deal with jury instructions and jury orientation commentary; one issue deals with whether a State witness was unavailable so that the witness’ testimony from the preliminary hearing could be used at the defendant’s trial; and the last issue deals with the sufficiency of evidence to. warrant the imposition of the hard 40 sentence.
This case revolves around the discovery of a body on September 13, 1992, in the Wakarusa River. The body was eventually identified as Charles Duty, a/k/a Donnie Ray Perkins. The facts will be set forth as necessary in discussing the issues.
I. Availability of Witness
The witness in question, David Rudell, was a key witness for the State. He was the only witness who planned to testify that the defendant committed the murder. The State did have another witness who testified that the defendant told him that he (the defendant) had committed the murder.
After the murder, Rudell left the state, ostensibly for his safety. The State had some difficulty in locating Rudell, and he was returned to Kansas for an inquisition under the material witness statute (K.S.A. 22-4203). On June 3, 1993, Rudell testified at the inquisition conducted by the district attorney. As a result of this inquisition, the defendant was charged with the first-degree murder of Charles Dufy. After testifying at -the inquisition, Rudell promised to cooperate and return for the preliminary hearing. Ru-dell appeared and testified for the State at the defendant’s preliminary hearing on October 13-14, 1993. Rudell was subjected to cross-examination by counsel for the defendant and by counsel for codefendant Beth Hebert. At this time, Rudell testified that he lived in California. .
Hebert pleaded guilty to a lesser offense, and her trial was canceled. However, Rudell had already left California and begun traveling to Kansas in order to appear at Hebert’s trial when he was informed that the trial had been canceled. Rudell requested that his travel expenses for this trip be paid. The court refused to authorize witness fees. Eventually, the district attorney’s office authorized the payment of Rudell’s travel expenses out of its own budget once Rudell proved that he had actually begun traveling to Kansas for Hebert’s trial by producing telephone records. According to Rudell’s attorney, Rudell was upset with the State due to the difficulty he had in getting his expenses reimbursed. However, the State interpreted Rudell’s attempt to appear at Hebert’s trial as an indication of Rudell’s willingness to cooperate with the State at all times. In fact, the State contends that on each and every occasion prior to the defendant’s trial, Rudell had made himself available as needed. The State kept in contact with Rudell through his attorney, Wendell Betts. Betts kept in contact with Rudell by phone on a regular basis and kept Rudell apprised of his obligations regarding the defendant’s trial. However, Betts never had a telephone number or address where Rudell could be located. Rather, Rudell always called Betts at a specific time from different locations, and Betts would convey any messages from the State to Ru-dell.
On Tuesday, February 22, 1994, a week before the defendant’s scheduled trial, Rudell called the district attorney and indicated that he could not come to Kansas1 for the defendant’s trial unless his travel expenses were paid up front. The district attorney told Rudell that it would be difficult to get the money authorized up front because Rudell only had a right to travel expenses after he had testified. The district attorney also told Rudell that she did not have the money in her budget to pay Rudell’s travel expenses as she had done when he tried to attend Hebert’s trial and that all she could do was to request the money from the court. The next day, Rudell informed his attorney, Betts, that he was financially unable to be present at the trial. As a result of this conversation, Rudell’s attorney gave the district attorney a letter on Wednesday, February 23, 1994, which indicated that if Rudell did not receive at least part of his travel money up front, then he would not be present at the defendant’s trial.
On Wednesday, February 23, 1994, the district attorney’s secretary informally contacted the administrative law judge to see if funds could be made available up front for Rudell. The judge denied the funds, and the district attorney requested a formal hearing on the matter to be held the following afternoon. The initial denial of funds was communicated to Rudell by the district attorney on Wednesday. However, the district attorney instructed Rudell to call her back on Friday and again before he left for the weekend because the money might become available. Betts also spoke to Ru-dell on Wednesday at 4:30 p.m. and reiterated that funds were not available.
The following day at the hearing, the district attorney requested an order to disburse funds to Rudell. At this hearing, the court asked the district attorney whether “as the prosecutor and officer of the court that [Rudell] is in your best judgment absolutely a material witness still to this case.” The district attorney answered affirmatively.
At the conclusion of the hearing, the court determined that Ru-dell had never been released from his material witness bond and was therefore still under the jurisdiction of the court. The court also determined that Rudell had been summoned pursuant to the material witness statute, K.S.A. 22-4203, and, as a result, had a binding obligation to appear in court for the trial of the defendant. The judge released the funds late on Thursday, February 24,1994.
At this time, the district attorney asked if she could give the check to Betts “so he can do whatever he has to to get it to the witness.” Betts told the district attorney to send the money via Western Union because Rudell could not always be located at a specific number or address. The district attorney sent the money to Rudell via Western Union. However, Rudell never picked up the money nor called his attorney or the district attorney to ask about the money. Betts attempted to reach Rudell at the numbers from which Rudell had previously called without success. Rudell has not been in contact with Betts or the district attorney’s office since Wednesday, February 23, 1994.
The defendant’s trial commenced on February 28, 1994, and Rudell was not present. The district attorney asked the district court to find Rudell unavailable as a witness and admit his preliminary hearing testimony.
The defense counsel argued that the State had not demonstrated unavailability. According to the defendant, the district attorney knew that Rudell needed funds to attend the trial but did not plan ahead to insure that these funds would be available to Rudell, as she should have done. Further, the defendant argued that the State should have compelled Rudell to provide an address. The defendant also pointed out that it would not have an opportunity to cross-examine Rudell at trial if he was declared an unavailable witness and his preliminary testimony was admitted. While the defendant did cross-examine Rudell at the preliminary hearing, the defendant contended that this cross-examination was inadequate due to information which had come to light since the preliminary hearing.
The defendant claims he did not have an opportunity to cross-examine Rudell about this new information at the preliminary hearing. For instance, when Rudell testified at the inquisition, a man named Gerald Delay had been charged with Duty’s murder. After Rudell’s inquisition testimony, the charge against Delay was dismissed and the defendant was charged with the crime. After the inquisition but before the preliminary hearing, Rudell began an affair with Delay’s attorney. Apparently the defendant was worried that Rudell could have gleaned important details about the crime from Delay’s attorney which would make Rudell’s testimony (which the defendant alleges to be false) accusing the defendant sound more credible. Thus, the defendant felt that this would be important information to bring out during the cross-examination of Rudell. The defendant points out that he would not be able to bring out this information regarding the affair if Rudell was declared an unavailable witness and his preliminary hearing testimony was read into evidence.
After hearing these arguments, the court found Rudell unavailable. Since Rudell was found to be an unavailable witness, Rudell’s preliminary hearing transcript was read into the record at the defendant’s trial. The determination by the district court that a witness is unavailable to testify will not be disturbed on appeal unless an abuse of discretion is shown. State v. Vaughn, 254 Kan. 191, 201, 865 P.2d 207 (1993); State v. Steward, 219 Kan. 256, Syl. ¶ 6, 547 P.2d 773 (1976).
K.S.A. 60-460(c)(2)(B) authorizes the hearsay use of preliminary hearing testimony in a trial of the same action if the declarant is unavailable at the trial and the adverse party had the right and opportunity for valid cross-examination at the preliminary hearing. However, K.S.A. 60-460(c)(2) does not apply in criminal actions if it denies the defendant the right to confront the witness. Here, the district court found that Rudell was unavailable and that the defendant had an opportunity to cross-examine Rudell when he testified at the preliminary hearing.
K.S.A. 60-459(g) defines unavailable witness in pertinent part as “absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.” Thus, before a witness may be declared unavailable and before the State may use the prior testimony of the absent witness, the State must show that the witness cannot be produced at trial by the exercise of due diligence and good faith. State v. Alderdice, 221 Kan. 684, 686-87, 561 P.2d 845 (1977).
We have not attempted to define the term due diligence with any preciseness. Rather, each case turns on its own particular facts and circumstances. Alderdice, 221 Kan. at 687 (quoting Steward, 219 Kan. at 264). According to the defendant, the district court should not have declared Rudell an unavailable witness because the State did not demonstrate due diligence in securing Rudell’s presence at trial. Thus, the defendant contends the trial court violated his constitutional rights to confront the witnesses against him and committed reversible error by allowing Rudell’s prior testimony to be admitted at the trial.
In making this argument, the defendant points to State v. Mitchell, 18 Kan. App. 2d 530, Syl. ¶ 3, 855 P.2d 989 (1993), in which the court held that more than the simple issuance of compulsory process must be shown to satisfy the State’s burden of due diligence for a finding of unavailability. In comparison, the defendant contends that here the State did not even issue a compulsory process on Rudell or Rudell’s attorney to compel Rudell’s presence at trial, much less go beyond this to satisfy its burden of due diligence. Further, the defendant asserts that the State did not attempt to secure Rudell’s presence pursuant to the material witness statute, K.S.A. 22-4203. Rather, the State simply relied upon a gentleman’s agreement that Rudell would appear because the district court asked him to do so.
The State rebuts this argument by pointing out that Kansas law does not require a witness to have been served a subpoena in order to be declared unavailable if the State does not know the whereabouts of the witness and the witness appears cooperative. The State does not argue that the defendant was subject to the material witness bond or any other type of process. Rather, the State contends that even without the issuance of a subpoena, it exercised due diligence under the circumstances based on the witness’ cooperative attitude.
In State v. Bey, 217 Kan. 251, 535 P.2d 881 (1975), the defendant appealed his conviction of first-degree murder. The defendant contended that a State witness was improperly found to be unavailable. Thus, the State was improperly allowed to read the witness’ preliminary hearing testimony at the trial pursuant to K.S.A. 60-460(c)(2). According to the defendant, the witness was improperly found to be unavailable because the State did not prove that it used due diligence to secure the appearance of the witness at trial, especially since the witness was not even served with a subpoena compelling his appearance at trial.
In Bey, the State presented the following evidence to demonstrate its due diligence in attempting to locate the witness: The district attorney verified with the witness that he would be available to testify at trial. The witness cooperated by providing the State with his address in Marshall, Missouri, and his phone number. The State issued a subpoena to be served on the witness one week before trial at the address which the witness provided. The subpoena was not served. Upon becoming aware that the subpoena was not served, the State tried to telephone the witness at the number which he had provided, but the line had been disconnected. At this point, the State contacted the Marshall police department and asked it to locate the witness. The police informed the State that the witness had moved to Fair Play, Missouri, in Polk County. The State obtained a phone number for the witness in Fair Play by using directory assistance but the phone was never answered. In fact, a deputy from the Polk County Sheriff’s office called and drove by the witness’ house several times but did not locate him. The deputy even left a note at the witness’ house which was apparently picked up but never responded to. Finally, the State enlisted the help of the witness’ friends, brother, and nephew to try to locate the witness, with no success. However, once the State realized that the defendant had moved to Polk County, it never issued a subpoena to the Polk County Sheriff to serve on the witness.
This court upheld the trial court’s finding that the witness was unavailable. The court found that it would have been useless for the State to issue a subpoena in Polk County when the Sheriff could not even contact the witness, let alone serve him. This court acknowledged that the State could have allowed itself more time to serve the witness. However, the court did not find that the State’s failure to plan ahead indicated a lack of due diligence. As the court pointed out, the State had no reason to anticipate difficulty in serving the witness because the witness had always given the impression that he was a willing and cooperative witness. 217 Kan. at 255.
The State contends this case is analogous to Bey. It asserts that the district attorney made a good faith effort to insure 'Rudell’s presence at the trial under the circumstances. The State had no reason to believe that Rudell would not make himself available for the trial because he had been cooperative in the past. For instance, Rudell had attended the preliminary hearing and had attempted to return for Hebert’s trial. Further, Rudell indicated he would return for the defendant’s trial.
On the other hand, the defendant contends that the State made no effort to insure Rudell’s attendance at trial. The defendant contends that even though the State knew Rudell was residing in California, it did not pressure Rudell or his attorney to provide an address or telephone number. Rather, the State simply accepted without question that Rudell did not have an address even though it had previously sent him money for his expenses through Federal Express. Further, the defendant contends that the State demonstrated its lack of good faith by not following through on the trial court’s suggestion that an arrest warrant be issued for Rudell’s arrest. According to the defendant, the State simply relied on a gentleman’s agreement that Rudell would show up for trial.
The defendant contends that a gentleman’s agreement might have been appropriate if the State was merely concerned with compelling a minor prosecution witness to appear at the trial. However, the defendant asserts that since the presence of a key material witness was at stake, the State should have taken more binding measures to insure Rudell’s presence at trial. In fact, the defendant points out that the State used legally binding measures, such as a subpoena, to compel the attendance of other, less important, witnesses at the trial, but did not use such due diligence in the case of Rudell. The defendant contends that the State could have found out where Rudell was located and could have served a subpoena on Rudell if it had desired to do so. The defendant questions why the State did not use the same measures it used to locate Rudell for the inquisition in order to locate Rudell for the trial.
The defendant also attempts to rebut the State’s argument that the State had no reason to believe a subpoena was necessary because Rudell had always been cooperative in the past. The defendant contends that Rudell did not indicate he would be cooperative. For instance, unlike the witness in Bey, Rudell refused to give the State his address. Further, according to the defendant, the State knew that Rudell was upset with the State after he had a difficult time receiving reimbursement for his expenses to attend the Hebert trial. The defendant also asserts that 3 weeks before trial, the State was aware of Rudell’s refusal to attend the defendant’s trial without money up front but that the State did not attempt to secure this money until it was too late. Moreover, Rudell had previously fled and the State was forced to discover his location and return him to Kansas for the inquisition under a material witness bond. The defendant contends that these are not signs of cooperation so as to indicate that a subpoena is not necessary.
Finally, the defendant contends that even if the State properly proved the unavailability of the witness, the State was still required to demonstrate a sufficient indicia of reliability of the witness’ prior testimony in order for the testimony to be admissible as an exception to die constitutional requirement of witness confrontation. Ohio v. Roberts, 448 U.S. 56, 65, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). The defendant questions the reliability of Rudell’s prior testimony based on the fact that Rudell began an affair with Gerald DeLay’s attorney after Rudell testified at the inquisition but before he testified at the preliminary hearing. DeLay was originally accused of this murder until Rudell testified at the inquisition and accused the defendant. The defendant points out that he did not become aware of this information regarding the affair until after the preliminary hearing. Thus, he did not have the opportunity to cross-examine the witness regarding this credibility issue at the preliminary hearing.
In support of his argument that admitting Rudell’s preliminary hearing testimony into trial violated his Sixth Amendment right to confront witnesses, the defendant cites to State v. Kirk, 211 Kan. 165, 505 P.2d 619 (1973). In Kirk, the State witness testified against the defendant in a trial which resulted in a mistrial. After the witness had testified but before the conclusion of the trial, the State had made arrangements and provided funds for the witness and his family to leave the State to protect the witness from harm which might occur due to his testimony. The State did not require a bond to insure the witness’ presence at a second trial should one be necessary. The defendant was retried, and the State sought to read the testimony of the witness from the first trial at the second trial because it could not locate the witness.
The State attempted to prove the witness was unavailable by explaining the unsuccessful efforts it took to locate the witness. For instance, the police tried to find the witness at his former Kansas address and the police asked several confidential informants if they knew where the witness could be located. Further, the State issued a subpoena to compel the witness to attend the trial 3 days before the second trial commenced. The State also requested information as to the witness’ last known address from the witness’ counsel, but the counsel refused to divulge such information based on the attorney-client privilege. The State did not demand that the attorney turn over this information, as it had a right to do. Based on these efforts, this court found that the State did not use due diligence in attempting to secure the witness’ presence at trial. In a 4-3 decision, this court held that the witness was not unavailable and that the witness’ prior testimony was improperly introduced, thereby violating the Confrontation Clause. 211 Kan. at 171.
The Kirk case is distinguishable from this case. The State here did not assist the witness in leaving the State and then try to take advantage of the witness’ absence at a later date by introducing his prior testimony without the opportunity for cross-examination. Further, Rudell’s attorney, Betts, did not know Rudell’s address and could not have provided it to the State even if the district attorney had demanded it. The fact that Betts did not have an address for Rudell appears to be an effect of Rudell’s nomadic lifestyle. Betts did have phone numbers of the locations from which Rudell had called him. Betts called these numbers in an attempt to locate Rudell, without success.
It is true that the State did not serve a subpoena on Rudell. However, unlike the Kirk case, the State had no reason to believe that a subpoena was necessary. In this case, the State had no reason to suspect that the witness did not desire to testify at the trial and that a subpoena would be necessary to compel his appearance. In fact, the opposite is true. The witness willingly appeared at the preliminary hearing and was on his way to Kansas to appear at the codefendant’s trial, even without his expenses being paid up front, when he learned the trial had pleaded out. Moreover, each time the State had contact with the witness, he always indicated that he would appear when needed and that the State could contact him through his attorney.
In State v. Mims, 222 Kan. 335, 564 P.2d 531 (1977), it was the defendant who desired to read the jury the prior testimony of a witness who was not present at trial. The trial judge did not allow the prior testimony to be introduced as evidence because it found that the witness was not unavailable. According to the court, the witness could not be declared unavailable because the defendant had not used diligence in attempting to secure the witness’ presence at trial. In attempting to locate the witness, the defendant had left messages for die witness prior to the trial stating diat he wished to have the witness testify at trial. Because the defendant was under the impression that the witness would appear, the defendant never had a subpoena served upon the witness. This court affirmed the trial court’s finding that the defendant had not exercised due diligence in attempting to locate the witness and that the witness was not unavailable. 222 Kan. at 338.
Mims is similar to the case at hand in that the State never served a subpoena on Rudell because the State was under the impression Rudell would appear. However, this case is distinguishable from Mims in that once the State became aware that Rudell might not attend the trial, the State made efforts to fulfill the condition which Rudell stated was necessary for him to attend the trial — money for travel expenses up front. Eventually the State obtained the money and sent it via Western Union to Rudell, but the State was not able to contact him. In Mims, it does not appear that the defendant made any effort to locate or compel the witness to attend the trial once he realized that the witness might not appear.
Another case which is analogous to the situation at hand is State v. Vaughn, 254 Kan. 191. Vaughn supports the State’s position that Rudell was an unavailable witness. In Vaughn, the' defendant wished to read to the jury the prior testimony of a witness because the witness did not appear at the trial. The trial court refused, finding the witness was not unavailable. This court reversed, holding that the defendant had exercised due diligence in attempting to compel the witness’ attendance at trial, with no success, and thus declared the witness unavailable. In attempting to compel the witness to attend trial, the defense counsel had talked to the witness several times on the phone, but the witness was evasive and refused to provide a current address or phone number. The counsel typically contacted the witness by leaving a message with his mother, and the witness would then call the defense counsel collect. The witness had promised the defense counsel that he would testify at the trial at issue and at an earlier, trial which resulted in a mistrial. The witness had fully cooperated at the earlier trial. Via a collect phone call on the Friday before trial, the witness promised to meet the defense counsel at her office on the Sunday before trial. The counsel planned to serve him with a subpoena at this time. The witness did not show up at the Sunday meeting. When the witness did not show up for the appointment, the counsel called his parole officer. She learned that the witness had not been reporting to his parole officer and that the officer had no current address or telephone number for the witness. The defense counsel also contacted the witness’ mother, who reported that she had not been able to locate the witness. Finally, the defense counsel tried to locate the witness through his friends, without success. The de fense counsel stated that she had every reason to expect the witness to cooperate, until the weekend before the trial.
This case is very similar to Vaughn. The State had been in contact with Rudell several times, but he had declined to provide an address or telephone number. Instead, Rudell said he could be reached through his attorney. The State would leave a message with Rudell’s attorney, and Rudell would call his attorney at certain times to receive his messages. According to the State, this system had been working well. Rudell had promised to appear at the trial and had made efforts to appear at the trial of the codefendant until it pleaded out. The State had written up a subpoena for the witness but did not serve it on him because the State felt it was not necessary. The State had every reason to expect the witness would cooperate until it discovered shortly before trial that the witness might not appear at the trial. At this point, the State made efforts to obtain travel money up front for the witness to induce him to attend trial. The State was able to obtain the money but was unsuccessful in locating the witness.
This situation is more analogous to Bey and Vaughn than it is to Kirk or Mims. Thus, the district court did not abuse its discretion by finding that the State had exercised due diligence in unsuccessfully attempting to secure the witness’ appearance at trial, thereby finding that Rudell was an unavailable witness.
Finally, the defendant’s argument that the witness’ testimony was unreliable even if the witness was unavailable is without merit. K.S.A. 60-460(c)(2)(B), the statute which authorizes the hearsay use of prior testimony if the witness is unavailable, has several requirements to insure that the defendant’s constitutional rights are not infringed upon. In this case, all of these requirements were met. Further, the problem the defendant has with the reliability of the witness’ testimony is questionable. The evidence is that Ru-dell’s affair with Gerald Delay’s attorney began after the inquisition and shortly before the preliminary hearing. When Rudell testified at the inquisition, he gave details about the crime and accused the defendant, not Delay, of murdering the victim. The defendant has no evidence that Rudell was engaged in an affair with Delay’s attorney and, thus, gleaned details about the crime from her before he testified at the inquisition. While the defendant did not have the opportunity to cross-examine Rudell at the preliminary hearing about whether his affair with Delay’s attorney influenced his preliminary hearing testimony because the defendant was not aware of the affair at the time, this alone does not make Rudell’s testimony so unreliable so as to constitute reversible error.
“In cases of necessity, it is generally held that the right of confrontation under the Sixth Amendment and Section 10 of the Kansas Bill of Rights is satisfied if the accused has once been confronted by the witness against him in any stage of the proceedings on the same accusation and has had an opportunity of cross-examination.” State v. Ruebke, 240 Kan. 493, 517, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987).
We do not find error on this issue.
II. Reasonable Doubt
During the court’s voir dire examination of the jurors, one prospective juror responded that she had previously sat on a jury in a civil case. In regard to this statement, the court began discussing the difference between the law in civil cases and the law in criminal cases. The court stated:
“In a civil case, you were probably told that you must decide the case based upon what’s more probably true than not true. In other words, in a civil case, 51 percent. If you feel 51 percent one way, that is enough to carry the verdict for that side. In other words, if the scales of justice start out equal, they tip a little bit in the civil case, they win.
“I will be instructing later that the burden of proof in a criminal case is beyond a reasonable doubt. There’s no percentage, number, or any quantifying way that I can quantify what beyond a reasonable doubt is. In other words, you must be convinced so that reasonable doubt is not in your mind about whether the — over the issues that you must decide. That doesn’t mean that the scales of justice have got to hit the table only on one side so that it’s certain, but it is more than 51 percent so that it is beyond a reasonable doubt in your mind. You understand that there is a distinction between civil and criminal cases? And we, as I say, at the end of the case it’s appropriate for the Court to instruct you on beyond a reasonable doubt.”
Later, while the court was orienting the jury on the important concepts in criminal law such as the presumption of innocence and the State’s burden of proof, the court stated:
“And, finally, . . . the burden of proof in this case is proof beyond a reasonable doubt. When you retire to evaluate this case, the test you must use is this: If you have a reasonable doubt as to the truth of the claims made by the State, you should find the defendant not guilty. If you have no reasonable doubt as to the truth of the claims made by the State, you should find the defendant guilty. And as I told you, I cannot quantify that for you any more than what I’ve just said, but it’s more than 51 percent, but it’s not required to be certain. Very few things in life are certain. So, you all feel that you can work with the concept of beyond reasonable doubt and apply it? I take it from your response that you can.”
At the close of the evidence, the court instructed the jury on the issue of reasonable doubt using language based on PIK Crim. 3d 52.02 (1995 Supp.):
“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.”
In this appeal, the defendant objects to the language which the court used at the beginning of the trial, contending that the jury was instructed it could convict the defendant if it was 52% certain the defendant committed the crime.
The State asserts that this commentary was not a jury instruction and should not be analyzed as such. The State points out that the trial court made the reasonable doubt commentary during voir dire at the earliest stages of the trial, while the jury instructions were given at the latest stage of the trial several days later. The State also contends that the reasonable doubt commentary was not a jury instruction because it did not instruct the panel on how to consider evidence. Rather, the State argues that the commentary merely drew a distinction between the different standards of proof for the benefit of the panel members who had previously been on civil juries.
However, the defendant contends that even though the reasonable doubt comments were made to jurors during voir dire, the jurors still could have interpreted these comments as instructions to follow. Further, the court’s second jury orientation comments were made immediately after the court gave the standard reasonable doubt instruction, explaining to the jury that this was the stan dard it was to use. The judge repeated this standard reasonable doubt instruction (without repeating the orientation comments) to the empaneled jury at the end of the case when all the other instructions were also read to the jury.
In State v. Gibbons, 256 Kan. 951, 964, 889 P.2d 772 (1995), the judge oriented the prospective jurors by commenting that each party would present evidence to support its claims. The defense counsel objected to the comments, contending that the court’s statement improperly shifted the burden of proof from the State to the defendant. The trial judge denied the defendant’s motion to discharge the jury panel, and this court affirmed. In affirming the district court, this court found that the rules regarding improper jury instructions did not apply to its analysis because the commentary meant to orient the jury did not qualify as a jury instruction. 256 Kan. at 964-65.
We hold the trial court’s commentary did not qualify as a jury instruction. The comments were not made under the guise of an instruction but, instead, were simply made to inform a potential jury that the burden of proof on a criminal case was different (even greater) than the burden of proof in a civil case. Thus, the question is whether the actual jury instruction regarding reasonable doubt was appropriate. The defendant did not object to the instruction when it was read to the jury at trial. Absent such an objection, this court may reverse only if the instruction was clearly erroneous. State v. Johnson, 255 Kan. 252, 257, 874 P.2d 623 (1994).
In In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), the Supreme Court stated that the Due Process Clause of the 14th Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In Victor v. Nebraska, 511 U.S. 1, 127 L. Ed. 2d 583, 591, 114 S. Ct. 1239 (1994), the Supreme Court stated that the constitutional question in reasonable doubt instructions “is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.”
In State v. Whitaker, 255 Kan. 118, Syl. ¶ 1, 872 P.2d 278 (1994), this court held:
“The pattern jury instructions for Kansas (PIK) have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. . . . However, absent such need [for modification], PIK instructions and recommendations should be followed.”
Here, the judge gave the most appropriate jury instruction on reasonable doubt which he could give — the PIK jury instruction. Neither the reasonable doubt jury instruction nor the jury orientation comments made regarding the reasonable doubt standard are clearly erroneous.
III. Accomplice Testimony
The district judge gave the following instructions to the jury upon the conclusion of the trial. In Instruction No. 10, the judge gave the general witness credibility instruction, which states: “It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.”
The district court also instructed the jury as to the accomplice testimony given in the trial under Instruction No. 11 as follows: “An accomplice witness is one who testifies that he or she was involved in the commission of the crime with which the defendant is charged. You should question the testimony of an accomplice if it is not supported by other evidence.” At the same time, the jury was instructed in Instruction No. 12: “During this trial, evidence was presented by the reading of testimony of a witness taken under oath at another time and place. It is to be weighed by the same standards as other testimony.”
Instruction No. 11 only requires the jury to view the testimony of an accomplice witness such as Rudell with caution “if it is not supported by other evidence.” The judge’s instruction differed from the PIK instruction regarding accomplice witnesses. PIK Crim. 3d 52.18 (1995 Supp.) states that the jury “should consider with caution the testimony of an accomplice.” The PIK instruction does not condition such caution on whether the witness’ testimony is supported by evidence, as the court’s instruction did. The defendant does not challenge the alteration of Instruction No., 11 from the PIK standard. Rather, the defendant contends that Instruction No. 12 was in direct conflict with the accomplice witness instruction set forth in Instruction No. 11 and that, read together, Instruction No. 12 was likely to have misled the jury to the detriment of the defendant.
David Rudell and Beth Hebert were both accomplices to the murder of Charles Duty. Rudell was the only eyewitness to the murder who identified the defendant as the killer. Rudell was not produced for trial, and his preliminary hearing transcript was read into the record. Hebert, the other accomplice, testified that Leonard Smith, not the defendant, committed the murder. Instruction No. 11, stating the jury should question the testimony of an accomplice if it was not supported by evidence, applied to the testimony of Rudell and Hebert. Instruction No. 12, stating that testimony read to the jury should be weighed the same as other testimony, only applied to Rudefl’s testimony.
According to the defendant, the standard for assessing witness credibility if the witness’ testimony was read into the record is in direct conflict with the standard for assessing the credibility of a witness accomplice. The defendant points out that the accomplice witness instruction is a diminished credibility instruction in which the jury was specifically instructed to consider with caution the testimony of an accomplice. See PIK Crim. 3d 52.18 (1995 Supp.). On the other hand, the defendant points out that Instruction No. 12 instructs the jury that testimony of a witness taken under oath at another time and place is to be weighed by the same standards as other testimony. The defendant contends that this standard refers the jury back to the general witness credibility instruction, set forth in Instruction No. 10 in this case, which instructs the jury that it is for the jury to determine the weight and credit to be given to the testimony of each witness. See PIK Crim. 3d 52.09 (1995 Supp.). Thus, the defendant contends that Instruction No. 12, which told the jury to consider Rudell’s prior testimony read into evidence as it would consider the testimony of any other witnesses, along with the general witness credibility standard (No. 10), canceled out Instruction No. 11, which told the juiy to consider Ru-dell’s accomplice testimony with caution and not to consider the testimony as it would consider the testimony of any other witness.
According to the defendant, the confusion between Instructions Nos. 10, 11, and 12 was especially prejudicial because the only accomplice witness whose testimony was properly weighed with caution under Instruction No. 11 was Beth Hebert, an accomplice who testified in favor of the defendant. Hebert testified that the defendant had nothing to do with the murder of Charles Duty. The defendant asserts that there was a substantial likelihood the jury was misled into viewing the testimony of Hebert with caution as an accomplice witness but only viewing the testimony of Rudell, who testified that the defendant was the killer, as it would view the testimony of any other witness, i.e., without caution (Nos. 10, 12). Due to the fact that the testimony of the two accomplices was given inappropriate weight and the remaining testimony was circumstantial and hearsay, the defendant contends, the confusion among Instructions 10, 11, and 12 constituted reversible error.
There was no specific objection to Instruction No. 12, which instructed the juiy to weigh the prior testimony of a witness read at trial as it would weigh testimony of any other witness. Absent a specific objection to an instruction, an appellate court may reverse only if the instructions given are clearly erroneous. State v. Johnson, 255 Kan. at 257; State v. Mason, 250 Kan. 393, Syl. ¶ 1, 827 P.2d 748 (1992). “An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict. State v. Johnson, 253 Kan. 75, Syl. ¶ 9, 853 P.2d 34 (1993).” State v. Johnson, 255 Kan. at 257.
The State contends that Instruction No. 12 only instructed the juiy on how to weigh the testimony of a witness which was taken at another time and place. Thus, Instruction No. 12 simply instructed the jury to weigh Rudell’s testimony by the same standard that it would weigh the testimony of any other witness who testified at this time and place. Even though it was not clarified in Instruction No. 12, the State contends that the jury was well aware of the fact Rudell was an accomplice witness. Thus, the juiy must have realized that it should weigh Rudell’s testimony by the same standards as it would weigh the testimony of any other accomplice witness who testified at trial at this time and place — with caution if not supported by other evidence (No. 11). The jury was well aware that Rudell was an accomplice witness because throughout trial he was consistently presented to the juiy as an accomplice. Further, both the State and defense emphasized in closing arguments that Rudell was an accomplice.
When reviewing challenges to jury instructions, 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 even though they may be in some small way erroneous. State v. Johnson, 255 Kan. at 257 (citing State v. Whitaker, 255 Kan. 118, Syl. ¶ 3). Thus, the State contends that Instruction No. 12 is not clearly erroneous.
PIK Crim. 3d 52.12 Notes on Use recommend that an instruction similar to Instruction No. 12 be given before any recorded testimony is read. This court has also stated that the use of PIK instructions is strongly recommended. State v. Dunn, 249 Kan. 488, 492, 820 P.2d 412 (1991). Thus, the trial court did not commit reversible error in giving Instruction No. 12. It is true that the trial court could have altered Instruction No. 12 to clarify that the juiy should weigh Rudell’s testimony as it would weigh any other accomplice testimony presented at trial, not as it would weigh any other general testimony. See 249 Kan. at 492. However, the absence of such alteration in the jury instruction does not create reversible error. When Instruction No. 12 is viewed in light of Instruction No. 11, it is clear that Rudell’s testimony should be viewed with caution as an accomplice witness. There is nothing which indicates that the jury was misled by Instruction No. 12. It appears that the jury read the instructions in light of each other and simply chose to give more credence to Rudell’s testimony than to the testimony of Hebert.
IV. Readback
During voir dire,, the defense counsel told the jury that given the expected length of the trial, the jury was not expected to remember each and every'piece of information. The defense counsel also told the jurors that if they could not recall certain testimony or were in disagreement about certain testimony during deliberations, they had “a right to send a note out and ask for a clarification or a read-back to clear up that particular concern.” The defense counsel told the jury that he points this out in every criminal case because he is surprised at the number of jurors who have told him that they felt stupid for not remembering the testimony and that they did not ask for a readback because they did not want to hold up the judge. The State and the judge allowed the defense counsel to make these comments without objection.
However, just before opening statements, the trial court submitted a “preliminary instruction.” The court read the instruction to the jury as a response to the defense counsel’s comment during voir dire regarding the jury’s right to a readback of testimony. In a conversation with counsel outside the jury’s presence, the court stated that it was giving the instruction because it did not “want this jury being invited to request read backs.” The court said that the matter of whether a readback is provided is within the discretion of the court. The defense counsel objected, claiming that the jurors are entitled to a readback, and the court responded, “That is not the law, Mr. Johnson.” The defense counsel protested further, contending that the instruction “may very well preclude the jury from legitimately making inquiry about something that they don’t have recall.” The defense counsel argued that if the instruction was given, it would “impose upon the jury an understanding that maybe they should not be allowed to have a read back.” The court said that its intent in giving the instruction was to emphasize to the jury that it is to pay careful attention to the testimony at trial and that a readback is a collateral proceeding which may occur only if the court decides it is appropriate. Consequently, the juiy was instructed by the court as follows:
“Counsel has mentioned that it is possible to have a read-back of a witness’s testimony made by the court reporter. I do not want the jury to misunderstand court procedures, so this is to clarify this situation for you.
.. It is not always permitted. It is my preference that the jurors give careful attention to the testimony of each witness while they are testifying so their statements may be recalled during deliberations.
“To have a read-back, it is necessary for the court reporter to locate the requested testimony from her notes, then the lawyers, the defendant and the Court must be assembled to agree regarding what will be read-back to the jury. The jury is then brought back into the courtroom for the reporter to read the questions and the answers. The read-back, once commenced, will take about as long as the original testimony.
“If there is a specific question in relation to what a particular witness said, the testimony can be re-read to you. However, if the jury’s disagreement is over the meaning of the witness’s testimony or its significance, a read-back will usually not resolve that disagreement.”
After reading the instruction to the jury, the court told the jury that it “was concerned that [the jury] would be relying on a read back at some point in time” and the court did not want the jury “to try the case twice.” The jury did not make a request for a readback of any testimony during their deliberations.
While these comments were made to the jury before opening statements occurred, the trial judge referred to the comments as a “preliminary instruction.” Since these comments were considered jury instructions and not considered mere jury orientation comments, they will be analyzed under the jury instruction case law.
When the court asked either counsel if they had any objection to the preliminary instruction, the defense counsel responded, “Your Honor, we would simply object from the standpoint it appears to diminish the fact that the jurors are entitled to a readback, I think.” After discussing the language of the instruction with the judge, the defense counsel eventually stated in regard to the instruction, “I’ve got no problem with that. . . . Then, that’s fine.” Based on this language, the State contends that the defendant did not specifically object to the court’s instruction but in fact participated in selecting the specific language to be used, thereby waiving his right to appeal this issue. However, the defendant correctly points out that even if he did not specifically and properly object to the instruction, the instruction may still constitute reversible error if it is clearly erroneous. State v. Johnson, 255 Kan. at 257.
The State contends that the instruction merely reaffirmed and clarified the defense counsel’s statements which were made during voir dire. For instance, the trial court specifically instructed the jury that “testimony can be re-read to you” if the jury has a “specific question in relation to what a particular witness said.” All the trial court did was explain to the jury that a readback could be a time-consuming procedure and stressed to the jurors that they should pay careful attention to the testimony , of each witness as it was given.
The defendant points out that the court also told the jurors that they were not entitled to a readback and that the decision to have a readback was within the court’s discretion. The defendant contends that this is an incorrect statement of the law.
In making this argument, the defendant cites to State v. Myers, 255 Kan. 3, 8, 872 P.2d 236 (1994). In Myers, the juiy requested a readback of certain testimony and the district court denied the request. Upon appeal, this court found that this denial constituted reversible error. 255 Kan. at 9. The discussion in Myers centered on the interpretation of K.S.A. 22-3420(3), which states:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
The Myers court pointed out that K.S.A. 22-3420(3) requires a trial court to read back testimony to the jury when a juiy so requests. Although the manner in which the court complies with the juiy request is a matter of discretion, the trial court does not have discretion to deny a jury’s request for a readback of testimony. 255 Kan. at 6 (citing State v. Redford, 242 Kan. 658, 667-68, 750 P.2d 1013 [1988]).
Thus, the defendant contends that the district court was incorrect when it instructed the jury that “[w]hether or not a read-back of testimony will be allowed after the jury has retired to deliberate, is a matter within the discretion of the judge. It is not always per mitted.” The. defendant argues that this constitutes reversible error, as the jury instruction contained an incorrect statement of law.
The State argues that Myers is distinguishable from this case. In Myers, the judge flatly denied the jury’s request for a readback. In this case, the court did not deny a readback request, it simply explained that while a readback was permissible, it was complicated and not encouraged.
A trial court has discretion in giving instructions to the jury. On appeal, the instructions should be approved if, after being considered in their entirety, they properly and fairly state the law as applied to the facts. Johnson, 255 Kan. at 256 (citing State v. Hamons, 248 Kan. 51, Syl. ¶ 5, 805 P.2d 6 [1991]). 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. Johnson, 255 Kan. at 257 (citing State v. Whitaker, 255 Kan. 113, Syl. ¶ 3).
Here, the trial judge misstated the law in this jury instruction. If a jury requests a readback, whether such readback will be allowed is not within the discretion of the judge, as the trial court instructed. However, read in its entirety, the jury was not misled by the instruction. Later in the instruction, the court stated that “[i]f there is a specific question in relation to what a particular witness said, the testimony can be re-read to you.” As such, the juiy was informed that readbacks are allowed but that the manner in which readbacks are allowed is within the trial court’s discretiori so that the case is not tried twice. Thus, if the jury had desired a readback, the instruction did not mislead the jury into believing that readbacks are not allowed and that it should not request one. The instruction does not constitute reversible error.
The defendant contends that the instruction was not only clearly erroneous because it misstated the law, but was also erroneous in that it had a chilling effect on the jury to request a readback. According to the defendant, these comments sent the jury a message that readbacks are undesirable and unfeasible and should not be requested. The defendant contends that the trial court adversely interfered with the jury process by chilling any jury desire to re quest a readback, thereby denying the jury, in advance, information to which it was entitled. In making this argument, the defendant quotes Myers, 255 Kan. at 6:
“ ‘There are obviously points in the testimony of the witnesses which lean to the side of the prosecution and points at which that testimony could be construed as being beneficial to the defense. The value of this testimony was for the jury alone to judge. By denying the jury information to which it was entitled, the jury process was adversely affected. A keystone of criminal procedure in this country is the jury process, which is used to adjudicate guilt or innocence. Anything which adversely affects this process cannot possibly be beneficial. At this point, no one can say why the jury wanted the information or what it would have decided if it had gotten it. The jury process is too central to our system of criminal justice to permit it to be manipulated or compromised in any way.’ ”
Tbe defendant concedes that it is impossible to know whether the jury would have requested a readback in the absence of the instruction or whether such readback would have caused the jury to return a different verdict. However, the defendant contends that the instruction may have prevented the jury from requesting a readback which it may have desired, thereby constituting reversible error.
We do not believe the instruction was so strong as to prevent the jury from requesting a readback under the assumption that it would be denied even though it desired one. Instead, the instruction encouraged the jury to listen to the evidence as it was presented. The judge did not want the jury to ignore the evidence presented during the trial with the expectation that it could evaluate the evidence at a later time during a readback. The judge also specifically clarified that testimony could be read back to the jury when it would be helpful. “An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred, there was a real possibility that the jmy would have returned a different verdict.” Johnson, 253 Kan. 75, Syl. ¶ 9. This possibility did not exist here. The instruction was not clearly erroneous and does not constitute reversible error.
V. Heinous, Atrocious, or Cruel Manner
The defendant contends that the evidence is insufficient as a matter of law to prove the murder was committed in a particularly heinous, atrocious, or cruel manner.
The following are additional facts which are necessary to analyze this issue: Rudell testified that the defendant shot Charles Duty while he was in bed. Rudell said that he saw Duty “lying in the bedroom about half in and half out of bed.” Rudell observed that Duty’s feet were tangled in the bed sheet and that “his head and shoulders [were] up over the bed.” Rudell testified that when he saw Duty’s body in this position, it was twitching.
The coroner testified that Duty had been shot once in the chest and once in the back. The coroner also testified that Duty died as a result of hemorrhaging from the bullet wound that entered the front of his chest. Further, the coroner stated that the victim’s teeth had been removed and the victim’s tattoos had been cut out after the victim was already dead.
K.S.A. 1992 Supp. 21-4628 permits the State to seek a sentence of imprisonment for life without the possibility of parole for 40 years if the defendant is convicted of first-degree premeditated murder. K.S.A. 1992 Supp. 21-4624(5) states that if a jury by unanimous vote finds that one or more aggravating circumstances exist beyond a reasonable doubt and the aggravating circumstances are not outweighed by any mitigating circumstances, then the defendant shall be sentenced to the hard 40 sentence.
Upon the defendant’s conviction, the State requested that the jury recommend a hard 40 sentence based on two aggravating factors — one, that the defendant knowingly and purposefully killed the victim in a particularly heinous, atrocious, or cruel manner (based on K.S.A. 1992 Supp. 21-4625[6]) and two, that the defendant committed the crime in order to avoid lawful arrest or prosecution (based on K.S.A. 1992 Supp. 21-4625[5]).
In regard to the first aggravating circumstance, the jury was instructed as to the definition of heinous, atrocious, and cruel:
“(a) The term ‘heinous’ means extremely wicked or shockingly evil;
“(b) The term ‘atrocious’ means outrageously wicked and vile;
“(c) The term ‘cruel’ means pitiless or designed to inflict a high degree of pain, utter indifference to, or the enjoyment of the sufferings of others.
“A crime is committed in an especially heinous, atrocious, or cruel manner when the perpetrator inflicts serious mental anguish or serious physical abuse before the victim’s death. Mental anguish includes a victim’s uncertainty as to his ultimate fate.”
Further, the State attempted to persuade the jury in closing argument at the sentencing phase that the defendant killed the victim in a heinous, atrocious, or cruel manner. The State told the jury:
“I want you to think about the time it takes for a person to die after they’ve been shot twice; once in the chest and once in the back. I want you to think about what they’re thinking during that period of time, as short as it may be, before they lose consciousness and then eventually die from loss of blood due to those wounds.
“What’s going through their mind at that point in time? First, they see the gun barrel pointed at them. Then they hear the sound of the gun going off, the cloud of blue smoke, and the pain almost instantaneously that’s associated with that bullet entering their skin, going through their organs, causing the blood loss in this case. In that fleeting moment are they wondering, ‘Is this it? Am I going to die at this point in time?’ And then it’s not even over, because that’s only the first bullet shot, and you’ve got one more bullet shot to go. Now, I want you to think about that.”
In an apparent attempt to persuade the jury that the second aggravating circumstance, avoiding lawful arrest or prosecution, also existed, the State told the jury that it should “consider what happened to Charles Duty after he was killed in this case.” In regard to the mutilation of Duty’s body after he was dead, the State said:
“One of the aggravating circumstances the State has alleged is that the defendant committed this crime in order to avoid a lawful arrest or prosecution. As bad as it seems, it’s horrible to kill somebody, but it did not stop there in this case.
“In order to prevent that arrest or prosecution, a decision was made that the identity of Charles Duty had to be destroyed. And in order to do that, they had to remove the tattoos. And I use the word ‘they.’ The defendant in this case. And in order to remove the tattoos, you don’t walk up to Charles Duty’s arm and take your finger and pull off the skin. It doesn’t happen that way.
“An instrument, a sharp instrument, fairly sharp instrument according to Doctor Scamman, was used, and that instrument, you have to grab the skin, and you have to cut, and you have to basically saw back and forth, back and forth, back and forth. And that’s only one cut. You saw the size of the tattoo, the size of the skin that was removed. That’s got to go all the way around the skin cutting through a muscle, cutting through skin, whatever else is in there to remove that section of the identifying mark of Charles Duty.
“And then, again, you’re not even done because that’s only one arm. You’ve got to go to the other arm, to avoid the arrest and prosecution, you’ve got to remove the other tattoo, too. And you’ve got to saw through the skin and the muscle once again, over and over, to remove it.
“And then you’re not even done at that point in time, because you’ve got to remove the teeth. The teeth that have to be removed. Ladies and gentlemen, when you — you don’t simply take your finger like you’re unscrewing a light bulb and pull out the teeth. We know that. You’ve got to have an instrument, a pair of pliers perhaps, something with a grip on them, and then you’ve got to take them in there and ratch it back and forth, back and forward, pulling and racheting until that tooth comes out, and then you’ve got to do it to each and every other tooth that’s in the upper jaw and the lower jaw simply to prevent an identification. And in order if you prevent that identification, you prevent this lawful arrest and prosecution.”
The jury found unanimously that the first aggravating circumstance existed beyond a reasonable doubt — that the defendant knowingly and purposefully killed the victim in a particularly heinous, atrocious, or cruel manner. The jury did not find that the second aggravating circumstance existed — that the defendant committed the crime in order to avoid lawful arrest and prosecution. The jury found that the existence of one aggravating circumstance was not outweighed by any mitigating circumstances; thus, the jury recommended a hard 40 sentence.
At the sentencing, the State asked the judge to follow the jury’s recommendation and impose a hard 40 sentence. In response to this request, the court asked the State to articulate the evidence which it believed supported the jury’s finding that the crime was committed in a particularly heinous, atrocious, or cruel manner. The State contended that the removal of the victim’s teeth and tattoos after his death supported this aggravating circumstance. Further, the State argued that the defendant’s motive, opportunity, and intent behind the crime supported this aggravating circumstance that the defendant killed the. victim in a particularly heinous, atrocious, or cruel manner. The State points out that the victim was an AIDS patient who sold his prescription drugs. Further, part of the defendant’s motive behind this crime was that his common-law wife, Hebert, had stolen some of the victim’s drugs and the defendant was worried about a confrontation with the victim. The State also contends that the fact the victim was killed while he was in bed with no chance to defend himself supports this aggravating circumstance. Further, the victim was shot twice, with some degree of suffering before he died.
The judge accepted the jury’s recommendation and sentenced the defendant to prison for life without the possibility of parole for 40 years. In so doing, the judge made the following comments:
“This case, as I see it, presents a rather close question of law. It does turn on the issue of heinous. The Court has reviewed the case of State versus Kings-ley, ... [and] the case says clearly that the subsequent abuse of a body does not — would not constitute the manner in which the murder was committed and, therefore, does not support aggravated circumstances such as . . . heinous, atrocious and a cruel manner, which the jury found. The Court, in that case, also quoted from the Nebraska case which, of course, they have capital punishment, but the Nebraska Court there stated that, to have an aggravating circumstance, it must be something moré than the inherent nature of killing itself.
“The language in that case concerns me-greatly in this case because the period of time that’s involved is rather short. The cases that have gone up in Kansas so far have been situations where people were abused and injured over a period of time and eventually killed.
“On the other hand, I have a jury finding before me that if I were to set it aside, I have to find that there’s no evidence to support that finding. And that standard of review is also hard. The jury heard all of the evidence. I believe they were properly instructed in the case. And they found that aggravating circumstances of — that the murder was especially heinous, atrocious and cruel.
“I think that there is evidence that Mr. Duty was killed without warning or provocation, he was an unsuspecting guest in the home while Mr. Cook was in the process of moving. He may or may not have been asleep. We don’t know. That would support a finding of heinous and atrocious. Cruel because of the manner in which it was done, again, without provocation, shows another indifference to human life. If I were to go on a sentence of eligibility for parole in 15 years, the Supreme Court, I don’t believe, could reverse me and give the hard 40. On the other hand, if I give the hard 40 and they conclude that there is evidence to support, they can — or that the evidence is not there to support the hard 40, they can reduce that. . . . [I]t’s my conclusion that in this case, and because it is a new statute and a new area of law, I’m going to go with the conservative, what I believe to be the conservative view and impose the hard 40. If the Supreme Court feels that the evidence is not there, then, they may modify the sentence and reduce it down. As I say, they could not do the converse if I went with less.”
K.S.A. 1992 Supp. 21-4627 states:
“(1) A judgment of conviction resulting in a mandatory term of imprisonment pursuant to [murder in the first degree] shall be subject to automatic review by and appeal to the supreme court of Kansas ....
“(3) With regard to the sentence, the court shall determine:
(b) Whether the evidence supports the findings that an aggravating circumstance . . . existed . . . .”
‘When the sufficiency of the evidence is challenged for establishing the existence of an aggravating circumstance in a hard 40 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the fight most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt.” State v. Alford, 257 Kan. 830, Syl. ¶ 3, 896 P.2d 1059 (1995).
The defendant appeals the hard 40 sentence, contending that the evidence is insufficient as a matter of law to support the jury’s finding that the crime was committed in a particularly heinous, atrocious, or cruel manner.
Post-death Mutilation
In State v. Kingsley, 252 Kan. 761, 851 P.2d 370 (1993), the defendant was convicted of murder, and the jury recommended the hard 40 sentence based on the finding that the defendant committed the crime in an especially heinous, atrocious, or cruel manner. K.S.A. 1992 Supp. 21-4625(6). The defendant argued that any mutilation which occurred after the victim was dead should not be relevant in determining whether the aggravating circumstance existed, and this court agreed. In so finding, the court stated: “The murder is complete with the death of the victim. Subsequent abuse of the body would not constitute the manner in which the murder was committed. Thus, the jury was correctly instructed that the torture or serious physical abuse of the victim must precede death.” 252 Kan. at 792.
In State v. Willis, 254 Kan. 119, 130, 864 P.2d 1198 (1993), .this court specifically approved of certain sentencing instructions which are to be used when the jury is determining if the crime was committed in an especially heinous, atrocious, or cruel manner under 21-4625(6). These instructions were used in this case and state in part: “A crime is committed in an especially heinous, atrocious, or cruel manner when the perpetrator inflicts serious mental anguish or serious physical abuse before the victim’s death.” (Emphasis added.)
Finally, while the defendant does not cite State v. Reed, 256 Kan. 547, 886 P.2d 854 (1994), it is also relevant to this issue. In Reed, the court reversed the jury’s finding that the defendant committed the murder he was convicted of in an especially heinous, atrocious, or cruel manner due to insufficient evidence. This court found that even if the evidence was viewed in the light most favorable to the State, the evidence failed to establish that the victim was stabbed and decapitated while she was still alive. 256 Kan. at 562-63.
The defendant contends that it is undisputed the teeth and tattoos were not removed from victim’s body until after the victim was dead. According to defendant, it is clear from the above cases that post-death mutilation is not relevant to the determination of whether the crime was committed in an especially heinous, atrocious, or cruel manner. The defendant contends that the jury incorrectly relied on this mutilation evidence in finding that the aggravating circumstance existed due to the State’s emphasis on the evidence in its closing argument. The State does not address this issue in its brief, but conceded at oral argument that post-death mutilation could not be used to determine whether the crime was determined in especially heinous, atrocious, or cruel manner.
The law is clear that this aggravating circumstance only exists if the defendant behaved in a heinous, atrocious, or cruel manner during the commission of the crime while the victim was still alive. Evidence of post-death mutilation is insufficient to support a finding of this aggravating circumstance.
Gunshot
The general rule in Kansas is that “deaths caused by shooting do not result in a finding that the manner in which they were conducted was heinous, atrocious, or cruel.” State v. Alford, 257 Kan. at 838 (citing Malone, The Kansas “Hard-Forty” Law, 32 Washburn L.J. 147, 156 [1993]). However, there are a few exceptions to this rule in which the defendant shot the victim and was still found to have committed the crime in a particularly heinous, atrocious, or cruel manner. For. instance, in Alford, this court found there was sufficient evidence to conclude that defendant committed murder in a particularly heinous, atrocious, or cruel manner even though he killed the victim by shooting her with a gun. 257 Kan. at 838. This finding was based on the following facts:
“[T]he defendant entered the kitchen waving his gun. He chased Jackson into the lobby of the restaurant and shot her twice. He then forced Jackson back into the kitchen and when she attempted to flee, shot her again. Finally, as she was barely moving yét still trying to escape, he dragged her around the comer of the kitchen, all the while attempting to fire'the gun which had jammed. After a long series of clicks from the jammed gun, he administered the final two bullets.” 257 Kan. at 838.
The defendant points out that Alford is an exception to the general rule that shooting deaths are not typically committed in a heinous, atrocious, or cruel manner. See State v. Willis, 254 Kan. at 129 (“The hard 40 sentence should be reserved for special cases .... Otherwise, the legislature would have mandated the hard 40 sentence in all first-degree murder cases.”).
The defendant attempts to distinguish Alford from this case by contending that there must be additional egregious conduct, above and beyond the shooting itself, for a homicide shooting to be conducted in a heinous, atrocious, or cruel manner. Annot., 63 A.L.R.4th 478. The defendant contends that the killing in Alford was preceded by substantial physical abuse and torture, while the crime in this case involved nothing out of the ordinary in terms of a shooting death to support a finding that it was committed in a particularly heinous, atrocious, or cruel manner. The defendant asserts that the victim was shot twice in rapid succession and died from a gunshot wound to the chest.
The State points out that the defendant shot the victim twice, once in the chest and once in the back, while the victim was in bed as a defenseless AIDS patient. Further, the coroner testified that Duty died as a result of hemorrhaging from the bullet wound that entered his chest. According to the State, the juiy could have reasonably inferred that death by hemorrhagé is not instantaneous. Further, the jury could surmise that Duty had time to experience pain and suffering before he bled to death based on the fact that Duty was shot more than once, his legs were tangled in the bed sheet, his head and shoulders were raised above the bed, and he was twitching. In fact, the State contends that based on the two gunshot wounds, the victim was either facing the defendant and turned away to prevent being shot again or was shot in the back and turned to see who shot him. According to the State, this pain, suffering, fear, and knowledge of impending death experienced by the victim before he bled to death was similar to the type of torture which the victim in Alford experienced before her own. death. The State concedes that the victim’s “torture” in this case did not last as long as the victim’s torture in Alford. However, the State contends that this difference is irrelevant because any form of torture can be seen as heinous, atrocious, or cruel. Thus, the State asserts that the evidence indicates the defendant engaged in conduct above and beyond the mere shooting itself and that such evidence is sufficient to permit a rational factfinder to conclude that the crime was committed in a particularly heinous, atrocious, or cruel manner beyond a reasonable doubt.
All murders are heinous, atrocious, and cruel. The legislature, by using the phrase “in a particularly heinous, atrocious, or cruel manner,” meant that the heinous, atrocious, or cruel manner must be in a special or unusual degree, to an extent greater than in other cases. Even when this evidence is viewed in the light most favorable to the prosecution, a rational factfinder could not find that the shooting was committed in a special or unusual degree or to an extent greater than in other cases so as to support the existence of the aggravating circumstance that this crime was committed in a particularly heinous, atrocious, or cruel manner beyond a reasonable doubt. Most of the State’s arguments regarding “torture” experienced by the victim in this case are based on conjecture or speculation. Since the jury did not find any other aggravating circumstance, the defendant’s hard 40 sentence is set aside, and the case is remanded to the trial court for resentencing,
Conviction affirmed, sentence vacated, and case remanded for resentencing.
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The opinion of the court was delivered by
Larson, J.:
The State of Kansas appeals the dismissal of a complaint seeking adjudication of C.M.J. as a juvenile offender based on his possession of a loaded semi-automatic pistol in the parking lot at Shawnee Mission Northwest High School, in violation of K.S.A. 21-4204a.
The trial court ruled C.M.J. could not be adjudicated a juvenile offender based on the same conduct that caused his expulsion from a public high school, without violating constitutional double jeopardy protections.
The State appealed. We have jurisdiction under K.S.A. 22-3602(b)(1). We hold the trial court’s ruling was erroneous and remand for further action pursuant to the Kansas Juvenile Offenders Code.
Factual Background
On April 28,1995, police and school officials, acting on an anonymous tip, conducted a facially consensual search of C.M.J.’s truck in the parking lot of Shawnee Mission Northwest High School, where C.M.J. was enrolled as a 10th grade student. The search revealed a loaded semi-automatic pistol with a barrel less than 12 inches long. As a result of this discovery, disciplinary proceedings against C.M.J. were begun by the school, and a separate juvenile proceeding commenced.
C.M.J. was immediately suspended from school for 5 days and a hearing was scheduled for May 1,1995, to consider his expulsion. At that hearing, the suspension/expulsion committee found C.M.J.’s possession of a gun on school property violated school district policy and warranted expulsion for the remainder of the current semester (spring 1995) and the entire following semester (fall 1995). The committee’s determination was appealed to the school board, which affirmed die expulsion.
The complaint in the juvenile proceeding was filed May 19, 1995, and sought to have C.M.J. adjudicated a juvenile offender for violating K.S.A. 21-4204a. C.M.J. argued that adjudicating him a juvenile offender based on the same conduct which resulted in his expulsion from school would constitute multiple punishment for the same offense, contrary to constitutional double jeopardy protections.
Harlan Hess, associate principal of Shawnee Mission Northwest, testified concerning C.M.J.’s expulsion. Hess stated his duties included disciplinary matters at the school. He testified that because possession of a gun on school property was a violation of school policy, C.M.J. was initially suspended for 5 days and a longer term of expulsion was recommended. Although Hess was unsure of the technical difference between remedial and punitive sanctions (he appeared to view remedial as synonymous with rehabilitation), he opined that both short-term suspension and expulsion were punitive in nature. According to Hess, expulsion helps maintain order by illustrating that violations of school policies bring consequences, and thus acts as a deterrent. Hess agreed that the school's duty is to promote a safe environment for teachers, administrators, and students, and stated that expelling students for conduct which threatens others promotes school safety.
Scope of Review
There is no dispute as to the underlying facts regarding C.M.J.’s expulsion and the subsequent attempt by the State to adjudicate him a juvenile offender. Where the facts are uncontroverted, a trial court decision that double jeopardy applies is subject to de novo review on appeal. State v. Mertz, 258 Kan. 745, Syl. ¶ 1, 907 P.2d 847 (1995).
Arguments
The protection against double jeopardy has its source in both the United States and Kansas Constitutions:
“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).” Mertz, 258 Kan. at 749.
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.
C.M.J. contends that prosecuting him as a juvenile for the crime of possessing a firearm subjects him to multiple punishments for the same offense because he has already been expelled from school. In making this argument he relies on United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), in which the United States Supreme Court found that in rare instances a civil sanction may qualify as punishment for double jeopardy purposes. We noted the rule developed in Halper when we held: “A civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.” Mertz, 258 Kan. 745, Syl. ¶ 4.
Although associate principal Hess classified C.M.J.’s expulsion as punishment, that testimony is not determinative. “[L]abels do not control in a double jeopardy inquiry.” Montana Dept. of Rev. v. Rurth Ranch, 511 U.S. 767, 779, 128 L. Ed. 2d 767, 114 S. Ct. 1937 (1994). Whether a given civil sanction is punishment for double jeopardy purposes is a question for the court, not for the authority imposing the sanction. In Mertz, relying on Halper, we outlined the test to be applied:
“The determination of whether a given civil sanction constitutes punishment for double jeopardy purposes requires a particularized assessment of the penalty which the sanction may fairly be said to serve.” 258 Kan. 745, Syl. ¶ 4.
“In determining if a civil proceeding has a retributive, deterrent, or remedial purpose, a court must use common sense. The court makes this determination from the objective viewpoint and not from the viewpoint of the defendant.” 258 Kan 745, Syl. ¶ 6.
Although we said in Mertz, 258 Kan. 745, Syl. ¶ 5, 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,” nevertheless, a civil sanction will rarely qualify as punishment for double jeopardy purposes. We recognized this in Mertz when we said:
“The rules announced in United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S.Ct. 1892 (1989), concerning the issue of whether a civil sanction constitutes punishment so as to prohibit a criminal prosecution for the same offense are rules for the rare case.” 258 Kan. 745, Syl. ¶ 7.
The Tenth Circuit Court of Appeals explained this issue in U.S. v. Bizzell, 921 F.2d 263, 266 (10th Cir. 1990):
“In Halper, the Court clarified the application of civil remedies to the Double Jeopardy Clause, stating a civil remedy enacted by the government does not rise to die level of proscribed ‘punishment’ unless ‘in a particular case a civil penalty . . . may be so extreme and so divorced from the Government’s damages and expenses as to constitute punishment.’ Halper, 109 S. Ct. at 1898.”
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, 511 U.S. at 779, 784. 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, 511 U.S. at 780. 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. at 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 780, 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).
There is no evidence in this case that expulsion is imposed only after a student has committed an act which is also a crime. In fact, the expulsion in this case was not based on the commission of a crime, but on the violation of a district policy. Furthermore, there is no evidence that the sanction is disproportionate to the school board’s important nonpunitive purposes.
As noted above, it is the disproportionality of the civil sanction to the government’s noncriminal interest which may ultimately render the sanction punishment for double jeopardy purposes. Therefore, any analysis of whether a given sanction is “punishment” must begin with the purpose the sanction is to serve, and continue by comparing the sanction actually imposed to that purpose.
K.S.A. 1995 Supp. 72-8901, which authorizes the expulsion of students, provides:
“The board of education of any school district may suspend or expel, or by regulation authorize any certified employees to suspend or expel, any pupil or student guilty of any of the following:
“(a) Willful violation of any published regulation for student conduct adopted or approved by the board of education;
“(b) conduct which substantially disrupts, impedes, or interferes with the operation of any public school;
“(c) conduct which endangers the safety of others or which substantially impinges upon or invades the rights of others at school, on school property, or at a school supervised activity;
“(d) conduct which, if the pupil is an adult, constitutes the commission of a felony or, if the pupil is a juvenile, would constitute the commission of a felony if committed by an adult;
“(e) conduct at school, on school property, or at a school supervised activity which, if the pupil is an adult, constitutes the commission of a misdemeanor or, if the pupil is a juvenile, would constitute the commission of a misdemeanor if committed by an adult; or
“(f) disobedience of an order of a teacher, peace officer, school security officer or other school authority when such disobedience can reasonably be anticipated to result in disorder, disruption or interference with the operation of any public school or substantial and material impingement upon or invasion of the rights of others.”
The State has important nonpunitive purposes served by administrative expulsion. School administrators have broad authority and responsibility to control the educational setting. The authority is so broad that restrictions for the purpose of maintaining discipline and promoting an environment conducive to education may be permitted in a public school which would not be permitted in other contexts. Blaine v. Board of Education, 210 Kan. 560, 570-71, 502 P.2d 693 (1972); see Haverkamp v. Unified School Dist. No. 380, 689 F. Supp. 1055, 1059 (D. Kan. 1986).
We have explained the vital remedial role expulsion may serve in maintaining institutional order within a public school:
“Boards of education are given an important role in the training and education of our children. The high school education mission requires that hundreds of immature, volatile and aggressive adolescents be brought together in confined quarters. Most of these youth are seeking their own identity as well as an education. If a suitable atmosphere for instruction, study and concentration is to be provided, the students and the teachers must be subjected to a wide variety of disciplinary rules. For many adolescents learning is a discipline rather than a pleasure and it must be carried on in dignified and orderly surroundings if it is to be practiced satisfactorily. Obedience to duly constituted authority and respect for those in authority should be instilled in young people.” Blaine, 210 Kan. at 570.
The school administration also has a compelling interest in assuring safety in school facilities. Public school attendance in Kansas is mandatory. K.S.A. 72-1111. One prerequisite to empowering the State to enforce such a compulsion is that attendance must not expose the students “to daily dangers to life and limb so obvious and so great that in the exercise of reasonable prudence their parents should not permit them to incur the hazard.” Williams v. Parsons, 79 Kan. 202, Syl. ¶ 1, 99 Pac. 216 (1908).
“The responsibility for maintaining proper standards for learning and discipline, and for creating a wholesome academic environment in our public schools is vested in the local boards of education.” Blaine, 210 Kan. at 571. Administrative expulsion from school is not an unreasonable and disproportionate sanction for the violation of reasonable regulations adopted to carry out the educational mission. See 210 Kan. at 571. Administrative sanctions removing a student from school are a proper exercise of the school’s power to maintain discipline and become unreasonable only when used toward some goal other than the effective administration of a school with order and discipline. See Nutt v. Board of Education, 128 Kan. 507, 509, 278 Pac. 1065 (1929).
We hold it is clear that under Kansas law expulsion from a school for violation of school district policy is not punishment so as to invoke the protection of constitutional double jeopardy restrictions.
Other courts which have considered the issue of whether an administrative expulsion from public school constitutes punishment sufficient to bar a subsequent prosecution have rejected the argument. In Paine v. Board of Regents of University of Texas Sys., 355 F. Supp. 199, 203, (W.D. Tex. 1972), aff’d 474 F.2d 1397 (5th Cir. 1973), it was held there was no impermissible double punishment when a university student was both prosecuted criminally for a drug offense and suspended from the University of Texas system. The court found that the interests served by the two sanctions were very different. The criminal charges were intended to vindicate public justice, a punitive goal, while the automatic suspension served the remedial goal of protecting “the university community and the educational goals of the institution from such adverse influence as the offender may wield if he is allowed to remain a student.” 355 F. Supp. at 203.
Similarly, in Clements v. Board of Trustees of Sheridan Cty., 585 P.2d 197 (Wyo. 1978), a high school student was found not subject to double jeopardy when he was expelled from school for purposefully impeding a school bus by his reckless driving, even though he was acquitted of criminal charges for the same conduct. The court held that the suspension was not punishment for double jeopardy purposes, stating:
“It is apparent that throughout these proceedings the Board was primarily concerned with the safety of pupils being transported in its school buses. While it cannot be denied that the imposition of a suspension from school has certain punitive effects, the underlying purpose of the Board’s action ... is the protection of other students — not the vindication of public justice.” 585 P.2d at 203.
More recent post-Halper decisions reach the same result. In a case startlingly similar to ours, State in Interest of Dandridge, 614 So. 2d 129 (La. App. 1993), the court rejected an argument that Halper was applicable to a case where a student was expelled from school for possessing a firearm on school property. Similarly, in Matter of Gila County Juvenile Action, 169 Ariz. 53, 816 P.2d 950 (Ct. App. 1991), the court held that Halper did not prohibit both the expulsion of a student and criminal prosecution for the same conduct. The court reasoned:
“While the school board’s action in expelling a student from school clearly has a punitive effect on the individual student, we believe its primary purpose and function is to protect the other students and the faculty and to preserve the integrity and continuity of the educational process. '
“The school officials, as a body and individually, have a responsibility for main7 taining order upon the school premises so that education, teaching and training of the students may be accomplished in an atmosphere of law and order. In measuring the reasonableness of an expulsion, courts must give credence to the role and purpose of the schools and the means available to school administrators to deal with their problems. Kelly v. Martin, 16 Ariz. App. 7, 11, 490 P.2d 836, 840 (1971).” 169 Ariz. at 54.
In sum, there is absolutely no merit to C.M.J.’s claim that juvenile adjudication for an action which also disrupted school discipline and safety as to warrant his expulsion constitutes double jeopardy. C.M.J.’s argument that his expulsion was longer than allowed by statute is not applicable to this case and is nothing more than an improper attempt to collaterally attack the administrative expulsion, which is not properly before this court.
Finally, C.M.J. contends for the first time at oral argument that Mertz is not applicable because having a driver’s license is a privilege while obtaining an education is a right. This contention ignores the fundamental concepts of double jeopardy outlined in this opinion and merely notes a distinction with no legal difference under the facts of this case.
The trial court erred in holding double jeopardy principles prohibited the State from proceeding with the attempted juvenile adjudication and dismissing the case against C.M.J.
Reversed and remanded for further action pursuant to the Kansas Juvenile Offender Code.
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The opinion of the coiirt was delivered by
Allegrucci, J.:.
This is an' appeal from the judgment of the district court in a divorce action: Linda and Vincent Monslow were divorced in’ 1992. Vincent appeals from the district court’s order regarding maintenance; property division; child visitation, and numerous other matters. The Court of Appeals affirmed. In re Marriage of Monslow, 21 Kan. App. 2d 386, 900 P.2d 249 (1995). Vincent’s petition for review was granted on the questions of a maintenance escalator clause and division, of patent proceeds: '
The facts, for the most part, are.'set out in the opinion of the Court'of Appeals and are .not disputed: ■
At the time of the divorce, Vincent’s former law firm had undergone dissolution, and he had begun practice with the Black-wood Langworthy firm. For this reason, “the trial court recognized the growth potential of Vincent’s income.” 21 Kan. App. 2d at 389. Based on his earning a $60,000 contingency fee shortly before dissolution of his former firm, the trial court also recognized the potential for temporary, significant increases in his income. For the 11 months preceding trial, his average, monthly income was $4,227.
Linda’s average monthly income was $2,000. In the year before the divorce, she earned an average of $3,000 per month from the same employer.
The trial court’s journal entry states the following with regard to the award of maintenance:
“Respondent shall pay petitioner maintenance of $450/month for a term of 48 months, commencing January 1,1993. In addition, if respondent’s adjusted gross income rises above the $4,227/month average which he experienced for such gross earned income during the first eleven months of 1992, then respondent shall pay petitioner, as and for additional maintenance, 20% of any such increases during the above-described 48-month period. Such additional maintenance, if any, shall be payable quarterly.”
The Court of Appeals found that the award was supported by the evidence and concluded that the district court had not abused its discretion in awarding the basic maintenance figure. 21 Kan. App. 2d at 387.
With regard to the escalator clause for additional maintenance, the Court of Appeals concluded that such a clause was permitted by K.S.A. 60-1610(b)(2) as long as the use was reasonable. Finding that the district court’s approach was “not an unreasonable approach,” the Court of Appeals Concluded that the district court had not abused its discretion. 21 Kan. App. 2d at 389. The maintenance escalator clause is the subject of the first question on this review.
The other question centers on the trial court’s division of patents held by Vincent. He owns a partnership interest in two patents for a cable television service which would transmit viewer-chosen programs at viewer-requested times. The business plan refers to the concept as “Pic-A-Flick” or “Video On Demand.”
Upon examination by Linda’s attorney, Vincent gave the following testimony:
“Q. . . . And you agree the patent is incapable of an accurate evaluation at the current time?
“A. . . . That’s a loaded question. I mean I think it has tremendous potential and maybe someone could tell you what that potential is. I haven’t wasted my money to go out and find that out.
“Q. My question was: In your opinion does [the patent] currently have any value that you can put a number on?
“A. Not that I can put a number on, but it has value I would say.
“Q. And, therefore, if you can’t put a number on it, it has got to be divided in kind; right?
“A. What do you mean by ‘kind’?
“Q. Your wife is going to get a percentage. of it and you are going to get a percentage of it?
“A. That would be fine with me.” (Emphasis added.)
Vincent’s affidavit characterized the patents as expectancies without ascertainable value and suggested that they be set aside to Vincent, or, if not, that a small percentage of gross proceeds or 50 percent of the first $3 million be awarded to Linda. Included in his evidence, however, was a plan for developing the patents which forecast a net profit of more than $48 million by the fifth year of market. The district court “awarded the patents to Vincent subject to a hen of 40 percent of the income from the patents, which the trial court vested in Linda. Linda’s share of any income from the patents is to be calculated only after deducting necessary expenses.” 21 Kan. App. 2d at 390.
We first consider the propriety of including an escalator clause in the maintenance order. The first task for this court is interpretation of K.S.A. 60-1610(b)(2). This is a question of law for which the court’s review is unlimited. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). If acting in conformity with the statute, the district court has wide discretion in adjusting the financial obligations of the parties in a divorce action. Exercise of that discretion will not be disturbed on appeal unless clear abuse of discretion is shown. In re Marriage of Brown, 247 Kan. 152, 165, 795 P.2d 375 (1990).
An award of maintenance is governed by K.S.A. 60-1610(b)(2), which states in pertinent part:
“The decreé may award to either party an allowance for future support denominated as maintenance, in an amount the court finds to be fair, just and equitable under all of the circumstances. The decree may make the future payments mod ifiable or terminable under circumstances prescribed in the decree. The court may make a modification of maintenance retroactive to a date at least one month after the date that the motion to modify was filed with the court. In any event, the court may not award maintenance for a period of time in excess of 121 months. . . . Maintenance may be in a lump sum, in periodic payments, on a percentage of earnings or on any other basis. At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the maintenance originally awarded that has .not already become due, but no modification shall be made without the consent of the party fiable for the maintenance, if it has the effect of increasing or accelerating the liability for the unpaid maintenance beyond what was prescribed in the original decree. Every order requiring payment of maintenance under this section shall require that the maintenance be paid through the clerk of the district court or the court trustee except for good cause shown.”
In the Court of Appeals, Vincent argued that the escalator clause, which increases the maintenance amount if his income exceeds the $4,227 monthly average, is not based, as it should be, on Linda’s need. He further contended that the effect of the escalator clause was “automatic modification of a maintenance award without the necessary notice and an opportunity for a hearing.” 21 Kan. App. 2d at 388.
The Court of Appeals disagreed. It focused on this sentence from the statute: “ ‘Maintenance may be in a lump sum, in periodic payments, on a percentage of earnings or on any other basis.’ ” 21 Kan. App. 2d at 389. The Court of Appeals stated:
“The term ‘any other basis’ offers broad support to any reasonable formula employed by a trial court in awarding maintenance. It would appear to permit the use of any formula deemed reasonable under the circumstances. Accordingly, we hold that the Kansas statute does permit the reasonable use of an escalator clause in ordering maintenance.” (Emphasis added.) 21 Kan. App. 2d at 389.
The 20 percent of increased income escalator clause formulated by the trial court was considered by the Court of Appeals to be a reasonable way of taking into account the potential for growth and for temporary, significant increases in Vincent’s income. Thus, the Court of Appeals affirmed that portion of the decree. 21 Kan. App. 2d at 389.
It is not precisely accurate to say, as the Court of Appeals does, that the statute permits reasonable use of an escalator clause in ordering maintenance. If the statute permits use of an escalator clause, it would be correct to say that an appellate court review involves the inquiry whether use of the clause is reasonable in the circumstances. Although the end result may be the same, the initial inquiry is whether the statute permits the use of an escalator clause in a maintenance award, not whether the statute permits the use of a reasonable escalator clause. It also may be noted that, for Vincent, the end result may be the same because his position is that the statute does not permit use of an escalator clause, but, even if it does, the particular one used in this case is unacceptable, i.e., unreasonable.
Vincent argues in his supplemental brief that the Court of Appeals’ construction of the statute is unreasonable in that it fails to harmonize various provisions of the statute. In particular, he argues that the Court of Appeals ignored the statute’s prohibiting modification “without the consent of the party liable for the maintenance, if it has the effect of increasing or accelerating the liability for the unpaid maintenance beyond what was prescribed in the original decree.” K.S.A. 60-1610(b)(2).
The principle of statutory construction to which Vincent refers is included in the following statement:
“In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. When the provisions of two or more acts affect the same issue and subject matter, the same rule applies.” United Steelworkers of America v. Kansas Comm’n on Civil Rights, 253 Kan. 327, Syl. ¶ 1, 855 P.2d 905 (1993).
The problem with Vincent’s interpretation of K.S.A. 60-1610b(2) is that the escalator clause which would increase his maintenance liability in months when his income exceeded $4,227 is part of the original decree. The escalator clause is a means of adjusting maintenance without modifying the original decree.
Johnson v. Johnson, 219 Kan. 190, 547 P.2d 360 (1976), is mentioned in the Court of Appeals’ opinion as one of three appellate decisions which its research had revealed in which an escalator clause was contained in the maintenance award. The other two are Miller v. Miller, 209 Kan. 290, 496 P.2d 1343 (1972), and Beard v. Beard, 5 Kan. App. 2d 458, 618 P.2d 856, rev. denied 229 Kan. 669 (1980). In each case, maintenance is tied to the paying party’s adjusted gross income; however, in none is the validity of the self-adjusting mechanism questioned.
Vincent also argues that it is improper for the escalator clause to be tied exclusively to his income. It is his contention that “maintenance is a needs driven concept in Kansas.” In other words, he contends that the primary consideration of the trial judge in setting a maintenance amount should be the recipient’s needs. In support, he cites Carlton v. Carlton, 217 Kan. 681, 538 P.2d 727 (1975), Martin v. Martin, 5 Kan. App. 2d 670, 623 P.2d 527, rev. denied 229 Kan. 670 (1981), and a journal article which analyzes 1982 amendments to the state’s divorce code. These authorities do not support his contention. Instead, they demonstrate a much broader-based approach.
In Carlton, the court affirmed the district court’s termination of alimony where there was substantial evidence of a change of circumstances. Among the principles recited by the court in its opinion was that the amount of alimony “is to be based upon the needs of one party and the ability of the other party to pay.” (Emphasis added.) 217 Kan. 681. In Martin, the Court of Appeals cited Carlton for the same principle. 5 Kan. App. 2d at 676. In affirming the alimony award, the Court of Appeals considered not only the recipient’s needs, but also the terms of the property division, the disparity between the parties’ earning abilities, and the wife’s “significant contribution to [the husband’s] education which led to his increased earning capacity.” 5 Kan. App. 2d at 677. The journal article cited by Vincent is Maxwell, In the Best Interests of the Divided Family: An Analysis of the 1982 Amendments to the Kansas Divorce Code, 22 Washburn L.J. 177 (1983). Professor Maxwell states:
“The factors for determining the amount of maintenance which are similar to the factors for determining property division are as follows: (a) the age of the parties; (b) the parties’ present and prospective earning capacities; (c) the length of the marriage; (d) the property owned by them; (e) the parties’ needs; (f) the time, source and manner of acquisition of property; (g) the family ties and obligation; and (h) the parties’ overall financial situation.” 22 Washburn L.J. at 227 n.305.
In addition, she notes that fault has not been eliminated from consideration in awarding maintenance. Vincent’s notion of maintenance as a “needs-driven concept” is not derived from or supported by the sources he cited to the court.
The Court of Appeals noted that in the states which have considered the issue, there is a split of authority. See Annot., 19 A.L.R.4th 830. “Escalation clause” is defined for the purpose of the annotation as “any provision requiring the adjustment of alimony or child support payments based upon a certain percentage of, or a fixed amount out of, the paying spouse’s income and increases in that income, above and beyond a fixed sum of payments.” 19 A.L.R.4th at 831 n.2. Escalator clauses relating to maintenance are the subject of § 5 of the annotation. There are only two cases discussed in § 5 of the main volume. One is from New York, the other is from Virginia, and both date from the 1970s. In each, the court invalidated an escalator clause. The 10 cases discussed in § 5 of the September 1995 supplement were decided in the 1980s and 1990. The trend apparent among these more recent cases is to approve escalator clauses relating to maintenance. Among the states in which escalator clauses were approved are Connecticut, Florida, Massachusetts, New York, Pennsylvania, South Carolina, Vermont, and West Virginia. Only two cases are discussed in which escalator clauses were disapproved. One was from Florida, in which disapproval was on grounds peculiar to that case; it does not seem representative of the rule generally applicable by the courts of that state. The other is from New Mexico.
The Court of Appeals declared that, because its decision would be based on the Kansas statute, the decisions from other states would carry little weight. 21 Kan. App. 2d at 388. Although not helpful in interpreting the wording of this state’s statute, the decisions from other states may contribute some useful insight into policy considerations. For example, judicial economy and reduction in attorney fees are frequently cited factors where escalator clauses have been sanctioned. In particular, clauses which are tied to a cost of living index may forestall the parties’ reappearance in court to litigate whether the value of the maintenance award has been unduly eroded by inflation. See, e.g., Chaker v. Chaker, 155 Vt. 20, 28, 581 A.2d 737 (1990).
An attentive reading of K.S.A. 60-1610(b)(2) in light of the objectives which guided the 1982 amendments to the divorce code leaves the impression that there was no intention to preclude the use of escalator clauses in maintenance awards. In her study of the 1982 amendments, Professor Maxwell states that the update was undertaken in order to make the statutes reflect the actual practice of and national trends in divorce law and to reduce the adversarial nature of the process by discouraging the parties from litigating issues which might be reconciled through negotiation. 22 Washburn L.J. at 177-81. She quotes the Family Law Advisory Committee of the Kansas Judicial Council as follows:
“ ‘The Committee felt strongly that settlement not only greatly reduces the use of the time of the court, but more importantly leaves the parties with less ill feeling toward one another and a better feeling about the financial disposition of their case.’ Recommended Amendments, . . . Proposed Statute § 60-1608, Comment, at 36.” 22 Washburn L.J. at 180 n.29.
Professor Maxwell noted that what had been known as “alimony” under the old code became the less stigmatizing “maintenance” in the new code. 22 Washburn L.J. at 227. There was a significant change in the maintenance provision from no limit on duration to a limit of 121 months, with the possibility of reinstatement upon motion of the recipient. L. 1982, ch. 152, § 9. The other obvious change in the maintenance provision was the following: “The decree may make the future payments eenditional modifiable or terminable under circumstances prescribed therein in the decree.” L. 1982, ch. 152, § 9. The change from “conditional,” which implies that certain contingencies must be met, to “modifiable” seems to suggest some softening or relaxation of strictures. It fits with the overall objective of making the process more flexible so as to encourage divorcing spouses to resolve issues rather than resorting to adversarial proceedings.
Although “modifiable” could be construed to mean modifiable by court order, the more likely interpretation is that the decree may include provisions for modifications which would become operative, without court intervention, upon the occurrence of named circumstances. The legislature knew how to express a requirement for court action and did so in regard to reinstatement of maintenance after the expiration of the 121-month period. The legislature plainly stated that the court would have jurisdiction to hear a motion for reinstatement and that “[u]pon motion and hearing, the court may reinstate payments.” L. 1982, ch. 152, § 9. Thus, if the legislature had intended future payments of maintenance to be modifiable only upon court order, it could be expected to have said so. It appears that the legislature contemplated modifications in maintenance payments to be triggered by events without court action.
The Court of Appeals held that K.S.A. 60-1610(b)(2) permits the use of an escalator clause. We agree. We further agree with the reasoning of the Court of Appeals in finding that the escalator clause was a reasonable way of dealing with the particular circumstances in this case. The district court did not err in including the escalator clause in the maintenance order or abuse its discretion is setting the percentage at 20 percent of increased income.
Vincent also challenges the propriety of the district court’s awarding the interest owned in two patents to Vincent subject to a lien vested in Linda of 40 percent of the income after expenses. Vincent argues that patents are not marital property subject to division. The division of property in divorce actions is controlled by K.S.A. 60-1610(b)(l), which provides:
“The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in the spouse’s own right after marriage or acquired by the spouses’ joint efforts, by: (A) a division of the property in kind; (B) awarding the property or part of the property to one of the spouses and requiring the other to pay a just and proper sum; or (C) ordering a sale of the property, under conditions prescribed by the court, and dividing the proceeds of the sale. In making the division of property the court shall consider the age of the parties; the duration of the marriage; the property owned by the parties; their present and future earning capacities; the time, source and manner of acquisition of property; family ties and obligations; the allow; dissipation of assets; and such other factors as the court considers necessary to make a just and reasonable division of property.”
That portion of the journal entry which pertains to the district court’s division of property states the following with regard to the patents:
“Respondent’s interest in United States Patent No. 4,890,320 (dated December 26,1989), are set aside to respondent, free and clear of all right, title and interest in petitioner. The Court is mindful of the fact that respondent’s interest in the patents has been assigned to a certain oral partnership of which respondent is one of several partners. The Court also is mindful of the fact that the above-referenced patents are not yet and may never be income-producing. At such time, if ever, that the patents produce income by way of sale or license, then petitioner shall be entitled to 40% of whatever income respondent earns from same. The ‘60-40’ division between respondent and petitioner, respectively, is in recognition of the fact that respondent presumably will continue to invest his own time in the development, marketing, and/or defense of the patent. Before petitioner shall be entitled to said 40% share of respondent’s gross earnings, there shall be deducted therefrom a pro rata share of all out-of-pocket expenses incurred by respondent with regard to the development, marketing, and/or defense of said patents after the date of this judgment, together with an appropriate market rate of return to compensate respondent for incurring said expenses on a risk investment basis. Because it is unknown at this time whether or when the patents will be income-producing, the Court orders that that appropriate rate of return will be based on historical data available at the time, if ever, that the patents actually produce income net of expenses. The Court contemplates that, even though certificates of deposit and money market accounts currently earn less than 5% per annum, the appropriate rate of return in this instance conceivably could be as much as 20% per annum, or even more. No such income earned by the parties with respect to the patents shall be taken into account in determining increased maintenance which might otherwise be owed by respondent to petitioner under paragraph 4 of this Journal Entry.”
The district court and the Court of Appeals rejected Vincent’s argument that the patents are not property within the meaning of K.S.A. 60-1610(b)(1) and, therefore, cannot be divided by a divorce court. “Marital property” is defined in K.S.A. 23-201(b):
“All property owned by married persons, including the present value of any vested or unvested military retirement pay, whether described in subsection (a) or acquired by either spouse after marriage, and whether held individually or by the spouses in some form of co-ownership, such as joint tenancy or tenancy in common, shall become marital properly at the time of commencement by one spouse against the other of an action in which a final decree is entered for divorce, separate maintenance, or annulment. Each spouse has a common ownership in marital properly which vests at the time of commencement of such action, the extent of the vested interest to be determined and finalized by the court, pursuant to K.S.A. 60-1610 and amendments thereto.”
In Schedule D of Vincent’s domestic relations affidavit, he listed the patents among the assets. Rather than supplying a dollar figure for fair market value and equity of the patents, as he did for all other assets, he used a question mark. For the proposed division of the assets, he stated:
“Because it is unknown whether the patents will generate any proceeds, they are really in the nature of a mere expectancy. Further, because the patents were solely respondent’s creation, and conceived before the parties married, respondent believes equitably they should be set aside entirely to him. At most, petitioner should be accorded 6% of any gross proceeds or, in the alternative, 50% of the first $3,000,000 received, if ever, if any.”
With regard to Vincent’s affidavit and the testimony elicited from him by Linda’s attorney, which is quoted earlier in this opinion, the Court of Appeals stated: “It appears to us that in dividing the income from the patents the trial court acted consistent with Vincent’s suggestions. This raises a question of invited error.” 21 Kan. App. 2d at 390. The Court of Appeals further stated that, even though it could affirm the trial court on the ground that any error in dividing the patents had been invited by Vincent, it chose to examine the merits. Its examination of the merits, however, included repeated references to the role Vincent’s evidence played in convincing the trial court to award the property to Vincent and split the income 60/40.
We do not agree with the Court of Appeals that if there was error, Vincent invited it. The affidavit unequivocally and unmistakably states that the patents are assets in the nature of expectancies rather than property and for that reason among other reasons they should not be divided. Only after clearly stating that the patents should be his alone did Vincent make a suggestion as to how the division could be made in the event that the district court concluded, contrary to his contention, that the patents were divisible marital property. A party to a divorce action should not be faulted for avoiding rigid insistence on all or nothing by providing a fallback position. We question the other instances of alleged invited error on which the Court of Appeals relied. In his cross-examination, Vincent seems to agree with a definition or example given by Linda’s attorney of dividing property in kind. Vincent’s cross-examination testimony, which is previously quoted in this opinion, is a bit puzzling. Neither it nor the Video on Demand business plan, which are cited by the Court of Appeals as other instances of his inviting error, however, would seem to support that conclusion without consideration of the merits. In particular, the Court of Appeals’ view that Vincent’s business plan belies his argument that the patents are expectancies without readily ascertainable current value is not correct. A business plan is a formal summary of a ;proposed commercial venture, and a business plan customarily is drafted for the purpose of attracting capital investment necessary for starting an enterprise. The net income projection of the business plan Vincent introduced is $49 million “by Year 5 of operations.” The dollar figure depends not only on the enterprise being commenced and surviving for 5 years, but also on thriving in a highly competitive, regulated industry. At a time when the business has not yet been launched and many contingencies, including “potential acquisition by a strategic partner in the entertainment industry,” must be met in order to achieve the projected income, Vincent’s characterizing the patents as expectancies without readily ascertainable current value is not necessarily in conflict with his business plan, as characterized by the Court of Appeals.
With regard to Kansas precedents, the Court of Appeals focused on Grant v. Grant, 9 Kan. App. 2d 671, 685 P.2d 327, rev. denied 236 Kan. 875 (1984). In reaching its holding, the Court of Appeals rejected Vincent’s suggestion that Grant controls. In that case, the trial court refused to consider the husband’s military retirement pay, which he had begun receiving at the time of the divorce, as marital property with a determinable value. Evidence of the current value of the retirement pay had been offered by a life insurance actuary’s comparing it to an annuity paying the same monthly amount. He testified that such an annuity would cost $97,600. The Court of Appeals nonetheless concluded that it was proper to consider the retirement pay as income rather than property:
“Here, plaintiff’s military retirement pay had no lump sum present value determinable when the divorce was filed. Military retirement pay has none of the qualities commonly attributable to marital assets such as cash surrender value, loan value, redemption value, lump sum value, or á value realizable after the death of the retiree. Ellis v. Ellis, 191 Colo, at 318-19. In these respects, military retirement pay is similar to good will in a professional practice which our Supreme Court concluded in Powell v. Powell, 231 Kan. 456, 461-63, 648 P.2d 218 (1982), was not a marital asset subject to division. Military retirement pay is nothing more than a future stream of income which will cease at plaintiff’s death. Defendant’s comparison of military retirement pay to an annuity is not compelling as annuity value based upon estimated life expectancy provides only a speculative future value. We conclude military retirement pay has no present determinable value which would qualify it as a marital asset subject to division.” 9 Kan. App. 2d at 676.
In the present case, the Court of Appeals gave the following explanation why it declined to follow Grant:
“This decision was overruled by the legislature in 1987. See K.S.A. 23-201(b); L. 1987, ch. 120, § 1. In Grant, we listed ‘qualities commonly attributable to marital assets such as cash surrender value, loan value, redemption value, lump sum value, or a value realizable after the death of the retiree.’ 9 Kan. App. 2d at 676. In Grant, we concluded that a military pension was not property subject to division. We do not consider Grant to be in accord with current thinking on the issue and do not feel bound by it.” 21 Kan. App. 2d at 391.
Vincent argues that the Court of Appeals’ conclusion is too sweeping. The legislature amended K.S.A. 23-201(b) by inserting the phrase “including the present value of any vested or unvested military retirement pay” after “[a]ll property owned by married persons.” Thus, Vincent contends, tihe legislature overruled the specific holding of Grant but not the rationale. He would have the court adhere to the principle that marital assets may be identified by attributes “such as cash surrender value, loan value, redemption value, lump sum value, or a value realizable after the death of the retiree.” 9 Kan. App. 2d at 676,
The nature of the patents, if not possessing precisely the qualities which are referred to in Grant as being commonly attributable to marital assets, is much closer to that standard than is military retirement pay. It follows, therefore, that by amending 23-201(b) to include military retirement pay, the legislature intended to include assets such as the patents among divisible marital assets. In contrast to military retirement pay, which the Court of Appeals character ized as “nothing more than aTriture stream “of income which will cease at [the retiree’s] death,” 9 Kan. App. 2d at 676, the interest in the patents may or may not generate income and would not, by its nature, terminate upon Vincent’s death.
Given his position on Grant, it appears that Vincent believes that the interest in the patents does not have the' qualitiés listed there as identifying marital assets. This is riot self-evident. The business plan, which is built on the patented concept, undoubtedly will be used in an effort to raise capital Tor the enterprise. Thus, there is a sense in which the patents may be said to have loan value. Another, perhaps more typical, arrangement is for a patent holder to enter into a licensing agreement with a mariufacturer/distributor for the use of a patent. Consideration. under the licensing agreement might be a lump sum. An initial fee: and royalties is another likely form for consideration to take.' •
Commentators have devoted some' thought to the question whether products of an individual’s intellectual processes which are protected under federal law jmay be qharacterized as marital (or commuriity) property. We learn from 2 Rutkin, Valuation and Distribution of Marital Property § 23.07[1], p. 23-133 (1995), that copyright and patents generally are regarded'as property.'Pursuant to federal law, the owner of a patent' holds a valuable asset — the right to exclusive use of the protected subject matter arid the corollary right to prevent others from rising it. Thus, “[t]he owner may choose to maintain his monopoly over the subject matter and utilize it for profit, or he may license the use of" the protected material for others to exploit. In either case the owner receives profits from his intellectual product.” § 23.07[1], p. 23-133.
According to the treatise, “[t]he general treatment of intellectual creations as property’ suggests that they ¿nay be susceptible to characterization as marital (or-comtouriity)'‘property.” § 23.07[1], p. 23-133. Specific guidance on whether patents may be classified as marital property is discussed in the following:
“There are several, cases treating patents, as,community (or marital) property. In Howes v. Howes [, 436 So. 2d 689 (La. App. 1983),] and Marriage of Downes, [177 Cal. App. 3d 205, 222 Cal. Rptr. 776 (1986),] the Louisiana and California Courts of Appeal summarily concluded thát patents earned during marriage were community property. In an earlier case, Lorraine v. Lorraine, [8 Cal. App. 2d 687, 48 P.2d 48 (1935),] a California Court of Appeal also held that patents were property subject to division. Lorraine rested its holding on three separate grounds. The patents were applied for after the marriage, which raised the presumption that they were community property. In addition, the Lorraine court stressed that the noninvestor spouse had advanced money to be invested in the patent with the understanding that she could have a half interest in the profits. Finally, the court also noted that the inventor spouse in Lorraine had commingled the earnings in the patent ventures with community property, and had failed to discharge his burden of tracing the allegedly separate portion, thus requiring that the entire fund be treated as community property.
"In Dunn v. Dunn, [802 P.2d 1314 (Utah App. 1990),] the Utah Court of Appeals squarely held that the future royalty income from the husband’s invention of surgical instruments used for implanting artificial knees was community property.” § 23.07[1], p. 23-134.
In addition to the cases cited in Rutkin, the Court of Appeals mentioned Hazard v. Hazard, 833 S.W.2d 911, 916 (Tenn. App. 1991), in which the wife was awarded 20 percent of any future income from sale of a tracheostomy kit produced by the husband during the marriage. Because a patient had died while the kit was being used on him during test marketing, the kit had no marketable value without modification which necessarily would occur, if at all, after dissolution of the marriage. The Tennessee court concluded that, even though a monetary value could not be ascertained, the unperfected kit was in the nature of an intangible asset with intrinsic value and “was properly valued at the time of trial as a contingent asset.” 833 S.W.2d at 916.
Setting up a straw man argument that intellectual property is too personal to its creator to be marital property, Rutkin knocks it down:
“[I]nteUectual property, once it has been created, is less inextricably related to its creator than other assets now characterized as marital property, such as pensions and-professional goodwill. Unlike pensions and professional goodwill, rights in intellectual property are highly transferable, and title may thereafter be placed in the name of one who did not originally produce them.” § 23.07[1], p. 23-135.
In Goldberg, Valuation of Divorce Assets § 12.6, p. 315 (1984), the author groups goodwill with franchises, licenses, patents, trademarks, and trade names as “intangible properly which has no intrinsic or marketable value,” but which represents value. In Turner, Equitable Distribution of Property § 6.22, p. 432 (2d ed. 1994), the author states unqualifiedly that “[g]ood will acquired during the marriage is marital property.” He recognizes, though, that there are “[a] few decisions [which] hold that patents and copyrights are not property where it is entirely speculative whether any future benefits will be received at all.” § 6.23, p. 433. In his view, “they state a very dangerous rule.” § 6.23, p. 433.
The “few decisions” to which Turner referred are the two cited by the Court of Appeals. 21 Kan. App. 2d at 392. Each presents a different rationale for holding that patents are not property. Woodward v. Woodward, 294 S.C. 210, 216, 363 S.E.2d 413 (Ct. App. 1987), features an unusual determinant — a “policy of finality desired in marital litigation.” On that basis, the South Carolina Court of Appeals volunteered, it would have affirmed the trial court’s refusal to award the husband an interest in the wife’s patent. Because he did not complain of it in the trial court, however, award of the wife’s patent entirely to her was not an issue which could be considered on appeal. 294 S.C. at 216. Vincent cites In re Marriage of Sadecki, 250 Kan. 5, 825 P.2d 108 (1992), for the proposition that Kansas courts also embrace the “policy of finality.” In Sadecki, the wife complained on appeal that the trial court erred in awarding the husband’s baseball retirement benefits entirely to him in order to accomplish a clean break. She argued specifically that the trial court was more enthusiastic about accomplishing a clean break than an equal split of assets. This court first reminded her that K.S.A. 60-1610(b)(1) does not require a 50/50 split. Then the court stated:
“[I]t is not only within the trial court’s discretion, but perhaps within the court’s wisdom, to choose not to divide ongoing sources of income. As a general rule, the goal of the divorce court is to divide property in such a way as to avoid ongoing financial interaction between the parties. See, e.g., Simmons v. Simmons, 87 Ill. App. 3d 651, 656, 409 N.E.2d 321 (1980). It is not unreasonable for a court to attempt to disentangle the parties’ economic partnership so as to achieve a conclusion and finality to their marriage, and in most cases such a goal is to be commended. See Hoyt v. Hoyt, 53 Ohio St. 3d 177, 182-83, 559 N.E.2d 1292 (1990) (regarding distribution of retirement benefits).” 250 Kan. at 13.
This court concluded that, when considered within the context of the overall division of property and on the record before it (which lacked any evidence of present value), the trial court’s assignment of the undivided baseball retirement benefits to the husband was not an abuse of its discretion.
In Yannas v. Frondistou-Yannas, 395 Mass. 704, 481 N.E.2d 1153 (1985), the principal issue to be resolved was custody of the children, which was complicated by the husband’s professional fortunes being greater in this country and his wife’s being greater in Greece. Almost as an afterthought, the Massachusetts court took up consideration of the division of the marital assets and affirmed the trial court. The conclusion was that the judge
“was warranted in declaring uncertain the value of the husband’s patents on artificial skin. The judge could have concluded on the evidence that the present value of the husband’s future income from this source was too speculative to consider. The asset was not one which obviously has current value but is difficult to appraise (such as a close corporation).” 395 Mass, at 714.
Here is Turner’s suggestion as to how this issue should have been handled:
“If the court holds that a patent is not property and future royalties actually are received, the nonowning spouse has received no share of an asset which is unquestionably a product of the marital partnership. Thus, if there is any possibility that future benefits will be received, a patent or copyright should be treated as property. To the extent that future benefits might not materialize, the remedy should he to divide the future benefits if, as, and when they become payable, and not to hold that the entire patent or copyright is not divisible. This is the same method of division which is frequently used to divide unvested pensions.” § 6.23, p. 433.
In the present case, the trial court’s assigning the patents to Vincent and a percentage of any future revenue from them to Linda fits the paradigm.
Vincent has contended all along that the interest in the patents was not subject to division because it had no current value. He argued that any method of division recognized in this state’s courts is based on a current value.
There would not seem to be, however, an insurmountable obstacle to achieving equitable distribution of property without ascertaining a current dollar value. The trial court may formulate an award based on percentages and base the percentages on allocations between individual and marital interests. Turner suggests:
“None of the reported cases considers when patents and copyrights are acquired for equitable distribution purposes. Logically, however, intellectual property interests should be acquired when the owning spouse expends the necessary effort and not when they are actually received. Thus, a copyright received shortly after the marriage begins should be separate property if the owning spouse performed the necessary work before the marriage. Similarly, if a spouse expends all of the necessary effort during the marriage, but actually receives the patent a week after the date of classification, the patent should be marital property. Where the work is done partly before and partly after the marriage, a patent or copyright would logically have both marital and separate interests. These rules are analogous to the principles used in most states to divide retirement benefits, as well as to the source of funds rule used in many states to classify mixed marital and separate property.” § 6.23, pp. 433-34.
The trial court’s formulation in the present case awarded the property to Vincent and a percentage of any revenue to Linda as a way of accommodating the lack of a current dollar value for the patents. The Court of Appeals concluded that there was nothing in Kansas law which was violated by the trial court’s treating the interest in the patents as marital assets subject to division despite the absence of a current dollar value. The Court of Appeals concluded that the interest in the patents was “clearly included” in the directive of K.S.A. 60-1610(b)(l) “to divide the ‘real and personal property of the parties.’ ” 21 Kan. App. 2d at 392. We agree.
The Court of Appeals found additional support for treating the interest as divisible and as property. The invention’s actually being accorded federal patent protection during the marriage was a factor in favor of divisibility. 21 Kan. App. 2d at 391.
“In addition, under federal law, patents have the attributes of personal property. 35 U.S.C. § 261 (1988). While a patent is not a conveyance of property from the government, it is a species of property — incorporeal, personal property which has no local situs in itself, but whose situs follows the person of its owner.’ 60 Am. Jur. 2d, Patents § 7, pp. 44-45.” 21 Kan. App. 2d at 391.
In the present case, the trial court awarded the property — the ownership interest in the patents — to Vincent and subjected future income generated by the interest to a 40 percent lien in favor of Linda. The trial court rationalized the unequal division as recog nition that Vincent “presumably will continue to invest his own time in the development, marketing, and/or defense of the patent.” It might also be argued that Vincent’s partially creating the concept before their marriage, his completing the work and actually securing the patents during the marriage, as well as his anticipated future efforts toward maturation and marketing of the concept are factors supporting an unequal split.
Turner recommends In re Heinze, 257 Ill. App. 3d 782, 631 N.E.2d 728 (1994), as an “extremely well-reasoned opinion holding that future book royalties are marital property.” § 6.23 (1995 Supp.), p. 89. He also refers extensively to the method of division employed in that case:
“The work needed to produce royalties from intellectual property need not all be performed before the property interest itself is created. In [Heinze], the wife wrote several books during the marriage. To assist in sales of tiróse books, however, the wife traveled across the country speaking at seminars and undertaking other efforts to promote sales. The court awarded the husband only 25 per cent of the future royalties, reasoning that a significant portion of the royalties would be the product of the wife’s postdivorce promotional efforts. The Heinze court also held that only the net post-tax royalties were subject to division.” § 6.23 (1995 Supp.), pp. 89-90.
In this vein, Vincent argues:
“No reasonable person would determine that the Court’s Order allowing [Linda] a 40% share of the income from the patent is reasonable in light of the fact that [he] must invest his own money and efforts for an indefinite time into the future in order to convert the patent to something of value — something that produces income.”
He adds:
“Despite the fact the life of the patent is 17 years, it is quite conceivable that [he] may invest money and efforts over the life of the patent and even beyond in the case of a patent infringement suit. Accordingly, [he] may not realize any return on his investments in the patent until a time long beyond the expiration of the patent rights, if ever.”
Although Vincent’s argument may be somewhat exaggerated, he raises a matter of legitimate concern. Because the concept still was in a developmental stage at the time of the decree, the additional investment of time and money which might be required to make it profitable was unknown. Vincent presented testimony to this effect, and he also offered testimony about informing several prominent corporations of the possibility that they were infringing on his patents. The evidence, however, was no more specific than the summation of the preceding sentences. In this circumstance, it does not appear that Vincent is in a position to complain of the trial court’s disposition. As already quoted in this opinion, the trial court expressly accounted for Vincent’s ongoing expenditures of time and money in combining award of the property to Vincent with the 60/40 split of income after expenses.
The judgment of the Court of Appeals affirming the district court is affirmed. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Lockett, J.:
The State appeals the district judge’s finding that no crime was committed and dismissal of a complaint charging defendant Austin Garza with aggravated battery, K.S.A. 21-3414(a)(2)(A). Jurisdiction is pursuant to K.S.A. 22-3602(b)(l).
There was “bad blood” between the defendant, Austin Garza, and Caesar Vaca. On April 8, 1994, around 11:30 p.m., Garza encountered Vaca outside a Town and Country store in Overland Park, Kansas. Each obtained a gun and began firing at the other. Jennifer Minton, who was standing behind the defendant, was struck by a bullet fired by Vaca. Garza was charged with the aggravated battery of Minton. Minton had informed the investigating officers that Vaca fired the first shot, but at the preliminary hearing she testified Garza fired the first shot.
The purpose of a preliminary examination is to determine whether it appears that a felony has been committed and that there is probable cause to believe the defendant committed the offense. If those findings are made, the magistrate will bind the defendant over for arraignment. K.S.A. 22-2902(3). In weighing the evidence the magistrate must determine (1) whether there is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief a felony has been committed and (2) if so, whether there is sufficient evidence to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt. State v. Bell, 259 Kan. 131, Syl. ¶¶ 2, 3, 910 P.2d 205 (1996); see State v. Farmer, 259 Kan. 157, Syl. ¶ 2, 909 P.2d 1154 (1996); State v. Bockert, 257 Kan. 488, Syl. ¶ 2, 893 P.2d 832 (1995). When the State appeals the dismissal of a complaint, an appellate court’s review of an order discharging the defendant for lack of probable cause is de novo. See Farmer, 259 Kan. 157, Syl. ¶ 1; Bell, 259 Kan. 131, Syl. ¶ 5; Bockert, 257 Kan. 488, Syl. ¶ 1.
At the preliminary examination; because the defendant had not fired the shot that hit the victim, the State asserted two theories of prosecution of the defendant for aggravated battery: (1) liability for crimes of another (K.S.A. 21-3205[2]) and (2) transferred intent. After the State had presented its .evidence, Garza moved to dismiss the complaint; asserting that .under the facts he had not violated the law. Argument to the district judge by the parties focused primarily on the theory of transferred intent rather than aiding and abetting. In his ruling, the district judge found that because the defendant had not fired the shot that injured the victim, the rationale of transferred intent did not apply. The judge made no finding as to the State’s argument that the defendant was an aider and abettor. The judge dismissed the complaint.
The. State timely appeals from the dismissal of the complaint, arguing both theories. The single issue is whether a person who engages in mutual combat with an opponent may be held criminally liable for an injury to a third party when the injury is caused by a bullet fired from the opponent’s gun.
Transferred Intent
The State argues that the defendant is criminally liable under the doctrine of transferred intent. In State v. Jones, 257 Kan. 856, 896 P.2d 1077 (1995), the defendant was charged with first-degree murder. This court explained how the doctrine of transferred intent applied:
“The fact that a homicidal act was directed against one other than the person killed does not reheve the slayer of criminal responsibility. It is generally held that such a homicide partakes of the quality of the original act, so that the guilt of the perpetrator of the crime is exactly what it would have been had the assault been upon the intended victim instead of another.” Syl. ¶ 2.
The doctrine of transferred intent is also applicable to the crime of aggravated battery. Defendant was charged with aggravated battery under K.S.A. 21-3414(a)(2)(A): “recklessly causing great bodily harm to another person or disfigurement of another person.”
In State v. Stringfield, 4 Kan. App. 2d 559, 608 P.2d 1041, rev. denied 228 Kan. 807 (1980), the defendant, in shooting at and killing the intended victim, also hit and wounded a bystander. The defendant was convicted of voluntary manslaughter in the death of the intended victim and of aggravated battery in the injury to the bystander. The Court of Appeals recognized that while a specific intent to injure was a necessary element of the aggravated battery, under the doctrine of transferred intent, the intent to injure could be transferred to a bystander who was unintentionally injured. 4 Kan. App. 2d at 561. The court quoted from 40 Am. Jur. 2d, Homicide § 11, pp. 302-03:
“ ‘Under this rule, the fact that the bystander was killed instead of the victim becomes immaterial, and the only question at issue is what would have been the degree of guilt if the result intended had been accomplished. The intent is transferred to the person whose death has been caused, or as sometimes expressed, the malice or intent follows the bullet.’ ” 4 Kan. App. 2d at 561.
The State reasons that the doctrine of transferred intent is applicable here because the defendant and Vaca intended to injure each other and a bystander was injured. The defendant, on the other hand, stresses that it was not his bullet that caused Minton’s injury. He argues the doctrine of transferred intent does not apply when an intervening cause of injury occurs. According to the defendant, Minton’s injury was a consequential or collateral result, not a direct result, of his action. The defendant reasons that the intent that followed the bullet he fired ended when the bullet came to rest without causing injury. Using this analysis, the defendant asserts the doctrine of transferred intent is inapplicable to the facts here.
Under the doctrine of transferred intent, the fact that a reckless act was directed against one other than the person injured does not relieve the actor of criminal responsibility. It is generally held that such an act partakes of the quality of the original act, so that the guilt of the perpetrator of the crime is exactly what it would have been had the act been directed at the intended victim instead of another.
However, under the rationale of transferred intent, there must be an act by the defendant that causes the injury. If the defendant’s bullet fired at Vaca caused Minton’s injury, the defendant would be criminally liable for that injury under the doctrine of transferred intent. Here, it was Vaca’s bullet, not the defendant’s, which caused Minton’s injury. While the intent of the defendant may be transferred, the doctrine does not abrogate the need for the injury to be caused by an act of the defendant. Here, the defendant’s act caused no injury to Minton, and application of the doctrine of transferred intent does not impart criminal liability to the defendant for Minton’s injury.
Aiding and Abetting
Even though the doctrine of transferred intent does not impose the criminal responsibility on the defendant for Minton’s injury, other legal principles could require the defendant to be criminally responsible. The State cites 2 Wharton’s Criminal Law § 178, p. 417 (15th ed. 1994), which states: “If two persons who are engaged in mutual combat in a public street happen to injure a third person, each combatant is guilty of battery as to such a third person even though the injury was unintended.” The two cases cited for that statement are civil cases. See Murphy v. Wilson, 44 Mo. 313, 318 (1869); Bannister v. Mitchell, 127 Va. 578, 584-85, 104 S.E. 800 (1920). Bannister concludes that.both actors will be held guilty as principals.
The State claims that under the rationale of Bannister, the defendant, by engaging in mutual combat, is criminally liable as an aider and abettor. K.S.A. 21-3205.states:
“(1) A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, adrises, hires, counsels or procures the other to commit the crime.
“(2) A person hable under subsection (1) hereof is also hable 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.
“(3) A person hable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal or legal cápacity or has not been convicted or has been acquitted or has been convicted of some other'degree of the crime or of some other crime baséd on the same act.”
For support of its argument that the .defendant is criminally liable as an aider and abettor of the person who recklessly battered the victim, the State cites People v. Abbott, 84 App. Div. 2d 11, 445 N.Y.S.2d 344 (1981), and People v. Fabian, 154 Misc. 2d 957, 586 N.Y.S.2d 468 (1992). In Abbott, Abbott and Moon were drag racing with each other. Abbott lost control of his car and struck another car, killing the three occupants of the other car. Both drivers were convicted of criminally negligent homicide. The theory of the prosecution against Moon was that he intentionally aided Abbott in engaging in criminally negligent conduct, drag racing, which resulted in the three deaths. In affirming the convictions, the Abbott court recognized that a person may be fiable for criminally negligent homicide if the person shares the requisite culpable mental state for the crime and intentionally aids in its commission. The court noted that Moon had engaged in a high-speed race on a busy highway. It observed that although Moon did not personally control Abbott’s vehicle when it struck and killed the three victims, it could reasonably be found that by making the race possible, Moon intentionally aided Abbott in the unlawful use of the vehicle. The Abbott court concluded that under the facts, Moon shared Abbott’s culpability. Quoting LaFavé & Scott, Criminal Law § 64, p. 511, the court found: “ ‘[Gfiving assistance or encouragement to one it is known will thereby engage in conduct dangerous to fife should suffice for accomplice liability as to crimes defined in terms of recklessness or negligence.’ ” 84 App. Div. 2d at 15.
Abbott was relied upon in Fabian, 154 Misc. 957. There, a gunfight broke out between defendants Fabian and Peguero. A car stopped at a traffic fight was caught in the crossfire. Bullets fired by Fabian and Peguero hit the driver of the car and killed her. A passenger in the car was cut by flying glass when a bullet smashed a car window. Fabian and Peguero were acting in concert. Each was charged with the murder of the driver, assault upon the passenger cut by the flying glass, reckless endangerment of the other passengers and each other, attempted murder of each other, and criminal possession of a weapon. The court recognized that the prosecution had a unique theory of criminal liability in that the prosecution asserted even though Fabian and Peguero were acting at cross-purposes in committing crimes against each other, at the same time they were acting in concert to commit crimes against others. The Fabian court stated:
“In general two persons act in concert when‘one . . . engages in conduct’and the other intentionally aids him in that conduct (Penal Law § 20.00). The law also provides that individuals may act together in the commission of a crime based upon their depraved, indifferent or reckless conduct. [Citations omitted.]” 154 Misc. 2d at 961.
The court found that both Fabian and Peguero were acting in concert based on their depraved, indifferent, or reckless conduct. The court noted that though Fabian and Peguero were trying to injure or kill each other, at the same time they were acting in concert to create an explosive condition which resulted in death to one bystander and injury to another. It found:
“They did not, of course, share the communiiy of purpose that is traditionally associated with an indictment based on concepts of joint responsibility. Nevertheless, like the drag racers in People v. Abbott . . ., defendants intended to engage in a lawless activity, and acted together in a depraved, or reckless manner likely to result in the injury or death of others.” 154 Misc. 2d at 962.
In People v. Peterson, 273 Ill. App. 3d 412, 652 N.E.2d 1252 (1995), a similar argument for criminal responsibility was rejected. Peterson and Castile were each convicted of aggravated battery with a firearm, and other crimes, in the shooting injury of Reverend Vinson. Peterson and Castile had a verbal exchange, and as Peterson walked away, he suddenly turned and drew a gun. The two began shooting at each other. It was unknown who fired first, but as they fired Castile chased Peterson. Vinson was shot in the elbow, but it could not be ascertained whose bullet hit Vinson. In finding both Peterson and Castile guilty of aggravated battery with a firearm, the trial judge found that self-defense was not applicable because it was a situation of mutual combat. The trial judge denied motions for a new trial and found that each defendant was equally responsible for Vinson’s injury.
On appeal, the Illinois Court of Appeals found that there was insufficient evidence to sustain either defendant’s conviction. The court addressed the theory of accountability, or aiding and abetting, and stated: “We have found no case where, as in the case at bar, defendants who acted at cross purposes, spontaneously shooting at each other, were held accountable for each other’s conduct.” 273 Ill. App. 3d at 420. The court concluded that there was no evidence either defendant aided and abetted the other in furtherance of a common criminal design. The court also rejected the application of transferred intent because it could not ascertain which defendant committed the unintended wrong. Although the court agreed that either Peterson or Castile shot Vinson, the court found that there was a reasonable doubt as to each defendant’s guilt in committing the battery against Vinson because accountability and transferred intent were inapplicable. 273 Ill. App. 3d at 422. The court cited People v. Lopez, 72 Ill. App. 3d 713, 391 N.E.2d 105 (1979), where the convictions of identical twin brothers for attempted murder and aggravated battery were reversed because the twin who did not fire the gun was not guilty under an accountability theory and it was not proven which twin did fire the gun.
Because it was determined there was reasonable doubt as to each defendant’s guilt, we do not find the reasoning of Peterson persuasive. We do note that although Peterson and Castile were acting at cross-purposes as to each other, they were acting with a common purpose as to bystanders. It was clear that one of them shot Vinson. Thus, under the rationale of Fabian and Abbott, if Peterson’s bullet hit Vinson, Peterson would be guilty as the principal and Castile would be guilty as an aider arid abettor; and the roles would be reversed if Castile’s bullet was the one that hit Vinson. Either way, though, one would be the principal and the other would be the aider and abettor, and both would be guilty of the aggravated battery.
The State asserts that the rationales of Fabian and Abbott are applicable because, like the crimes in those cases, the defendant here was charged with a crime involving reckless conduct with another. Garza argues that he did not intentionally aid, abet, advise, hire, counsel, or procure Vaca to commit a crime or knowingly associate with the unlawful venture and participate in a way which indicated that he (Garza) was furthering the success of the venture with Vaca as to Minton. The defendant contends there is no reason to believe that but for his actions Minton would not. have been injured. In fact, the defendant asserts, it is clear that Minton was injured only by the actions of Vaca.
The defendant seeks to distinguish Fabian, noting that in Fabian, a victim was caught in between the two defendants and struck by bullets fired from both defendants’ guns. In other words, both defendants had shot the victim. Contrary to the defendant’s assertion, however, though the victim who died was struck by bullets from both defendants’ guns in Fabian, there was no showing which defendant’s bullet shattered the glass that injured the other victim. Further, as the two defendants were acting in concert, it is irrelevant that both defendants shot the victim who was killed.
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). An abettor is one that incites another to commit a crime. Incite means to arouse, urge, provoke, encourage, spur on, goad, stir up, instigate, or set in motion. Generally, in criminal law incite means to instigate, persuade, or move another to commit a crime; in this sense incite is nearly synonymous with abet. Black’s Law Dictionary 762 (6th ed. 1990).
Garza was charged with recklessly causing great bodily harm or disfigurement of another person. In general, two persons act in concert when one engages in conduct and the other intentionally aids him or her in that conduct. The law also provides that individuals may act together in the commission of a crime based upon their depraved, indifferent, or reckless conduct. Fabian, 154 Misc. 2d at 961. The Fabian court’s analysis recognizes that although two defendants act at cross-purposes as to each other, they may act in concert as to others. The analysis is well reasoned.
Garza, of course, did not share the community of purpose with Vaca that is traditionally associated with a criminal responsibility based on the concept of joint responsibility. There is no evidence the defendant and Vaca planned, or discussed, the incident prior to its occurrence. However, like the two individuals who fired at each other in Fabian, Garza and Vaca intended to engage in a lawless activity and acted together in a reckless manner likely to result in injury or death to others. Although we are unable to dis- cem who fired first, the facts presented in the case show a situation of mutual combat.
Although the defendant and Vaca were certainly acting at cross-purposes in shooting at each other, Fabian provides a persuasive analysis that, because the probable consequences were reasonably foreseeable, they were acting in concert as to bystanders. Giving assistance or encouragement to one who it is known will thereby engage in conduct dangerous to life is sufficient for accomplice liability as an aider or abettor as to crimes defined in terms of recklessness or negligence. Abbott, 84 App. Div. 2d at 15. Under the facts here, there are reasonable grounds of suspicion to cause a person of ordinary prudence and caution to entertain a reasonable belief that aggravated battery has been committed and probable cause to believe that the defendant aided and abetted in committing the crime of aggravated battery. The trial court erred in dismissing the charge against the defendant.
Reversed and remanded for further proceedings.
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The opinion of the court was delivered by
Larson, J.:
The State Board of Healing Arts (Healing Arts) and the State Board of Nursing (Nursing) appeal the trial court’s denial of a temporary injunction by which the Boards had sought to stop E. Michelle Ruebke, a practicing lay midwife, from continuing her alleged practice of medicine and nursing.
The trial court found that (1) certain provisions of both the Kansas Healing Arts Act, K.S.A. 65-2801 et seq., and the Kansas Nursing Act, K.S.A. 65-1113 et seq., were unconstitutionally vague; (2) Ruebke’s practices incident to her lay midwifery were not within the scope of either act; and (3) even if the acts were held to be constitutional and Ruebke fell within their practice definitions, she was exempted from coverage under both-acts because of certain exceptions.
We have jurisdiction pursuant to K.S.A. 60-2101(b).
Factual Background
The Boards’ petition alleged Ruebke held herself out as a certified midwife; had been offering prenatal, labor, ánd delivery services to pregnant women in Kansas; and had been functioning as a registered professional nurse and/or a practitioner of the healing arts.
The petition set out details relating to three pregnancies:,-the Butterfields, where the petition alleged that twins had died and Ruebke had refused to permit the mother to be taken to the hospital (evidence showed it was Ruebke who had called the ambu lance and that one of the twins had died); the Strables, where it was alleged (although the evidence failed to establish) that Ruebke, who was assisting Kathy Brace, identified herself as a state and nationally certified midwife; and the Ingrams where Ruebke assisted in a delivery directed by a nurse and complications developed, requiring the delivery to be performed in a local hospital,
Based on the allegations of the petition, the trial court issued a temporary restraining order pending a hearing on a temporary injunction.
The hearing on the temporary injunction revealed that Ruebke acts as a lay midwife comprehensively assisting pregnant women with prenatal care, delivery, and post-partum care. She is president of the Kansas Midwives Association and follows its promulgated standards, which include a risk screening assessment based upon family medical history; establishing prenatal care plans, including monthly visitations; examinations and assistance in birth; and postpartum care. She works with supervising physicians who are made aware of her mode of practice and who are available for consultation and perform many of the medical tests incident to pregnancy.
Ruebke does not advertise her services but is available to members of her church, friends, and Christians who hear about her by word of mouth. She delivers babies throughout the state and has supervising physicians in many different regions.
Ruebke does not charge for her services and considers them to be a ministry. Some families have given her money, others goods, and many have given her nothing.
Ruebke testified she had received a copy of and follows the consent decree dated November 15, 1984, from the District Court of Finney County, Kansas, in State ex rel. Board of Healing Arts v. Hitchcock, No. 84 C 238, which contained the following orders:
“1. Defendant shall be permitted to engage in the practice of mid-wifery in the State of Kansas, and such practice shall not be considered the practice of healing arts or the practice of medicine and surgery, so long as she utilizes a licensed physician in the vicinity who has agreed to be available in case of complications and to be available for consultation and examination, and so long as she will provide such physician with her prenatal records of the patient in the event the physician so requests prior to delivery.
“2. The plaintiff Board of Healing Arts shall, prior to December 1,1984, notify the Kansas Medical Society and Kansas Association of Osteopathic Medicine of the contents of this order, and further shall notify all doctors of medicine and all doctors of osteopathy licensed by it of the contents of this order no later than July 15, 1985, all such notices to be in writing.”
Ruebke testified she fully complies with all the requirements of the vital statistics laws of the State of Kansas and registers all births as the state requires.
Dr. Debra L. Messamore, an obstetrician/gynecologist, testified she had reviewed the Kansas Midwives Association standards of care and opined those standards were similar to the assessments incident to her practice as an OB/GYN. Dr. Messamore concluded that in her judgment the prenatal assessments made by Ruebke were obstetrical diagnoses.
Dr. Messamore testified that the prescriptions Ruebke has women obtain from their physicians are used in obstetrics to produce uterine contractions. She further testified the Kansas Midwives Association standard of care relating to post-delivery conditions of the mother and baby involved obstetrical judgments. She reviewed the birth records of the Butterfield birth and testified that obstetrical or medical judgments were reflected. Although admitting that many procedures at issue could be performed by a nurse rather than a physician, she opined,
“Obstetrics includes taking care of the normal process and making sure that it’s as normal as possible for the mother and the baby, but also checking to make sure if there’s any complications that develop and then treating those complications as they arise, or trying to prevent them if the mother has certain risk factors.”
She also stated her opinion that, so defined, obstetrics is a branch of medicine or surgery.
Ginger Breedlove, a Kansas certified advanced registered nurse practitioner and nurse-midwife, testified on behalf of Nursing. She reviewed the Butterfield and Struble records and testified nursing functions were involved. She admitted she could not tell from the records who had engaged in certain practices and that taking notes, giving enemas, and administering oxygen is often done by people who are not nurses, although education, experience, and minimum competency are required.
After the hearing, the trial court adopted, with two minor exceptions, the proposed findings of fact and conclusions of law submitted by Ruebke’s counsel. The court held that provisions of both acts were unconstitutionally vague, Ruebke’s midwifery practices did not and were not intended to come within the healing arts act or the nursing act, and her activities fell within exceptions to the two acts even if the acts did apply and were constitutional.
The factual findings, highly summarized, were that Ruebke had not been shown to-hold'herself out as anything other than a lay midwife; has routinely used and consulted with supervising physicians; was not shown to administer any prescription drugs; was not shown to do any suturing or episiotomies, make cervical or vaginal lacerations, or diagnose blood type; and had engaged only in activities routinely and properly done by people who are not physicians.
Regulatory history of,midwifery
One of the specific statutory provisions we deal with, K.S.A. 65-2802(a), defines the healing arts as follows:
“The healing arts include any system, treatment, operation, diagnosis, prescription, or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, or injury, and includes specifically but not by way of limitation the practice of medicine and surgery; the practice of osteopathic medicine and surgery; and the practice of chiropractic.”
K.S.A. 65-2869 specifically provides that for the purpose of the healing arts act, the following persons shall be deemed to be engaged in the practice of medicine and surgery:
“(a) Persons who publicly profess to be physicians or surgeons, or publicly profess to assume the duties incident to the practice of medicine or surgery or any of their branches.
“(b) Persons who prescribe, recommend or furnish medicine or drugs, or perform any surgical operation of whatever nature by the use of any surgical instrument, procedure, equipment or mechanical device for the diagnosis, cure or relief of any wounds, fractures, bodily injury, infirmity, disease, physical or mental illness or psychological disorder, of human beings.”
With the two applicable healing arts statutes above set forth in mind, it will be helpful in establishing the basis for our decision to relate a brief history of the regulation of midwifery and the healing arts, first generally, then more specifically the particular history in Kansas.
In describing the history of lay midwifery, a law review comment, Choice in Childbirth: Parents, Lay Midwives, and Statutory Regulation, 30 St. Louis U.L.J. 985, 989-90 (1986), recounts that midwifery belonged to women from Biblical times through the Middle Ages. However, subsequent to the Middle Ages, women healers were often barred from universities and precluded from obtaining medical training or degrees. With the rise of barber-surgeon guilds, women were banned from using surgical instruments.
When midwives emigrated to America, they occupied positions of great prestige. Some communities licensed midwives and others did not. This continued until the end of the 19th century. In the 19th and 20th centuries, medical practice became more standardized. Economically and socially well-placed doctors pressed for more restrictive licensing laws and for penalties against those who violated them. The law review comment suggests that licensure was a market control device; midwives were depriving new obstetricians of the opportunity for training, and elimination of midwifery would allow the science of obstetrics to grow into a mature medical specialty.
There is a notable absence of anything in the history of Kansas healing arts regulation illustrating any attempt to specifically target midwives. In 1870, the Kansas Legislature adopted its first restriction on the practice of medicine, captioned:
“CONCERNING EMPYRICISM.
“A BILL to protect the people of Kansas from empyricism, and to elevate the standing of the medical profession.”
It provided:
“Section 1. That it shall be unlawful for any person within the limit of the state of Kansas, who has not attended two full courses of instruction and graduated in some respectable school of medicine, either of the United States or of some foreign country, or who cannot produce a certificate of qualification from some state or county medical society, and is not a person of good moral character, to practice medicine in any of its departments for reward or compensation, for any sick person in the state of Kansas.” L. 1870, ch. 68, § 1.
This legislation sought to protect the public by seeking to restrict the practice of medicine to those with formal credentials. It should not be viewed as having been intended to apply to midwives, for two reasons. First, by its express language the statute applies only to those who practiced on “sick” people. We later defined “sick” within a statutory regulation of the practice of medicine to mean ailments or infirmities of the body and mind, affected with disease, ill, indisposed, not in health, and disordered. State v. Douglas, 124 Kan. 482, 484, 260 Pac. 655 (1927). Second, there can be little doubt that in 1870 Kansas, particularly in rural areas, there were not enough educated physicians available to deliver all of the children bom in the state. In fact, until 1910 approximately 50 percent of births in this country were midwife assisted. 30 St. Louis U.L.J. at 988.
In 1901, the 1870 law was repealed and replaced by the immediate precursor to our current healing arts act. G.S. 1901, § 6674 defined the practice of medicine and surgery regulated by the act as follows:
“Any person shall be regarded as practicing medicine and surgery within the meaning of this act who shall prescribe, or who shall recommend for a fee, for like use, any drug or medicine, or perform any surgical operation of whatever nature for the cure or relief of any wounds, fracture, or bodily injury, infirmity or disease of another person, or who shall use the words or letters ‘Dr.,’ ‘doctor,’ ‘M.D.,’ or any other tide in connection with his name which in any way represents him as engaged in the practice of medicine and surgery. . . . [N]othing in this act shall . . . apply to the administration of domestic medicines, nor to prohibit gratuitous services . . . .”
This statute’s focus on “wounds, fracture, or bodily injury, infirmity or disease” is inconsistent with an intent to include the natural delivery of children. In addition, midwifery continued its prevalence at this time, and childbirth had not yet become the dominant province of physicians.
Although obstetricians held themselves out as a medical specialty in the United States as early as 1868, midwives were not seen as engaged in the practice of obstetrics, nor was obstetrics universally viewed as being a branch of medicine. In 1901, North Carolina recognized obstetricians as engaged in the practice of medicine but women midwives, as a separate discipline, were exempted from the licensure act. State v. Welch, 129 N.C. 579, 40 S.E. 120 (1901). In a 1911 Kansas case addressing whether chiropractic was the practice of medicine, we noted in passing that in a strict sense obstetrics is not the practice of medicine:
“Medicine is defined as ‘the science and art of dealing with the prevention, cure, or alleviation of disease; in a narrower sense, that part of the science and art of restoring and preserving health which is the province of the physician as distinguished from the surgeon and obstetrician.’ (Webster’s New Inter. Diet.).” State v. Johnson, 84 Kan. 411, 417, 114 Pac. 390 (1911).
Although many states in the early 1900’s passed laws relating to midwifery, Kansas has never expressly addressed the legality of the practice. In 1915, in Yard v. Gibbons, 95 Kan. 802, 808-09, 149 Pac. 422 (1915), this court implied that a woman with considerable midwife experience was qualified to testify as an expert witness in a malpractice case against an osteopath for allegedly negligently delivering the plaintiff’s child.
In the early 1900’s, Kansas passed legislation requiring registrations of births, which required the attending physician or midwife to file a certificate of birth with the local registrar. G.S. 1915, § 10162. As part of that act, physicians and midwives were to register their names. G.S. 1915, § 10163. Ruebke argues the purpose of this act was to regulate physicians and midwives and that its repeal in 1951 shows the legislature’s intent to no longer regulate lay midwives. This is a misreading of the history of this enactment. Physicians were already regulated when this act was passed, and its purpose was not to regulate any profession, but to implement a system to keep track of vital statistics. When repealed in 1951, it was replaced by a another scheme to collect birth information, where midwives and physicians were still required to file birth certificates, but were not required to register. L. 1951, ch. 355, § 9.
The popularity of midwifery declined significantly during the first third of the 20th Century. By 1930, births attended by non-physicians had declined to 15 percent of all births. 30 St. Louis U.L.J. at 993. This trend continued, and by 1975 the percentage of births attended by midwives had dropped to less than 1 percent. Note, Regulation of Midwives as Home Birth Attendants, 30 B.C.L. Rev. 477, 484 (1989).
In 1957, the independent regulation of doctors of medicine and surgeons, osteopaths, and chiropractors was replaced with the current healing arts act, L. 1957, ch. 343. This act adopted the current definition of the practice of medicine that was previously set forth. L. 1957, ch. 343, § 2. Provisions similar to the current ones deemed certain persons to be engaging in the practice of the healing arts or the practice of medicine and surgery. L. 1957, ch. 343, §§ 67, 68, 69.
The 1978 Kansas Legislature created a new classification of nurses, Advanced Registered Nurse Practitioner (ARNP). L. 1978, ch. 240, § 1. One classification of ARNP is certified nurse midwives. Although the regulations permitting the practice of certified nurse midwives might be argued to show additional legislative intent to prohibit the practice of lay midwives, this argument has been rejected elsewhere. See Leigh v. Board of Registration in Nursing, 395 Mass. 670, 679-81, 481 N.E.2d 1347 (1985).
In 1978, Kansas Attorney General opinion No. 78-164 suggested that the practice of midwifery is a violation of the healing arts act, although it relied on a questionable interpretation of the Massachusetts law which was' specifically disavowed in the Leigh case referred to above. Although potentially persuasive, such an opinion is not binding on us. State v. Scherzer, 254 Kan. 926, 932, 869 P.2d 729 (1994).
Most probably in response to the 1978 Attorney General opinion, a 1978 legislative interim committee undertook a study of a proposal to recognize and regulate the practice of lay midwifery. However, the committee reached no conclusion, noting that at the time 32 states or territories recognized the practice of midwifery through either legislation or regulations.
In 1984, the Board of Healing Arts brought an action against Lynda J. Hitchcock, a practicing lay midwife in Finney County, which resulted in a consent decree. Ruebke testified she has carefully followed the provisions of the consent decree.
A 1986 review of the laws of every state found that lay midwifery was specifically statutorily permitted, subject to licensing or regulation, in 25 jurisdictions. Twelve states, including Kansas, had no legislation governing or prohibiting lay midwifery directly or by direct implication. Several states recognized both lay and nurse midwives. Some issued new licensing only for nurse midwives, while others regulated and recognized both, often as separate professions, subject to separate standards and restrictions. Note, Midwifery in America: The Need for Uniform and Modernized State Law, 20 Suffolk U.L. Rev. 1117, 1125, 1127-29 (1986).
In the 1991 debate on H.B. 2127, which increased the penalties for those practicing medicine or surgery without a license, testimony regarding home births with lay midwives appeared to assume that lay midwives were engaged in the unlicensed practice of the healing arts. However, Richard Gannon, representing the Board of Healing Arts, “noted that midwifery services can be performed within the current law if done so under the supervision of a physician.” Minutes of House Committee on Public Health and Welfare, March 18,1991. Larry Buening, general counsel for the Board of Healing Arts, contended that midwifery is the practice of the healing arts but not a branch thereof.
In voting against H.B. 2127, Representative Stevi Stephens expressed her understanding that it would apply to midwives “who INVADE the practice of the healing arts.” House J. 1992, p. 546. In tibe Senate Committee on Public Health and Welfare, Senator Doug Walker placed on the record his view that the bill “would not adversely impact the practice of midwifery, and any consequence it would have on that effect would be contrary to the intent and understanding of that legislation.” Minutes of the Senate Committee on Public Health and Welfare, March 17, 1992. While this legislative history is of interest, it is questionable whether it evidences legislative intent or merely expresses different legislators’ personal viewpoints. See In re Heller, 160 Bankr. 655, 659 (D. Kan. 1993).
In April 1993, the Board of Healing Arts released Policy Statement No. 93-02, in which the Board stated it reaffirmed its previous position of August 18, 1984, that
“ ‘[m]idwifeiy is the practice of medicine and surgery and any practice thereof by individuals not regulated by the Kansas State Board of Nursing or under the supervision of or by order of or referral from a licensed medical or osteopathic doctor constitutes the unlicensed practice of medicine and surgery.’ ”
In the recent case of State v. Mountjoy, 257 Kan. 163, 891 P.2d 376 (1995), we reviewed a criminal prosecution of midwives for practicing the healing arts without a license. The jury had returned verdicts of not guilty, and the State appealed on a question reserved: whether the trial court erred in instructing the jury criminal intent was a required element of the crime of practicing the healing arts without a license. The defendants in Mountjoy argued that the healing arts act provided insufficient notice that midwifery is illegal and that it was therefore unconstitutionally vague. We held the practice of the healing arts without a license is a strict liability crime not requiring criminal intent and refused to consider the defendants’ constitutionality issue for lack of statutory authority to do so. 257 Kan. at 167.
This historical background brings us to the question of whether the healing arts act is unconstitutionally vague and if Ruebke’s midwifery practices, as a matter of law, come within the act’s scope. In making this determination, we first consider the parties’ diametrically opposed views as to our scope of review on appeal.
Scope of Review
The parties’ contentions regarding our scope of review present a quandary. First, because portions of the healing arts act and the nursing act were declared unconstitutionally vague, the Boards suggest that as a legal determination, the question of the constitutionality of the acts is entitled to unlimited review with no deference due the trial court. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). Ruebke argues that our consideration of this question can rise no higher than our scope of review of the trial court’s ultimate decision not to permit a temporary injunction, which is subject to review only for an abuse of discretion. See U.S.D. No. 503 v. McKinney, 236 Kan. 224, 226-27, 689 P.2d 860 (1984); Wichita Wire, Inc. v. Lennox, 11 Kan. App. 2d 459, 462, 726 P.2d 287 (1986).
We decline to adopt Ruebke’s proposed scope of review. In cases in which a trial court’s decision regarding an injunction is based on disputed facts, although we look to whether the trial court abused its discretion, in doing so we will look at whether the factual basis for its decision is supported by sufficient evidence. See State, ex rel., v. Reed, 190 Kan. 376, 381, 375 P.2d 588 (1962). Similarly, where we review a mixed law-fact question, we apply the substantial competent evidence test to the factual findings, and determine by unlimited review whether those findings support the legal conclusions. See Tucker v. Hugoton Energy Corp,, 253 Kan. 373, 377-78, 855 P.2d 929 (1993). By analogy, the proper scope of review here is to determine, as a matter of law, with unlimited review, whether the trial court erred in holding the act unconstitutionally vague and, if it did not, whether it abused its discretion in denying the temporary injunction.
The parties have an additional dispute regarding the stringency of our review. Ruebke contends that because the healing arts act makes the unlicensed practice of medicine a strict liability crime, our review should be exacting and the act must be strictly scrutinized. Healing Arts does not dispute that rule, but argues that the rule applies only if it were pursuing a criminal charge. Because Healing Arts is asking for an injunction, it argues we should give the act a liberal construction to achieve the public safety purposes of regulating the unlicensed practice of medicine.
We have held that the constitutionality of a statute, the violation of which is a criminal offense, should be determined by the standards applied to criminal statutes generally, even though considered in the context of a civil suit. State, ex rel., v. Fairmont Foods Co., 196 Kan. 73, 77, 410 P.2d 308 (1966); see State, ex rel., v. Fleming Co., 184 Kan. 674, 339 P.2d 12 (1959). In Boatright v. Kansas Racing Comm’n, 251 Kan. 240, Syl. ¶ 4, 834 P.2d 368 (1992), we held: “If a statute could subject a person to both crim inal and administrative actions, the criminal standard for determining vagueness applies.”
Under the standard applied in criminal cases, a statute “is vague and violates due process if it prohibits conduct in terms so vague that a person of common intelligence cannot understand what conduct is prohibited, and it fails to adequately guard against arbitrary and discriminatory enforcement.” State v. Adams, 254 Kan. 436, Syl. ¶ 1, 866 P.2d 1017 (1994). A statute which requires specific intent is more likely to withstand a vagueness challenge than one, like that here, which imposes strict liability. See City of Wichita v. Lucero, 255 Kan. 437, 451, 874 P.2d 1144 (1994).
Even where the rule of strict construction applies, it means only that ordinary words are given their ordinary meaning and that the statute should not be read to include more or less than that readily found within it. See State v. Finley, 199 Kan. 615, 617, 433 P.2d 414 (1967). Under strict construction of a criminal statute, any reasonable doubt as to its meaning is to be decided in favor of the accused. State v. Donlay, 253 Kan. 132, Syl. ¶ 3, 853 P.2d 680 (1993).
We recognized in Chambers v. Herrick, 172 Kan. 510, 516-17, 241 P.2d 748 (1952), that an act which provides for both criminal penalties and license revocation should be interpreted by reference to “sound public policy” when the case did not involve criminal prosecution. Our case arises as an injunction action, and a common-sense determination of fairness is the standard to be utilized. That is, “can an ordinary person exercising common sense understand and comply with the statute? If so, the statute is constitutional.” Boatright v. Kansas Racing Comm’n, 251 Kan. 240, Syl. ¶ 3. In the Indiana case of Smith v. State ex rel. Medical Licensing Bd., 459 N.E.2d 401, 406 n.4 (Ind. App. 1984), a similar approach was adopted where it was held the primary purpose of the Indiana Medical Practice Act was for the protection of the public.
In construing the acts in question, we must consider both their vagueness and the intertwined question of whether they apply to Ruebke’s actions as a midwife. This is not a case where the acts are so clear and unambiguous in expressing legislative intent that there is no room for statutory construction. See State ex rel. Ste phan v. Board of Seward County Comm’rs, 254 Kan. 446, 448, 866 P.2d 1024 (1994). However, in construing statutes, “[statutory words are presumed to have been and should be treated as consciously chosen and, with understanding of the ordinary and common meaning, intentionally used with the legislature having meant what it said.” State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 168, 815 P.2d 66 (1991). But, if the wording has a commonly understood technical meaning in the context it is employed, it should be construed according to such meaning rather than conflicting nontechnical ordinary meanings. See Flour Mills of America v. Burrus Mills, 174 Kan. 709, 716-17, 258 P.2d 341 (1953).
We have held that the interpretation of a statute given by an administrative agency within its area of expertise is entitled to deference, although final construction of a statute always rests with courts. See In re Tax Appeal of Harbour Brothers Constr. Co., 256 Kan. 216, 221, 883 P.2d 1194 (1994). However, under the facts of this case, we owe no deference to the construction expressed by Healing Arts as to the legal question of the scope of its own jurisdiction. See Kansas Power & Light Co. v. Kansas Corporation Comm'n, 237 Kan. 394, Syl. ¶ 1, 699 P.2d 53 (1985).
We do, of course, attempt wherever possible to construe a statute as constitutional, as U.S.D. No. 503 v. McKinney, 236 Kan. 224, 230, 689 P.2d 860 (1984), teaches us:
“Long-standing and well-established rules are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the duty of the court to uphold the statute under attack, whenever possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally sound, that should be done.”
If legislative intent can be determined, we should construe the statute consistent with that intent. See State ex rel. Stephan v. Board of Seward County Comm’rs, 254 Kan. 446, 448, 866 P.2d 1024 (1994). To ascertain and give effect to legislative intent where police power is to be exercised, we must fairly read the entire context of the legislation on the subject, rather than only an isolated section, and consider the object of that legislation and the evils or mischief sought to be prevented or remedied. Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 452, 436 P.2d 828 (1968). We are mindful that Commissioner Harman, in Foote, stated that the “whole purpose and tenor of the healing arts act is the protection of the public against unprofessional, improper, unauthorized, and unqualified practice of the healing arts” and “to secure to the people the services of competent, trustworthy practitioners.” 200 Kan. at 453.
Throughout its history, the healing arts regulatory scheme has been unsuccessfully challenged on a variety of constitutional grounds. See Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589, 808 P.2d 1355 (1991); Kansas State Board of Healing Arts v. Acker, 228 Kan. 145, 612 P.2d 610 (1980); Sutherland v. Ferguson, 194 Kan. 35, 397 P.2d 335 (1964); State, ex rel., v. Cooper, 147 Kan. 710, 78 P.2d 884 (1938); State v. Johnson, 84 Kan. 411, 114 Pac. 390 (1911); State v. Wilcox, 64 Kan. 789, 68 Pac. 634 (1902). However, we have never before considered the precise question of whether the statutory definition of the healing arts is unconstitutionally vague.
Is the healing arts act unconstitutionally vague and does it apply to midwifery?
K.S.A. 65-2802(a)
We have previously set forth the two provisions of the healing arts act under which Ruebke’s activities are claimed to be prohibited. The first is K.S.A. 65-2802(a), which limits the healing arts to “ascertainment, cure, relief, palliation, adjustment or correction of any human disease, ailment, deformity or injury.”
In holding this provision is not unconstitutionally vague, we rely on the principle that “Kansas has long held a statute will not be declared void for vagueness and uncertainty where it employs words commonly used, previously judicially defined or having a settled meaning in law. In re Brooks, 228 Kan. at 544.” State v. Rose, 234 Kan. 1044, 1046, 677 P.2d 1011 (1984).
The definition of healing arts uses terms that have an ordinary, definite, and ascertainable meaning. The trial court’s conclusion that “disease, ailment, deformity or injury” are not commonly used words with settled meanings cannot be justified.
In Crees v. California State Board of Medical Examiners, 213 Cal. App. 2d 195, 208 n.4, 28 Cal. Rptr. 621 (1963), a statute proscribed the unlicensed practice of “any system or mode of treating the sick and afflicted in this State, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other mental or physical condition of any person.” The court held there was no merit to the contention that the statute was vague: “A reading of the section suggests that people of common intelligence would have no trouble in understanding what was proscribed.” 213 Cal. App. 2d at 215.
The fact that the terms “injury” and “disease” are explicitly defined for the narrow purposes of other statutory enactments does not deprive these terms of common meaning. See K.S.A. 1995 Supp. 44-508(e) (defining injury for workers compensation purposes); K.S.A. 1995 Supp. 40-3103 (defining injury for purpose of the Automobile Injury Reparations Act); K.A.R. 28-1-1 (defining disease).
Our holding that the act is not unconstitutionally vague because the words it uses have ordinary and readily understood meanings does not resolve the dispute before us, which deals with both vagueness and whether Ruebke’s activities come within the act’s provisions. Although we hold' the act not to be unconstitutionally vague, we also hold the definitional provisions do not cover midwifery. In their ordinary usage the terms in K.S.A. 65-2802(a) used to define healing arts clearly and unequivocally focus exclusively on pathologies (i.e., diseases) and abnormal human conditions (i.e., ailments, deformities, or injuries). Pregnancy and childbirth are neither pathologies nor abnormalities.
Our conclusions find support in the decisions of other courts addressing similar questions. For example, under a definition of the practice of medicine similar to our definition of the healing arts, the Court of Criminal Appeals of Texas held:
“It would appear, however, that the Legislature of Texas has not defined the practice of medicine so as to include the act of assisting women in parturition or childbirth insofar as the practice of medicine without registering a certificate evidencing the right to so practice is made punishable as an offense.
“No reason appears why the Legislature could not establish a line of statutory demarcation separating the work of the midwife from that of practicing medicine.
“We agree that childbirth is a normal function of womanhood, and that proof that the appellant for a consideration agreed to and did attend Julia Valdez at childbirth does not support the allegation of the complaint and information that she treated or offered to treat Julia Valdez for a disease, disorder, deformity or injury or effect a cure thereof.” Banti v. State, 289 S.W.2d 244, 247 (Tex. Crim. 1956).
The regulatory acts of other states which have been held to include midwifery define healing arts more broadly to deal not only with injuries and abnormalities, but also “conditions” as well. See Bowland v. Municipal Court, 18 Cal. 3d 479, 491, 134 Cal. Rptr. 630, 556 P.2d 1081 (1976) (“[A]lthough normal childbirth is not a ‘sickness or affliction’ within the meaning of section 2141, we conclude, in light of the total statutory scheme governing the practice of the ‘healing arts,’ that section 2141’s prohibition against unlicensed persons treating a ‘physical condition’ was intended to encompass the practice of midwifery.”); Crees, 213 Cal. App. 2d at 208 n.4; Smith v. State ex rel. Medical Licensing Bd., 459 N.E.2d 401 (practice of medicine defined to include diagnosis and treatment of any “condition” in Indiana; includes midwifery as dealing with “condition” of pregnancy).
Other jurisdictions have explicitly included birth or midwifery within the healing arts. See Mo. Rev. Stat. § 334.010 (1994) (prohibits unlicensed practice of medicine or surgery in any of its departments or “the practice of midwifery”).
The specific terms in the statutory definition of the healing arts are not unconstitutionally vague, but they do not include the normal delivery of children.
Having addressed the issue of whether the specific words of the statutory definition of the healing arts are vague and include midwifery, we must also consider whether the definition as a whole is rendered vague, or broad enough to include midwifery, by the inclusion of the general words “the practice of medicine and surgery” in the definition of the healing arts.
The term “the practice of medicine and surgery,” which is included in the statutory definition of thé healing arts is not unconstitutionally vague because it has an. established legal meaning in this state — a meaning which does not include a midwife’s aiding in childbirth.
“Medicine is defined as ‘the sciencé and art of dealing with the prevention, cure, or alleviation of disease; in a narrower sense, that part of the science and art of restoring and preserving health which is the province of the physician as. distinguished from the surgeon and obstetrician.’ (Webster’s New Inter. Diet.) The same'authority defines surgery as the ‘art or practice of healing by manual operations; that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities oninjuries.’ ” State v. Johnson, 84 Kan. at 417.
Similarly, State ex rel. Mo. State Bd. v. Southworth, 704 S.W.2d 219, 223 (Mo. 1986), held that the term “practice of medicine” is not unconstitutionally vague. "
At least as early ás 1915, it is clear that medicine was understood by its nature to be concerned with disease and infirmities. See American Medical Association, Regulation of the Practice of Medicine, p. 78 (1915) (“[A]ny regulation of the practice of medicine should be taken to be directed against any unauthorized person who. attempts to treat any physical ailment by whatsoever system he may choose.”). Similarly,' there is no indication contemporaneous with the enactment of a healing arts regulatory scheme that unlicensed midwifery was being illegalized; nor, from a practical standpoint, could it have been; As we earlier explained, midwifery remained prominent in the earlier part of this century. The services of midwives were needed, and it is abundantly clear that early regulation of Kansas medical practice made no mention of, nor could in any manner be considéred to have altered or changed, midwifery.
From its inception in Kansas, the regulation of physicians was directed toward “empyrists,” who were quack “healers.” No subsequent language in the statutory scheme has clearly shown an intent to expand these- enactments to midwives. If the législature had intended to illegalfze such ongoing practices, it could have done so directly. It did. not.
Our definition of the practice of medicine was, from its inception, more limited than that of other states. See Regulation of the Practice of Medicine, p. 72 (New York included the diagnosis and treatment of “any human . . . physical condition”; Iowa explicitly included those professing to be obstetricians, as well as physicians, and surgeons, in its act).
Peckmann v. Thompson, 745 F. Supp. 1388 (C.D. Ill. 1990), is particularly informative on the question of whether the “practice of medicine” in its ordinary sense could be applied to midwifery. The Illinois court found that it could not, stating:
“As noted, paragraph 4400-50 prohibits the practice of medicine in all of its branches.’ Because the Act fails to define this term, and because its common understanding generally does not encompass assisting the normal delivery of a healthy child, the plaintiffs reasonably may have concluded that their conduct was not proscribed by that portion of the Act. Similarly, paragraph 4400-49 prohibits, among other things, the unlicensed treatment of any ‘ailments, or supposed ailments.’ Again, because that term is nowhere defined, and because its common understanding generally does not describe the condition of a pregnant woman without complications, the plaintiffs reasonably may have concluded that their conduct was not proscribed by that portion of the Act.” 745 F. Supp. at 1393.
Healing Arts argues that the “practice of medicine” includes the practice of obstetrics. It reasons, in turn, that obstetrics includes the practices traditionally performed by midwives. From this, it concludes midwifery is the practice of medicine.
However, equating midwifery with obstetrics, and thus with the practice of medicine, ignores the historical reality, discussed above, that midwives and obstetricians coexisted for many years quite separately. From the time of our statehood, the relationship between obstetricians and midwives changed from that of harmonious coexistence, cooperation, and collaboration, to open market competition and hostility. See 20 Suffolk U.L. Rev. at 1119-20.
We will not engage in speculation or osmotic reasoning that while obstetrics and midwifery were not in the technical or narrow sense the “practice of medicine” 80 years ago, they have now subliminally so become. Such questionable logic should not be the underpinning of the prohibition of midwifery when, if the Kansas Legislature had wanted to specifically equate midwifery to the practice of medicine, it could have done so as the Missouri Legislature did. See Mo. Rev. Stat. § 334.010 (1994).
To even the most casual observer of the history of assistance to childbirth, it is clear that over the course of this centiny the medical profession has extended its reach so deeply into area of birthing as to almost completely occupy the field. The introduction of medical advances to the childbirth process drew women to physicians to assist during the birth of their children. Yet, this widespread preference for physicians as birth attendants hardly mandates the conclusion that only physicians may assist with births.
Neither logic nor experience suggests this conclusion. At the time the legislature chose to commence to regulate practitioners of medicine and surgery, the deliveiy of children, although sometimes assisted by physicians, was not the practice of medicine or surgery. We noted in State v. Johnson, 84 Kan. 411, 114 Pac. 390 (1911), that as a technical matter obstetrics itself was not part of the art and science of medicine, even though medicine might from time to time be applied in the course of obstetrical practice. Where the ordinary meaning of words may have changed since the enactment of a statute, they must be understood in the sense they were intended at the time the statute was enacted. United Parcel Service, Inc. v. Armold, 218 Kan. 102, 107, 542 P.2d 694 (1975). The fact that a person with medical training provides services in competition with someone with no medical degree does not transform the latter’s practices into the practice of medicine.
This analysis is similar to the approach taken by Massachusetts. In Commonwealth v. Porn, 196 Mass. 326, 82 N.E. 31 (1907), the court considered whether a midwife who also used prescriptions and, in cases of emergency when no physician was available, obstetrical instruments was engaged in the practice of medicine. The Massachusetts court had held in an earlier case that whether a midwife practiced medicine in a given case depended on the facts of that case: “Whether upon such evidence it would appear that the ministrations of a midwife are those of a physician, or rather of an attendant nurse and helper, would ordinarily be a question of fact or, if the facts were not in dispute, a question of law.” Commonwealth v. Porn, 195 Mass. 443, 445-46, 81 N.E.305 (1907). Massachusetts found, as a matter of law, that in the second case the defendant had practiced medicine, Thus, Massachusetts does not consider the practice of midwifery itself to be the practice of medicine under definitions similar to our own, but it does find that a midwife practices medicine when she “practices midwifery and uses obstetrical instruments when a physician is unavailable and whq prescribes drugs.” Leigh v. Board of Registration in Nursing, 395 Mass. 670, 680 n.12, 481 N.E.2d 1347 (1985). In Leigh the use of a fetal heart monitor, a blood-pressure cuff, and oxygen was insufficient to cause a midwife to be engaged in medicine. 395 Mass, at 685.
In addition, the rule of construction ejusdem .generis suggests that the inclusion of specific words dealing solely with pathological conditions shows the intent of the legislature to deal only with such “healing”-practices in the general terms “medicine” and “surgery”:
“ ‘The rule ejusdem generis is a well known maxim of construction to aid in ascertaining the meaning of a statute or other written instrument which is ambiguous. Under the maxim, where enumeration of specific things is followed by. a more general word or phrase, such general word or phrase is held to refer to things of the same kind, or things that fall within the classification of the specific terms.’ ” Bank of Kansas v. Hutchinson Health Services, Inc., 246 Kan. 83, 89, 785 P.2d 1349 (1990) (quoting John Deere Co. v. Butler County Implement, Inc., 232 Kan. 273, 277, 655 P.2d 124 [1982]).
Healing Arts argues that discussing Ruebke’s activities as “midwifery” is irrelevant and useless because the term is so indefinite that it lacks any meaning. Healing Arts asks us to review each action Ruebke takes — every decision she makes and everything she does — and determine if any of them standing alone are the practice of the healing arts, e.g., severing the umbilical cord.
The term “practice of midwifery” is not meaninglessly indefinite. Without explicit definition, it has been held sufficiently definite to withstand a challenge for vagueness. See State ex rel. Mo. State Bd. v. Southworth, 704 S.W.2d at 223-24, where it was stated:
“Likewise the words ‘practice of midwifery’ are words of common usage, understandable by persons of normal intelligence. Appellant herself testified that the term ‘midwife’ means ‘a woman assisting á woman at childbirth.’ Her definition is almost identical to that of Black’s Law Dictionary 895 (5th ed. 1979), wherein midwifery is defined as ‘[a] woman who assists at childbirth; an accoucheuse.’ Similarly, the relevant definition of ‘midwifery,’ found in Webster’s Third New International Dictionary 1432 (1981), is ‘the art or act of assisting at childbirth; also-. OBSTETRICS.’ . . . Suffice it to say that ‘practice of midwifery’ is commonly understood to include the exercise of, as a profession or occupation, the art or act of assisting at childbirth.
“. . . Persons of ordinary intelligence need not guess at the statute’s meaning and the statute affords sufficient guidance to those who must apply it.”
Ruebke argues, and the trial court so ruled, that even if particular acts constitute the practice of the healing arts as defined by the act, those practices are not prohibited if the legislature never intended the act to apply to midwives. Ruebke seeks support for this argument in Acupuncture Society of Kansas v. Kansas State Bd. of Healing Arts, 226 Kan. 639, 645, 602 P.2d 1311 (1979), in which this court considered whether acupuncture was surgery, such that a chiropractor would be prohibited from practicing it. We noted that while the practices used in acupuncture fit within a broad definition of surgery, acupuncture had its own separate and unique history. Because acupuncture was historically and commonly not considered surgery, even though it technically may have been under some definitions, we found the legislature had no intent to include it as such. Whatever the dictionary definition of “surgery,” acupuncture was outside of the contemporaneous understanding of surgery by the ordinary layman.
Similar reasoning applies to midwifery: Even if the traditional and time-honored techniques employed by midwives fit within a technical definition of the practice of medicine or surgery, if the legislature did not intend to regulate the historically separate practice of midwifery, then it should not be considered the practice of medicine or surgery for the purposes of the healing arts act.
K.S.A. 65-2869
Healing Arts contends that even if Ruebke’s activities are not prohibited under the definitional provisions of K.S.A. 65-2802(a), she nevertheless should be deemed to be engaged in the practice of medicine and surgery because she is one of the people who “publicly profess to assume the duties incident to the practice of medicine or surgery or any of their branches” pursuant to K.S.A. 65-2869.
Before we consider this expansionist view of the legislative language, we must first address the trial .court’s implicit ruling that K.S.A. 65-2869 need not be considered because it is unconstitutionally vague. Although the Illinois federal district court in Peckmann, 745 F. Supp. 1388, has suggested that the wording “practice of medicine in all of its branches” is unconstitutionally vague when applied to midwifery, we specifically reject such an approach to our healing arts act and the conclusions it would require.
As articulated in Flax v. Kansas Turnpike Authority, 226 Kan. 1, 9, 596 P.2d 446 (1979), this court recognizes a strong preference, where consistent with legislative intent, for interpreting certain subjects as outside a statute’s scope rather than declaring the statute unconstitutional:
“In State v. Smiley, 65 Kan. 240, 69 Pac. 199 (1902), aff’d 196 U.S. 447, 49 L. Ed. 546, 25 S. Ct. 289 (1905), this court recognized the proposition that general language, valid upon its face, may be construed to exclude certain subjects or classes of things in order that the entire statute will not be held unconstitutional . . . .”
Following this reasoning, we hold that K.S.A. 65-2869 as we construe it herein is not unconstitutionally vague.
Healing Arts argues that the prohibition on chiropractors practicing obstetrics in K.S.A. 65-2802(a) shows clear legislative intent to include obstetrics as a branch of medicine or surgery. According to this argument, Ruebke, publicly professes to assume duties incident to obstetrics, and therefore her midwife services are prohibited. We find no support in the language of the statute for this tortured argument that the prohibition of chiropractors from obstetrics practice is intended by the legislature to bring lay midwifery within the healing arts act. The provision cited by Healing Arts means no more than it says — that chiropractors may not engage in obstetrics.
Nevertheless, we must still consider the question of whether Ruebke is deemed to be engaged in the healing arts because her services are “incident to” the practice of medicine or surgery. A statute must be interpreted in the context in which it was enacted and in light of the legislature’s intent at that time. Constructions placed on statutes by the court must be reasonable and should not lead to absurd results.
As we have previously stated, the legislature has at no time made it plain that midwifery was to be considered part of the healing arts. If we were to ignore the historical reality that the legislature never manifested any intent to prohibit midwifery and adopt Healing Art’s argument, we would be giving K.S.A. 65-2869 a construction unintended by the legislature and absurd in application.
An activity is not “incident to” the practice of medicine merely because it is engaged in by some members of the medical profession. Drafting medical research papers may be an activity to which certain licensed physicians devote considerable time, but it is not an activity which only licensed practitioners can claim to do without fear of criminal prosecution because it is “incident to” the practice of medicine. Physicians may testify in court as experts in biological processes or pharmacology. Nevertheless, an unlicensed expert is not committing a crime by publicly professing availability to present such testimony because it might be “incident to” the practice of medicine in some general sense.
Applying the rules of construction outlined earlier in this opinion, one thing is “incident to” another only if it “naturally and inseparably, depends upon, appertains to, or follows another that is more worthy.” Black’s Law Dictionary 762 (6th ed. 1990). The practice of midwifery is separate and distinct from the practice of medicine. The practice of midwifery is not incident to the practice of medicine or surgery so that it becomes a part of the healing arts by the application of K.S.A. 65-2869.
Although we hold the practice of midwifery is not itself the practice of the healing arts under our statutory scheme, our conclusions should not be interpreted to mean that a midwife may engage in any activity whatsoever with regard to a pregnant woman merely by virtue of her pregnancy. In Banti v. State, 289 S.W.2d 244, 247-48 (Tex Crim. 1956), the Texas court explained the limited scope of its similar holding:
‘We should not be understood as holding that the statute could not be violated so long as the patient was a pregnant woman. Of course pregnancy would not prevent a woman from having a disease, disorder, deformity or injury for which she would require the services of a practitioner of medicine.”
Therefore, the question of whether Ruebke was engaged in the practice of the healing arts, under the facts of this case developed during the evidentiary hearing, is not resolved only by our conclusion that the practice of midwifery is not included in K.S.A. 65-2802(a) and K.S.A. 65-2869. However, we need not decide the precise boundaries of what a midwife may do without engaging in the practice of the healing arts because, in the case before us, Ruebke was found to have worked under the supervision of physicians who were familiar with her practices and authorized her actions. Any of Ruebke’s actions that were established at trial, which might otherwise have been the practice of the healing arts, were exempt from the healing arts act because she had worked under the supervision of such physicians.
K.S.A. 65-2872 exempts certain activities from the licensure requirements of the healing arts act. In relevant part it provides:
“The practice of the healing arts shall not be construed to include the following persons:
“(g) Persons whose professional services are performed under the supervision or by order of or referral from a practitioner who is licensed under this act.”
The trial court found as a factual matter:
“Throughout her years of practice as a midwife, Michelle Ruebke has routinely utilized a licensed physician in the vicinity of the family who has agreed to be available in the case of complications and to be available for consultation and examination, and has routinely provided such physician with her prenatal records of the patient when the physician has so requested prior to delivery.
“Michelle Ruebke has continuing contact with the supervising physician throughout the prenatal care and delivery of the child.
“Michelle Ruebke has worked with most of her supervising physicians for some period of time now, but she initially established her relationship with them by talking with the physician in person, answering questions about her practice, reviewing the forms that she requests them to complete, and asking about their preferences, including such details as whether the physician wants to be notified of the time a woman goes into labor, when a baby is delivered, at what point he would like to be called, and whether he is available for consultation at any point during the pregnancy. Michelle Ruebke’s goal is to ask the physicians for input so that she can work with them in the manner the physician desires.
“Throughout her practice, the supervising physicians with whom Michelle Ruebke has worked have seen the mother before delivery, have agreed to work with Michelle Ruebke, have agreed to be available for consultation, have agreed to be available for referral in the event emergency care or transfer to a hospital is necessary, have been familiar with Michelle Ruebke’s practice and have provided certain services to her regarding the mother under their cooperative care.”
The question of whether Ruebke’s activities are exempted from the healing arts act is a legal question over which our review is unlimited. See Garrision v. State Farm Mut. Auto Ins. Co., 258 Kan. 547, 550, 907 P.2d 891 (1995). This court discussed K.S.A. 65-2872(g) briefly in State, ex rel., v. Doolin & Shaw, 209 Kan. 244, 262, 497 P.2d 138 (1972):
“The use of technicians to assist medical doctors is a long-standing practice. Nurses, nurses’ aides, physical therapists, X-ray technicians, laboratory technicians, prosthesis technicians, and fitters of artificial eyes are examples of the use of ancillary technicians. The right to referral by physicians is recognized by K.S.A. 65-2872 (g).”
It should be clear that the level of supervision required of these ancillary technicians is minimal and substantially less than direct oversight and control. In light of the uncontested factual findings of the trial court, which were supported by competent evidence in the record, we agree with the trial court that the exception to the healing arts act recognized by K.S.A. 65-2872(g) applies to any of Ruebke’s midwifery activities which might otherwise be considered the practice of the healing arts under K.S.A. 65-2802(a) and K.S.'A. 65-2869.
We hold only that midwifery itself is not the practice of the healing arts and that, under the facts of this case, those activities beyond midwifery in which Ruebke might have engaged were excepted from the healing arts act by virtue of the supervision provided by a licensed physician.
Is the Nursing Act Unconstitutionally Vague?
The trial court also found that the definition of the practice of nursing in K.S.A. 65-1113(d) is unconstitutionally vague. Again, if the nursing act does not plainly apply to midwifery, our preference is to hold it does not cover such activities rather than declare it unconstitutionally vague, if.such.cán be done within the intent of the legislature. Consistent with our analysis of the healing arts act, we reject the trial court’s conclusion that the nursing act is unconstitutionally vague and uphold the validity of the act. ,
As we have held, the legislature has never specifically acted with the intent to restrict or regulate the traditional practice of lay midwifery. Nevertheless, Nursing argues such birth assistants must be licensed nurses before they may render aid to pregnant women. In oral argument, Nursing conceded much of its argument would be muted were we to hold, as we do above, that the practice of midwifery is not the practice of the healing arts and thus not part of a medical regimen. '
The practice of nursing is defined in K.S.A. 65-1113 as follows:
“(d) Practice of nursing. (1) The practice of professional nursing as performed by a registered professional nurse for compensation or gratuitously; except as permitted by K.S.A. 65-1124 and amendments .thereto, means the process in which substantial specialized knowledge derived from the biological, physical, and behavioral sciences is applied to: the care, diagnosis, treatment, counsel and health teaching of persons who are experiencing changes in the normal health processes or who require assistance in the maintenance of health or the prevention or management of illness, injury or infirmity; administration, supervision or teaching of the process as 'defined in this section; and the execution of the medical regimen as prescribed by a person licensed to practice medicine and surgery or a person licensed to practice dentistry. (2) The practice of nursing as a licensed practical nurse means the performance for compensation or gratuitously, except as permitted by K.S.A. 65-1124 and any amendments thereto, of tasks and responsibilities defined in part (1) of this subsection (d) which tasks and responsibilities are based on acceptable educational preparation within the framework of supportive and restorative dare under the direction of a registered professional nurse, a person licensed to practice medicine and surgery or a person licensed to practice dentistry.”
The practice of nursing is defined by reference to the practitioner’s substantial specialized knowledge in areas of the biological; physical, and behavioral sciences' and educational preparation within the field of the healing arts. Ruebke claims no specialized scientific knowledge, but rather, readily admits she has no' formal education beyond high school. Her assistance is valued not because it is the application .of a firm and ratified grasp of scientific theory, but because, like generations of midwives before, she has practical experience assisting in childbirth.
Moreover, “nursing” deals with “persons who are experiencing changes in the normal health processes.” As these words are commonly understood, pregnancy and childbirth do not constitute changes in the normal health process, but the continuation of it.
A nurse is commonly understood, as reflected in our statutory definition of nursing, to be a person who works in the same area as and under the supervision of a physician or other practitioner of the healing arts. As we have held, the practice of lay midwifery has, throughout the history of the regulation of nursing, been separate and distinct from the practice of the healing arts, to which nursing is so closely joined. While we have no doubt of the legislature’s poweri:o place lay midwifery under the authority of the State Board of Nursing, the legislature has not done so.
We find no legislative intent manifested in the language of the nursing act clearly illustrating the purpose of including the historically separate practice of midwifery within the practice of nursing. See generally Acupuncture Society of Kansas v. Kansas State Bd. of Healing Arts, 226 Kan. 639, 645-46, 602 P.2d 1311 (1979) (even if acupuncture might fit some technical definitions of surgery, because it is historically separate with a unique history, it is not surgery within the healing arts act). Assistance in childbirth rendered by one whose practical experience with birthing provides comfort to the mother is not nursing under the nursing act, such that li-censure is required.
Although the parties raise questions about the applicability of various other exceptions to both the nursing act and the healing arts act, the law governing temporary injunctions, and other issues, in light of our holdings above we need not address these questions in the present action. We affirm the trial court’s order denying the Boards a temporary injunction, although we reverse its finding that the acts at issue violate the constitution.-
Affirmed in part and reversed in part.
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the State, pursuant to K.S.A. 22-3602(b)(l), from the trial court’s order suppressing the evidence and dismissing the State’s case without prejudice. The defendant was charged with driving while under the influence of alcohol or drugs, fleeing or attempting to elude a law enforcement officer, and consumption of an alcoholic beverage by a minor. The issue is whether a stop occurred when the law enforcement officer activated his flashing lights or when the defendant actually stopped his vehicle and submitted to the officer’s authority.
On April 16, 1995, at approximately 1:30 a.m., Deputy Randy Headings of the Reno County Sheriff’s Office was standing outside his patrol car in rural Reno County, talking to a resident and observing traffic near the intersection of Longview and Mayfield roads. He had been dispatched to this location due to two complaints about reckless driving in the area. One complainant described the recklessly driven vehicle as a light-colored Bronco or Blazer.
While talking to the resident, the officer observed a northbound vehicle approximately one-half mile south heading towards him. The vehicle’s headlights suddenly went out, and the officer heard several individuals whooping and hollering in fun from the vicinity of the vehicle. The vehicle’s headlights came back on and it proceeded a few feet, then the headlights went off again. This pattern of the flashing headlights occurred several times. When the headlights were on, the vehicle appeared to be moving toward the officer. However, the officer did not know and could not tell if the vehicle was moving during the time that the headlights were turned off. The officer testified he thought the vehicle was stopped when the headlights were turned off, but that it could have been moving very slowly. The officer also stated that, from what he could tell, the vehicle was on the roadway when the headlights were turned off.
Finally, the vehicle passed Deputy Headings with its headlights on. At this time, Headings observed that the vehicle was a brown-colored pickup with several people in the back and cab of the truck. Headings could not tell how many people were in the truck, their ages, their sex, or what they were doing. The officer followed the truck. The pickup was traveling close to the speed limit (55 m.p.h.). The officer testified that the pickup did not weave, nor did he see anything thrown out of the truck at this time. While following the truck, the officer did not observe any other oncoming vehicles or vehicles parked in the roadway. The officer stated that he “wanted to stop the vehicle to see why it had stopped” and to see what it was doing with its headlights. Further, the officer stated that he was suspicious because of the earlier reports of reckless driving and prior mailbox damage near where the vehicle had stopped. After briefly following the truck, the officer activated his red and blue emergency lights in order to pull the car over.
When the officer activated his emergency lights, the pickup sped up and a chase ensued. The pickup turned into a private drive, drove through the yard, went through the garden, and drove into a wheat field where it finally stopped. The officer followed the truck into the field. Once the truck stopped, everyone in the truck got out of the vehicle and started running away, including the driver. The officer drew his handgun and ordered the driver to stop. The driver immediately stopped and was arrested. He was then identified as the defendant.
The defendant was charged with driving while under the influence of alcohol or drugs, fleeing or attempting to elude a police officer, and consumption of alcoholic beverages by a minor. The defendant filed a motion to suppress the evidence, alleging that the officer was without sufficient probable cause to stop the defendant’s vehicle. The defendant asked the trial court to suppress all the evidence seized as a result of unconstitutional stop, including the defendant’s identity and the alcohol test results.
The trial court ruled that the officer must have had a reasonable and articulable suspicion of criminal activity at the point in time when the officer decided to stop the vehicle by activating his emergency lights. Thus, in determining whether the officer had reasonable suspicion to make a stop, the trial court did not consider any of the events which occurred after the officer activated his’ emergency lights. The trial court found that the pickup was parked on the road and its lights were turned off, then the lights were turned back on, and the truck proceeded. The court found that this observation did not create a reasonable suspicion of criminal activity. Thus, the court found that at the time the officer activated his emergency lights and decided to stop the vehicle, the officer did not have a reasonable suspicion of criminal activity. Relying on State v. McKeown, 249 Kan. 506, 819 P.2d 644 (1991), the court granted the defendant’s motion to suppress all the evidence discovered after the officer activated his emergency lights, and the court dismissed the charges against the defendant.
Both parties agree that the stop of a moving vehicle always constitutes a seizure; thus, to make such a stop, an officer must have articulable facts sufficient to constitute reasonable suspicion under K.S.A. 22-2402. State v. Field, 252 Kan. 657, 659, 847 P.2d 1280 (1993). K.S.A. 22-2402(1) states:
“(1) 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.”
The question of whether reasonable suspicion existed under K.S.A. 22-2402 is a question of law, or in some cases a mixed question of law and fact for this court to determine under the totality of the facts and circumstances. State v. Field, 252 Kan. at 664-65. This court recently clarified the standard it should use when reviewing a trial court’s suppression of evidence in State v. Vandiver, 257 Kan. 53, 891 P.2d 350 (1995). The court stated:
“Upon the hearing of a motion to suppress evidence, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. Mincey v. Arizona, 437 U.S. 385, 390-91, 57 L. Ed. 2d 290, 98 S. Ct. 2408, 2412-13 (1978); State v. Schur, 217 Kan. 741, 743, 538 P.2d 689 (1975). An appellate court will uphold a trial court’s suppression of evidence if that ruling is supported by substantial competent evidence. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979). When reviewing a trial court’s decision as to the suppression of evidence, an appellate court normally gives great deference to the factual findings of the trial court. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate determination.” 257 Kan. at 57-58.
First, this court must determine when the “stop” occurred and at what point in the process of the stop was the officer required to have reasonable suspicion. The State contends that the stop did not occur when the officer activated his emergency fights. Rather, the fights simply indicated that the officer intended to stop the vehicle, and the fights were used to effectuate the stop. As the State points out, the vehicle did not come to a stop when the officer turned on his fights. Instead, the vehicle sped away, leading the officer on a chase through a yard, a garden, and into a wheat field. Even when the vehicle quit moving, the State contends that a stop did not occur because the defendant and the other passengers jumped out of the track and starting running. According to the State, a stop did not occur until the officer pulled his gun and ordered the defendant to stop, which caused the defendant to actually stop running. The State argues that the activation of an officer’s emergency lights should be viewed only as an order to stop and not as an actual stop in and of itself.
The State cites to State v. Hodges, 252 Kan. 989, 991, 851 P.2d 352 (1993), as authority for its position that a stop did not occur until the defendant stopped running in the wheat field. In Hodges, a Riley County police officer had been assigned to the surveillance of a Manhattan business district which had been burglarized. The officer observed a vehicle make several suspicious maneuvers in the surveillance area. The vehicle eventually left the surveillance area and drove to a restaurant. The occupants of the vehicle, including the defendant, went into the restaurant and stayed for approximately 30 minutes. The occupants then returned to the car and headed out of town. At this point, the officer turned on his emergency lights in Riley County and followed the vehicle into Geary County, where the vehicle eventually pulled over and the occupants were arrested. In analyzing the validity of the stop, this court stated: “[T]he suspects’ car was still in Riley County when [the officer] turned on his emergency lights. The stop was made, however, in Geary County.” 252 Kan. at 991. (Emphasis added.) While the issue of when the stop occurred was not directly at issue in Hodges, the court found that the stop did not occur when the officer turned on his emergency lights in Riley County. Rather, the stop occurred in Geary County when the car was actually pulled over.
Further, California v. Hodari D., 499 U.S. 621, 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991), is a case which supports the State’s position. In Hodari, two police officers observed a group of young people, including the defendant, huddled around a car in a high crime area. When the young people saw the officers, they fled. At this point, one of the officers began to chase the defendant. During the chase, the officer observed the defendant throw a rock, which was later identified as crack cocaine, into the air. A moment later, the officer tackled the defendant and handcuffed him. The defen dant moved to suppress the cocaine. The California Court of Appeal found that the defendant had been seized when he saw the officer chasing him. The court also found that this seizure was not based on reasonable suspicion; thus, it suppressed the cocaine as the result of an illegal seizure.
The United States Supreme Court reversed. It found that a seizure does not occur unless (1) an officer applies physical force or (2) the defendant submits to the officer’s assertion of authority. At the time the defendant threw the cocaine, he had not been physically touched by the officer and the defendant had not submitted to the officer’s show of authority (the pursuit). Thus, the defendant was not seized until the officer caught up to the defendant and forced him to stop. As such, the discarded cocaine was not the result of an unreasonable seizure and should not have been suppressed.
This case is analogous to Hodari. The stop of a moving vehicle always constitutes a seizure. State v. Field, 252 Kan. at 659. Here, the officer decided to stop and seize the vehicle by activating his emergency lights and pursuing the vehicle. However, the defendant did not yield to the officer’s show of authority (the emergency lights) by pulling over. Thus, a stop did not occur when the officer activated his emergency lights. Instead, the defendant sped away from the officer and attempted to avoid seizure just as Hodari did. During this chase, the defendant engaged in illegal conduct, such as driving through a private yard into a wheat field. The stop did not occur until the defendant submitted to the officer’s authority and halted in the wheat field once the officer trained his gun on the defendant. As such, the evidence of the defendant’s conduct obtained during the chase was not the result of a unreasonable seizure and should not have been suppressed.
Hodari cites another applicable case, Brower v. Inyo County, 489 U.S. 593, 103 L. Ed. 2d 628, 109 S. Ct. 1378 (1989). In Brower, several police cars, with their emergency lights on, chased the defendant’s vehicle until he crashed into a road blockade erected by the police. The defendant was killed in the crash and his heirs sued the State, contending that his death was the result of an unreasonable seizure caused by the road blockade. In discussing the Brower case, the Hodari Court stated: “We did not even consider the possibility that a seizure could have occurred during the course of the chase because, as we explained, that ‘show of authority’ did not produce his stop.” 499 U.S. at 628.
Thus, the “stop” at issue here did not occur until the defendant submitted to the officer’s show of authority in the wheat field. The trial court found that even though the actual stop did not occur until the defendant halted in the wheat field, the officer still should have had reasonable suspicion when the officer “determined to stop the vehicle” or when the process of the stop started. Consequently, the trial court found that in determining if the officer had reasonable suspicion to stop the defendant, it could only consider the facts which existed at the time the officer decided to stop the vehicle and turned on his emergency lights.
Relying on these limited facts, the trial court found that the officer did not have reasonable suspicion to make the stop. As support for its ruling, the district court cited State v. McKeown, 249 Kan. 506. In McKeown, a Reno County police officer was dispatched to Valley Pride Road to check out an older green pickup which was unfamiliar in the area. Apparently, the vehicle had been parked partially on the roadway with its lights off. When the officer arrived at the location, a vehicle had its fights on and was stopped in the road next to another car. As the officer approached, the vehicle drove off and the officer could see that it was an older green pickup. The officer stopped the vehicle because it was “the vehicle that [he] was supposed to check on in the area.” However, the officer testified that “the car was not doing anything wrong when he stopped it.” 249 Kan. at 507. When the officer approached the car, he saw an open container of alcohol and arrested the defendant. After the arrest, the officer searched the defendant and his vehicle and found marijuana and drug paraphernalia. The defendant filed a motion to suppress all the evidence found as a result of the stop, alleging that fhe officer did not have reasonable suspicion to stop the defendant. The district court agreed and suppressed the evidence. This court affirmed, stating:
“The area was dark when the officer approached. He saw taillights. Then he saw headlights of a second vehicle facing him that was adjacent to the first vehicle. The first vehicle left the scene, while the second vehicle approached the officer and then turned a comer. The officer testified that the vehicle was not doing anything wrong. This stop cannot be justified under K.S.A. 22-2402 on the grounds the officer observed a crime being committed.” 249 Kan. at 514.
The State contends that the trial court improperly relied on McKeown. McKeown may or may not support the defendant’s position that the officer did not have reasonable suspicion when he turned on his emergency lights. However, the State argues that whether the officer had reasonable suspicion when he turned on his emergency lights is irrelevant. According to the State, the officer was allowed to rely on all of the circumstances which occurred up until the actual stop in the wheat field to determine if he had reasonable suspicion to stop the defendant, regardless of when the officer decided to stop the defendant. It appears that the defendant in McKeown immediately stopped when the officer indicated that he should pull over. Thus, the officer there did not have evidence of the defendant attempting to elude the police or driving through a private yard and into a wheat field to bolster his reasonable suspicion of criminal activity, as was the case here. As such, McKeown is not analogous to or determinative of this case.
The State further supports its position that the officer could rely on all the circumstances which occurred up until the actual stop in determining whether he had reasonable suspicion to stop the defendant by citing to State v. Guy, 242 Kan. 840, 843, 752 P.2d 119 (1988). In Guy, an officer followed the defendant’s vehicle around Salina for most of the day due to “suspicious activity” the defendant was engaged in which seemed to indicate that he was involved in the drug trade. In the evening, the officer followed the vehicle onto the highway and had to drive over 100 m.p.h. to keep a uniform distance between his car and the defendant’s vehicle. The vehicle was pulled over, and the officer observed marijuana in plain view in the vehicle. The defendant was arrested. The defendant filed a motion to suppress evidence, alleging that the stop was not based on reasonable suspicion. The trial court granted the motion. In reversing the trial court, this court stated:
“The trial judge found that the officers stopped the car not for speeding but for investigation, and to identify the occupants. He pointed out that no accurate speed measurement was made, and that there was merely an estimate of the speed on the part of Officer Poore; but the judge said, ‘I have no doubt that these defendants were exceeding the speed limit.’ He concluded that the defendants were not stopped for speeding, and the officers could articulate no basis for reasonably suspecting that the defendants were committing, had committed, or were about to commit a crime as required by the statute. Therefore, the court suppressed the evidence.
“We agree with the trial court that the officers had no articulable basis to stop the defendants for drug-related activity. The officers saw no money or property change hands; they had no information that these defendants had ever been engaged in such activity; they did not identify those persons with whom defendants talked as being engaged in any unlawful activity; and they saw no violations of the law, not even traffic violations, within the city of Salina. The facts known to the officers, as related by them in the record, were insufficient to provide a reasonable suspicion that at the time the defendants left Salina they were committing, had committed, or were about to commit a crime.
“We hold that at the time the defendants left Salina and turned onto Interstate 70 the pursuing officers did not have knowledge of facts giving rise to a reasonable and articulable suspicion that the defendants had committed, were committing, or were about to commit a crime. But the critical time that the officers must have knowledge of such facts is at the time of the actual stop. Here, when the stop was made, an officer had observed the Cadillac being driven at a speed in excess of 100 miles per hour — clearly in excess of the then maximum speed limit on that interstate highway, 55 miles per hour. Under K.S.A. 22-2402, an officer may stop a person whom he sees commit a crime, whether it be a felony, a misdemeanor, or a traffic offense. K.S.A. 1987 Supp. 21-3105, and 22-2402. ” 242 Kan, at 842-43.
Thus, under Guy, the State contends that the officer’s observations of the defendant, while in pursuit of the defendant but before the actual stop occurs, may be considered when determining whether reasonable suspicion existed for a stop. According to the State, the critical time to determine reasonable suspicion is.at the time of the actual stop, not at the point of pursuit or when the officer makes a determination to stop the vehicle.
The defendant attempts to distinguish Guy. The defendant points out that the officers in Guy observed the vehicle being driven over the speed limit, thus giving them reasonable, suspicion to stop the vehicle under K.S.A. 22-2402, before the officers ever decided to stop the vehicle, whereas, in this case, the officer did not observe the defendant attempt to flee the police or drive into a wheat field until after the officer had decided to stop the defendant and had already activated his emergency lights. We agree that the facts of Guy are different from this case. However, Guy promulgated a rule of law, stating “the critical time that the officers must have knowledge of such facts [supporting a reasonable suspicion] is at the time of the actual stop.” 242 Kan. at 843. Guy is also supported by Hodari, 499 U.S. 621. In Hodari, the Court found that the officer s observation of the defendant throwing a rock of cocaine provided the officer with reasonable suspicion to seize the defendant, making the subsequent seizure proper, even though the officer did not make this observation until after he had begun chasing the defendant and had already made the determination to stop him.
Here, the actual stop occurred when the defendant submitted to the officer s authority in the wheat field. At this time, the officer had knowledge of several facts, such as the defendant’s attempt to elude a police officer, which included driving into a private driveway, yard, garden, and wheat field. Thus, the officer’s observation of the defendant’s conduct during the chase could have been used by the officer to determine if he had reasonable suspicion to stop the defendant in the wheat field.
The trial court erred in its reasonable suspicion determination by not considering the circumstances which the officer observed after he activated his flashing fights but before the actual stop occurred. We reverse and remand to the trial court for reconsideration of the officer’s reasonable suspicion based on these circumstances.
Reversed and remanded.
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The opinion of the court was delivered by
Six, J.:
The dominant issue before us in two wrongful death cases requires our determination of when K.S.A. 60-513(a)(5), the 2-year statute of limitations, commences to run." We granted petitions for review in conflicting decisions filed on the same day by different panels of the Court of Appeals. Davidson v. Denning, 21 Kan. App. 2d 225, 897 P.2d 1043 (1995), and Raile v. Nationwide Agribusiness Ins. Co., No. 72,260, unpublished opinion filed June 23,1995. Both cases involve the question whether the “fact of injury” was “reasonably ascertainable” at the date of death, so that 60-513(a)(5) began to run at death, or sometime later. Davidson is a medical malpractice case. Raile concerns a claim of negligent care against two ambulance attendants. The Davidson panel, rejecting Clark v. Prakalapakorn, 8 Kan. App. 2d 33, 648 P.2d 278, rev. denied 231 Kan. 799 (1982), held that plaintiff’s claim was not barred, reversing the district court’s dismissal of the action. The panel in Raile, following Clark, held that the statute of limitations had run and reversed the district court. Davidson is an appeal from summary judgment. K.S.A. 60-212(b)(6). Raile is before us as an interlocutory appeal. K.S.A. 60-2102(b); Rule 4.01 (1995 Kan. Ct. R. Annot. 23). The two cases have been consolidated for argument and decision. Rule 2.06 (1995 Kan. Ct. R. Annot. 16). Our jurisdiction is under K.S.A. 20-3018(b).
.We hold that the claims in both cases are time barred.
The questions for review are:
(1) Did the Davidson district court err in considering matters outside the petition when ruling on defendants’ motion to dismiss under K.S.A. 60-212(b)(6) and in determining that the action was time barred? The answer is, “No.”
(2) Did the Davidson district court’s interpretation of 60-513(a)(5) violate the Equal Protection Clause of the 14th Amendment to the United States Constitution and § 1 of the Kansas Constitution Bill of Rights? The answer is, “No.”
(3) Did the Raile district court err in denying the defendants’ motion to dismiss under K.S.A. 60-212(b)(6) and determining that the action was not time barred? The answer is, “Yes.”
FACTS
Davidson
Buddy Dean Davidson was admitted to the Lawrence Memorial Hospital emergency room on February 9, 1991, for treatment of facial bums. His wife, Lois Davidson, told an emergency room nurse that Davidson previously had experienced trouble with blood clots. The blood clot information was allegedly not conveyed to Davidson’s treating physicians. Davidson died at the hospital on February 12, 1991, from a pulmonary embolism (blood clot obstructing the pulmonary artery between the heart and lungs). Davidson’s physicians allegedly failed to: (1) take an adequate medical history, (2) diagnose pulmonary emboli, and (3) treat Davidson to prevent formation of blood clots. At the urging of Davidson’s brother, Mrs. Davidson on March 11 and 12, 1991, spoke with an investigator from the offices of the attorneys that represented her in this case in the district court and in the Court of Appeals. During her discussion, she learned that because of her husband’s history of blood clots, he would be prone to develop them again if he lay in bed for some time. She also learned that medication to thin her husband’s blood could have been given to lessen the chance of blood clots forming and moving to the lungs. On March 4, 1993, Mrs. Davidson filed an action against the hospital, three doctors, and other medical personnel, alleging that her husband’s death resulted from negligent medical care at the hospital. Her original petition alleged that she “was without knowledge of any negligence or causal connection with regard to any fault or negligence of any health care provider that caused or contributed to cause the death of Buddy Dean Davidson until March 4, 1991.”
The doctors and the hospital filed motions to dismiss under K.S.A. 60-212(b)(6) for failure to state a claim, arguing the action was time barred. Davidson filed a motion to amend her petition “to more clearly state that while Plaintiff was aware of her husband’s death on February 12, 1991, the earliest she could have known that there was a link between the death and any negligence of Defendants was March 4, 1991.” The district court denied the motions to dismiss. The district judge’s memorandum decision cited Clark, but stated: “Clark is a fact case as clearly signaled by the judges when they added the words ‘in this case.’ I am not willing to extrapolate it into authority for a motion to dismiss where the facts are not part of the pleadings.”
Thereafter, two of the doctors and the hospital filed motions to reconsider the district court’s ruling. Mrs. Davidson filed another motion to amend her petition, with a supporting memorandum including more detailed factual allegations of Davidson’s treatment and death. The memorandum also addressed her knowledge of her husband’s treatment and death and attached answers to interrogatories describing her March 11 and 12, 1991, conversations with the investigator from her attorneys’ office. She stated that she was not aware of the defendants’ negligence until “after March 4, 1991.” Some parties exchanged interrogatories, document production requests, and responses. The parties filed pretrial questionnaires, and a pretrial conference was held. Mrs. Davidson also filed a First Supplemental Pretrial Questionnaire which specified her theories of negligence.
The district court heard oral argument on: (1) the motions to reconsider, (2) Mrs. Davidson’s motion to amend her petition, and (3) a pending motion for summary judgment filed by one of the physicians which is not part of this appeal. The Davidson panel’s review of the record suggested that the district court may not have considered Mrs. Davidson’s responses to certain interrogatories. She answered that she did not know until after March 4,1991, that her husband was likely to develop blood clots if he lay in bed for an extended period or that medications could have been given to prevent the development of blood clots. 21 Kan. App. 2d at 229. We question the Court of Appeals’ observation. The answers to interrogatories were attached to her motion to amend her petition. Mrs. Davidson’s counsel stated at the district court hearing that he had nothing new to submit and stood on his previously filed memorandum opposing the motions to dismiss. The district court granted the motions to dismiss, relying on Mrs. Davidson’s First Supplemental Pretrial Questionnaire setting forth in detail the theory of the claim and grounds for negligence. The district judge reasoned: “This is not a case in which the cause of death was not medically discernible, such as some of the early radiation damage cases. The theory is straightforward.”
The district court also relied upon statements of Mrs. Davidson’s counsel that no concealment was involved, observing: “Plaintiff makes no claim that medical records were altered, falsified, or in any manner concealed. When I inquired in oral argument, counsel for plaintiff confirmed this.”
The district court determined that “we now have facts on the record.” The district court made the following findings:
“I find the explanation for delay in determining the reason for death is not legally significant. The fact plaintiff contacted out-of-town counsel and a quick assessment of the potential action was made from available records demonstrates vividly that the information was reasonably ascertainable and that plaintiff was able to secure counsel.
“Under the facts and theoiy of plaintiff’s case with no medical records altered, falsified, or concealed, the injury was reasonably ascertainable no later than the date of death. Everything with which to malee a determination as to questions of negligence existed from that date forward.”
The Davidson panel applied the standard of review applicable to summary judgment motions and reversed, declining to follow Clark:
“It does not terminate the discussion to say that, in this case, death is the ‘fact of injury.’ The fact of injury alone does not start the clock in motion. There must be knowledge not only of the fact of injury but also whose negligence caused the injury. In this case, the question is not when the appellant became aware of her husband’s death. The question is when did she know or when should she have known that his death was caused by the negligence of the appellees. There is no logical reason to treat a negligently caused death differently than a negligently caused injury. This is what Clark does, and we cannot accept that premise.” 21 Kan. App. 2d at 233.
Raile
On the afternoon of December 31, 1990, a collision occurred between a pickup driven by Wilbur Staatz and a car driven by Tawnja Raile in Sherman County. The pickup broadsided the car on the driver s side. Taryn Raile, the infant daughter of Tawnja, was riding in the back seat of the car, secured in her child’s car seat. Tawnja was apparently killed instantly. Almost immediately after the accident, Debbie Raile (step-grandmother of Taiyn) was at the scene. Taryn had her eyes open and responded to Debbie’s voice. Debbie held the child’s hand briefly. Taryn was not moving her head, but was holding onto Debbie’s little finger.
A state trooper arrived next. Taiyn began making a gurgling, choking sound, and the trooper attempted to administer CPR. A sheriff’s deputy helped bend the car body so that the child could be removed. At the time the sheriff’s deputy first observed Taryn, she appeared to be unconscious but breathing in rapid, short breaths.
The ambulance arrived as the state trooper removed Taryn from the car (approximately 55 minutes after the accident). According to the sheriff’s deputy, the state trooper handed the child to Kar-lene Barrett, one of the defendant ambulance attendants, who carried the child, without using a back board, to the ambulance. Cynthia Stmad observed the ambulance attendants as Taryn was taken from the car to the ambulance. Although the ambulance attendants brought a back board and carried it to the car, it was not used. Barrett continued administering CPR enroute to the hospital. Gerald Brandenburg was the other ambulance attendant. At the hospital, Taryn was taken to the emergency room and pronounced dead on arrival by the physician on duty. The physician’s report showed a diagnosis of “head trauma.” The ambulance attendants’ records showed that Taryn had no vital signs during the trip to the hospital.
Later that evening, Dr. McCullough, the coroner, examined Tar-yn’s body at the mortuary after first visiting the accident scene. No autopsy was performed. The coroner completed a report of death, in which he stated that the child was killed instantly by the collision and that death was “from transection cervical spinal cord” (severing of the spinal cord). He had neither interviewed any of the people at the accident scene nor the hospital’s duty physician.
On June 12,1992, Richard Raile, father of Taryn, filed this action against Nationwide Agribusiness Insurance Company (Nationwide) (insurer of the pickup), Caldwell’s, Inc. (the pickup owner), Wilbur Staatz (the pickup driver), and John Raile, as the administrator of the estate of Tawnja Raile, alleging negligence concerning the car accident. The parties exchanged discovery requests and responses, and took depositions. During the discovery process, it became clear that the defendants were going to request that their negligence be compared to that of the ambulance attendants, Barrett and Brandenburg. Raile’s motion to add the two attendants as additional defendants was granted. Raile filed his first amended petition, adding Barrett and Brandenburg as defendants on December 29, 1993, almost 3 years after Taryn’s death.
Barrett and Brandenburg filed a K.S.A. 60-212(b)(6) motion to dismiss, asserting that the wrongful death claim was time barred by the 2-year statute of limitations in K.S.A. 60-513(a)(5). Raile responded, contending that he could not reasonably have ascertained that the negligence of the ambulance attendants caused injury to Taryn until the coroner was deposed (August 3,1993). The coroner concluded that death was instant, because once the spinal cord is severed, breathing stops. Raile asserted he did not know the ambulance attendants failed to use a back board until the deposition of Stmad on August 3, 1993. Counsel for Raile acknowledged that he interviewed Stmad a few days after the accident. The district court agreed with Raile’s position and denied the motion to dismiss. The denial order included a K.S.A. 60-2102(b) finding necessary for an interlocutory appeal.
The Raile panel, following Clark, reversed the district court. The claim was time barred.
“The fact of [Taryn’s] death, in our view, should have indicated a starting point for inquiry, and it is not illogical or unreasonable to assume that, when at least one family member knew that Taryn was alive after the accident but dead on arrival at the hospital, that the care and treatment administered by the emergency medical personnel responding to the accident scene might have been worth investigating.
“Nothing in the record suggests that any of the medical personnel, including the hospital or Dr. McCullough [the coroner], acted to conceal any evidence relating to McCullough’s determination of the cause of death. The facts used to determine whether a cause of action existed against tire ambulance crew were equally available to the plaintiffs had they decided to investigate that possibility. It is important to note that Raile made no effort to pursue (his possibility until the defense raised the issue during discovery.” (Emphasis in original.)
DISCUSSION
Summary Judgment — Davidson
Mrs. Davidson argued to the Court of Appeals that the district court should not have considered any matters beyond the pleadings in ruling on the motion to dismiss. As the Davidson panel correctly noted, the standard of review stated in Blevins v. Board of Douglas County Comm’rs, 251 Kan. 374, 381, 834 P.2d 1344 (1992), applies when the trial court has sustained a motion to dismiss. However, the panel also noted K.S.A. 60-212(b)(6) provides that if matters outside the pleading are presented to and not excluded by the court, a motion to dismiss for failure to state a claim shall be treated as one for summary judgment. 21 Kan. App. 2d at 227.
The statements made by Mrs. Davidson or her counsel in: (1) the motions to amend the petition, (2) answers to interrogatories, (3) pretrial questionnaires, and (4) oral argument on the motions to dismiss are “admissions” and were therefore properly considered by the district court. All of the matters the district court considered beyond the face of the pleadings consisted of admissions from Mrs. Davidson. There were no contested facts.
The Court of Appeals was correct in applying the standard of review applicable to summary judgment motions. See Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993) (rules relating to summary judgment reviewed.) Statutory construction is a question of law; thus, we have unlimited appellate review of the district court’s interpretation of K.S.A. 60-513. National Council on Compensation Ins. v. Todd, 258 Kan. 535, Syl. ¶ 2, 905 P.2d 114 (1995).
The District Court’s Decision in Davidson
The district court’s memorandum decision in Davidson does not expressly state that the court considered the defendants’ motion to dismiss as a summary judgment motion. However, the court clearly considered matters beyond the face of the petition in granting the motion. At the time the motions to dismiss were initially heard and denied, the only facts in the record were from the petition, which alleged the date Davidson was admitted to the hospital, his date of death from pulmonary embolism, that defendants’ negligence caused Davidson’s death, and that Mrs. Davidson was without knowledge of the negligence until (later sought to be amended to “after”) March 4,1991. By the time the district court reconsidered the motions, Mrs. Davidson had filed two motions to amend her petition and a supporting memorandum, which contained the additional facts that: (1) Davidson had been admitted to the hospital for treatment of facial bums; (2) Mrs. Davidson had accompanied him to the hospital emergency room at the time of admission and informed the medical personnel on duty that her husband had trouble with blood clotting; and (3) this information was not relayed to her husband’s treating physicians, who failed to properly develop his medical history and treat him for prevention of blood clotting and the resulting pulmonary embolism. Attached to her memorandum were Mrs. Davidson’s answers to certain interrogatories of Lawrence Memorial Hospital, in which she described her telephone conversations with the investigator from her attorneys’ office on March 11 and 12, 1991. Mrs. Davidson had filed her pretrial questionnaire and a First Supplemental Pretrial Questionnaire, which detailed her theories of negligence. At oral argument on the motion to reconsider, Mrs. Davidson’s counsel said that Mrs. Davidson was not aware of any causation between defendants’ negligence and her husband’s death until she visited with an investigator from her counsel’s office on March 11,1991. Counsel also said that there was no claim that any of the defendants had concealed any records or information. None of the defendants submitted any affidavits or other factual matter.
The record shows that the only matters the district court considered beyond the petition were Mrs. Davidson’s own admissions. A litigant should not assume that the court will ignore admissions either made directly to the court or filed in the case when the court is making a dispositive ruling on that case. Mrs. Davidson was given a full opportunity to submit or argue anything further. The discretion of a district judge in considering a matter which does not appear on the face of the pleading must necessarily be broad when deciding a motion to dismiss. If it develops that the facts are not disputed, the issue is decided as a matter of law upon consideration of the pleaded facts plus the additional undisputed facts. 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-212, Comments, pp. 65-66 (1979).
There was no error in the district court’s consideration of matters beyond the petition.
Nature of Wrongful Death Actions
K.S.A. 60-1901 provides:
“If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived, in accordance with the provisions of this article, against the wrongdoer, or his or her personal representative if he or she is deceased.”
At common law no cause of action existed for wrongful death. In 1846 in England a wrongful death act was enacted, commonly known as Lord Campbell’s Act, S. 9 and 10 Viet., ch. 93. The Kansas wrongful death statute has been construed similarly to Lord Campbell’s Act. A wrongful death action authorized by K.S.A. 60-1901 et seq. is for the exclusive benefit of the heirs. Mason v. Gerin Corp., 231 Kan. 718, 720-21, 647 P.2d 1340 (1982). The action may be brought only by an heir of the decedent “who has sustained loss by reason of the death.” K.S.A. 60-1902.
In 1963, when the Code of Civil Procedure was revised and enacted in its present form, the 2-year limitation in the wrongful death statute was relocated to what is now K.S.A. 60-513(a)(5). Consequently, “[a]n action for wrongful death” is specifically listed as one that must be brought “within two years.” We have observed that this revision was made for convenience and organizational purposes rather than to effect a change in the application of the wrongful death statute. Mason, 231 Kan. at 721.
Gard acknowledges that the discovery rule would apply to the wrongful death statute of limitations, but only, apparently, as to notice of death.
“Written into this section is the new provision which establishes the time of accrual of the cause of action as of the time when a substantial injury occurs from the tortious act. While the cause of action accrues at the time of the actual injury, the two-year statute of limitations does not necessarily begin to run at that time. In various types of injury it often cannot be reasonably ascertained as existing until some time after the commission of the wrongful act which causes it. . . . In rare instances even an action for wrongful death may fall within the rule, where the fact of death has been effectively concealed.” (Emphasis added.) 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-513, Comments, pp. 23-24 (1979).
The term “reasonably ascertainable” as applied in 60-513(b) and (c) in a wrongful death action suggests an objective standard based on an examination of the surrounding circumstances. See Moll v. Abbott Laboratories, 444 Mich. 1, 17-18, 506 N.W.2d 816 (1993) (applying the discovery rule to 3-year statute of limitations for product liability actions; “[w]hile the term ‘knows’ is obviously a subjective standard, the phrase ‘should have known’ is an objective standard based on an examination of the surrounding circumstances”).
We have not considered the question whether the discovery rule in 60-513(b) or (c) can extend the commencement of the wrongful death statute of limitations beyond the date of death. The Court of Appeals addressed the question in Clark, holding the death was the “fact of injury” which was “reasonably ascertainable” on the date of death. 8 Kan. App. 2d at 34.
In three cases decided after the 1963 legislative re-positioning of the wrongful death statute of limitations in what is now 60-513(a)(5) and the statutory expression of the discovery rule in what is now 60-513(b) and (c), we have referenced a limitation period for a wrongful death action. Frost v. Hardin, 1 Kan. App. 2d 464, 571 P.2d 11 (1977), aff’d 224 Kan. 12, 577 P.2d 1172 (1978); Mason, 231 Kan. 718; and Crockett v. Medicalodges, Inc., 247 Kan. 433, 799 P.2d 1022 (1990). Neither Frost, Mason, nor Crockett considered the application of the discovery rule to the wrongful death statute of limitations.
“Under K.S.A. 60-513 a wrongful death action must be brought within two years of the date of death.” Frost, 1 Kan. App. 2d at 465.
“This court recognized as early as 1912 in Nesbit v. City of Topeka, 87 Kan. 394, 124 Pac. 166, that a cause of action for personal injuries accrues to the injured party when he is injured, and a cause of action for wrongful death accrues to the heirs at the death of the injured party.” Mason, 231 Kan. at 722.
Nesbit is a pre-discovery rule case. In Frost, the issue was whether a wrongful death action by minor children of a deceased father is barred by the statute of limitations because such an action would be barred if brought by their widowed mother. We held the children were not barred. 224 Kan. 12, adopting 1 Kan. App. 2d 464, Syl. ¶ 4. Mason considered whether a wrongful death claim based on the decedent’s prior injury can exist if the statute of limitations has already expired on the injury claim at the time of death.
In Crockett, 247 Kan. at 439, we said: “Clark does not extend the statute of limitations for wrongful death actions, but, instead, limits it to not more than two years from the date of death.” Crockett involved a wrongful death action alleging medical malpractice against a nursing home and a doctor. The heirs filed suit within 2 years of death hut more than 2 years (and less than 4 years) after the last date of treatment; consequently, Crockett’s factual setting is not similar to either Davidson or Raile. The district court in Crockett granted summary judgment to the nursing home and the doctor, determining that die claims were time barred. We affirmed in part, but reversed as to the claims for negligent prescription and administration of medication. Crockett considered the applicability of the discovery rule to a malpractice claim that existed before death, not to the wrongful death statute of limitations. 247 Kan. at 442.
The discovery rule, as codified in subparagraphs (b) and (c) of 60-513, expressly applies to the 2-year wrongful death limitation at 60-513(a)(5). Clark used the terms “fact of injury” and “reasonably ascertainable” in discussing the applicable statute of limitations; thus, we view Clark to hold that the discovery rule, as codified in 60-513, applies to the wrongful death statute of limitations. Clark does not provide any facts concerning the alleged malpractice or the circumstances surrounding the death.
We applied the discovery rule to the statute of limitations in several medical malpractice cases involving living patients. In Jones v. Neuroscience Assocs., Inc., 250 Kan. 477, 827 P.2d 51 (1992), the district court granted the defendants’ motions for summary judgment, ruling the action was time barred. We reversed on the statute of limitations issues. 250 Kan. at 489. We cited Cleveland v. Wong, 237 Kan. 410, 701 P.2d 1301 (1985), and Hecht v. First National Bank & Trust Co., 208 Kan. 84, 490 P.2d 649 (1971), as persuasive authority for our decision. 250 Kan. at 489.
Jones concerned the question of when an injury received from surgery first became “substantial,” or permanent, after doctors had repeatedly assured Mrs. Jones that her condition would resolve over time. Neither in Davidson nor in Raile is there a suggestion that medical personnel made any inaccurate or misleading representations to Mrs. Davidson or Mr. Raile concerning the cause of death.
In Cleveland, plaintiff, experiencing recurrent urinary tract infection and other related problems, sought treatment from the defendant doctor, who performed a resection procedure on plaintiff’s prostate on May 19, 1978. Plaintiff filed suit on August 14, 1980. The question of when plaintiff’s injury was “reasonably ascertainable” and whether the action was therefore timely filed was submitted to the jury, which determined that the action was timely. We affirmed. Cleveland, like Jones and unlike either Davidson or Baile, involved a patient injured from surgery who was told by the treating surgeon and personal physician that the conditions were temporary and normal immediately following surgery. The passage of time revealed the physicians’ statements to be wrong. Thus, plaintiff had no reason to suspect that the conditions were permanent or the result of malpractice. 237 Kan. at 414.
In Hecht, plaintiff was referred to the defendant doctors for radiation therapy for Hodgkin’s disease in 1964 and received 20 treatments. In January 1966, plaintiff was diagnosed with a recurrence of Hodgkin’s disease and was referred to defendants for additional x-ray therapy and treatment. Hecht also involved an injury that could not be evaluated as permanent until the passage of time. Plaintiff’s doctors believed that the condition would heal.
We have applied the discovery rule in a non-malpractice personal injury case, Gilger v. Lee Constr., Inc., 249 Kan. 307, 820 P.2d 390 (1991). The district court in Gilger granted summary judgment for defendants on statute of limitations grounds. The Court of Appeals reversed. Gilger v. Lee Const., Inc., 14 Kan. App. 2d 679, 687-89, 798 P.2d 495 (1990). We affirmed the portion of the Court of Appeals opinion concerning application of the K.S.A. 60-513(b) discovery rule. Gilger also involved a situation where the tortfeasor made inaccurate representations to the injured plaintiff, forestalling plaintiffs’ efforts to find the real cause. The injury in Gilger was ongoing, and plaintiffs continued to be harmed until the cause was determined and corrected. In Davidson and Baile, the injury was immediate and final.
Friends University v. W. B. Grace & Co., 227 Kan. 559, 608 P.2d 936 (1980), a roof-leak case, provides guidance about when an injury becomes “reasonably ascertainable” within the meaning of K.S.A. 60-513(b). The university’s new library roof was completed in September 1969 and began to leak in 1970 or 1971. The university complained to the roofing company and manufacturers. Repairs were first attempted in 1970, but were not successful. Conferences and inspections were held, but the roofing company and manufacturers each denied liability. In April 1975, an independent expert determined that the cause of the leak was defective material supplied by W.R. Grace & Co., and the structure would require reroofing. The university filed suit on March 29, 1977, claiming negligence, strict liability in tort, and breach of implied warranty. The defendant manufacturers were granted summary judgment based on the statute of limitations. On appeal, the university argued that under 60-513(b), the statute of limitations did not commence to run until the expert’s report was obtained, citing Hecht as authority. We disagreed with the university and affirmed summaiy judgment, stating:
“The new roof was obviously defective in some respect when leaking occurred. These defendants did not advise the plaintiff that the roof would heal itself or take any action to lull plaintiff into believing the problem was less severe than it appeared.
“In the case before us a new roof on a new building was leaking. The cause had to be defective design, materials, workmanship, or some combination thereof. At any time Friends could easily have obtained an expert opinion on the precise cause or causes for the leaking roof.” 227 Kan. at 562-65.
Although the above cases provide general guidance on the question of when the “fact of injury” is “reasonably ascertainable,” none answer the question of how the discovery rule applies in wrongful death actions.
Other Jurisdictions
A variety of positions can be found in a review of other jurisdictions concerning application of the discovery rule to the statute of limitations for wrongful death actions. See Annot., Medical Malpractice: Statute of Limitations in Wrongful Death Action Based on Medical Malpractice, 70 A.L.R.4th 535; Annot., Time of Discovery as Affecting Running of Statute of Limitations in Wrongful Death Action, 49 A.L.R.4th 972. Cases from other jurisdictions should be viewed with caution, because the discovery rule may exist, if at all, only in the common law or it may be codified in different forms and limited only to certain causes of action.
The Davidson Panel Decision
The Davidson panel aligned itself with the Illinois Court of Appeals in Fure v. Sherman Hospital, 64 Ill. App. 3d 259, 380 N.E.2d 1376 (1978).
The panel stated:
“Patients having an unexpected result from surgery are not required to immediately determine whether it was the result of malpractice. [Citation omitted.] Similarly, a decedent’s heirs at law are not required to presume that the death was the result of negligence. A distraught surviving spouse or other heir cannot reasonably be expected to immediately begin investigating the cause of death in the absence of some reason to believe that malpractice occurred. See Fure . . . .” 21 Kan. App. 2d at 228-29.
Reliance on Fure is misplaced. In Fure, the widow argued that medical personnel did not explain the cause of death to her after she had been told her husband was being treated for a perforated abdominal ulcer. We read in Fure a rationale based on the Illinois court’s concern with the medical personnel’s lack of candor in explaining the cause of death to the widow. The death certificate later listed the cause of death in obscure medical terminology (“Mallory Weiss Syndrome,” meaning perforated esophagus). 64 Ill. App. 3d at 271. In Davidson, Mrs. Davidson does not claim she did not know or understand the cause of death (pulmonary embolism). She also was well aware of her husband’s medical history and problems with blood clotting and had described that to the hospital staff at the time her husband was admitted. The idea that a distraught surviving heir or spouse should have a grace period for bereavement is questionable. Should all distraught heirs be given a grace period before a statute of limitations would otherwise commence in a wrongful death action? For how long? Should some plaintiffs, for example, a widow with children versus a widower without, be given a longer grace period than others? Would entitlement to or length of a grace period be yet another issue for the trier of fact? In addition, even if a wrongful death plaintiff has no suspicion of malpractice at the time of the decedent’s death, how will a claim be revealed without some investigation?
An additional problem with the reasoning in Fure is that a wrongful death action based on medical malpractice presents a different fact situation than a medical malpractice action involving a surviving patient. The surviving patient is available for future examination and treatment. The decedent is not. The surviving patient’s condition may change. The decedent’s will not. Records will continue to be generated during the treatment of a living being. Records concerning a decedent are generally completed at the time of death. The Davidson panel appears to equate “reasonably ascertainable” with “actual knowledge.”
K.S.A. 60-513(b) and (c) provide that the limitations period starts when the “fact of injury” becomes “reasonably ascertainable.” Inherent in “to ascertain” is “to investigate.” The district judge interpreted “reasonably ascertainable” to mean that the limitations period should start when the information from which negligence can be determined existed. The Davidson panel strongly disagreed with the district judge’s interpretation, stating:
“In effect, the trial court ruled as a matter of law that malpractice is reasonably ascertainable if the medical records are available and unaltered and an examination by someone with medical knowledge would disclose that the death was caused by malpractice, regardless of whether the survivors had any actual knowledge of malpractice or any reason to suspect malpractice. Such is not the law of this state.” 21 Kan. App. 2d at 230.
The Davidson panel viewed the district court’s ruling too broadly. The district judge determined that the theory of negligence was straightforward. The defendants failed to properly diagnose and treat the decedent for blood clotting after receiving notice that he had a history of clotting problems. This resulted in death from clotting. The judge also noted that upon Mrs. Davidson first contacting counsel, the claim was quickly assessed from the available records.
Mrs. Davidson first visited with an investigator from her counsel’s office by telephone on March 11, 1991, less than a month after the death, and she acknowledges that because of that discussion, she first became aware of possible negligent causation. The promptness in contacting counsel suggests at least suspicion that something was wrong. Yet, the lawsuit was not filed until March 4, 1993. Mrs. Davidson’s counsel explained that the reason for this delay was her failure to contact counsel. The district court made a fact-specific determination that the “fact of injuiy” was “reasonably ascertainable” as of the date of death — not a ruling that availability of records will trigger the limitations period,, as a, matter of law, even when there is no reason to suspect malpractice.
We agree with the district judge’s analysis.
Mrs. Davidson challenges the constitutionality, of the district court’s, interpretation of K.S.A. 60-513(a)(5). She contends the .interpretation eliminates the 60-513(b) or 60-513(c) discovery period and strictly limits wrongful death.plaintiffs-to filing suit within 2 years of the date of the death. We need not reach the constitutional issue, as we, hold the discovery rule applied to Mrs. Davidson’s claim. There is nothing on the face of K.'S.A. 60-513that creates a separate class consisting of wrongful death plaintiffs and" singles them out for different application of the discovery rule.. If application of the discovery rule in a wrongful death case produces a different result than in a personal injury case, the difference should be based on the facts.
The district court’s decision was based upon factual findings in this case, not on Mrs. Davidson’s status .as a wrongful death plaintiff. Thus, the district court did not need to address the merits of Mrs. Davidson’s equal protection argument, because it did not apply.
Rails
Barrett and Brandenburg argue that: (1) 60-513(c) does not apply to them, because they are not health care providers as defined by K.S.A. 40-3401(f), and (2) the claim against them is for simple negligence, so 60-513(b) should apply. The relevant discovery rule language in 60-513(b) and (c) is the same.-At oral argument before this court, counsel for Barrett and Brandenburg conceded thatfor purposes of deciding the issues in this appeal, it should make no difference whether 60-513(b) or (c) were to apply. It does not matter whether Barrett and Brandenburg are considered health care providers.
The District Court and Court of Appeals Decisions
The standard of review applicable to Raile is the same as Davidson. The district judge in Raile considered matters outside the petition in ruling on the K.S.A 60-212(b)(6) motion to dismiss. Raile submitted portions of the depositions of several witnesses in response to the motion. Therefore, the motion should be treated as one for summary judgment.
The district judge in Raile did not view Clark as establishing “as an absolute” that a wrongful death action could not be brought more than 2 years after the date of death. Rather, he determined, for purposes of the motion to dismiss only, that: (a) the acts of the ambulance attendants in removing Taryn to the ambulance without a head or neck restraint occurred on December 31,1990; (b) these acts were not reasonably ascertainable until August 3,1993; (c) the fact of injury arising from the acts of the ambulance attendants was the transection of the cervical spinal cord; and (d) the fact of injury was not reasonably ascertainable to the plaintiff until August 3, 1993.
The district judge in Raile interpreted “reasonably ascertainable” to mean “actual knowledge.” Raile did not connect the ambulance attendants’ failure to use a back board with any injury to Taryn until the coroner testified at his August 3, 1993, deposition that the cause of death was a severed spinal cord. In the coroner’s opinion, someone with a severed spinal cord could not breathe and would die immediately. Raile made the connection at that point, realizing from Debbie Raile’s testimony that Taryn was conscious and breathing for a time after the accident and before the arrival of the ambulance.
All of the information that Raile needed to make that connection was available as of the date of death. The coroner made an examination and completed a report. That fact was no secret. At least two witnesses (Stmad and the deputy) observed the failure of the ambulance attendants to use a back board. At least two witnesses observed Taryn breathing after the accident (Debbie Raile and the deputy). The state trooper who administered CPR to Taryn and handed her to the ambulance attendant was deposed, although none of his deposition transcript is included in the record. There is nothing in the record suggesting any of these witnesses were inaccessible.
The Raile panel applied Clark, which held that the “fact of injury” means the “fact of death.” We agree. The term “reasonably ascertainable” implies some obligation to investigate the factual sources available after a tragic death. The limitations period should start on the date of death unless the information from which the fact of death or negligence can be determined was either concealed, altered, falsified, inaccurate, or misrepresented. The fact of death should be a “starting point for inquiry.” The wrongful death plaintiff is charged with constructive knowledge of information that is available through a reasonable investigation of sources that contain the facts of the death and its wrongful causation.
Raile takes issue with the Court of Appeals’ statement that “Raile made no effort to pursue this possibility [of negligence by the ambulance attendants] until defense the raised the issue” during discovery. The Court of Appeals’ statement is supported by the record. Raile did not file his amended petition adding the ambulance attendants as defendants until December 29, 1993. Raile’s actions were in response to the information that came out during discovery efforts by both sides.
“Reasonably ascertainable” does not mean “actual knowledge.” The district court is reversed, and the Court of Appeals is affirmed.
The original defendants in Raile filed no response to the motion to dismiss by Barrett and Brandenburg in the district court. However, they did file a brief as appellees in the Court of Appeals raising two issues for the first time. They also filed a supplemental brief as appellees with this court. We choose not to address issues raised for the first time on appeal. See Hephner v. Traders Ins. Co., 254 Kan. 226, 231, 864 P.2d 674 (1993).
The discovery rule, as codified at K.S.A. 60-513(b) and (c), states that the limitations period starts when the “fact of injury” is “reasonably ascertainable.” The phrase “reasonably ascertainable” means that a plaintiff has the obligation to reasonably investigate available sources that contain the facts of the death and its wrongful causation. Those facts appear to have been available in both Davidson and Raile as of the date of death, more than 2 years before the actions were filed.
We have not established a “bright line” rule that the wrongful death limitations period may never be extended beyond 2 years from the date of death. Here, there were no circumstances present justifying an extension, such as concealment of the fact of death or of medical records nor a misrepresentation, alteration, inaccuracy, or falsification of any type.
For a discussion of the policy rationale justifying statutes of limitations, see Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, 132, 631 P.2d 222 (1981) (affirming an unfortunate result as the injury to the plaintiff was not ascertainable until after the statute of limitations extinguished her right to bring the action).
In Davidson, we reverse the Court of Appeals and affirm the district court; in Raile, we affirm the Court of Appeals and reverse the district court.
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The opinion of the court was delivered by
Abbott, J.:
This appeal involves both a downward durational departure and a dispositional departure following a plea of nolo contendere to a charge of attempted second-degree murder. The State appealed the departure sentence. The Court of Appeals held that the reasons for departure were not substantial and compelling. It vacated the sentence and remanded for resentencing. We granted the defendant’s petition for review.
The facts are not in dispute. The defendant was present at a fight which occurred in Hutchinson, Kansas. At this fight, the defendant’s brother was stabbed by Willard LaGrange. The police were called, but before the police arrived at the stabbing site, the defendant left the scene to take his brother to the hospital. The defendant left his brother at the hospital and started driving back to the stabbing site. At this point, the defendant was spotted by law enforcement officers who attempted to stop the defendant us ing their lights and siren. The defendant ignored the policé 'and drove to the stabbing scene, running red lights and stop signs ¿long the way, but not engaging in a high speed chase.
At the stabbing scene, the defendant got out of,the car holding a gun. The defendant announced that he intended to kill Willard LaGrange for stabbing his brother. A number of law enforcement officers were at the scene and trained their weapons on the'defendant in an attempt to persuade the defendant to surrender.
During this standoff, the defendant never pointed the gun in the general direction of any person, but the defendant stated that he was going to shoot LaGrange. Further, the defendant indicated to the law enforcement officers that if they thought'it necessary they could go ahead and shoot him. At one point, the defendant opened the slide on his weapon to show the officers that the weapon was loaded. After approximately 45 minutes, the standoff ended and the defendant surrendered his weapon. . .
. The Reno County District Court adjudicated the defendant as an adult pursuant to K.S.A. 38-1636. The defendant pleaded no contest to an amended information charging him with attempted second-degree murder. The district court of Reno County, Judge Lyle, accepted the plea, found the defendant guilty, ordered a pre-sentence investigation (PSI) report, and set the case for sentencing. Attempted second-degree.murder with the defendant’s criminal history of H carries á presumptive prison sentence of 51 to 59 months with post-release supervision of 24 months. See K.S.A. 1994 Supp. 21-4704(a).
, The defendant filed a timely motion for departure from thé presumptive sentence, listing six mitigating circumstances which hé contended justified departure. In the PSI report, the intended-victim, Willard LaGrange, made the following statement, “I feel that the crime he has been charged with is wrong — he only threatened me.” é .
The defendant had been in detention on this case for 6’ months when sentencing occurred. The trial court found the six mitigating factors listed in the defendant’s motion to depart to be substantial and compelling reasons for departure from the presumptive sentence. The trial court granted the defendant’s motion to- depart and sentenced him to 14 months in prison with post-release supervision of 24 months. The trial court then placed the defendant in community corrections for 36 months.
The legislative history of the Kansas Sentencing Guidelines Act indicates that Kansas, to an extent, looked to the determinant sentencing statutes of Washington, Oregon, and Minnesota, in formulating our sentencing scheme. Coates, Summary of the Recommendations of the Sentencing Commission, p. 6 (Report to Senate Committee on Judiciary, January 14, 1992). The case law from those states provides some insight into the issues in this appeal. However, most of the cases deal with upward departures and different statutory language and definitions, and in most instances they are distinguishable from our Kansas statutes and case law.
SPECIFYING REASONS FOR DEPARTURE
As a preliminary matter, the court must first determine an issue which die Court of Appeals raised sua sponte. This is a question of statutory interpretation; thus, this court exercises a de novo standard of review. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994).
In this case, the sentencing court departed both durationally and dispositionally. However, the sentencing court only recited one list of mitigating factors to justify both departures.
The Court of Appeals noted that the comments to the Minnesota sentencing guidelines consider a dispositional and durational departure to be two separate departures. Thus, the sentencing court is required to cite separate substantial and compelling reasons for each departure. Minnesota Sentencing Guidelines, Comment II.D.02, Minn. Stat. § 244 App. (1992). Relying on this authority, the Court of Appeals stated: “We are persuaded the Kansas Legislature intended for sentencing courts to provide separate reasons for both durational and dispositional departures.” 21 Kan. App. 2d at 213.
The 1995 Desk Reference Manual for the Kansas Sentencing Guidelines, p. 31, also states that “[sjeparate reasons for each type of departure are required when a sentence is imposed which amounts to both a durational and dispositional departure.” In mak ing this assertion, the Desk Reference Manual relies on K.S.A. 1994 Supp. 21-4719, which states:
“(a) When a departure sentence is appropriate, the sentencing judge may depart from the sentencing guidelines as provided in this section.
“(b) When a sentencing judge departs in setting the duration of a presumptive term of imprisonment: (1) The judge shall consider and apply the enacted purposes and principles of sentencing guidelines to impose a sentence which is proportionate to the severity of the crime of conviction and the offender’s criminal histoiy; and
(2) the presumptive term of imprisonment set in such departure shall not total more than double the maximum duration of the presumptive imprisonment term.
“(c) When a sentencing judge imposes a prison term as a dispositional departure: (1) The judge shall consider and apply the enacted .purposes and principles of sentencing guidelines to impose a sentence which is proportionate to the severity of the crime of conviction; and
(2) the term of imprisonment shall not exceed the maximum duration of the presumptive imprisonment term listed within the sentencing grid. Any sentence inconsistent with the provisions of this section shall constitute an additional departure and shall require substantial and compelling reasons independent of the reasons given for the dispositional departure.
“(d) If the sentencing judge imposes a nonprison sentence as a dispositional-departure from -the guidelines, the recommended duration shall be as provided in subsection (c) of K.S.A. 21-4611 and amendments thereto.” (Emphasis added.)
The dissent by Judge Malone in the Court of Appeals opinion addressed this statute and the sua sponte issue. The dissent notes that K.S.A. 1994 Supp. 21-4719(c)(2) does require a sentencing judge to specifically define separate substantial and compelling reasons for both a durational departure and a dispositional departure granted in one sentence. However, the dissent points out that this requirement only applies “if a prison term is imposed as a dispos-itional departure which is also combined with an upward dura-tional departure.” 21 Kan. App. 2d at 216.
For example, when a judge is sentencing a defendant whose presumptive sentence is nonimprisonment, K.S.A. 1994 Supp. 21-4719(c) allows a sentencing judge to make a dispositional departure and sentence the defendant to prison. Jf a judge makes such a dispositional departure and sentences the defendant to prison, 21-4719(c)(2) states that the term of imprisonment shall not exceed the maximum presumptive imprisonment term in the grid. If the trial judge imposes a term of imprisonment exceeding the maximum imprisonment term in the grid, then this longer sentence is considered a durational departure and 21-4719(c)(2) requires the judge to justify the durational departure with reasons independent of the reasons provided for the dispositional departure. The purpose of 21-4719(c) is to prevent defendants who have presumptive’ sentences of nonimprisonment from being sentenced to prison for long terms.
This section does not apply to the sentencing departure at-hand. Here, the judge did not depart by sentencing a deféndant with a nonimprisonment presumptive sentence to prison. Rather, j'ust the opposite occurred. Here, the judge departed by not sending the defendant to prison even though the defendant’s presumptive sentence was imprisonment. As such, 21-4719(d) applies; which states: “If the sentencing judge imposes a nonprison sentence as a dis-positional departure from the guidelines, the recommended; duration shall be as provided in subsection (c) of K.S.A. 21-4611, and amendments thereto.” K.S.A. 1994 Supp. 21-4611(c)(1)(A) states that recommended duration of probation in all felony cáses is 36 months for crimes in crime severity levels 1 through 5. The defendant was .convicted of a severity level 3 crime, thus the sentencing court imposed 36 months of probation as' required by 21-4611(c)(1)(A).
“ One. of the more common rules of statutory interpretation is that expressed in the Latin maxim expressio unius est exclusio al-terius, i.e., the mention or inclusion of one thing implies the exclusion of another.’ ” State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977). Here, the legislature clearly included the requirement that the sentencing court give separate reasons for dispositional and durational departures in the same sentence for a very uniqu'e type of sentencing departure. No such requirement is provided for any other type of sentencing departure. Thus, the legislature must not have intended such a requirement in any other type. of sentencing departure, such as a dispositional departure by not .sentencing the defendant to prison even though the defendant had a presumptive prison sentence combined with a downward , dura-tional departure.
We agree with the Favela dissent that “the sentencing court was not required to provide separate reasons for the dispositional and durational departures in this instance.” 21 Kan. App. 2d at 216. The Desk Reference Manual is not wrong in its statement. It simply failed to clarify that the requirement only applies to one type of double departure. It may be that it would be of benefit to the reviewing court for the trial judge to make separate and independent findings in those instances where there might be separate reasons for each type of departure. However, failure to do so would not be in violation of legislative intent and would not amount to reversible error.
SEPARATION OF POWERS
The State makes this unique argument based on a statement made by the sentencing judge. During the sentencing proceeding, the judge stated in pertinent part:
‘Tm aware of the what the facts are that gave rise to the ... to your actions in this case. I know your brother got stabbed by this Willard LaGrange and I know Willard LaGrange. He stood in front of me just like you have a couple of times. And it is interesting that he puts in here [referring to the victim statement in the presentence investigation report] that, that he thinks you got charged with the wrong crime, that all you did was threaten [him] — which would have been an aggravated assault which is what a threat is with a gun — and he recommends minimum incarceration. And you know, Willard LaGrange has been in court enough he probably knows what a charge ought to be maybe more so than the county attorney. I don’t know. But he’s got a bunch of cases against me [sic], but that’s not any worry of yours right now.”
Further, the court said:
“But I see this as an aggravated assault case, and aggravated assault case is a Level 7. And with a criminal history of H a level 7 computes to 14 months in the penitentiary. You’ve done 6 months in the Reno County Detention Center or the Bob Johnson Youth Shelter. I’m going to give you an opportunity to be placed on Community Corrections for a period of 24 months.” (Emphasis added.)
The State contends that it is clear from this language that the sentencing court disagreed with the county attorney’s decision to prosecute the defendant for attempted murder in die second degree. According to the State, the sentencing court’s decision to sentence the defendant as if he had been convicted of aggravated assault, instead of attempted murder, was a violation of the separation of powers between the judicial and executive branches of state government. In support of this argument, the State cites to State v. Williamson, 253 Kan. 163, 853 P.2d 56 (1993), which finds that a county or district attorney controls criminal prosecutions, including the determination of who shall be prosecuted and what crimes shall be charged.
The State asserts that the sentencing court’s decision to treat the defendant as if he had been convicted of aggravated assault and sentence him as such resulted in an amendment of the charged crime. Thus, according to the State, this decision by the court exceeded its judicial power and usurped the power vested in the executive branch to determine what crime the defendant should have been charged with.
According to the defendant, all the sentencing court did in this case was sentence him, it did not determine what crime he should have been charged with. In making this argument, the defendant distinguishes State v. Williamson, 253 Kan. 163. In Williamson, 253 Kan. at 165, the trial court actually dismissed a charge filed by the State because the court disagreed with the charge. This is not the case here. Rather, the court here accepted the defendant’s plea of no contest for attempted second-degree murder, thereby acknowledging that the county attorney has the right to determine what crime a defendant is charged with. The court did not attempt to dismiss or amend the defendant’s charge as the court in Williamson did. The sentencing court merely exercised its power of sentencing under K.S.A. 1994 Supp. 21-4716, which grants the sentencing judge the right to depart from a presumptive sentence.
The sentencing court specifically based this departure on factors — the degree of harm associated with the defendant’s crime was less than typical, and the victim was an aggressor or participant in the underlying altercation. Furthermore, the court also adopted the mitigating factors set out in the defendant’s motion for departure as justifications for its departure.
Most Kansas cases regarding the separation of powers doctrine and sentencing concern whether the judicial branch’s power has been usurped due to recommendations which a court must follow when sentencing a defendant. See State v. Reed, 248 Kan. 792, 793, 811 P.2d 1163 (1991) (finding that K.S.A. 1989 Supp. 21-4603[3][a], which provides that a district court shall modify a defendant’s sentence when recommended by the State Reception and Diagnostic Center, does not violate the separation of powers doctrine). The Reed case also points out that this court has “previously rejected separation of powers challenges to mandatory sentencing provisions which limit the sentencing discretion of a district court.” 248 Kan. at 798. In making this assertion, Reed cites to the following cases:
“State v. Freeman, 223 Kan. 362, 370-71, 574 P.2d 950 (1978) (K.S.A. 1977 Supp. 21-4618 mandatory sentencing provisions for those convicted of certain crimes involving use of a firearm upheld); City of Junction City v. Griffin, 227 Kan. 332, 338-39, 607 P.2d 459 (1980) (ordinance requiring mandatory jail sentence for prostitution offense upheld). See also State v. Coutcher, 198 Kan. 282, 286-87, 424 P.2d 865 (1967) (prosecutorial discretion in seeking sentence enhancement against habitual offenders no violation of separation of powers); State v. Gibson, 8 Kan. App. 2d 135, 137-38, 651 P.2d 949 (1982) (mandatory fine provision of K.S.A. 1980 Supp. 8-1909 [overweight truck] no violation of separation of powers).” 248 Kan. at 798-99.
In State v. Compton, 233 Kan. 690, 664 P.2d 1370 (1983), the statute at issue was K.S.A. 8-1567, which prohibits a prosecutor from plea bargaining a case if the purpose of the plea is to allow a person to escape the mandatory DUI penalties. This court found that the statute did not usurp the powers of the prosecutor so as to violate the separation of powers doctrine because the interference was very limited. 233 Kan. at 699. In so holding, the court stated:
“ ‘The basic meaning of the separation of powers doctrine is that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other departments. [Citations omitted.] It does not necessarily follow, however, that an entire and complete separation is either desirable or was ever intended by the framers of the Constitution. The fact that the powers of one department may overlap with another department’s powers has long been a recognized fact. Throughout the judicial history of this state early decisions attempted to apply the doctrine strictly, refusing to tolerate any overlapping of powers. [Citation omitted.] The more recent cases have modified the doctrine, taking a more pragmatic, flexible and practical approach giving recognition to the fact diere may be a certain degree of blending or admixture of the three powers of government and that absolute separation of powers is impossible.’ ” 233 Kan. at 696-97 (quoting State v. Greenlee, 228 Kan. 712, 715-16, 620 P.2d 1132 [1980]).
Thus, if the sentencing court usurped the power of the prosecutor at all; it did so in a very limited way and did not violate the separation of powers doctrine.
In-this case -it appears the trial court, after determining there were substantial and compelling reasons to depart, viewed.the penalty for aggravated assault and determined that a similar sentence would be appropriate in this case. The trial court might have chosen different words that would have made its intention more clear, but our examination of the record satisfies us that the trial judge was simply explaining why he chose the particular sentence and not usurping the power of the prosecutor.
REVIEW OF DEPARTURE SENTENCE
K.S.A. 1994 Supp. 21-4721 states in pertinent part:
“(a) A departure sentence is subject to appeal by the defendant or the state. The appeal shall be to the appellate courts in accordance with rules adopted by the supreme court.
“(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 reasons justifying a departure:
(1) Are supported by the evidence in the record; and
(2) constitute substantial and compelling reasons for departure.
“(e) In any appeal, the appellate court may review a claim that:
(1) The sentence resulted from partiality, prejudice, oppression or corrupt motive;
“(f) The appellate court may- reverse or affirm the sentence. If the appellate court concludes that the trial court’s factual findings are not supported by evidence in the record or do not establish substantial and compelling reasons for a departure, it shall remand the case to the trial court for sentencing.” (Emphasis added.)
The State claims that the sentencing court’s facts and reasons justifying departure were not supported by evidence in the record and did not constitute substantial and compelling reasons justifying departure. The State further claims that the overall sentence re- suited from partiality, prejudice, oppression, or corrupt motive. Each of these issues will be addressed in turn.
Here, the court specifically adopted all six of the reasons to depart set forth in the defendant’s motion to depart. We are satisfied all six reasons adopted by the trial court are properly before this court for review.
The defendant’s motion to depart set out the following mitigating factors in an attempt to justify departure:
The defendant is only 17 years of age. H-*
The defendant has not previously committed any offenses which would be deemed a felony if he had been an adult. bo
The victim was an aggressor in the incident which preceded the defendant’s offense. CO
4. The defendant’s brother by the victim as a result defendant’s offense.
was stabbed and seriously injured of the incident which preceded the
Because of the defendant’s age and immaturity, his judgment as to how to respond to the stabbing of his brother by the victim was impaired. Ol
No harm resulted from the defendant’s offense, and as such the harm was significantly less than typical for such an offense. co
The State contends the sentencing court listed two more reasons justifying the departure sentence — one, that the victim viewed the crime as an aggravated assault, and two, that the court viewed the crime as aggravated assault. The majority of the Court of Appeals agreed with the State. The court found that “the sentencing court felt compelled to depart primarily because the court determined the defendant was improperly charged and should have only been charged with aggravated assault.” 21 Kan. App. 2d at 212.
We disagree. The trial court mentioned that the victim felt the defendant had been improperly charged and it may have believed this also, but it did not base the departure on these reasons. Rather, the court based the departure on the fact the degree of harm attributable to this crime was significantly less than typical, the victim was an aggressor or participant in the underlying incident, and the other four reasons listed in the motion to depart.
Under the substantial competent evidence standard of review, the question is: Were the reasons enumerated by the sentencing court as justifying departure supported by evidence in the record? The trial court relied on the following six reasons for departing.
The defendant was only 17 years old. The State concedes that this finding of fact is supported by evidence in the record.
The defendant had not previously committed any offenses which would be deemed a felony if he had been an adult. The State concedes that this finding of fact is supported by evidence in the record.
The defendant’s brother was stabbed and seriously injured by the victim as a result of the incident which preceded the defendant’s crime. The State concedes that this finding of fact is supported by evidence in the record.
The defendant’s judgment as to how to respond to the stabbing of his brother by the victim was impaired because of the defendant’s age and immaturity.
In the defense counsel’s recommendation to the court prior to sentencing, he stated the following:
“[H]e [the defendant] [saw] his brother . . . involved in an altercation with another individual .... [in which] the defendant’s brother was stabbed and seriously injured.
“Mr. Favela drove his brother to the hospital, assisted his brother into care and if you were to ask his version, basically flipped out over the situation. . . . [because he got] his brother’s blood on his hands . . . [He] [g]ot in the car and returned to the scene where his brother had been stabbed. . . . [A] police officer pulled in behind him and with lights on proceeded to follow . . . Mr. Favela to the scene.
“Mr. Favela, because of his state of mind, quite frankly, just continued . . . even though it was obvious there were police officers there. He arrives at the scene, he gets a gun out of the vehicle and says essentially I’m going to kill the man who stabbed my brother. Officers intervened. Mr. Favela is there and is confronted by the officers, continuing basically to say that. Has a gun in his hands, but the gun is always either at his side or under his arm, is not pointed at anyone, and he continues saying I’m going to kill the man who stabbed my brother. While talking to the officers he tells them I’m not here to hurt you, I don’t want anything to do with you. But quite frankly, there was the long, long discussion, standoff, whatever you want to say.
“Mr. Favela, ... if he were to sit here and testify would tell the court that ... he was basically out of it. He doesn’t remember really much about the incident except that he was there, he was mad, he was upset, and who knows what would have happened. But at any rate he was there, he was with the gun, he was saying those things and after a long standoff the police finally talked him into surrendering the weapon.
“The situation, and what I want to point out looking at the reasons for departure — and it really doesn’t fit neatly into the categories — but what I’m looking at is a person who’s 17 years old, who’s not fully mature, who perhaps doesn’t understand all of his consequences, who has just seen his brother stabbed, who is severely, emotionally distraught and decides, unwisely, to take matters into his own hands. And I believe that because of his age, because of his immaturity, because of what had happened, that his own logical reasoning process was in fact impaired. That he was not in any position to logically think through the consequences of his action, particularly when you look at the fact that not only were officers there at the scene, but officers followed him to the scene and despite all that he just continued as if they were not there to begin with, initially. And I think that anyone who was thinking logically, who was thinking clearly in their own right mind would not have done such a thing.
“And so I think it simply points out the fact that ... at the time this was occurring this was something where his own emotions overrode any thought .... That isn’t an excuse. Quite frankly, the statute points out that impairment, in fact, is not an excuse. But it is something to consider when we look at whether or not we should depart from sentence.”
The State contends that there is no evidence in the record other than the defense counsel’s self-serving allegation that defendant’s judgment was impaired due to the stabbing. The State points out that neither the defendant nor the expert testified to this fact at the sentencing hearing. In making this argument, the State cites to State v. Hobbs, 60 Wash. App. 19, 24, 801 P.2d 1028 (1990), rev. denied 116 Wash. 2d 1022 (1991), in which the court held that the defendant’s loss of temper and being emotionally distressed did not indicate the defendant’s capacity to appreciate the wrongfulness of his conduct had been impaired. The Hobbs court also held that the self-serving assertions by the defendant’s attorney, without expert testimony, was insufficient to justify the sentencing court’s finding.
On the other hand, the defendant contends that his defense counsel’s statements to the court that defendant had “flipped out” were not self-serving allegations, as the State argues, for two reasons. First, the defendant contends that his counsel’s statements were merely an interpretation of facts stipulated to in the affidavit and that the sentencing court apparently arrived at this same interpretation.
In his second, and more persuasive, argument, the defendant cites to K.S.A. 1994 Supp. 21-4716(c), which states in pertinent part:
“(c) In determining aggravating or mitigating circumstances, the court shall consider:
(1) Any evidence received during the proceeding;
(2) the presentence report;
(3) written briefs and oral arguments of either the state or counsel for the defendant; and
(4) any other evidence relevant to such aggravating or mitigating circumstances that the court finds trustworthy and reliable.” (Emphasis added.)
The statute is not as clear on this issue as one would like. On the one hand, the sentencing court was perfectly justified in relying on the oral arguments of the defense counsel, especially if the court considered such argument to be trustworthy and reliable, in determining whether a mitigating circumstance existed. K.S.A. 1994 Supp. 21-4716(c)(3), (4). On the other hand, an appellate court must review the facts relied upon by the sentencing court in departing to see if the factors are supported by evidence in the record. K.S.A. 1994 Supp. 21-4721(d)(1).
The sentencing court was correct in relying on the defense counsel’s oral argument and finding that the defendant’s judgment was impaired when he committed this offense for two reasons. First, the purpose of 21-4721(d)(l) and its requirement that the sentencing court’s findings be supported by evidence in the record is to ensure that the court’s findings are not “clearly erroneous.” See State v. Gideon, 257 Kan. 591, 622-23, 894 P.2d 850 (1995). A reviewing court may be assured that a sentencing court’s findings are not clearly erroneous or made up by the sentencing court, if the findings are based upon oral statements of a defense counsel which the sentencing court apparently regarded as reliable and trustworthy. Once the trial judge determines the credibility of the defense counsel’s statements and decides to rely upon the statements, a reviewing court should not reweigh the credibility of the counsel’s statements. See Taylor v. State, 252 Kan. 98, 104; 843 P.2d 682 (1992) (finding it is the duty of the trial court to pass on the credibility of the witnesses).
Second, the sentencing court is allowed under 21-4716(c) to rely on defense counsel’s oral argument in finding that the defendant’s judgment was impaired even though 21-4721(d)(1) states that the sentencing court’s finding must be supported by evidence, because 21-4716(c) is the more specific statute. See State v. Williams, 250 Kan. 730, Syl. ¶ 3, 829 P.2d 892 (1992) (finding that to the extent there is a conflict between a general and a specific statute, the specific statute should prevail unless the legislature intended to make the general statute prevail). Thus, the sentencing court’s departure finding that the defendant’s judgment was impaired at the time of the offense because of his brother’s stabbing, his age, and his immaturity is not clearly erroneous and is supported by oral arguments of the defense counsel which the sentencing court apparently found to be trustworthy and reliable.
Next, in granting a departure sentence, the trial court relied on the fact that the victim in this case was an aggressor, or at least a participant in the underlying event that led to the criminal conduct and conviction of the defendant in this case. '
The State contends that this departure justification is not supported by evidence in the record. The State points out that the police were dispatched to an apparent gang fight, and when they arrived the defendant was not at the scene but the intended victim, Willard LaGrange, was at the scene. The State asserts that there was no evidence in the record that the intended victim was the aggressor in the stabbing or an aggressor against the defendant. Rather, according to the State, the defendant was the aggressor because he arrived with a loaded gun at the location where the victim was and announced that he intended to kill the victim.
However, the defendant points out that K.S.A. 1994 Supp. 21-4716(b)(1)(A) only requires that the victim bean aggressor or at least a participant in the underlying incident. Keeping this in mind, there is substantial competent evidence in the record that the intended victim, Willard LaGrange, was a participant in the underlying crime. It is clear from the sentencing record that Willard LaGrange stabbed the defendant’s brother and that the defendant attempted to kill the victim as a result of the stabbing. Whether LaGrange was an aggressor in the stabbing or merely defending himself does not matter; it was clear he was a participant. Thus, this finding is supported by evidence in the record. The Court of Appeals- dissent agreed, finding that this factor was supported by substantial competent evidence. 21 Kan. App. 2d at 215. The majority did not address this issue.
There may have been some confusion on the State’s part because the defendant’s motion to depart does not use the “participant” language. It only states “[t]hat the victim was an aggressor in the incident which preceded the defendant’s offense.” While the sentencing court did adopt the mitigating factors as they were listed in the defendant’s motion to depart, the sentencing court also specifically enumerated two departure reasons, one of these being “that the victim in this case was in fact an aggressor or at least a participant [in the underlying event] that led to the criminal conduct of the defendant.” (Emphasis added.) Further, the journal entry also uses the “participant” language. Thus, the sentencing court intended to find that the victim was a “participant” in the underlying case, and this finding is supported by substantial evidence in the record.
The trial court, to justify departure, also relied on the fact that no harm resulted from the defendant’s offense and that the harm was significantly less than typical for such an offense.
The State points out that the crime the defendant was convicted of, attempted second-degree murder, does not require any degree of harm or loss. K.S.A. 1994 Supp. 21-3301; K.S.A. 1994 Supp. 21-3402. Thus, the State reasons that the defendant’s crime, even if harm did not result from it, could not have caused less harm than is typical because such crimes do not have any “typical” harm associated with them. Further, the State contends that there is no evidence in the record which indicates harm did not occur from this crime. The defendant did not present evidence that the victim was not physically or emotionally harmed by the defendant’s crime.
The defendant concedes that by definition an “attempt” crime does not require a degree of harm or loss. However, the defendant contends that typically physical or emotional harm does occur to the intended victim of attempted murder. Further, the defendant asserts that he presented evidence that the intended victim in this crime did not suffer any physical or emotional harm. The defendant points to the victim’s statement in the PSI report as evidence that the defendant was not harmed physically or emotionally by the crime. The victim stated in the PSI report, “I feel that the crime [the defendant] has been charged with is wrong — he only threatened me.”
There is no evidence in the record as to what harm typically results from an attempted murder. There is also no evidence in the record to indicate that the victim involved here did not suffer emotionally or physically.
However, the Court of Appeals dissent found this factor was supported by substantial competent evidence. The dissent stated:
“In this case, the victim wrote a letter to the sentencing judge stating that he believed the defendant was being treated too harshly and asking that the defendant receive leniency. It is reasonable that a sentencing court could infer from this evidence that the degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense.” 21 Kan. App. 2d at 215.
We agree that the victim’s statement indicates that he was not harmed either emotionally or physically by the crime. In deciding to depart downward, the trial court could, as part of the-whole picture, consider the facts concerning the attempt as well as the victim’s thoughts on the crime as to how the defendant should be sentenced. Standing alone, the court’s finding would be insufficient to show a substantial and compelling reason to depart. However, common sense and experience tells us that this is not a typical attempted second-degree murder case and that the victim’s attitude is not a typical victim’s attitude in an attempted second-degree murder case. Therefore, the trial court should be able to consider it as part of the overall picture. The trial court did not commit reversible error in considering the degree of harm as a departure factor.
SUBSTANTIAL AND COMPELLING REASONS
K.S.A. 1994 Supp. 21-4721(d)(2) states that when a departure sentence is appealed, the appellate court shall determine whether the sentencing court’s “findings of fact and reasons justifying a departure . . . constitute substantial and compelling reasons for departure.” (Emphasis added.)
The State contends that one of the underlying purposes of the sentencing guidelines — that of sentence uniformity — will not be served if sentencing judges fail to follow the guidelines in a typical case. Thus, in an effort to prevent sentencing judges from frequently or inappropriately departing, the State reasons that this court should determine whether substantial and compelling reasons existed for departure as a matter of law.
On the other hand, the defendant contends that if an appellate court should review the sentencing court’s reasons for departing to see if they are substantial and compelling as a matter of law, this would violate the policy that the finder of fact is in the best position to rule upon the credibility, sufficiency, and weight of the evidence. Thus, according to the defendant, the reasons given by the sentencing court for departure should only be reviewed to determine if the sentencing court “abused its discretion.” In making this argument, the defendant cites to a few Minnesota cases which have ruled that departure should only be reviewed to determine if the court abused its discretion. Using this standard, the defendant contends it is clear that the trial court did not abuse its discretion in justifying the departure.
The Court of Appeals reviewed the law of Washington, Oregon, and Minnesota and found that while Minnesota does use the abuse of discretion standard, both Washington and Oregon require the appeals courts to review the reasons given for departure as a matter of law. The majority agreed with the State and found that appellate courts should review the sentencing court’s reasons for departure to see if such reasons are substantial and compelling reasons as a matter of law. 21 Kan. App. 2d at 209-11.
In Gideon, 257 Kan. at 623, this.court státed: “A claim.that the departure factors relied upon by the court do not constitute substantial and compelling reasons for departure is a question of law.” Thus, this issue should be reviewed de novo.
As the parties point out, the Kansas Legislature does not define what is a substantial and compelling reason for departure. However, the legislature did give some guidance in making the determination whether reasons justifying departure are substantial and compelling.
K.S.A. 1994 Supp. 21-4719(b)(1) states:
“(b) When a sentencing judge departs in setting the duration of a presumptive term of imprisonment: (1) The judge shall consider and apply the enacted purposes and principles of sentencing guidelines to impose a sentence which is proportionate to the severity of the crime of conviction and the offender’s criminal history.” (Emphásis added.)
The Kansas Legislature did not specifically provide statutory purposes and objectives for the sentencing guidelines. However, the Court of Appeals points to the principles and purposes which the guidelines are based upon according to legislative history. These principles are:
“• Prison space should be reserved for serious/violent offenders.
• The degree of sanctions imposed should be based on the harm inflicted.
• Sanction should be uniform and not related to socioeconomic factors, race, or geographic location.
• Penalties should be clear so everyone can understand exactly what has occurred after such are imposed.
.• Incarceration should be reserved for serious violent offenders who present a threat to public safety.
• The State has an obligation to rehabilitate those incarcerated; but . persons should not be sent to prison solely to gain education or job shills, as these programs should be available in the local community.
• The system must be rational to allow policymakers to allocate resources. See Coates, Sümmaiy of the Recommendations of the Sentencing Commission, p. 6-7 (Report to Senate Committee on Judiciaiy, January 14,1992). See also Kansas Sentencing Guidelines Implementation Manual (1992), p. i-1-2- (restating the goal and assumptions upon which the guidelines are grounded).” 21 Kan. App. 2d at 210.
further, this court has recognized three legislative purposes of the guidelines — (1) reduce prison overcrowding, (2) protect public safety, and (3) standardize sentences so similarly situated offenders are treated the same in order to reduce the effects of racial or geographic bias. State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994).
Finally, the legislature provided a nonexclusive list of mitigating factors which the court may consider in determining if substantial and compelling reasons for departure exist. These mitigating factors are:
“(b)(1) Subject to the provisions of subsection (b)(3), the following nonexclusive list of mitigating factors may be considered in determining whether substantial and compelling reasons for a departure exist:
(A) The victim was an aggressor or participant in the criminal conduct associated with the crime of conviction.
(B) The offender played a minor or passive role in the crime or participated under circumstances of duress or compulsion. This factor is not sufficient as a complete defense.
(C) The offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed. The voluntary use of intoxicants, drugs or alcohol does not fall with the purview of this factor.
(D) The defendant, or the defendant’s children, suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.
(E) The degree of harm or loss attributed to the current crime of conviction wás significantly less than typical for such an offense.” K.S.A. 1994 Supp. 21-4716(b)(1).
Thus, the question is: Do the factors cited by the sentencing court as reasons for departure constitute substantial and compelling reasons as a matter of law?
Each of the factors are separately set forth.
AGE 17
The State contends that the fact the defendant was only 17 when he committed the crime is not a substantial and compelling reason justifying departure because the defendant was adjudicated to stand trial as an adult on the charge of attempted murder. Further, in an apparent attempt to show the defendant was a dangerous 17-year-old, the State pointed to the testimony of a police officer who participated in the stand-off which it presented at the sentencing hearing. The officer testified that the defendant goes by the street name of Lunatic and the officer thinks the defendant is in a gang.
K.S.A. 1994 Supp. 21-4716(b)(2)(A) specifically lists the victim’s young age as an aggravating factor but 21-4716(b)(1) says nothing about the defendant’s young age being a mitigating factor. Even though the list of mitigating factors is nonexclusive, the doctrine of expressio unius est exclusio alterius applies here, and, thus, the legislature must not have intended for tire defendant’s young age to be a mitigating factor. The fact the defendant was only 17 years old at the time of the offense is not a substantial and compelling reason justifying departure as a matter of law, but it may be considered as part of the entire package.
PRIOR RECORD
The trial court found the fact that the defendant had not previously committed any offense which would be deemed a felony if he had been an adult was a substantial and compelling reason justifying departure. Citing a Washington case, the State contends this reason is not a substantial and compelling reason justifying departure. State v. Pascal, 108 Wash. 2d 125, 137, 736 P.2d 1065 (1987). The State argues that the defendant’s minimal criminal history was credited toward him in that he received a criminal history score of H and a corresponding presumptive sentence on the guidelines grid.
In State v. Trimble, 21 Kan. App. 2d 32, 894 P.2d 920 (1995), the defendant had a presumptive sentence of nonimprisonment, but the sentencing court dispositionally departed and sentenced the defendant to prison. One of the reasons the trial court gave for departing was that the defendant had committed and was convicted of a string of burglaries while on parole. The defendant made the argument that these offenses were considered both in his criminal history score and as an aggravating factor and, thus, were counted against him twice. The Court of Appeals found that this reason could be used as a substantial and compelling reason justifying departure because the sentencing court did not use the offenses generally but used the offenses as an indication that the defendant had a propensity to commit crimes while on supervised release. 21 Kan. App. 2d at 38-39.
In State v. Richardson, 20 Kan. App. 2d 932, 941, 901 P.2d 1 (1995), the sentencing court dispositionaily departed from the guidelines sentence in the defendant’s favor. As one of the substantial and compelling reasons justifying this departure, the sentencing court noted that the defendant’s prior felonies were 14 years old and that the defendant had not committed a felony of any type for the past 10 years. The State appealed to the Coürt of Appeals, contending that “a defendant’s criminal history cannot be used as justification for a departure sentence when the sentencing guidelines have already taken the defendant’s criminal history into account in determining the presumptive sentence within the grid.” 20 Kan. App. 2d at 941. The Court of Appeals found that the sentencing court relied upon factors which the sentencing grid did not take into account, such as the time elapsed since the last felony and the last person felony committed by tíre defendant. Thus, the Richardson court found that the sentencing court could use these reasons as mitigating factors. Viewing these reasons in light of the policies of the guidelines, the Court of Appeals found these reasons were substantial and compelling reasons justifying departure. 20 Kan. App. 2d at 942-43.
The sentencing court made comments on the record that the defendant’s prior crimes simply consisted of stealing two packages of cigarettes and possession and transportation of alcoholic beverages. Further, the sentencing court stated that the defendant was just a kid crook and that this crime was out of character for the defendant. These comments show that the sentencing court relied on this factor in a way in which the defendant’s criminal history score did not take into account. Thus, the fact that the defendant had not previously committed any offense which would be deemed a felony if he had been an adult was properly used as a substantial and compelling reason justifying departure in this case.
BROTHER WAS STABBED
The trial court found the fact that the defendant’s brother was stabbed and injured by the intended victim was a substantial and compelling reason justifying departure. The State contends that this should not be a substantial and compelling reason justifying departure because there is no evidence that the victim threatened the defendant or that the defendant acted in self-defense. The State contends that the defendant was purely motivated by revenge and that this should not be a substantial and compelling circumstance justifying departure.
All of the mitigating circumstances listed in K.S.A. 1994 Supp. 21-4716(b)(1) involve some sort of special circumstances which made the crime atypical. Certainly, most attempted murders are not preceded by a member of the defendant’s family being stabbed. Thus, this factor is a special circumstance which makes the defendant’s crime atypical. Further, we believe this factor meets the definition of substantial and compelling as stated in State v. Rhoads, 20 Kan. App. 2d 790, 799, 892 P.2d 918 (1995). Rhoads defines the term substantial as “something that is real, not imagined, something with substance and not ephemeral.” 20 Kan. App. 2d at 799. The defendant did not imagine that his brother was stabbed by the victim. He was at the scene when it occurred. Rhoads also defines the term compelling as a factor which forces the court “to leave the status quo or go beyond what is ordinary.” 20 Kan. App. 2d at 799. The factor of the defendant’s brother being stabbed by the victim goes beyond the ordinary attempted murder case. We think the sentencing court was right to leave the status quo and treat this factor as a substantial and compelling circumstance justifying departure.
DEFENDANTS AGE AND IMMATURITY
The trial court found the fact that the defendant’s judgment as to how to respond to the stabbing of his brother by the victim was impaired due to the defendant’s age and immaturity was a substantial and compelling reason justifying departure. Neither party nor the Court of Appeals addresses this issue. In K.S.A. 1994 Supp. 21-4716(b)(1), the legislature stated that “the following nonexclusive list of mitigating factors may be considered in determining whether substantial and compelling reasons for a departure exist.” This factor is analogous to mitigating factor (C), which states: “The offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed.” Thus, this factor qualifies as a substantial and compelling reason justifying departure.
THE VICTIM WAS AN AGGRESSOR OR A PARTICIPANT
The trial court found the fact that the victim was an aggressor, or at least a participant, in the incident which preceded the defendant’s crime was a substantial and compelling reason justifying departure. This factor is based on the mitigating circumstance found in K.S.A. 1994 Supp. 21-4716(b)(1)(A). The Court of Appeals did not address whether this factor was a substantial and compelling reason justifying departure, but the dissent did. The dissent stated:
“Cases in which the sentencing court does not rely upon any statutory aggravating or mitigating factors to depart should be viewed with a stricter scrutiny. However, when the sentencing court relies upon statutory aggravating or mitigating factors to depart, these reasons should be given great deference by a reviewing court.” 21 Kan. App. 2d at 215.
The dissent found this reason constituted a substantial and compelling reason justifying departure as a matter of law. 21 Kan. App. 2d at 216. This factor indicates that the defendant in this case is not a serious or violent offender but committed this offense based on the actions of the victim. This factor is consistent with the guidelines policy of reserving prison space only for the most serious and violent offenders in order to reduce prison overcrowding. Moreover, this factor fits the definition of substantial and compelling as provided in Rhoads, 20 Kan. App. 2d at 799. Thus, we find this factor was a substantial and compelling reason justifying departure.
NO HARM
The trial court found the fact that no harm resulted from the defendant’s offense and, as such, the harm was significantly less than typical for such an offense was a substantial and compelling reason justifying departure. This factor is based on the mitigating circumstance found in K.S.A. 1994 Supp. 21-4716(b)(1)(E). Again, the dissent found that since this factor was based on a specifically listed mitigating circumstance, it should be given great deference. The dissent found this reason constituted a substantial and compelling reason justifying departure. 21 Kan. App. 2d at 215-16. The factor indicates the defendant is not a serious or violent offender and, thus, the factor furthers one of the purposes of the guidelines. As such, this factor is a substantial and compelling reason as a matter of law and justifies departure.
The sentencing court was justified in departing based on the above findings of fact which are supported by evidence in the record and which, when considered as a whole, constitute substantial and compelling circumstances justifying departure.
OPPRESSION OR CORRUPT MOTIVE
In 1995, K.S.A. 1994 Supp. 21-4721(e) was amended to state as follows: “In any appeal, the appellate court may review a claim that: (1) A sentence that departs from the presumptive sentence resulted from partiality, prejudice, oppression or corrupt motive.” L. 1995, ch. 251, § 17.
The State contends that prejudice refers to the mental attitude or disposition of the judge toward a party in the litigation. State, ex rel., v. Sage Stores, Co., 157 Kan. 622, 626,143 P.2d 652 (1943). According to the State, the sentencing court had a low opinion of the intended victim and also had a low opinion of the State for prosecuting the defendant; thus, the judge decided to sentence the defendant leniently.
The State bases its contention that the sentencing court had a low opinion of the victim and the State on the following comments made by the sentencing court:
“I’m aware of the what the facts are that gave rise to the ... to your actions in this case. I know your brother got stabbed by this Willard LaGrange and I know Willard LaGrange. He stood in front of me just like you have a couple of times. . . . And you know, Willard LaGrange has been in court enough he probably knows what a charge ought to be maybe more so than the comity attorney. I don’t know. But he’s got a bunch of cases against me [sic], but that’s not any worry of yours right now.
“And yeah, it is rather interesting that the guy who stabs your brother, it’s determined that he is charged with something and he’s probably — I don’t know if he’s in prison or not. I didn’t have that case; it was across the hall. But he was charged with a lesser crime than you were. . . .
“. . . I look at the facts of this case and I see them differently than the county attorney does. I see them more along the line that Willard LaGrange does. . . .
“. . . I see this as an aggravated assault case.”
According to the State, these comments indicate that the sentencing court was attempting to “jab” at the prosecutor for charging the defendant with attempted murder and also indicate that the sentencing court felt sympathy toward the defendant based on the crime LaGrange was charged with. The State contends that if the sentencing court thought the facts only supported a conviction for aggravated assault, then, instead of acting with prejudice at the sentencing, the sentencing court should have refused to find the defendant guilty of attempted murder.
The trial court’s comments do not reach the level of partiality, prejudice, oppression, or corrupt motive as required under K.S.A. 1994 Supp. 21-4721(e)(1) to find a departure sentence improper. K.S.A. 1994 Supp. 21-4716(c)(2) specifically allows the sentencing court to take the PSI report, containing the victim’s statement, into account when determining if mitigating circumstances exist. While 21-4716(b)(2)(G) only requires the sentencing court to review the victim impact statement when determining aggravating circumstances, this section was not meant to imply that sentencing courts could not refer to victims’ statements when determining mitigating factors if they so choose. Thus, the sentencing court’s reference to and reliance on the victim’s statement was appropriate.
Further, in State v. Gideon, 257 Kan. 591, 894 P.2d 850 (1995), the defendant argued that the court’s reliance on the victim’s family’s inflammatory statements resulted in a hard-40 sentence based on passion and prejudice. This court stated that the sentencing court gave ample reasons to impose the hard-40 sentence which were not related to the potentially prejudicial statements; thus, the defendant had not shown the sentence resulted from passion or prejudice. 257 Kan. at 608. The same type of analysis may be applied here. While the sentencing court may have been prejudiced toward the victim and the State, it is clear that the court relied on ample reasons which were not related to its potentially prejudicial attitude in granting the departure sentence. The court also based the sentence on the fact that, inter alia, the defendant had impaired judgment due-to his brother’s stabbing. Thus, the sentence was not based on partiality, prejudice, oppression, or corrupt motive under 2l-4721(e)(1).
EXTENT OF DEPARTURE
The last issue concerns the extent to which a sentencing court may depart. The State- argues that the sentence imposed was “clearly too lenient.” The “clearly too lenient” language originates from a Washington statute which states that a sentence may be reviewed on the basis “that the sentence imposed was clearly .excessive or clearly too lenient.” Wash. Rev. Code § 9.94A.210(4) (1994 Supp.). The State contends that no reasonable person would agree with a departure from a 51 to 59 month sentencing range (the defendant’s presumptive senténee) down to' 14 months’ incarceration and the grant of 36 months of community corrections for the crime of attempted second-degree murder. In making this argument, the State cites to State v. Sanchez, 69 Wash. App. 195, 208, 848 P.2d 735, rev. denied 121 Wash. 2d 1031 (1993), which states that a valid departure sentence must have some basis in the record.
In Kansas, as the Court of Appeals dissent points out, there is no statutory limitation for downward durational departure, nor is there a provision allowing review of the sentencing court’s extent of departure. 21 Kan. App. 2d at 216. Cf K.S.A. 1994 Supp. 21-4719(b)(2) (limitation on upward durational departure). Further, the only statutory restriction on a nonprison dispositional departure concerns the length of probation granted by the sentencing court. K.S.A. 1994 Supp. 21-4719(d); K.S.A. 1994 Supp. 21-4611(c). The sentencing court here met this restriction by sentencing the defendant to 36 months’ probation as required for a level 3 person felony. K.S.A. 1994 Supp. 21-4611(c)(1)(A). Cf. K.S.A. 1994 Supp. 21-4719(c)(2) (limitations on prison term dispositional departures.) Furthermore, K.S.A. 1994 Supp. 21-4721(d) states:
“(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 reasons justifying a departure:
(1) Are supported by the evidence in the record; and
(2) constitute substantial and compelling reasons for departure.” (Emphasis added.)
This statute does not explicitly provide for review of a sentencing court’s extent of departure.
However, K.S.A. 1994 Supp. 21-4719(b)(1) states:
“(b) When a sentencing judge departs in setting the duration of a presumptive term of imprisonment: (1) The judge shall consider and apply the enacted purposes and principles of sentencing guidelines to impose a sentence which is proportionate to the severity of the crime of conviction and the offender’s criminal history.” (Emphasis added.)
This statute could be interpreted as some type of restriction on downward durational departures. It makes sense that if departure sentences are reviewable by the appellate court, then the extent of departure would also be reviewable. Further, the Summary of Recommendations of the Sentencing Commission found that a sentencing court’s discretion as to the extent of departure should be consistent with the intent and purposes of the guidelines. The Commission found that to rule otherwise would eviscerate one of the main purposes of the guidelines to provide consistency in sentencing. See Coates, Summary of the Recommendations of the Sentencing Commission, p. 10 (Report to Senate Committee on Judiciary, January 14, 1992). We hold-21-4719(b)(1) places limits on the sentencing court’s extent of departure. Thus, this court has jurisdiction to review the extent of downward durational departures.
The State seems to assume that abuse of discretion is the appropriate standard to use in reviewing the sentencing court’s extent of departure. This assumption is based partly on Washington case law, where appellate courts review a sentence to determine if it is “clearly too lenient” or excessive using an abuse of discretion standard. See State v. Sanchez, 69 Wash. App. at 200. Further, the Minnesota courts appear to give great deference to the sentencing court’s departure sentence and the extent of such departure, especially when the sentencing court departs downward durationally or imposes a nonprison dispositional departure. State v. Dokken, 487 N.W.2d 914 (Minn. App. 1992). Oregon does not appear to speak to this issue.
However, the Kansas Sentencing Commission appears to recommend a “substantial and compelling” de novo standard of review in its statement:
“Although appellate review of indeterminate sentences based on an 'abuse of discretion’ standard of review does work to correct clearly aberrational sentences, it has not resulted in less sentencing disparity or in the development of a body of principled decisions to guide sentencing judges in future cases.” Kansas Sentencing Commission, Recommendations of the Kansas Sentencing Commission, p. 84, January 15, 1991.
“Any departure from a presumptive sentence should accord with the sentencing purposes and principles that underlie these rules. More directly, this rule requires the magnitude of the durational departure be commensurate with the seriousness of the crime of conviction and the offender’s criminal history.” Kansas Sentencing Commission, Recommendations of the Kansas Sentencing Commission, p. 93, January 15, 1991.
This court’s power to review the extent of a downward durational departure is premised on an inference from a statute. Since the legislature did not find it necessary to specifically state that this court has the power to review the extent of departure, we do not believe that the legislature intended to allow the court the power to review the extent of sentences de novo. Rather, since the power to review the extent of departure is based on a mere inference, the court should not give itself more power than the legislature intended. Thus, our review should be limited to the weakest type of review — abuse of discretion. If the legislature wishes the court to have greater review power, it should specifically and clearly grant such power. Further, determining the appropriate extent of departure and whether the sentence is proportionate to the severity of the defendant’s crime of conviction is more of a fact question. Thus, deference should be granted to the sentencing judge, who has had first-hand experience with the defendant and the facts of the case, in determining the extent of departure.
Under an abuse of discretion standard of review, the question is whether the extent of the sentencing court’s durational departure is consistent with the “enacted purposes and principles of [the] sentencing guidelines” and “proportionate to the severity of the crime of conviction and the offender’s criminal history.” K.S.A. 1994 Supp. 21-4719(b)(1). In answering this question, the State points out that a trial court abuses its discretion if no reasonable person could agree with the trial court. State v. Griffin, 246 Kan. 320, 326, 787 P.2d 701 (1990); Hoffman v. Haug, 242 Kan. 867, 873, 752 P,2d 124 (1988). If any reasonable person could agree, the appellate court will not disturb the trial court’s decision.
The State contends that no reasonable person could agree with the sentencing court’s reduction of the defendant’s guidelines sentence from 51 months to 59 months in prison for attempted murder down to 14 months based on the court’s “aggravated assault” rationale.
On the other hand, the defendant argues the sentencing court did not abuse its discretion in the extent of the durational departure imposed because the court had a valid basis for such a decision. According to the defendant, the sentencing,court complied with the requirements of K.S.A. 21-4719(b) by imposing a sentence which was proportionate to the severity of the crime of conviction and the offender’s criminal history. The defendant reasoned that while he may have pled no contest to attempted murder, the sentencing court found that the severity of his crime of conviction was more commensurate with aggravated assault and, thus, the court sentenced him accordingly. As such, the. defendant contends the sentencing court did not abuse its discretion.
We cannot say no reasonable persons would agree with the extent. of the sentence imposed on the defendant in this case. Thus, the sentencing court did not abuse its discretion. We uphold both the durational and dispositional departure sentence imposed by the sentencing court.
The judgment of the Court of Appeals is reversed, and the judgment of the district court is affirmed.
Allegrücci and Six, JJ., concur in the.result
Larson, J., not participating.
Stephen D. Hill, District Judge, assigned.
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The opinion of the court was delivered by
Larson, J.:
The State of Kansas, pursuant to K.S.A. 1994 Supp. 22-3602(b)(l), appeals from the dismissal of five counts of an eight-count indictment against Kenneth Paul Wright for insufficiency of the charges.
In September 1994, a Rooks County grand jury returned a true bill of indictment charging Wright, the Plainville Chief of Police, with eight counts, including criminal threat, stalking, harassment by telephone, and theft.
Prior to trial, Wright moved to dismiss the entire indictment or, alternatively, five of the eight counts. The trial court refused to dismiss the entire indictment but did dismiss the five counts.
Count 2, charging criminal threat, is as follows:
“That on or about the 17th day óf June, 1994, the said KENNETH PAUL WRIGHT, within Rooks County, Kansas, then and there being, did then and there contrary to the Statutes of the State of Kansas unlawfully and feloniously threaten to commit violence communicated with the intent to terrorize another, to-wit: Julie Smith, or in reckless disregard of the risk of causing such terror in said Julie Smith, contrary to K.S.A. 21-3419(a)(l), 1993 Supp.”
The trial court dismissed this charge because it found the charge “merely concludes the statutory elements without alleging any specific facts and does not assert what the Defendant allegedly did to threaten the victim.”
Count 3, charging stalking, is as follows:
“That on or about or between the 1st day of June 1994 and the 20th day of July, 1994, the said KENNETH PAUL WRIGHT, within Rooks County, Kansas, then and there being, did then and there contrary to the Statutes of the State of Kansas unlawfully, feloniously, intentionally, and maliciously did follow or [sic] course of conduct directed at a specific person, to-wit: Julie Smith, when such following or course of conduct seriously alarmed, annoyed or harassed the said Julie Smith, and which served no legitimate purpose, contrary to K.S.A. 21-3438(a), as amended in Chapter 348, Section 13 of the 1994 Session Laws of Kansas.”
Similarly, the trial court dismissed this count, reasoning it “merely concludes the statutoiy elements without alleging any spe cific facts and does not assert how the Deféndarít followed or what course of conduct the Defendant allegedly took to threaten the victim.”
Count 4, charging harassment by telephone, is as follows:
“That on or about or between the 1st day of June 1994 and the 20th day of July, 1994, the said KENNETH PAUL WRIGHT, within Rooks County, Kansas, then and there being, did then and there contrary to the Statutes of the State of Kansas unlawfully and intentionally use telephone communication to make a telephone call or calls, whether or not conversation ensued, with the intent to abuse, threaten or harass any person, to wit: Julie Smith, at the called number contrary to K.S.A. 21-4113,1993 Supp.”
As with the second and third counts, the trial court found the charge “merely concludes the statutory elements without alleging any specific facts. The charge does not assert sufficient facts to specifically inform the Defendant as to what he allegedly did. to abuse, threaten or harass the victim.”
Counts 7 and 8 charge Wright with misdemeanor theft:
“That on or about .or between the 1st day of January 1994 and the 1st day of August, 1994, the said KENNETH PAUL WRIGHT, within Rooks County, Kansas) then and there being, did then and there contrary to the Statutes of the State of Kansas unlawfully deprive the owner, to-wit: City of Plainville, Kansas, permanently of the possession, use or benefit of the owner’s property by obtaining or exerting unauthorized control over property, to-wit: Defendant made nonofficial and unreimbursed telephone calls, on telephones numbered: (913) 434-2898 and (913) 434-2222, assigned to the Plainville Police Department of a value of less than $500.00, contrary to K.S.A. 21-3701(a)(1), as amended by Chapter 291, Section 26 of the 1994 Session Laws of Kansas.”
“That on or about or between the 1st day of January 1994 and the 1st day of August, 1994, the said KENNETH PAUL WRIGHT, within Rooks County, Kansas, then and there being, did then and there contrary to the Statutes of the State of Kansas unlawfully and intentionally deprive the owner, to-wit: Solomon Valléy Drug Task Force, permanently of the possession, use or benefit of the owner’s property by obtaining or exerting unauthorized control'over property, to-wit: De-féndant made non-official'and unreimbursed telephone calls, on telephones numbered: (913) 434-2037, (913) 434-7511, (913) 434-737-3066) (913) 737-3067, and (913) 737-3170, of a valúe of less than $500.00, contrary to K.S.A. 21-3701(a)(1), as amended by Chapter 291, Section 26 of the 1994 Session Laws of Kansas.”
Both of these counts were dismissed because they did not “clearly inform the Defendant of the particular acts which violate the cited statute.”
The State’s appeal' of the dismissal of these counts involves the construction of a written instrument, which is a question of law over which we have unlimited review. See Galindo v. City of Coffeyville, 256 Kan. 455, 463, 885 P.2d 1246 (1994).
The statutoiy requirements of a valid charging instrument are set forth by K.S.A. 1994 Supp.. 22-3201:
“(a) Prosecutions in the district court shall be upon complaint, indictment or information.
“(b) The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged,' which complaint, information or indictment, drawn in the language of the statute, shall be deemed sufficient. The precise time of the commission of an offense need not be stated in the indictment or information; but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offense. An indictment shall be signed by the. presiding juror of the grand jury. An information shall be signed by the county attorney, the attorney general or any legally appointed assistant or deputy of either. A complaint shall be signed by some person with knowledge of the facts. Allegations made in one count may be incorporated by reference in another count. The complaint, information or indictment shall state for each count the official or customary citation of the statute, rule and regulation or other provision of law which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the complaint, information or indictment or for reversal of a conviction if the error or omission did not prejudice the defendant.
“(c) When relevant, the complaint, information or indictment shall also allege facts sufficient to constitute a crime or specific crime subcategory in the crime seriousness scale.
“(d) The court may strike surplusage from the complaint, information or indictment.
“(e) 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. ■
“(f) When a complaint, information or indictment charges a crime but fails to specify the particulars of the crime sufficiently to enable the defendant to prepare a defense the court may, on written motion of the defendant, require the prosecuting attorney to furnish the defendant with a bill of particulars. At the trial the state’s evidence shall be confined to the particulars of the bill.
“(g) The prosecuting attomey.shall endorse the names of all witnesses known to the prosecuting attorney upon the complaint, information and indictment at the time of filing it. The .prosecuting attorney may endorse oh it the names of other witnesses that may afterward become known to the prosecuting attorney, at times that the court may by rule or otherwise prescribe.” •
In discussing the sufficiency of an indictment or information, our court in State v. Bird, 238 Kan. 160, 166-67, 708 P.2d 946 (1985), stated:
“Sufficiency of the indictment or information is to be measured by whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and by whether it is specific enough to make a plea of double jeopardy possible. Russell v. United States, 369 U.S. 749, 763-64, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962). Although the accused has the right to know the nature of the charges against him, the information need not set forth all the specific evidentiary facts relied on to sustain the charge. However, if the allegations in an information fail to constitute an offense in the language or meaning of an applicable statute, the information is fatally defective. State v. Robinson, Lloyd & Clark, 229 Kan. 301; State v. Doyen, 224 Kan. 482, 580 P.2d 1351 (1978).
“In this state, the sufficiency of the information is governed by the guidelines of K.S.A. 1984 Supp. 22-3201(2), which provides:
‘The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information, or indictment, drawn in the language of the statute, shall be deemed sufficient.’
“This court has repeatedly held that an information which charges an offense in the language of the statute is sufficient. State v. Garner, 237 Kan. 227, 237, 699 P.2d 468 (1985); State v Lucas, 221 Kan. 88, 89, 551 P.2d 1296 (1976); State v. Barry, 216 Kan. 609, 619, 533 P.2d 1308 (1974).”
The charging document in this case clearly charges each element of the offenses, and because the indictment is phrased in the words of the applicable statute, the State contends this is sufficient, relying on State v. Garner, 237 Kan. 227, 699 P.2d 468 (1985); State v Lucas, 221 Kan. 88, 551 P.2d 1296 (1976); and State v. Barry, 216 Kan. 609, 533 P.2d 1308 (1974). Nevertheless, Wright contends each count contains fatal shortcomings.
Wright contends the criminal threat count fails to allege he knew his threat would be communicated to the victim. This contention is without merit. Our criminal threat statute, K.S.A. 1994 Supp. 21-3419, does not require, as an element of the offense, that the defendant knew his or her threat would be communicated to the person terrorized. It is sufficient if there is an intent to terrorize or an act in reckless disregard of causing such terror.
Wright’s contention that the count 3 of the indictment of stalking is defective presents a problem beyond that argued in the briefs. We have today in State v. Bryan, No. 73,987, held that K.S.A. 1994 Supp. 21-3438 is unconstitutional. Our decision in Bryan compels a finding that insofar as the indictment here relates to conduct which was alleged to have occurred subsequent to July 1, 1994, there is no crime upon which the charge could be based.
The indictment specifically states the supposedly improper conduct is “contrary to K.S.A. 21-3438(a), as amended in Chapter 348, Section 13 of the 1994 Session Laws of Kansas” which became effective July 1, 1994. Because the State has attempted to charge defendant with a felony when the 1993 version of our stalking statute provided that the crime was a class B misdemeanor, we conclude that count 3 would be an ex post facto violation as applied to conduct occurring during the time frame of the charge from June 1, 1994, to July 1, 1994. The indictment attempts to charge a violation of a statute which not only was not in effect during that period but also is unconstitutional. For these reasons we hold the trial court was correct in dismissing count 3, although not for the reasons it stated. See Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, 848, 863 P.2d 364 (1993).
The ultimate question this appeal raises is whether the indictments sufficiently apprise Wright of what he must be prepared to meet to defend himself and, if that information is not found in the indictment handed down by a grand jury, whether he is obligated to request a bill of particulars before asking for dismissal.
It is important to realize that the issues we consider here are not those raised and decided in Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978), which requires that a magistrate receive sufficient factual information to make an intelligent and impartial finding that there is probable cause that a specific crime has been committed and that the defendant has or is committing the crime and to inform the defendant of the particular offense with which he or she is charged before an arrest warrant may be issued. Here, we are dealing only with a charging instrument, the probable cause for which was not found by a judge but is the result of a grand jury convened pursuant to K.S.A. 22-3001 et seq.
The United States Supreme Court in Branzburg v. Hayes, 408 U.S. 665, 686-88, 33 L. Ed. 2d 626, 92 S, Ct. 2646 (1972), described the role of the.grand jury as determining if there is probable cause to believe that a crime has been committed and of pro.-tecting citizens against unfounded criminal prosecutions. The Court referred to Wood v. Georgia, 370 U.S. 375, 390, 8 L. Ed. 2d 569; 82 S. Ct. 1364 (1962), in stating:
“ ‘Historically, [the grand jury] has been regarded as a-primary security to the innocent against hasty,’malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser, and the accused ... to determine whether a charge is founded upon .reason or was. dictated by an intimidating power or by malice and personal ill will.’ ” Branzburg, 408 U.S. at 687 n.23.
See Barbara, Kansas Criminal Law-Handbook §§ 8.5-8.12 (3d ed. 1992).
While the proceedings of the grand -jury insure that’a proper and constitutional determinatioil of probable cause has been made, we also note that .when the prosecution is commenced by the-filing of a true bill of indictment, the accused does'not have the right of a preliminary examination before a magistráté. K.S.A. 1994 Supp. 22-2902(1).
We need to further consider, in resolving the issues’ before us, that Wright attacked the indictment by a -motion to dismiss without first moving for a bill of particulars which is constitutionally allowed under § 10 of the Kansas Constitution Bill of Rights arid statutorily permitted under K.S.A. 1994 Supp. 22-3201(f).,
Finally, it is important for our consideration to remember, that while K.S.A. 1994.Supp. 22-3201(e) freely allows amendment of a complaint or an information,- that-right is not extended to an indictment, and the grand júry’s term hád expired when' the motion to dismiss was considered.'
While it is true, as- the State argues, that a charging document drawn in the language of the statute may be sufficient to inform the defendant of what charge he-or she faces, K.S.A. 1994 Supp. 22-3201(b); State v. Hall, 246 Kan. 728, 754 793 P.2d 737(1990), it is also necessary that it be sufficient to apprise the accused of the accusation against the accused. See State v. Ashton, 175 Kan. 164, Syl. ¶ 4, 262 P.2d 123 (1953).
Although an indictment must be sufficiently specific to inform the accused of the charge he or she must defend, it need not be exhaustive of the evidence to be faced during trial. In State v. Ribadeneira, 15 Kan. App. 2d 734, 749, 817 P.2d 1105, rev. denied 249 Kan. 778 (1991), our Court of Appeals held that an information need not set forth all the specific evidentiary facts relied on to sustain the charge and that an information’s allegations in the language or meaning of the statute are sufficient. Whether an indictment adequately informs the accused of the pending charge is determined by a practical commonsense construction of the charging instrument. See Allen v. United States, 867 F.2d 969, 971 (6th Cir. 1989). “[0]nce a specific offense has been identified, 'there is no further and independent requirement to identify the acts by which the defendant may have committed that offense.’ ” State v. Pelky, 131 N.H. 715, 719, 559 A. 2d 1345 (1989) (quoting State v. Therrien, 129 N.H. 765, 770, 533 A. 2d 346 [1987]).
A charging instrument does not have to be dismissed if it fails on its face to fully inform the defendant of the conduct that forms the basis of the specific offense charged. As noted in State v. Ashton, 175 Kan. at 174-75:
“Unlike bills of rights of some states section 10 of ours does not prescribe the degree of particularity and specifications required in an indictment or information. It guarantees only the right to every accused person to appear and ‘demand the nature and cause of the accusation against him.’ Appellant, as already indicated, had made no demand for a more elaborate or detailed statement of the facts but on the contrary joined issues on the charge as framed. Touching this precise point it was early said in State v. Reno, 41 Kan. 674, 21 Pac. 803:
“We think this is one of that class of cases in which the court might in its discretion require the prosecution to file a bill of particulars, but such bill of particulars will be required only in cases where the indictment or information does not of itself definitely and specifically set forth the facts, but sets them forth only vaguely or in such general terms that the defendant could not well know what he is required to defend against. Of course the defendant has the right in all cases to demand that the nature and the cause of the accusation against them shall be clearly and definitely set forth in the written charge against him. (Section 10, Bill of Rights) But where the complaint is sufficient in all particulars except that it states the facts constituting the offense only in general terms or vaguely, and not in specific detail, the defendant must, if he desires a more elaborate or detailed statement of the facts, set forth in his motion the portions of the indictment or information which he claims to be insufficient or defective, and point out to the court wherein he desires a fuller, more complete, more definite or more circumstantial or particular statement of the facts. This was not done in the present case. The defendant’s motion was certainly as objectionable in this respect as was the information, and the court below did not err in overruling it. We think the information was sufficient as against such a motion.’ (p. 679.)
“In other words section 10 of our bill of rights grants an accused a privilege which he may exercise or waive as he sees fit.” (Emphasis added.)
We have previously set forth herein the specific wording of K.S.A. 1994 Supp. 22-3201(f), which is the comprehensive provision of our criminal procedure relating to the charge. The statute allows an accused confronted with an indictment charging a crime which “fails to specify the particulars of the crime sufficiently to enable the defendant to prepare a defense” to request the court to require the prosecutor to furnish the bill of particulars and further restricts “the state’s evidence [to] be confined to the particulars of the bill.”
The 1969 Judicial Council note to K.S.A. 22-3201 states that subsection (5) (now 22-3201[f|) is taken from the Illinois Code of Criminal Procedure (now 725 Ill. Comp. Stat. 5/111-6 [1994]). The object or purpose of the bill of particulars, as set forth in Illinois cases, is to supplement a sufficient indictment with more specificity of detail to better understand the nature of the charges, and its effect is to limit the evidence to the transactions set out in the response to the bill of particulars. See People v. Meyers, 158 Ill. 2d 46, 53, 630 N.E.2d 811 (1994); People v. Whitmer, 369 Ill. 317, 321, 16 N.E.2d 757 (1938).
In discussing the usage of a bill of particulars under our Kansas Code of Criminal Procedure, we said in State v. Henderson, 226 Kan. 726, 734, 603 P.2d 613 (1979):
“A bill of particulars serves the dual purpose of informing the defendant of the nature of the charge and the evidence against him to enable him to prepare his defense, and of enabling the defendant to avoid further prosecution for the same offense. The State is restricted in its proof to the items specified in the bill of particulars. The purpose of this restriction is to prevent the State from charging the defendant with one crime and convicting him of something else. State v. Frames, 213 Kan. 113, 116, 117, 515 P.2d 751 (1973). We also said:
‘It is not necessary for the prosecution to prove each and every factual statement contained in the bill of particulars. So long as the state proves all of the necessary elements of the particular crime charged, then the evidence is sufficient to convict regardless of whether every statement in the bill of particulars is proved.’ (p. 117.)”
Because the remedy of a bill of particulars exists, and a request for such a bill was not made and denied, Wright was not precluded from asserting his substantial right to know the nature and cause of the accusation against him. Our situation is completely different from State v. Garrison, 252 Kan. 929, 934, 850 P.2d 244 (1993), where the State’s argument that a bill of particulars could cure the lack of specificity was rejected because the State there opposed a request for a bill of particulars and forced the court to decide the validity of the information as written. Wright could have requested a bill of particulars here and failed to do so.
We addressed the failure to request a bill of particulars as a waiver of any right to greater factual detail in the charging instrument in State v. Bird, 238 Kan. at 167, where Chief Justice Schroeder opined:
“Nor was it a fatal defect that the information did not allege in what manner or means Darrel Carter was to aid and abet in the murder. ... It was unnecessary to add to this the evidentiaiy details of the ‘plans’ in which Carter was asked to participate in order to charge a crime within the meaning of the statute. The term ‘aid and abet’ has been defined by case law and statute. See State v. Burton, 235 Kan. 472, 681 P.2d 646 (1984); K.S.A. 21-3205. Moreover, it is a commonly understood term. Additional specificity was not required in the information. Had the defendant wanted the ‘manner or means’ specified to aid him in his preparation of a defense, he could have requested a bill of particulars pursuant to K.S.A. 1984 Supp. 22-3201(5). This he failed to do.”
Although Wright argues in his brief that a preliminary hearing would have apprised him of the nature of the crime charged and the evidence he would be required to meet upon trial, we have previously pointed out that such was not available here, nor was it required by due process. State v. Boone, 218 Kan. 482, 484-85, 543 P.2d 945 (1975), cert. denied 425 U.S. 915, reh. denied 425 U.S. 985 (1976). Similar protections to those afforded by a preliminary hearing are provided by the opportunity to request a bill of particulars. As to the details of what particular acts form the basis for the alleged offenses, a bill of particulars would have secured Wright’s rights without the need to dismiss the indictment.
As the above cases and K.S.A. 1994 Supp. 22-3201(f) illustrate, Kansas takes a broad view of the role of the bill of particulars, perhaps significantly broader than the general rule recited by 42 C.J.S., Indictments and Informations § 140:
“A bill of particulars ordinarily is not a part of an indictment or information, or a substitute therefor or an amendment or supplement thereto. . . . •
“A bill of particulars usually is not designed to uphold an insufficient indictment, but only to be used where the indictment is sufficient on demurrer. It neither strengthens nor weakens an indictment or information. It cannot change the offense charged or in any way aid an indictment fundamentally bad. However, an indictment may be fleshed out by a bill of particulars; in determining the sufficiency of an indictment, a court may rely on the particularization of defendant’s alleged wrongful behavior supplied by a bill. The bill may remove an objection on the ground of uncertainty and cure deficiencies as to form.”
Our broad view is justified not only because of the specific statutory language but because of the broad language in § 10 of our Bill of Rights that any accused may “demand the nature and cause of the accusation against him.”
This is also not a case where waiver should be the foundation for a decision adverse to the defendant, who did not request a bill of particulars as was the basis for the holding on this issue in Bird and Ashton. Neither of those cases involved a grand jury indictment, but their reasoning is persuasive that an accused should not be permitted to complain about lack of specificity when a constitutional and statutory remedy (the request for a bill of particulars) is available and not utilized.
What we have here is a defendant who chose to attack the indictment either before requesting a bill of particulars or with no intention of doing so. Given the legislative and judicial preference for substantial justice rather than technical formalities as the polestar of criminal procedure, we hold that where a defendant has not requested a bill of particulars, an indictment by a grand jury, drawn in the language of the statute, shall be deemed sufficient. See K.S.A. 1994 Supp. 21-3201(b).
Before an accused should be successful in challenging an otherwise statutorily sufficient indictment because it fails to fully inform- the accused of the specific conduct which is the basis of the offenses charged,
“ ‘the [accused] must, if he desires a more elaborate or detailed statement of the facts, set forth in his motion [for a bill of particulars] the portions of the indictment or information which he claims to be insufficient or defective, and point out to the court wherein he desires a fuller, more complete, more definite or more circumstantial or particular statement of the facts,’ ” State v. Ashton, 175 Kan. at 175 (quoting State v. Reno, 41 Kan 674, 21 Pac. 803 [1889]).
If an accused who makes a proper request for a bill of particulars is unable to obtain the required details because the State opposes the request, the request is not granted by the trial court, or die bill of particulars furnished fails to contain sufficient information, the accused retains the right to challenge his or her indictment. However, after receiving a requested bill of particulars, the accused’s challenge of the indictment must then be tested by considering, in addition to the indictment, tire information contained in the bill of particulars. -
This rule will give credence to the legislative intent that the provisions of K.S.A. 1994 Supp. 22-3201 are to be read in their entirety and construed to “secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” K.S.A. 22-2103.
We hold that in the absence of Wright’s filing of a motion requesting a bill of particulars in this case, the trial court erred in dismissing four of the five counts of an indictment written in the statutory language charging each element of each offense, but which may have lacked sufficient detail as to the specific criminal conduct involved.
The final query in determining the sufficiency of the charging document is whether it permits a claim of jeopardy in a subsequent case. Such a determination in this case would be premature. An indictment need not be so detailed that, standing alone, it could bar later prosecution on the grounds of double jeopardy. United States v. American Waste Fibers Co., Inc., 809 F.2d 1044, 1047 (4fh Cir. 1987); see U.S. v. Poole, 929 F.2d 1476, 1479 (10th Cir. 1991) (whole record of trial, not indictment alone, is basis to determine scope of jeopardy). Again, one of the purposes of a bill of particulars is to “illuminate the dimensions of jeopardy.” United States v. Davis, 582 F.2d 947, 951 (5th Cir. 1978). See State v. Myatt, 237 Kan. 17, 29, 697 P.2d 836 (1985); State v. Henderson, 226 Kan. at 734; see also U.S. v. Sapp, 835 F. Supp. 1346, 1348 (D. Kan. 1993) (purpose of bill of particulars is to supplement allegation in indictment to preclude second prosecution for same offense). Hence, the defendant should be required to request a bill of particulars before the court is warranted in dismissing the indictment as lacking sufficient factual details to establish a claim of double jeopardy.
Finally, Wright also complains of inconsistencies between the indictment and the arrest warrants. He cited no authority, however, to explain why such discrepancies should affect our determination of the sufficiency of the charges in the indictment.
Affirmed in part, reversed in part, and remanded for further proceedings.
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Per Curiam:
This original proceeding in discipline was filed by the office of the Disciplinary Administrator against James Monroe Munyon, V, of Wichita, an attorney admitted to the practice of law in the State of Kansas.
Two separate complaints have been filed against the respondent, resulting in hearings before a panel of the Kansas Board for Discipline of Attorneys held June 23, 1994, and January 25, 1995, where, based on clear and convincing evidence, unanimous panels made the following findings of facts and conclusions of law:
Case No. B5504
“FINDINGS OF FACT
“By clear and convincing evidence the panel unanimously finds that:
“1. The respondent is an attorney at law ....
“2. In the fall of 1989 Respondent was die attorney for the estate of Maijorie Halvestadt, Deceased. He received a check for $8,416.61 from John Ostrowski, which represented a worker’s compensation settlement. The son of the decedent, the complainant in this case, was the only person who had any claim on the settlement proceeds. Respondent informed the complainant that he had placed the check in his trust account and that he would issue a check to the Complainant.
“3. Complainant did not receive a check from respondent for two weeks. On May 26, 1992 Complainant went to Respondent’s office in Wichita. When he arrived, respondent gave him three checks, one dated May26,1992, in the amount of $3,000.00 and two checks totalling $5416.61 dated May 28 and June 5, 1992. A the complainant’s request these last two checks were combined into a single check dated May 28, 1992.
“4. Complainant cashed die $3,000.00 check and deposited the other check into his bank account in Winfield. The second check was written on the personal account of respondent and was returned to complainant for insufficient funds.
“5. Upon confronting respondent about the insufficient funds check, complainant was given a new check which also would not clear.
“6. Complainant again met with respondent and at that meeting was given $2,000.00 in cash. Respondent told complainant he would get a loan to pay him' the difference. As of the date of the hearing respondent had not paid complainant the remaining $3,436.61.
“7. Respondent is an admitted alcoholic who also has abused controlled substances. He is in dire financial straits with no possibility of paying restitution at this time. In addition to the judgment for punitive damages which the complainant has against him, respondent has numerous other judgments against him.
“8. Respondent’s alcoholism was a contributing factor to his conduct, but it was not proven that there is a direct correlation between respondent’s alcoholism and the violations by respondent.
“9. Respondent has not demonstrated a substantial period of successful rehabilitation.
“CONCLUSIONS OF LAW
“Respondent’s conduct violates the [Model] Rules of Professional Conduct Sections 1.15(a), 1.15(d)(1), 1.15(d)(2)(iii), 1.15(d)(2)(iv) [1995 Kan. Ct. R. Annot. 294], 8.4(c), 8.4(g) [1995 Kan. Ct. R. Annot. 340], and Supreme Court Rule 207 [1995 Kan. Ct. R. Annot. 202].”
Case No. B5973
“FINDINGS OF FACT
"By clear and convincing evidence the panel unanimously finds that:
“2. Respondent was retained by complainant, Delbert E. Dugan, to represent complainant’s son William A. Mott, in the event that charges were filed against Mr. Mott as a result of a car-train accident in which Mr. Mott was the driver of the car.
“3. Complainant paid respondent $2,500.00 in March of 1992. This sum was to cover a preliminary hearing and a three day trial if one should occur. There was no written fee agreement.
“4. On December 7,1992, respondent’s license to practice law was suspended for failure to register and complete the CLE requirements, and has not been reinstated. Respondent was placed on [disability] inactive status on April 5,1993, [and] removed from that status on January 8, 1994, but his license was not reinstated.
“5. Respondent did not inform either complainant or Mott that he was suspended from practice or that he had been placed on [disability] inactive status.
“6. On February 24,1994, William Mott was charged with Aggravated Vehicular Homicide pursuant to K.S.A. 21-3405a. Complainant then contacted respondent and was informed that respondent could no longer represent Mott because he was suspended from the practice of law.
“7. Respondent is an admitted alcoholic who also has abused controlled substances. He is in dire financial straits with no possibility of paying restitution at this time. In addition to the judgment for punitive damages which the complainant has against him, respondent has numerous other judgments against him.
“8. Respondent’s alcoholism was a contributing factor to his conduct, but it was not proven that there is a direct correlation between respondent’s alcoholism and the violations by respondent.
“9. Respondent has not demonstrated a substantial period of successful rehabilitation.
“CONCLUSIONS OF LAW
“Respondent’s conduct violates the [Model] Rules of Professional Conduct Sections 1.15(d)(2)(iii), 1.15(a), and Supreme Court Rule 207.”
The recommended disposition of the panel in both cases is indefinite suspension from the practice of law. The panel opined that while the respondent has demonstrated excellent progress in his recovery from alcoholism, his dependency was so great that there had not been a sufficient period of sobriety to justify a lesser discipline.
Additionally, the panel recommended that in the event the respondent should ever seek reinstatement he should either have made restitution to the complainants or should have a plan for payment which is acceptable to the court.
The respondent did not take exceptions to the final reports, findings, conclusions, and recommendations of the panel.
The respondent personally appeared before the court, candidly admitted tiie violations, consented to the recommended sanctions, and asked only that his indefinite suspension be effective as of the date of the last panel hearing, which was January 25, 1995. The Disciplinary Administrator s Office concurred with this request.
The court, having considered the record herein and the reports of the hearing panels, concurs in the findings, conclusions, and recommendation of the panel.
It Is Therefore Ordered that James Monroe Munyon, V, be suspended indefinitely from the practice of law in the State of Kansas effective as of January 25, 1995, in accordance with Supreme Court Rule 203(a)(2) (1995 Kan. Ct. R. Annot. 191).
It Is Further Ordered that in the event the respondent should ever seek reinstatement, he should either have made restitution to the complainants or should have a plan for payment which is acceptable to the court.
It Is Further Ordered that the respondent comply with Supreme Court Rule 218 [1995 Kan. Ct. R. Annot. 222], that the costs of these proceedings be assessed to the respondent, and this order be published in the official Kansas Reports.
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The opinion of the court was delivered by
Larson, J.:
The United States District Court for the District of Kansas certifies two questions of law for our determination. We have jurisdiction under K.S.A. 60-3201.
The federal district court phrased the certified questions as follows:
“1. Whether under Kansas law minor children have a cause of action against a tortfeasor for direct negligent injury to their parent, resulting in an indirect injury to them for loss of parental care and society.
“2. If the answer to question (1) is yes, can the minor child pursue the cause of action in his or her name, or does the right of action vest in the injured parent, as is the case with a spouse’s loss of consortium claim under K.S.A. 23-205?”
Answer to certified questions
1. No.
2. Having answered the previous question negatively, no answer to this question is required.
Factual basis underlying the certified questions
David C. Klaus, on behalf of his minor children, Megan and Ryan Klaus (plaintiffs or Klaus children), have sued Fox Valley Systems, Inc., (Fox Valley) and Crown Cork & Seal Co., Inc., (Crown Cork) (collectively defendants) to recover damages due to loss of parental care, love, and guidance, resulting from David C. Klaus’ blindness, which was caused by an explosion of a spray paint can allegedly manufactured defectively by the defendants.
Kansas decisions
This is not an issue of first impression in Kansas. In Hoffman v. Dautel, 189 Kan. 165, Syl. ¶ 1, 368 P.2d 57 (1962), we specifically held:
“A minor child has no cause of action for damages arising out of the disability of its father, caused by negligence of the defendant, with attendant loss of acts of parental guidance, love, society, companionship and other incidences of the parent-child relationship.”
Justice Fatzer, writing for a unanimous court, recognized the loss of parental services, to the minor but refused to create and establish a new cause of action, reasoning as follows:
“It is common knowledge that a parent who suffers serious physical or mental injury is unable to give his minor children the parental care, training, love and companionship in the same degree as he might have but for the injury. Hence, it is difficult for the court, on the basis of natural justice, to reach the conclusion that this type of action will not he. Human tendencies and sympathies suggest otherwise. Normal home life for a child consists of complex incidences in which the sums constitute a nurturing environment. When the vitally important parent-child relationship is impaired and the child loses the love, guidance and close companionship of a parent, the child is deprived of something that is indeed valuable and precious. No one could seriously contend otherwise.
“While courts should be ever alert to widen the circle of justice, at the same time they should proceed with caution in laying down a new rule in the light of conditions affected or to be affected by it. If this court were to conclude that a cause of action is here alleged, the far-reaching results of such a decision would be readily apparent. A new field of litigation would thus arise between minor children and third party tort-feasors who injure either parent when it is alleged that the negligent injury contributed to the impairment or destruction of the happy family unit vtith resulting loss and damage to the minor children. The possibility of multiplicity of actions based upon a single tort and one physical injury, when there is- added the double-recovery aspect of such a situation in the absence of some statutory control, is deemed sufficient to prevent this court from answering in the affirmative that a cause of action has been alleged.” 189 Kan. at 168-69.
Although the precise issue hás not been considered again by our court, the reasoning and logic of Hoffman v. Dautel have been the basis for several Kansas decisions in recent years. In Schmeck v. City of Shawnee, 231 Kan. 588, Syl., 647 P.2d 1263 (1982), a unanimous court held:
“A parent has no cause of action for his or her emotional, physical, or other injuries .against one who negligently causes injury to an adult child, when the parent is not present at the scene, is not directly injured, and neither witnesses nor perceives the occurrence causing injury to the child.”
In Schmeck, despite the grievous fact that a mother s life had’ been devastated in her attempt to care for a totally disabled daughter whose injuries allegedly had been caused by the defendants’ negligence’,' our court refused to recognize a cause of action on the mother’s behalf. We stated: “Despite our willingness to allow re-coveiy in this situation, we are prevented from doing so by the same rationale followed in Hoffman v. Dautel, 189 Kan. at 168-69. 231 Kan. at 593. Thus, 20 years after Hoffman v. Dautel, its continued. vitality and persuasiveness was clear when it was specifically followed by our court. We indicated no tendency to abandon the ruling or its underlying logic.
The next Kansas case to consider a similar issue to the one we face here is Smelko v. Brinton, 241 Kan. 763, Syl. ¶ 4, 740 P.2d 591 (1987), where we specifically held:
“A parent has no cause of action for his or her emotional injuries against one who negligently causes injiiry to a child when the parent is not present at the scene, is not directly injured, and neither witnesses nor perceives the occurrence causing injury to the child.”
In Smelko, we followed Schmeck and refused to allow recovery to parents of a minor child who was burned by the improper use of a heating pad during a surgical procedure. While the opinion did not specifically cite Hoffman v. Dautel and upheld a substantial jury verdict in favor of the child, the cross-appeal on behalf of the parents was denied on the basis of the ruling in Schmeck which specifically followed and relied upon Hoffman v. Dautel. Thus, as late as 1987, this court again followed the logic and reasoning of both the Schmeck and Hoffman v. Dautel decisions.
Although decisions of the United States District Court for the District of Kansas are not binding upon this court, it should also be pointed out that in Annis v. Butler Mfg. Co., 715 F. Supp. 328 (D. Kan. 1989), Judge Saffels specifically followed Hoffman v. Dau-tel and Schmeck in holding that under Kansas law, children had no cause of action for damages for loss of parental care and society resulting from injury to their father allegedly caused by negligence of others.
Thus, the continued validity of the Hoffman v. Dautel decision has been recognized almost into the 1990’s. The question then becomes whether we are now prepared to abandon our consistent holding in light of a renewed contention by minor children who are admittedly disadvantaged by their parent’s injury through the loss of parental care and support which they might otherwise have expected to receive.
Contentions of the plaintiff Klaus children
The plaintiffs paint a distressing picture of two minor children, through no fault of their own, being denied the benefit of parental care without any compensation to them from the allegedly negligent parties who caused this family catastrophe. They contend that we should no longer follow Hoffman v. Dautel because the possibility of double recovery and multiplicity of actions has been removed through passage of statutory safeguards limiting noneco-nomic losses and through availability of proper jury instructions to consider the damages suffered by a child separate from those suffered by a parent.
Plaintiffs contend that society has increasingly recognized children s rights. They argue that recoveiy is allowed in wrongful death actions even though the injury of the loss of parental services is no less remote and damages are no more speculative than those in the present personal injury action. Further, since spousal consortium actions are statutorily authorized in Kansas, any argument of remoteness is extinguished.
Finally, the Klaus children contend that any allegation of a negative impact on society through increased insurance costs is not relevant and the courts are obligated to fulfill their proper role as guardians of the dynamic common law and to allow recovery by a child for the loss of parental care, love, and guidance.
Contentions of defendants Fox Valley and Crown Cork
Defendants contend that Hoffman v. Dautel and related cases have remained the law of Kansas during the last 33 years, unchanged by legislative consideration or. action, and there is no reason for the court to embark on a new course recognizing the cause of action alleged here. They contend the substantial risk of double recoveiy continues because an award to the parents will inherently flow to the benefit of the children; quantifying the nonpecuniary damages as a result of the alteration of the parent-child relationship remains remote and speculative; there is a possible adverse effect on the family unit where minor children receive segregated awards; there is a social cost in providing damages for loss of parental consortium; and expansion of liability under the common law is inappropriate at a time when restriction rather than expansion of liability has been the norm.
Defendants contend that despite the statutory caps on damages, allowing recoveiy to children would substantially increase the number of persons who could make a claim. They claim that if each such person were subject to a separate cap, the total award from a given injury would substantially increase, in direct contradiction to the legislative purpose of damage caps.
Defendants argue that recognizing the cause of action would raise questions of the rights of additional parties, adult children, and unborn children and that a myriad of procedural questions would be raised, which should be resolved by comprehensive legislation rather than by judicial decision.
Finally, the defendants contend that in light of the legislature’s willingness to recognize recovery in cases of wrongful deaths and spousal consortium, its refusal to involve itself in additional areas of family recovery should be taken as a specific approval of our decisions in Hoffman v. Dautel and the related Kansas cases cited above.
Decisions and statutes of other states
The Kansas rule in Hoffman v. Dautel was the universal rule among the states until the late 1970’s, when a series of law review articles argued for the recognition of a cause of action for loss of parental consortium. Several states, beginning with Michigan in Berger v. Weber, 82 Mich. App. 199, 267 N.W.2d 124 (1978), aff’d 411 Mich. 1, 303 N.W.2d 424 (1981), and Massachusetts, in Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507, 413 N.E. 2d 690 (1980), commenced a trend where states became somewhat divided on the issue. Our court recognized and considered these changes made by other jurisdictions in Schmeck, 231 Kan. at 593, but nevertheless determined that we should hold fast to the rationale of Hoffman v. Dautel.
Interestingly, the Massachusetts Legislature followed the Fer-riter decision with a statutory enactment that prevented the recovery of loss of consortium by spouses or children of employees subject to its workers compensation act. Mass. Gen. L. ch. 152, § 24 (1994). And Michigan, in Sizemore v. Smock, 430 Mich. 283, 422 N.W.2d 666 (1988), cast doubt on the continued viability of the child’s claim for parental consortium by rejecting a claim in the reverse situation — a parent’s loss of her child’s consortium.
It would unduly lengthen this opinion and serve no useful purpose to attempt to categorize or analyze the decisions of different states. It is sufficient to state that in the modem era a total of 22 jurisdictions have rejected a cause of action of a child for loss of parental consortium while 19, including Massachusetts and Michigan as limited above, have recognized the claim. Several states, including Iowa, Rhode Island, and Florida have recognized a cause of action by statute. For a compilation of the holdings of the various states, see Annot., Child's Actions-Loss of Parental Attention, 11 A.L.R.4th 549 and the supplements thereto and Schneider, Loss of Parental Consortium, 33 For the Defense, p. 11 (August 1991), which contains an appendix listing and classifying all the decided cases.
Analysis
We commence our analysis by recognizing that although a child can recover in a wrongful death action for loss of affection and society of a deceased parent, denial of a cause of action for loss of consortium of an injured parent does not deprive a child of equal protection. Borer v. American Airlines, Inc., 19 Cal. 3d 441, 138 Cal. Rptr. 302, 563 P.2d 858 (1977). This is important because the changes in the law that plaintiffs contend require us to recognize the parental consortium tort are not constitutionally required and have their origins in the legislature and not in decisions of courts evolving the common law.
A child’s right to assert a claim for wrongful death of a parent is codified by statute, K.S.A. 60-1901 et seq., as is one spouse’s claim for loss of consortium with an injured spouse, K.S.A. 23-205. The latter was codified after the court found no such claim was actionable. Although the legislature has taken the initiative to permit these claims for injury affecting family relations, it has not acted to permit the claim for loss of consortium which is sought in this case.
It is interesting that a second Hoffman v. Dautel case, 192 Kan. 406, 388 P.2d 615 (1964), refused to recognize a spousal loss of consortium claim for injury to a husband because the legislature at that time permitted only the action by the wife for her husband’s loss of services from her own injury. In 1976, the legislature amended K.S.A. 23-205 to permit recovery for the wife’s loss of consortium when her husband was injured, making it apply equally to spouses whether they be male or female. It should be noted that the legislature acted only after the prior statute was found to violate equal protection in Duncan v. General Motors Corporation, 499 F.2d 835 (10th Cir. 1974). Thus, while the legislature exercised its prerogative to effectively overrule the second Hoffman v. Dautel decision, it has remained silent as to the first, notwithstanding the passage of over 30 years.
It is possible to cite cases justifying the continuation of an existing doctrine on the basis of stare decisis and equally easy to cite cases stating that when the original reason for an existing rule has evaporated, the reason to continue it has also expired. However, when analyzed in connection with the separation of powers, stare decisis should limit our willingness to reevaluate a policy announced in a previous line of decisions.
Brunett v. Albrecht, 248 Kan. 634, 642, 810 P.2d 276 (1991), recognized that the common law is subject to modification by either judicial decision or legislative enactment in light of changing conditions. However, the declaration of public policy of whether an action can be brought under the common law is more properly a function of the legislative branch of government. See Ling v. Jan’s Liquors, 237 Kan. 629, 640, 703 P.2d 731 (1985) (public policy question of whether to impose liability on vendors of alcohol to intoxicated patrons is legislative function, even though courts in other jurisdictions had resolved it).
In Whitcomb v. Huffington, 180 Kan. 340, 304 P.2d 465 (1956), we considered whether to recognize the right of a minor child to bring an action for the alienation of parental affections. The court noted that, like here, neither the common law nor statutes authorized such an action and other jurisdictions were divided as to whether it could be maintained. Our court thought the recognition of the action unwise, but it did not rest its decision not to permit the action on this ground when it stated:
“If we were to answer the question in the affirmative the ramifications and far-reaching results of our decision would readily be apparent to anyone giving much thought to the matter. In practical effect we would be opening up a new field of litigation, heretofore entirely unknown .... We recognize fully that merely because the asserted cause of action was unknown to the common law and has no statutory sanction in this state, such fact does not present a conclusive reason for the denial of the existence of such right. Nevertheless, we are of the firm conviction that from the standpoint of sound public policy the creation of new rights of action in the field of alienation of affections is a question for the consideration and determination of the legislature, and is a function which this court should not usurp.” 180 Kan. at 343-44.
Deference to the legislature is warranted by the complexities that would arise in Kansas from recognizing a cause of action for loss of parental consortium. For one, because a personal injury nonpecuniary claim is capped at $250,000 (K.S.A. 60-19a02), but a wrongful death claim by an heir permits nonpecuniary damages of only $100,000 (K.S.A. 60-1903), recognizing this action would have the anomalous result of imposing a lower nonpecuniary liability on a defendant who kills a parent of a child than if the parent only had been injured. Other complexities include the issue raised by the second' certified question; whether there are appropriate procedural safeguards against double recovery; questions of consolidation, jurisdiction, and venue; the application of the statute of limitations and its tolling; the method of allocating an award; and numerous other questions which a decision recognizing this cause of action would immediately generate and which we cannot answer here. In addition, a question would arise as to how severe an injury would be required before the action- should be permitted and whether it would be proper to limit it only to minor children or whether it should be extended to adult children or other closely situated family members.
The values and social problems which existed at the time of Hoffman v. Dautel have not changed materially in the last 33 years. Plaintiffs have pointed out no intervening change that so completely alters the legal landscape that we are required to abandon the reasons for not recognizing this cause of action or that renders the Hoffman v. Dautel decision fundamentally unjust.
The plaintiffs do not contend, nor does it appear, that Hoffman v. Dautel was manifestly in error. It is apparent from the Kansas cases we have cited above that this court has for the period of time almost until the 1990’s consistently followed the logic and reasoning of the Hoffman v. Dautel decision, and we are not shown or given any compelling reason to change at this time.
It is important to note, as we have above, that three of the states which recognize the cause of action do so by legislative action: Florida, Iowa, and Rhode Island. The fact that the Kansas Legislature has chosen not to do so weighs strongly on our decision.
We have thoroughly considered all the arguments of the plaintiffs and find they do not compel us to answer the certified questions in the affirmative. We hold that Kansas does not recognize that minor children have a cause of action against a tortfeasor for direct negligent injury to their parent, resulting in an indirect injury to them for loss of parental care and society.
We answer question No. 1 negatively. Question No. 2 need not be answered.
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The opinion of the court was delivered by
Valentine, J.:
On the 8th of January 1872, Martha Kirkbride, the defendant in error, filed her petition in the' district court of Wyandotte county against John D. Brown, Jane Brown, Leander Brown, Eliza Ann Spybuek, John D. Brown, jr., Allison B. Bartlett, and H. H. Sawyer, plaintiffs in error, and John M. Wheeler and Cassandra P. Clark, as defendants, for the purpose of foreclosing a certain mortgage and note. To the petition so filed, the defendants A. B. Bartlett, H. H. Sawyer and John M. Wheeler filed their demurrer,-on the ground that the petition did not state facts sufficient to constitute a cause of action against them. The other defendants answered to the merits. Upon a hearing of said demurrer the court found that said petition did not state facts sufficient to constitute a cause of action against said defendants so demurring, and thereupon sustained the demurrer, and rendered judgment that they be dismissed thereof, and recover their costs therein. And thereupon the issues joined between the plaintiff Martha Kirkbride and the other defendants came on for trial by a jury, and after the plaintiff had submitted all of her evidence and rested, the defendants filed their demurrer to the evidence so submitted, which demurrer was sustained by the court. The plaintiff then asked and obtained leave of the court, over the objection and exception of the defendants, to dismiss her said action without prejudice—and judgment was duly rendered in favor of said defendants for their costs. Afterward, on the 12th of August 1875, the said Martha Kirkbride filed her petition in said district court against the plaintiffs in error herein, to foreclose the same note and mortgage upon which said former action was founded. This petition in the new action was almost identical with the one in the former action, and substantially differed from it only in containing the following allegation:
“Plaintiff further states, that on 8th January 1872 she commenced an action in this court against the said John D. Brown, Jane Brown, Leander Brown, Eliza Ann Spybuck, and John D. Brown, jr., to recover a judgment upon the aforesaid writing obligatory, or promissory note, against them, and to foreclose the aforesaid mortgage, and against Allison B. Bartlett and John M. Wheeler, to bar them of certain after-acquired interests in the premises described in said mortgage, which action so commenced failed otherwise than upon the merits at the July term'of said court 1875, viz., the said plaintiff caused said action to be dismissed without prejudice because of the failure of proof in the case of the assignment of the cause of action to the plaintiff by the said Cassandra F. Clark.”
To this petition the defendants John I). Brown, Jane Brown, Eliza Ann Spybuck, Leander Brown, and John D. Brown, jr., filed their joint answer, containing three defenses—first, a denial of all the allegations of the petition except that of the execution and delivery of the note and mortgage in said petition mentioned; second, a special denial of the allegation that plaintiff failed in her former action, commenced 8th January 1872, otherwise than upon the merits, and that plaintiff caused the same to be dismissed without prejudice, accompanied with a plea of the five-years statute of limitations; third, a plea of the former judgment in favor of defendant upon the same cause of action, in bar of plaintiff's right of recovery herein. The defendant A. B. Bartlett separately answered substantially the same as above. The defendant H. H. Sawyer filed his demurrer to said petition, alleging as the ground thereof that the same did not state facts sufficient to constitute a cause of action. To the answers so filed replies were duly filed by plaintiff. At the April Term 1876 of said court, the issues so joined by petition, answers, and replies in said action came on for trial, and a jury being waived, the same was tried by the court. At the commencement of the trial the following stipulation was entered into in open court:
[Title, and Court.) “It is agreed upon between the parties at the trial, that the parties herein, and the subject-matter of this suit, are the same as those contained and included in the case of Martha Kirkbride v. John D. Brown, et al., on the files of said district court, and commenced by said plaintiff filing her petition therein on the 8th of January 1872, which facts are considered as proven on the trial of this cause.''
The plaintiff, after proving payment of interest to March 1st 1866, and introducing the note, mortgage, and assignment, rested. The defendants then read in evidence the deposition of the defendant John D. Brown, tending to show payment of the note, and also the journal entry and judgment in said former action, and then rested their defense. The court thereupon found for the plaintiff, and against the defendants, and rendered judgment accordingly.
We think the judgment as to A. B. Bartlett was erroneous, for the reasons following. First: The record of the former action disclosed a judgment of dismissal by the court, upon sustaining his demurrer to the petition in that case, and that he recover his costs. His demurrer was to the merits of the petition, and in sustaining it the court expressly decided that there were no merits in the cause of action set forth in the petition as to this defendant. The judgment of dismissal, consequent upon the sustaining of the demurrer, was a judgment upon the merits, and is a bar to any subsequent suit between the same parties upon the same cause of action. In fact, after sustaining the first demurrer, the plaintiff amended her petition, and a second demurrer filed by Bartlett to this amended petition was also sustained. Upon the sustaining of this last demurrer judgment of dismissal was entered. Gould’s Pleadings, ch. 9, §42; Freeman on Judgments, §267, p.232; Clearwater v. Meredith, 1 Wall. 25; Goodrich v. City, 5 Wall. 566; Bouchaud v. Dyas, 3 Denio, 238. The subsequent order allowing the plaintiff to dismiss without prejudice did not affect this defendant, because he already had the judgment of the court dismissing the action as to him. Comblos v. Butterfield, 15 Abb. Pr. Rep. (N. S.) 197.
We also think that the judgment as to H. H. Sawyer was erroneous. No action was ever taken upon his demurrer to plaintiff’s petition. But if it be considered from his action in the case that he waived his demurrer, and went to trial with the consent of all the parties as upon the answers of the other defendants, and upon the evidence introduced by them, (and from the record in the case we are inclined to think that this is the true view to be taken of the case,) then he had a good defense, and the same kind of defense that Bartlett had.
As to the other defendants, the judgment was correct. The former action was evidently dismissed without prejudice as to them. And whether it was rightfully or wrongfully dismissed is not a question to be considered in this case. (Paine v. Spratley, 5 Kas. 525; U. P. Rly. Co. v. McCarty, 8 Kas. 125; Mills v. Ralston, 10 Kas. 206.) The court unquestionably had jurisdiction, and therefore the order of the court dismissing said action is not void.
The judgment of the court below will be affirmed as to all the defendants except Bartlett and Sawyer, and as to them it will be reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The question in this case is as to the number of votes received by the two gentlemen, parties to this action, respectively, in the second ward of the city of Atchison, at the last city election, for the office of city attorney. The canvass as made by the judges and clerks of election on the night of the election gave Mr. Hudson one hundred and twenty, and Mr. Solomon one hundred votes. This, in conjunction with the votes in the other wards, elected Mr. Solomon by twenty majority. A recount of the ballots made in the presence and under the direction of the justices of this court gave Mr. Hudson 143 and Mr. Solomon 100 votes. In addition, there was found one ballot probably intended for Mr. Hudson, but which owing to the manner in which different parts of it were pinned together was not counted by us as cast for either. This would elect Mr. Hudson.
The question then is, which should obtain—the canvass of the election officers, or the result as shown by the ballots themselves? It is a primary rule of elections, that the ballots constitute the best, the primary evidence, of the intentions and choice of the voters. State, ex rel., v. Judge, &c., 13 Ala. 805; People, ex rel., v. Holden, 28 Cal. 123; McCrary on Elections, §§ 291, 439; Cooley’s Const. Lim., p. 625. In the case from California, the court uses this language: “Intrinsically considered, it must be conceded that the ballots themselves are more reliable, and therefore better evidence than a mere summary from them. Into the latter, errors may find their way; but with the former this cannot happen. The relation between the two is at least analagous to that of primary and secondary evidence.” A canvass is but a count- of the ballots, a convenient and expeditious method of determining the choice of the people as disclosed by the ballots, and therefore but secondary evidence. The necessities of the case make it prima facie evidence, but unless expressly so declared by statute, it is never conclusive. The State, ex rel., v. Marston, 6 Kas. 524; Russell v. The State, 11 Kas. 308. As between therefore the ballots themselves, and a canvass of the ballots, the ballots are controlling. This is of course upon the supposition that we have before us the very ballots that were cast by the voters. And this presents the difficult question in this case. For, as under the manner of our elections there is nothing upon the face of a ballot to identify it as cast by any particular voter, or even as actually used at any election, nothing to distinguish one ballot from another of those cast by the members of the same party, as no file-mark or other mark is made in the canvass or otherwise after the election upon any ballot by which its actual use at such election may thereafter be established, and as at any election there is always a large surplus of unused ballots, it is evident that if opportunity were offered ballots might be withdrawn from the box and others substituted with but little chance of detection. Thus in the case before us, if there was but a single officer to elect, and but a single name on the bal lot, how easily could one having access to the box throw in twenty-three or four additional ballots, and thus bring about the very difference that appears before us now? And who could thereafter tell which were actually voted, and which subsequently thrown in? The ballot then upon its face containing no marks of identification, we must look aliunde for evidence of the identity of those offered and counted before us with those actually cast at the election. And this evidence we find in the testimony as to the manner in which the ballots have been preserved, a comparison of the canvass made as to all the officers voted for at that election with the result as shown by the ballots, and certain other circumstantial evidence.
And first, as to the preservation of the ballots. It appears that at the night of the election, as the ballots were called off they were strung on a thread, as prescribed by the statute; (Gen. Stat., p. 403, §20;) that this was done publicly by the judges, in presence of several spectators; that after the canvass thus publicly made had been completed, the ballots as strung together were sealed up in an envelope, duly marked and directed to the city clerk, and with the poll-books deposited in the ballot-box. This box had two covers—one an inside sliding cover, fastened by a screw, and the. other an outside lifting cover, fastened by a padlock. Both covers were fastened, and the box and key intrusted to Mr. N. A. Maher, one of the judges of election, to be by him delivered to the city clerk. It appears that after the canvass, which was finished late in the evening, he carried the box with him to the office of “The Champion,” where were gathered quite a number of persons to hear .the election news. After tarrying there awhile he went home, taking the box with him. He kept the box in his house until the afternoon of the next day, when he carried it to the office of the city clerk, and delivered it to him. While Mr. Maher had it in his house it was deposited in his sleeping-room, and the key carried in , his pocket. Mr. Barker, who was city clerk at the time, retained it in his office and custody for six days, when he was sue ceeded in office by the present incumbent, Mr. White, by whom it has since been kept, part of the time in his office, and part of the time in the vaults of a bank. Four days after Mr. White received it, he placed some tape around the box, and sealed it af the corners, and the seals were unbroken when brought into our presence. It thus appears, that from the time of the canvass to that of our examination the ballots were only in the custody of three persons, each of whom testifies that they were not handled by any one while in his custody. It appears also, that the box in which were these ballots was itself unlocked and opened but four times, and then only for the purpose of taking out the poll-books. Now unless we impute to some one of these three parties intentional wrong in opening or permitting to be opened the box, and changing or permitting to be changed the ballots, and in willful false swearing upon this trial — and there is not the least foundation for such an imputation—it would seem that there could be little doubt that the identical ballots cast at that election have been preserved, and preserved unaltered, and were those examined by us. But it is said that there were opportunities for reaching and opening this box, and changing .the ballots; that this might have been done at the “Champion” office, at the house of Mr. Maher, or in the city clerk’s office prior to the sealing of the box by Mr. White. It is true, there is a possibility of such a thing; but is there any probability of it? Take the “Champion” office first, and see what must be assumed. This was the same night, and immediately after the canvass. It must be assumed that some one had a motive. This implies knowledge of the result of the canvass in the four wards, and of the number of ballots that must be changed. It must be assumed also, that the party having motive had knowledge of the presence of the judge of the second-ward election, with the box and ballots, in the “Champion” office, and had .possession of a key fitting the lock pf the box—that he could take the box off from the desk of Col. Martin, upon which it was placed by Mr. Maher, in the presence of Mr. Maher and a large num ber of parties eager about election matters, that he could take the box out of the room, unlock it, make the changes, and return it to its place upon the desk, and all this without detection and exposure. This is so near the impossible as to be of little moment. Perhaps the improbability may not be so striking as to the other places named, but the opportunity afforded was so slight, that it seems almost like trifling with language to speak of it as an opportunity.
But beyond the direct testimony as to the manner of keeping the box and ballots, there is indirect evidence of value as to the identity of the ballots. The testimony shows that they were strung on a thread, and then placed in a sealed envelope. They were so found by us. It also shows that the straight republican tickets were counted first, then the straight democratic, and then the scratched. And so we found the ballots arranged on the thread. Again, there were several offices to be filled at that election, and each ballot had the names of candidates for the respective offices. So we had a count made of the votes cast for all, so as to compare the result with the canvass. We found the proper number of ballots in the box, so that if any had been put in an equal number had been taken out. Eor mayor, the canvass gave Mr. Downs 232 votes; our count, 230. For police judge, the canvass gave A. Spalding 164, and G. Scoville 79 votes; our count the same. For marshal, the canvass gave Tofte 130, and Dobson 111 votes; our count, Tofte 129, and Dobson 109. For treasurer of board of education, the canvass gave A. H. Lanphear 235, and our count 236 votes. For member of board of education, the canvass gave A. F. Martin 240, and our count 235 votes. For city treasurer, the canvass gave Wm. Bowman 142 votes, and J. M. Lindley 82; our count, Bowman 163, and Lindley 82. So that except as to Bowman for treasurer, and Hudson for city attorney, the canvass and our count substantially agreed. If any change therefore had been made in the ballots as to plaintiff, it must have been so made as not to increase the total number of ballots, as to preserve to Mr. Solomon the same number of votes, to add 23 votes to Mr. Hudson, and leave unchanged the votes for all the other officers except one of the candidates for city treasurer. The difficulty of accomplishing this can only be fully appreciated by one who sits down with 240 ballots, nearly half of which are scratched, and attempts to make the changes.
But again, it will be perceived that the only substantial differences between the canvass and our count are in the votes cast for plaintiff and for Mr. Bowman. Now the testimony, taken by deposition long before our count, shows that at the time of the canvass there was some discrepancy between the two clerks in tallying the votes for these officers, and that it was claimed that Mr. Tibbals, one of the clerks, had tallied too many votes for these gentlemen, and an attempt was made to correct his tally-sheets. An examination of the tally-sheet kept by Mr. Tibbals shows that he tallied 155 votes for Mr. Hudson, and 157 for Mr. Bowman; but the tallies made by the other clerk, Mr. O’Keefe, were accepted as correct, and Mr. Tibbals’ sheet corrected accordingly. It is not pretended that the correction was made by a recount of the votes, but simply that the tallies were fixed up to the satisfaction of the judges. Over the tallies for these two gentlemen (as they appear on the sheet of Mr. O’Keefe) appears a series of dots, corroborating the testimony that at the time of the canvass there was some trouble about the tallies for these officers. All this testimony taken together forces the conviction on our minds that the ballots have not been changed or tampered with. It is true, there is testimony tending in the other direction, the strongest perhaps being that of a disinterested party, who was present at the night of the canvass and kept a tally of the votes for three of the offices,,including that of city attorney, as called off by the judges, and testifies that his tally corresponded with the result as shown by Mr. O’Keefe’s sheet, and as returned by the canvassing officers. But it is not to be presumed that an outsider, having no interest in the matter, would be as careful as the sworn officers; and the fact is established by the testimony, and patent from the tally-sheets, that there was a discrepancy between the two clerks as to these two offices; and it is undisputed that the discrepancy was attempted to be corrected without a recount. Other testimony of the judges and clerks, that they made an honest canvass, while it is good and satisfactory evidence of the honesty of their intentions, does not preclude the possibility of a mistake, a mistake which their own tally-sheets show was made by one or the other of their clerks, and which the count made by us shows resulted to the prejudice of the plaintiff’s rights.
Some days after the trial had been completed, and the case submitted to us for decision, an application was made by defendant to reopen the trial for the admission of further testimony. The application was based upon these facts: The poll-books show the casting of 245 votes. It appeared that one ballot was rejected. Our count gave to the two candidates 243 votes. Now the defendant files affidavits to the effect, that several ballots were cast upon which there was no name for city attorney. Such testimony might be very important. If for instance it could be clearly established that five ballots were east with the name of no one thereon for the office of city attorney, the inference would seem irresistible, that the ballots before us were not the same as those canvassed, or at least not untampered with. After reflection, and with some hesitation, we feel constrained to overrule the application. It was not claimed as a right, but was an appeal to the discretion of the court, and was refused principally for these reasons. The plaintiff’s petition distinctly gave notice of this question. It conceded that 100 votes were cast for Mr. Solomon, and alleged that 148 votes were cast for Mr. Hudson. So that it would plainly tend to defeat the plaintiff’s case to show that there were several ballots upon which was the name of neither candidate, and reference was made to this fact in the testimony. Now, there is nothing in the affidavits to show any good reason why this testimony was not introduced upon the trial. Some of the gentlemen whose affidavits were filed were witnesses already sworn and examined. The defendant is too good a lawyer not to have seen the value of such testimony. The manner in which he has conducted this case shows that he thoroughly understands the strong points in his favor, and that he has prepared his defense with care and industry. Again, to open the case for new testimony would naturally work delay, and already half the term of office has expired. Further delay should only be granted upon the clearest showing. And again, the testimony offered is of a character which, conceding the utmost good faith, and entire honesty of the affiants, our knowledge of elections, and the manner of conducting them, satisfies us-is very liable to be weakened if not entirely overthrown upon cross-examination.
We have given to this case more attention, than perhaps the importance of the office justifies. The contest is about a city office, of small salary, short term, and not the highest importance. It is a contest which we think ought to have-been commenced and terminated in the district court. But. having been brought in this court, it has given us an occasion for examination of some matters of importance in reference to elections, and enables us to lay down these as cardinal rules governing elections and election contests:
1st. As between the ballots cast at an election, and a canvass of these ballots by the election officers, the former are the primary, the controlling evidence.
2d, In order to continué the ballots controlling as evidence, it must appear that they have been preserved in the manner and by the officers prescribed in the statute, and that while in such custody they have not been so exposed to the reach of unauthorized persons as to afford a reasonable probability of their having been changed or tampered with.
Judgment will be entered in favor of the plaintiff for the possession of the office, and $473, the amount of salary and fees admitted to have been received by the defendant as city attorney.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
It is understood that the same questions are presented in this case as in that of Hagaman v. Comm’rs of Cloud Co., just decided, {ante, p.394,) with the exception that on the trial of this cause, the plaintiff Houston demanded a jury, and his claim being denied, he makes the refosal of a jury trial an additional ground of error. But this point is settled against such claim by the decision in the case of McCardell v. McNay, 17 Kas. 433. The judgment in this case is therefore affirmed upon the authority of Hagaman’s case, supra, and the cases there cited.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff in error challenges the correctness of an order of the district court taxing, upon a continuance, the costs of the term against him. The facts briefly are these: The case stood for trial upon petition, answer, and reply. A jury was impanneled, plaintiff introduced testimony in support of his petition, and then, before resting in chief, offered testimony to prove the new matters alleged in his reply. To this the defendant objected, and the court sustained the objection. Plaintiff then asked leave to amend his petition by adding to it allegations of the new matter theretofore only alleged in the reply. Leave was granted, and the petition so amended. Defendant then asked for leave to file an amended answer, and for a continuance to the next term, and thereupon, without any showing, the court ordered a continuance, and taxed the costs of the term to the plaintiff. Was this error? Whether .the court decided correctly in ruling out the offered testimony, is a question not now the proper subject of inquiry, for errors occurring during the progress of a trial can be inquired into only after a final decision. When a court rules out offered testimony on the ground that it is inadmissible under the pleadings, the party may abide by the ruling, and after judgment bring the question here for review, or he may seek leave to amend his pleadings to conform to the ruling. Here the plaintiff chose the latter course. He asked and obtained leave to amend; and of course therefore waived any right to relief he might have had if he had pursued the other course.
The other errors alleged occur in the matter of amendments of pleadings, continuances, and taxation of costs thereon, and these matters, as we have repeatedly decided, are largely within the discretion of the trial court, and unless it is apparent that such discretion has been abused, there is no ground for reversal. It is seldom, if ever, wrong to tax the costs of the term against the party whose fault necessitates the continuance. Gen. Stat., p.655, §§ 139, 142; page 746, § 588; Davis v. Wilson, 11 Kas. 74; Bliss v. Carlson, 17 Kas. 325; Wands v. School District, ante, p. 204.
We have not noticed the objections made to the validity of the case-made, or to the manner in which the exceptions have been preserved, for upon the facts as stated we are compelled to affirm the judgment.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This case turns upon the constitutionality of section 37 of the tax law of 1876, (Laws of 1876, p.67.) That section reads as follows:
“Sec. 37. If any of the railroad property in this state is located outside the limits of organized counties, it shall be the duty of the auditor of state to make a levy of tax upon such property for state purposes, the same as is made upon the other taxable property, and place the same in the hands of the treasurer of state for collection; and if such taxes be not paid into the state treasury on or before the first day of January after such taxes have been levied, then the state treasurer shall issue a warrant under his hand, directed to any sheriff in the state, commanding him to levy the amount of such unpaid taxes, with the additional per cent, thereon, together with his fees for collecting the same, of the personal property of said railroad corporation or company against which such taxes are assessed, and pay the same to the state treasurer; and to return such warrant within sixty days [from the date] thereof.”
Its constitutionality is challenged under section 17 of art. 2, and section 1 of art. 11. These provisions of the constitution are as follows:
“Sec. 17. 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.”
“Sec. 1. The legislature shall provide for a uniform and equal rate of assessment and taxation; but all property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent, and charitable purposes, and personal property to the amount of at least two hundred dollars for each family, shall be exempt from taxation.”
Under decisions already made by this court it does not seem to us that any serious question arises upon the first section quoted. The State v. Hitchcock, 1 Kas. 178; Beach v. Leahy, 11 Kas. 22, 26. Under the other section it is insisted that a tax to be valid must be upon all the property in the taxing district, and that in these unorganized counties no property is taxed but that of railroads; that the section is unfair and partial legislation, and upon its face an intended discrimination against railroads; that there is an intentional omission of property from taxation, and that this vitiates the tax upon railroads; and that no equalization is provided for as to this property, and that therefore the rate becomes unequal. Upon this question elaborate arguments taave been made by the several counsel, and many authorities cited from the decisions of other states. The inapplicability of many of these authorities will be apparent further along, when we come to compare the provisions of our own and other constitutions. By existing statutes, and indeed by all legislation since the admission of the state, the machinery for all ordinary assessments and taxation has been in the county organization. Of course then, in unorganized counties the machinery is wanting, and all property therein escapes taxation. At least that is true of all real property, and all personal property whose situs is not changed by the domicile of the owner. Since 1869, however, the assessment and taxation of railroad property has been accomplished, not through county organization, but by independent state machinery. This difference between the two methods of assessment and taxation has been before this court, and its constitutionality affirmed. Gulf Railroad Co. v. Morris, 7 Kas. 210. In other words, the constitutional requirement of an equal and uniform rate of assessment, does not compel the use of but a single mode or method of assessment. Different kinds of property may be assessed in different modes, and by different officers, provided only that the rate at which these different officers are required to make their assessments is uniform, and the same for all.
The freedom from taxation of property other than railroad property in the unorganized counties under the act of 1876, arises in the same manner as the freedom of all property in such counties under prior statutes, and that is, through the failure to provide machinery for reaching it. The question therefore is, whether the failure to provide machinery for collecting taxes on all the property in the unorganized counties renders unconstitutional the means employed to collect taxes on a portion of said property, and invalidates the tax attempted to be collected by such means. The question is a difficult one. A negative answer seems to conflict with the general idea of uniformity, which common justice as well as .the general understanding of both legislatures and courts places as the foundation of all valid taxation. But an affirmative answer if carried to its logical results produces an effect so startling, and so fatal to all taxation from the commencement of our state history, as to compel the clearest conviction of its truth before it can be given. It is a general proposition to which all will yield a ready assent, that taxation must be equal and uniform; but that this general proposition has some limitations. See the opinion in the case of Comm’rs of Ottawa County v. Nelson, recently filed; (ante, 234.) Notice a moment to what results an arbitrary, strict, and technical enforcement of this rule will lead. There never has been a time since the admission of the state when there were not within its limits unorganized counties; never a time when there was not property, real and personal, in such counties; and never a time, prior to this act of 1876, when such property (at least the real property) was made, through the taxing machinery, to contribute to the support of the state government. In other words, the state has never provided the machinery for taxing all the property subject to taxation within the limits of the taxing district, that is, the district to be protected by and to receive the benefit of the tax. Has this failure invalidated the state tax all these years, all the proceedings for the collection of taxes, and all the titles founded upon such tax proceedings ? But it may be said that this result can be obviated by holding that for state taxes the taxing district is only the organized counties. But by what authority can the legislature divide the state into two districts and say that one of such districts shall assume the entire burden of the state government ? Could it enact that for the county of Shawnee the taxing district should be the city of Topeka, and the entire burden of supporting the county government cast upon this small territorial portion of the county? Is the extent of the taxing district a matter of mere arbitrary enactment? Clearly not; for if so, all restriction would be' lost, and the idea of uniformity in taxation would be but the baseless fabric of a dream 1 It is said by Cooley in his work on Const. Lim., p. 504, “that the legislature have no power to arrange the taxing districts arbitrarily, and without refer-. ence to the great fundamental principle of taxation; that the burden must be borne by those upon whom it justly rests.” But conceding for the argument, that the legislature has power arbitrarily to limit the extent of the taxing district, and that by implication it has limited the state taxing district to the organized counties—that this in nowise conflicts with the constitutional restrictions, and that upon this the state taxes hitherto levied can be sustained, and what then? Does it not follow, that there is a large portion of territory outside the state taxing district, and yet within the jurisdiction of the state, and under the control of the legislature? May not the legislature prescribe the conditions upon which state protection will be afforded to property in that territory? And what section of the constitution limits the extent and character of such conditions? Briefly, it "may be stated, that the unorganized counties are necessarily a part of the state taxing district, or they may be excluded by legislative action; if the former, then, if the claim of the counsel is correct, that a failure to provide for taxing all the property in the taxing district is fatal to the tax, there has been hitherto no valid state tax; if the latter, then the property in those counties is outside the taxing district, yet subject to taxation; and where is the constitutional restriction on the power of the legislature?
It is doubtless true, that results do not change rules, and that consequences may not be invoked to overthrow established principles, and that courts may not disregard plain constitutional requirements to save from the injurious effects of illegal legislative action; but surely, the fact that during these sixteen years of state taxation, the validity of no state tax has ever been challenged on the ground that the machinery for assessment and taxation plainly leaves unreached for taxation a portion of the property within the state, the taxing district, is evidence of no little value, that, by the common judgment of all, the constitutional provision above quoted does not require such construction. But if it be not unconstitutional to relieve all property in the unorganized counties from state taxation, is it any more unconstitutional to relieve only a part of such property ? Does the law become more unconstitutional the nearer it approaches to a full compliance with the strict letter of the constitution ? Again, it must be noticed that the maintenance of a county organization is attended with expense; that the non-organization is due to the lack of population; and, by implication, of property sufficient to justify, in the judgment of the legislature, the carrying of such a burden. It may well be presumed, that in these outlying portions of the state the expense of the machinery for collection would exceed the amount of taxes collected. Now in order to secure valid state taxation in the inhabited portions, must the state, at an expense exceeding the proceeds, extend its tax machinery out among the few settlers scattered over the plains in our western frontier ? That would simply add to the burden of the settled portion of the state, and be but a sacrifice of the substance for the shadow. It must be borne in mind, that the constitution was designed as a permanent instrument; that it contemplated a state, all whose territory was inhabited; and without descending into minute details, or covering every possible contingency, sought to prescribe general and enduring rules. It is no sliding-scale with varying provisions for vacant plains and inhabited localities. A constitution is for citizens, not for prairies; for a community, and not for a desert. In the very nature of things large discretion must be left to the legislature as to what provisions should be made for, and what obligations cast upon, those who push out beyond the limits of organized counties and commence the work of reclaiming the desert. Not that the constitution is without force, and the legislature supreme in unorganized counties, but that a constitutional provision which evidently rests upon the assumption of a full, civil, and political organization of community is not to be extended into a region destitute of such organization.
And again: “It is settled here as elsewhere, that taxation by license does not conflict with the constitutional requirement of uniformity, although in the nature of things it is a burden upon but a portion of the community. (Fretwell v. City of Troy, 18 Kas. 271.) The tax before us is not in form a license-tax, but in substance and practical effect is very like it. It is a tax upon property in one employment, and a tax graduated to the amount of such property belonging respectively to the various parties engaged in such employment. The result would be the same, both to the state and the railroad, if the legislature had enacted that railroads should in lieu of all state taxes pay a license-tax of so much per mile. We would not be understood however as asserting that a mere similarity of results changes an ordinary tax on property into a license-tax, or that there is no essential distinction between the two, or that the tax before us is not a property-tax. We have noticed the similarity between this and a license-tax, and the settled validity of the latter, to indicate the limitations on a strict and technical construction of the constitutional provision, and how those limitations in principle touch the case before us. It bears upon the objection that this is partial and oppressive legislation and therefore void. Every license-tax upon any calling or profession is in one sense partial and oppressive; it is not a burden cast upon the whole community alike, but only upon one class; yet the power of the legislature in this respect is conceded, and when this burden is cast upon corporations who receive from the state special privileges, the justice of the tax is often as clear as the legality is undoubted.
Still again: It seems to be assumed by counsel, that the legislature cannot legally exempt any property from taxation other than that expressly named in the constitution. Is this true ? There is in terms no prohibition on such exemption; and as to personal property, the language of the constitution seems to imply the existence of a power to exempt. It says, “all property used, * * * and personal property to the amount of at least two hundred dollars for each family, shall be exempted from taxation.” In other words, the amount of personal property to be exempted is not fixed. It must be at least two hundred dollars for each family, and it may be as much more as the legislature shall determine. It may be well at this time to notice the language of the constitutions of some of the other states from whose decisions counsel have made quotations. In Ohio the language is:
“Laws shall be passed taxing by a uniform rule all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, and also all real and personal property, according to its true value in money; but burying grounds, * * * and personal property to an amount not exceeding in value two hundred dollars for each individual, may by general laws be exempted from taxation.”—(Const. 1850, art. 12, §2.)
In this will be seen express direction to tax all property, and exemptions are permissive only, and limited. So also in Indiana, where the language is —
“ The general assembly shall provide by law for a Uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal.”—(Const. 1851, art. 10, §1.)
The first clause of this section, it will be seen, is like the first clause of the section quoted from our own constitution, ' but is followed by language requiring a valuation of all property. The constitution of Florida is similar, (Const. 1868, art. 12, §1,) as well as that of Nevada, (Const. 1864, art. 10, §1,) as well as Oregon, (Const. 1857, aft. 9, § 1,) and that of South Carolina, (Const. 1868, art. 9, §1.) In Arkankansas the constitution provides, that—
“Laws shall be passed taxing by a uniform rule all money, credits, investments in bonds, joint-stock companies, or otherwise, and also all real and personal property according to its true value in money.”—(Const. 1868, art. 10, § 2.)
The constitution of California provides, art. 11, §13:
“Taxation shall be equal and uniform throughout the state. All property in this state shall be taxed in proportion to its value, to be ascertained as directed by law.”
In Illinois:
“The general assembly shall provide such revenue as may be needful, levying a tax by valuation so that every person and corporation shall pay a tax in proportion to the value of his, her, or its property.”—(Const. 1870, art. 9, §7.)
In Louisiana:
“Taxation shall be equal and uniform throughout the state. All property shall be taxed in proportion to its value, to be ascertained as directed by law.”—(Const. 1868, art. 118.)
In Minnesota:
“Laws shall be passed taxing all moneys, * * * and also all real and personal property according to its true value in money; but public burying grounds, * * * and personal property to an amount not exceeding in value two hundred dollars for each individual, shall by general laws be exempt from taxation.”—(Const. 1857, art. 9, §3.)
In Mississippi:
“Taxation shall be equal and uniform throughout the state. All property shall be taxed in proportion to its value, to be ascertained as directed by law.”—(Const. 1868, art. 12, §20.)
In Missouri:
“No property, real or personal, shall be exempt from taxation, except such as may be used exclusively for public schools, and such as may belong to the United States and to this state, to counties, or to municipal corporations in this state.”—(Const. 1865, art. 11, §16.)
The constitution of North Carolina is similar to that of Arkansas. (Const. 1868, art. 5, § 3.) In Tennessee it is this:
“All property, real, personal, and mixed, shall be taxed; but the legislature may except such as may be held by the state, by counties, * * * and shall except one thousand dollars worth of personal property in the hands of each taxpayer. * * * All property shall be taxed according to its value, * * * so that taxes shall be equal and uniform throughout the state.”—(Const. 1870, art. 2, § 28.)
In Virginia:
“Taxation, except as hereinafter provided, * * '* shall be equal and uniform; and all property, both real and personal, shall be taxed in proportion to its value.”—(Const. 1870, art. 10, § 1.)
The constitution of West Virginia is similar to that of Virginia in this respect. (Const. 1861, art. 8, § 1.)
In all these provisions will be noticed either an express direction to tax all property, or an express prohibition on exempting any other than certain specified property. Our constitution contains neither. Does it mean the same, without, as those do, with? The positive language of these several sections, sustains if it does not compel the positive assertions of the various decisions cited by counsel. Those decisions rest upon the clear commands and prohibitions of the constitution upon which they were based, and are therefore only of limited and qualified application here. We do not wish to be understood as intimating that there is no restriction on legislative action in the matter of taxation. Underlying all valid taxation rests the principle of uniformity, a principle whose existence is implied if not in positive and express terms enjoined by the provisions of our constitution. But in practical operation, a general rule or principle is often limited by some other general rule or principle, or by the facts and conditions under which its application is invoked. And sometimes it happens that a general rule is given its truest and most thorough enforcement by an apparent disregard in minor and temporary matters of its mandates. Thus it may be that uniformity in the burden of taxation, will be secured in the truest and best sense by not attempting to extend the machinery of taxation into the unorganized counties where the expense of the machinery may exceed the proceeds of the tax; and this being so, the principle of uniformity is in no just sense overthrown or disregarded by leaving the property in those counties untaxed. In a limited sense it may be said, that there is a disregard of the obligations of uniformity because there is no attempt to reach all property; but in a higher and better sense, it is clear that there is secured an equality and uniformity in the burden of taxation. The spirit is present, though the letter may be wanting.
Again: If two methods of assessment may be pursued, one for ordinary property, cumbersome and expensive, the other for a particular class of property, simple and inexpensive, must the two modes be extended equally throughout the state in order to secure a true uniformity? May not that uniformity require that all property throughout the state that can be reached for taxation at a cost less than the proceeds of the tax should be so reached ? and in the settlement of the unorganized counties, may not the time come when the one kind of property may be so reached by the special method of assessment, while general property could not be. so reached by the ordinary method? Would not the obligations of uniformity then' not only justify but even virtually compel the taxation of that particular class of property ?
A final objection is, that the assessment never comes for review before any board of equalization. There being no county organization, no county or other local taxes, the lack of a county board of equalization is wholly immaterial. So far as the other board of equalization is concerned, its function is to equalize the assessments returned from the several counties. Such a tribunal doubtless subserves a wise purpose in that it prevents any county from shirking its just proportion of the burdens of the state government by grossly inadequate assessments. But such a tribunal is not inherently essential to valid taxation. Its existence is not enjoined by any section of the constitution. It is the mere creature of legislative action; and if wholly abolished its decease would work no hindrance to legal taxation. It would mean simply, that the legislature was content to accept the assessment by the local officers as final for purposes of state as well as local taxation. (McMullan v. Anderson, U. S. Sup. Ct., 16 Albany Law J., p. 335.) But as to railroad property, there is no original assessment by local officers. It is made primarily by a state board. The inequalities of local assessments as to ordinary property, sought to be corrected by a state board of equalization, are avoided by the single assessment for the state of all railroad property by a state board of assessors. We forbear any inquiry as to those questions, about which counsel for defendant in error seem to disagree, as to the power of the county board of equalization over the assessments of railroad property, and the effect of a change of the valuation of any county by the state board upon such assessment. Such inquiry does not seem essential to a determination of questions involved herein. We hold, and that is all that is necessary for this case, that where the rate of taxation is fixed by legislative enactment, where the assessment of all of a particular kind of property throughout the state, such as railroad property, is made by a single state board of assessors, and where a part of such property is in the unorganized counties in which is no machinery for or attempt to collect local taxes, and therefore no county board of equalization, that a failure to provide for'a reexamination of assessments of such property in such unorganized counties, or an equalization thereof by a state board of equalization, does not render the tax void.
We shall not prolong this opinion further. The case has been before us for several months, and the subject of repeated consultations, and frequent examinations. The conclusions which we have reached are by no means entirely satisfactory to us. We hold the section to be constitutional and valid, not because it is clear to us that it is so, but because it is not clear to us that it is not. And the benefit of the doubt must be given to the law. The question would be different if discrimination was attempted between property in organized counties, or if the constitution did not contain but a single provision which seems to imply and rest upon the assumption of organized communities.
The judgment of the district court must be reversed, and the case remanded for further proceedings in accordance with the views-herein expressed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The only question presented by the record is, whether there was an abuse of discretion by the district court in refusing to allow the plaintiff in error to file an answer out of time. The facts were substantially these: The defendant in error commenced his action in the court below to recover upon three promissory notes, secured by a mortgage on real estate. The amount in controversy was in excess of $2,000. In the summons issued by the clerk the answer-day was stated as December 6th, but the clerk indorsed on the back of the summons that the answer-day was December 16th. The plaintiff in error failed to consult any attorney in the matter until the 10th of December, and upon applying to one to file an answer for him before the 16th, first understood that the answer-day was December 6th. This was in 1873. At the March term 1874, and being the first court held after the answer-day, and before judgment in the case, the plaintiff in error made application to the district court to set aside the default, and for leave to answer. An affidavit of merits was filed, to the effect that “said Brown was informed by counsel and verily believed he had a valid defense to the petition, and that one of his defenses, among others, was that he never executed and delivered the notes alleged in plaintiff’s petition, and that this defense was true,” and also made the showing as to his being misled by the wrong indorsement on the back of the summons. The court overruled the application, and gave judgment upon the notes, decreed a sale of the mortgaged premises, and rendered a personal judgment for any deficiency.
The ruling of the district court was such an abuse of discretion as to call for the intervention of this court. It is true, greater diligence might have been exercised by the plaintiff in error, as his counsel J x 7 should have applied at once for leave to file an answer, after having ascertained the default, and not have waited till the court convened to make the application. But as the plaintiff in error was evidently misled by the incorrect indorsement of the summons, and as his affidavit of merits showed a defense, the court below should have allowed the motion. While the permission to parties in default to pleadings rests in the sound discretion of the cour(-g j-0 which applications are made, the courts cannot act oppressively or arbitrarily thereon. Of course, terms may be imposed, diligence must be shown, and merits must appear. Here the defendant was misled by the summons served, the cause had not been called for trial, a large sum was involved, and a complete defense stated. An answer should have been allowed.
The counsel for the defendant in error suggests that the affidavit of merits -was adroitly worded, to convey one idea with words that meant another than an honest purpose to set forth a good and valid defense. This does not appear; and we cannot assume that any attorney would be guilty of the bad faith of having his client make oath that he never executed and delivered the notes sued on, simply to take an advantage of a clerical error in dotting an i or crossing a t. Again, this counsel suggests that the plaintiff in error should have accepted the order of the court, that leave would be given to file an answer if the applicant would swear he did not owe Holmes the amount sued for, or would present his answer sworn to. Nothing of this character is contained in the record, and if any such order was made or suggested, it has been omitted from the transcript brought to this court. We can only pass upon the record as certified to us, when that purports to be a full and complete copy of all the proceedings, and no omissions are suggested.
The judgment rendered will be set aside, and the order of the district court overruling the application of the plaintiff in error to file an answer in the case, will be reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution for an alleged violation of section 6 of the act of the legislature of the state of Kansas of 1876, entitled, “An act for the protection of birds.” (Laws of 1876, pp. 183,184.) It seems that the defendant, as the agent of the Adams Express Company, on the 8th of November 1876, shipped by said express company from Columbus, Cherokee county, Kansas, to Chicago, Illinois, four prairie chickens, which prairie chickens had previously and recently been killed as game. Said prairie chickens were not caught or killed in violation of any law, but were caught and killed at a time and in a manner allowed by law. The provision of said act which it is claimed that the defendant violated reads as follows:
“Sec. 6. It shall be unlawful for any person, railroad corporation or express company, or any common carrier, knowingly to transport or to ship, or to receive for the purpose of transporting or shipping, any of the animals, wild fowls, or birds, mentioned in this act, in or out of the state of Kansas; * * * and any agent of any such person, corporation, or company, who shall knowingly violate the provisions of this section by receiving or shipping any such game as the agent of such person, corporation, or company, shall, on conviction thereof, be fined in a sum not less than ten nor more than fifty dollars; * * * provided, that such penalty shall not apply to the transportation of such birds and animals in transit through this state from other states and territories.”
The defendant claims that said act is unconstitutional and void so far as it has any application to this case; first, because it is in violation of that clause of section 16 of article 2 of the constitution of Kansas, which declares that “no bill shall contain more than one subject, which shall be clearly expressed in its title;” second, because it is in violation of that provision of section 8 of article 1 of the constitution of the United States, which declares that “the congress shall have power * * * to regulate commerce * * * among the several states.”
I. Of course, said act of the legislature is unconstitutional and void so far as it relates to any animal except “birds;” and how the inhibition against the transportation of living birds would promote “the protection of birds,” is not altogether clear. The birds transported in this case were however dead; and it is supposed by the prosecution that the prevention of the shipping or transportation of dead birds would in some manner “protect birds,” and therefore that the act, so far as it prohibits the shipping of dead birds (although the birds are lawfully taken and killed,) is constitutional and valid. We shall not decide this question however, but shall pass to the next question.
states may enact sanitary laws. II. Section 8»of article 1 of the federal constitution provides among other things that, “the congress shall have Power * * * to regulate commerce with for-sign nations, among the several states, and with the Indian tribes.” Ever since the adoption of this provision, the judges of the supreme court of the United States seem to have been groping their way cautiously, but darkly, in endeavoring to ascertain its exact meaning, and the full-scope of its operation. They have many times construed it, but as yet have hardly fixed its boundaries, or its limitations. They have no doubt generally construed it correctly, but some of their decisions with reference thereto seem to be conflicting and contradictory, and scarcely one of such decisions has been made without a dissenting opinion from one or more of the judges. We think however that amidst all their conflicts and wanderings they have finally settled, among other things, that no state can pass a law (whether .congress has already acted upon the subject or not,) which will directly interfere with the free transportation, from one state to another, or through a state, of anything which is or may be a subject of inter-state commerce. (Case of The State Freight Tax, 15 Wallace, 232, and cases there cited. See also in this connection, Welton v. The State of Missouri, 91 U. S. 275; Henderson v. Mayor of N. Y., 92 U. S. 259; Chy Lung v. Freeman, 92 U. S. 275; Ward v. Maryland, 12 Wallace, 418.) This view of the law does not prevent a state from Passing proper sanitary laws, or any pr0per law for the protection or preservation of life, liberty, health, or property. Nor does it in any case prevent a state (in the absence of congressional legislation upon the subject,) from passing laws for any proper purpose where such laws only indirectly and remotely interfere with inter-state commerce. (State Texan Railway Gross Receipts, 15 Wallace, 284; Sherlock v. Alling, 93 U. S. 99. See also, in connection with this and the foregoing propositions, the following Texas-Cattle cases, to-wit: Chicago & Alton Rld. Co. v. Gasaway, 71 Ill. 570; Sangamon Distilling Co. v. Young, 77 Ill. 197; Wilson v. Kas. City, St. Jos. & C. B. Rld. Co., 60 Mo. 184, 216; K.P.Rly. Co.v. McCoy, 8 Kas. 538.) For instance, a law which prohibits the catching and killing of prairie chickens, may be valid, although it may indirectly prevent the transportation of such chickens from the state to any other state; but a law which allows prairie chickens to be caught and killed, and thereby to become the subject of traffic and commerce, and at the same time directly prohibits their transportation from the state to any other state, is unconstitutional and void. The federal constitution seems to give to congress the absolute and unqualified power to regulate interstate, commerce; and it has frequently been said that this .power is exclusive; and it is certainly exclusive within the limits hereinbefore mentioned. In the case of Welton v. The State of Missouri, 91 U. S. 275, 282, it is said, that “the fact that congress has not seen fit to prescribe any specific rules to govern inter-state commerce, does not affect the question. Its inaction on this subject, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that inter-state commerce shall be free and untrammeled.” But qualifying this language to some extent, it is said in the case , of Sherlock v. Alling, 93 U. S. 99, 104, that “it may be said generally, that the legislation of a state, not directly against commerce, or any of its regulations, but relating to the rights, duties, and liabilities of citizens, and only indirectly and remotely affecting the operations of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land or water, or engaged in commerce, foreign or inter-state, or in any other pursuit.” We think that said section 6, so far as it has any application to this case, is unconstitutional and void.
The judgment of the court below will therefore be reversed, and cause remanded for further proceedings.
All the Justices concurring.
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Yhe opinion of the court was delivered by
Horton, C. J.:
This action was brought in the court below to recover an installment of interest alleged to be due upon .a promissory note, and to foreclose a mortgage accompanying said note, and executed to secure the same. The petition .sets out a copy of the note and mortgage, from which it appears that Charles Graeber, one of the defendants, on 18th November 1874, executed his promissory note for $500 in Ihe following words:
“Lawrence, Kansas, Nov. 18, 1874.
“Four years after date, for value received, I promise to pay John F. Meyer, or order, the sum of five hundred dollars, with interest at the rate of ten per centum per annum until • payment, and with ten per cent, for attorney-fees if suit is brought hereon. Stay of execution and appraisement waived. Interest to become part of principal if not paid annually. Charles Graeber.”
The accompanying mortgage, signed by said Graeber and his wife, contains the following clause:
“This grant is intended as a mortgage to secure the payment of the sum of five hundred dollars, according to the terms of a certain promissory note this day executed and delivered by the said Charles Graeber and wife for the sum of five hundred dollars with interest at the rate of ten per cent, per annum payable annually. Interest to become principal if not paid when due.”
The defendants demurred, claiming that the petition stated no cause of action against them. The court below sustained the demurrer, and the plaintiff brings the action here for review.
Within the authority of Muzzy v. Knight, 8 Kas. 456, the note and mortgage having been made at the same time, and in relation to the same subject, are a part of one transaction, and constitute one contract, and must be construed together as if they were parts of one instrument; and so construed, the interest is payable annually, unless the terms in the note and mortgage, viz., “interest to become part of principal, if not paid annually,” and, “interest to become principal if not paid when due,” defeat this construction and make the interest a part of the principal, to become due at the election of the maker of the note four years after the date thereof. If the interest was payable annually, sufficient facts were stated in said petition to constitute a cause of action, as the mortgage contained the further’ stipulation that, “if default be made in said payment or any part thereof, as provided, then this conveyance shall become absolute.” And at the date of the commencement of the action, on 5th February 1876, no interest had been paid on the note, although de mand had been made therefor. The rule of construction is imperative, which requires, if practicable, that construction to be given to an instrument which shall give effect to all its parts. Under this rule, it seems to us that the rational and just construction of the contract, according to the intent of the parties, is, that the interest becomes due each year, and by the provision of the contract, that the “interest is to become principal, if not paid when due,” the interest overdue is to bear the same rate of interest as the principal of the note, and was meant for the benefit of the payee; and that this provision in the mortgage, and the similar one in the note, was not inserted to extend the payment of the interest till the principal became due. Any other construction would deprive of all meaning the provisions of the mortgage that the principal sum should bear interest payable annually, and if default be made in said payment, or any part thereof, as provided, then the conveyance should become absolute. Adopting this construction, we give effect to all parts of the contract, and, in our opinion, do no violence to the intention of the parties thereto. It is not necessary now to decide whether parties can make provisions in., their contracts that interest shall become principal, because, if held they cannot, the portion of the note and mortgage containing such stipulations would be void, and therefore of no force; and the same result would be reached as to the interest being payable annually, as if we attempt to carry out the actual intention of the makers of the contract, without regard to the question of the validity of the same. In either event, there was default made in payment, as provided, and the demurrer should have been overruled. As to the question of the oppressive and illegal character of such contracts, see Howard v. Farley, 19 Abb. Pr. Rep. 126; Van Benschooten v. Lawson, 6 Johns. Ch. 313; “Interest upon interest,” Albany Law Journal, vol. 16, p. 252, and the cases there cited.
The conclusion we have reached comports with the general signification of the language, “interest to become part of principal,” as ordinarily used and understood. Thus, in Chesterfield v. Cromwell, 1 Eq. Cas. Abr. 287, B.Lord Keeper Wright admitted the general rule, that interest could not carry interest, but held in some cases, it would be injustice not to regard the interest due as principal. In Lord Chancarty v. Latouch, 1 Ball. & Beatty, 430, Lord Chancellor Manners says: “ It would be fair for the mortgagee to call for interest due at the end of the year; and if not paid, to insist on its becoming principal.” . In the case of Howard v. Farley, 19 Abb. Pr., 129, Morrell, J., says: “If the interest is demanded, when due, it becomes principal from that time.” In all of these cases, “interest regarded as principal,” simply means, that the interest shall bear interest like the principal. We cite these cases, not to support the doctrine that interest is allowed upon interest, but to sustain the result we have reached, that the phrase, “ interest to become a part of the principal,” was never construed to mean that thereby the time of the payment of interest was extended, but that such expression is the usual form used to state that interest is to bear interest.
The order and decision of the district court will be reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff brought her. action in the district court of Barton county, claiming to be joint-owner with defendant of certain property in the city of Great Bend, that the latter held the legal title thereto in trust for her, and asking that he be compelled to convey. The defendant denied generally. The journal entry of findings and judgment reads as follows:
“The court after hearing the testimony of the witnesses, and the arguments of counsel, and being fully advised in the premises, does find as a fact, that the lots in question were by the commissioners set off to E. C. Sooy; and as a conclusion, that the action of the commissioners is conclusive, and cannot be set aside except for fraud, and then only by a direct proceeding instituted for that purpose. It is considered and adjudged by the court, that the said defendant, E. C. Sooy, have judgment,” etc.
Now while the record gives the testimony adduced on the trial, and states that a motion for a new trial was overruled, it does not contain such motion, nor state the grounds upon which it was based. Hence we cannot say that the district court erred in overruling it; (Ferguson v. Graves, 12 Kas. 39; Hover v. Cockins, 17 Kas. 518;) nor inquire into any errors alleged to have been committed during the trial, either in the admission or exclusion of testimony, nor into the sufficiency of the testimony to sustain the findings. Ayres v. Crum, 13 Kas. 269; Nesbit v. Hines, 17 Kas. 316; Hover v. Cockins, supra. Upon this counsel for plaintiff invoke the aid of the case of Everett v. Lush, recently decided by this court, [ante, p. 195,) and say, that the fact found by the court does not sustain its conclusion of law, and therefore does not warrant a judgment adversely to the plaintiff; that the court did not find upon all the issues of fact tendered by the pleadings; that if it had done so, the findings which from the testimony it must have made would have compelled a judgment for plaintiff; that the facts that the legal title to said lots was in defendant, and that it had passed to him by the award of the commissioners, were alleged by her in the petition, and that the basis of her claim was the fact that at the time of entering the town-site she was a joint occupant of the lots and a joint owner of the improvements thereon, and that upon these matters the court made no findings. In other words, the court in substance held that her petition did not state facts sufficient to constitute a cause of action; that in this it erred; that the error is apparent, and the exceptions duly preserved. Counsel have in this framed an argument' of great plausibility, but one to which, nevertheless, we are constrained to say we cannot yield our assent. And first, we think they misunderstand the scope of the decision in Everett v. Lusk. There, plaintiff had sued to recover a strip of land in the possession of defendant, and which was along the boundary between the respective tracts of plaintiff and de fendant, and belonged wholly to plaintiff, or wholly to defendant, or partly to each, according as the .true boundary line ran. Now the possession being wholly in the defendant, the finding implied that plaintiff was entitled to part of the strip; but because the court was uncertain as to the exact boundary line, (or in other words, uncertain how much of the strip plaintiff was entitled to,) it rendered judgment in favor of defendant for all. This illustration may perhaps make the principle clearer: A. sues B. for $1,000. The court finds that A. is entitled to recover an amount somewhere between $200 and $600, but the exact figures it is unable to give, and therefore renders judgment for defendant. But in the case at bar there is nothing in the finding of fact from which any implication of right in the plaintiff arises. So far as it goes it shows only right in the defendant. Concede that it be, as counsel contend, not conclusive of defendant’s title, and that it is a fact consistent with plaintiff’s rights, yet it does not tend to show any right in plaintiff) and only supports defendant’s title. So that there was clearly no error in rendering a judgment for defendant upon the fact found. But say counsel, the conclusion of law does not follow from the fact found. Concede that, and it would be simply a wrong reason for a right judgment.
But again, say counsel, there were other facts in issue, upon which proof vras offered, and upon which special findings should have been made. But no special findings are necessary unless requested "by the parties, or one of them, (Major v. Major, 2 Kas. 337; Gen. Stat. p.684, § 290;) and no request for findings appears in the record—no exception to the finding as made, no motion for additional findings, and no application to set aside the judgment for lack of findings on all the matters in issue. Hence it is impossible to say that the court erred in not making further findings. It may have found upon the only matter upon which a special finding was asked. What it might have found upon the other matters concerning which testimony was offered, we cannot tell. There was testimony on both sides. Reduced to writing, it may appear to its to preponderate in one direction; when heard from the lips of living witnesses, it may have led the mind of the district court in the other direction. But be that as it may, as was said in the case from 2 Kas. supra, “it is only errors apparent upon the record, that this court can take cognizance of, and those are errors of law. We cannot retry the case upon its merits.” It is useless therefore for us to speculate as to the conclusion to which the testimony, might lead us in those matters. If counsel desired to have them presented for examination here, they should have asked special findings; and the court would then have made such findings, or they could have alleged error in its refusal to find. While it may be, that if the case came before us for review upon the testimony, as under the old practice chancery cases went up on appeal, we should come to a different conclusion as to the rights.of the respective parties, yet, as the record stands, we see no error of which the plaintiff can avail herself, and the judgment will have to be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action for services as physicians and surgeons. Daniel W. Thomas and Moses S. Thomas were the plaintiffs in the court below, and the Pacific Railroad was the defendant. • The facts of the case stated briefly are substantially as follows: In November 1869,Frank Gates was assistant master, mechanic of the western division of plaintiff-in-error’s railroad, the terminus of which was in Leavenworth. Robert Kane was section boss, and had charge of the repairs of track and road-bed, and had in his employ one John Kennedy. On November 4th, Gates and Kane, with the men under Gates’ charge, undertook to load the smoke-stack of a locomotive upon a tender at the turntable in Leavenworth, and from some defect of the appliances used the stack fell, and Kennedy was caught by it, and his leg was broken. Dr. D. W. Thomas attended Kennedy as a physician and surgeon until Kennedy recovered, which was about the last of December 1869. There was sufficient evidence for the jury to find, as we suppose they did find, that Dr. Thomas was employed by both Gates and Kane, and that Gates said that he would see that the railroad company paid for his services. Th'e plaintiffs (Drs. D. W. and M. S. Thomas, partners,) looked to the railroad company for their pay, and gave the credit to the railroad company, although upon their books they charged Kennedy for their services, and did not charge the railroad company. ' About the last of December 1869, Dr. D. W. Thomas made out a bill for his services against the railroad company, and sent this bill by mail inclosed in a letter properly addressed to H. Hale, superintendent of the western division of the defendant’s railroad, at Kansas City, Missouri. This letter stated the employment of Dr. Thomas by Gates, and asked that the bill be paid; Hale never answered.
In July 1871 the plaintiffs commenced this action. Two trials were had—the first in February 1872, and the last in May 1873—at the first of which trial, as well as the last, Dr. Thomas testified concerning said letter and said bill. In March 1872 the plaintiffs gave notice to the defendant and its attorneys to produce said letter and said bill on the trial, as the plaintiffs wished to use them as evidence. The defendant however did not produce either of them; and although Dr. Thomas testified on both trials concerning their contents, yet the railroad company did not show whether they had ever been received by Mr. Hale, or not. Of course they were received. The mere putting them into the post-office, properly directed and addressed, was prima facie evidence of that fact, and there was no evidence do the contrary. The court below instructed the jury that the employment of Dr. Thomas by Gates and Kane would not alone make the railroad company responsible for Dr. Thomas’ services; and that unless such employment was afterward ratified by some agent of the company having power to ratify the same, the plaintiffs could not recover. Now the only evidence tending to show a ratification of said employment was the neglect or refusal of Hale, and of the railroad company, after receiving said letter and bill, to pay any attention to them. And upon this evidence the jury evidently found that there was a ratification; and taking this evidence, together with the circumstances of this case, we think the evidence was sufficient to sustain such finding. (Toledo Rld. Co. v. Rodriques, 47 Ill. 188; Toledo Rld. Co. v. Prince, 50 Ill. 26; Marquette Rld. Co. v. Taft, 28 Mich. 289, 294, et seq.; A. & P. Rld. Co. v. Reisner, 18 Kas. 458.) Kennedy was in the employ of the railroad company; Gates was the master-mechanic of that division; Kennedy was injured while performing services for the company, under the orders of Gates, and in the immediate presence of Gates; Gates employed Dr. Thomas, and said that he would see that the company paid him; Dr. Thomas performed the ser vices, looking to the company for his pay, and while he was so performing such services, and before he had finally completed them, sent said letter and said bill to Hale, itemizing his said services, explaining the same, and informing Hale of his said employment by Gates, etc.; and although Hale was at that time the superintendent of that division, yet he never paid any attention to said letter or'to said bill. We cannot upon such a state of facts say that the finding of the jury was erroneous.
But it is claimed by plaintiff in error, defendant below, that the court below erred in giving the following instruction to the jury, to-wit:
“It is claimed that Mr. Hale, the party to whom Dr. Thomas says he addressed the letter at Kansas City, was the deputy, or division superintendent of the road or company, or of that part of the road this side of Holden, Missouri. It is claimed he had such authority by virtue of his position, as empowered him originally to have employed the plaintiffs; and that if he had such power, in ease the original employment was by some servant of the company who had not authority to employ, he had the authority to ratify the unauthorized act. I say that the law would presume, in the absence of testimony to the contrary, that the general superintendent of a railroad company would have authority to employ a surgeon to attend on an employé of the company who had been injured while in the employ of the company. That would be the presumption of the law, in absence of testimony. Now the division superintendent, Hale, had, in respect to matters happening within his jurisdiction, the same authority as the general superintendent had. But I say this is the presumption of the law, when the testimony does not show what the precise nature of his authority was. If the testimony should show, as a matter of fact, that he did not have such authority, then I say to you the pláintiffs could not recover in this case; that is, if the testimony shows that Mr. Hale, as division or deputy superintendent, had not authority to have originally employed the plaintiff, then he had not the power to ratify the act of either Kane or Gates, or other subordinate servants of the company.”
We think the foregoing instruction is correct. We think that presumptively “ the general superintendent of a railroad company would have authority to employ a surgeon to at tend on an employé of the company who had been injured while in the employ of the company,” and presumptively that the division superintendent would have “ in respect to matters happening within his jurisdiction the same authority as the general superintendent,” although in both cases these presumptions might be rebutted by evidence, and it might be shown that neither the general superintendent nor the division superintendent had any such power or authority. And we would also think that presumptively, and in the absence of anything to the contrary, where an officer or agent of the company has the power in the first instance to employ a physician and surgeon, and make the company responsible for his services, such officer or agent would also have the power to ratify a previous unauthorized employment of such physician and surgeon, and thereby make the company responsible for his services. We also think that there was sufficient evidence for the jury to find that “the division superintendent, Hale, had, in respect to matters happening within his jurisdiction, the same authority as the general superintendent had.”
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action in the district court of Atchison county to recover damages for personal injuries, in which judgment was rendered in favor of defendant in error. The contest in this court has been conducted with vigor and bitterness. There has been that irritation and suspicion on the part of counsel which is both unfortunate and unpleasant.
Passing by all the personal allusions and complaints in the briefs, we shall consider simply the legal questions involved. And at the threshold we find on the part of the defendant in error a challenge of substantially the whole record. In the transcript filed with the petition in error appear three bills of exceptions; and a motion was made to strike them out. on the ground that they are not . _ . ^ n copies or the bills as signed and now on hie in the district court. Upon this motion the original bills were produced and offered in evidence, together with much other testimony. The bills when signed were what are sometimes called “skeleton bills”—that is, with blanks containing directions to the clerk, “here insert,” etc. Such bills it is claimed are nullities, and the clerk has no power in copying to make the insertions, but must follow the very letter of the bill as signed. It is not disputed that the allowance of a bill of exceptions is the act of the trial judge. A paper purporting to be a bill of exceptions, if unsigned by him, will not be noticed in the supreme court: Waysman v. Updegraph, McCahon, 89; Couse v. Phelps, 11 Kas. 455; Kshinka v. Cawker, 16 Kas. 63. The agreements of counsel are insufficient: Hodgden v. Comm’rs of Ellsworth Co., 10 Kas. 637; The State v. Bohan, ante, 28. The certificate of the clerk will not answer: McArthur v. Mitchell, 7 Kas. 173; The State v. Bohan, supra. The language of the statute is plain: “The party excepting must reduce his exceptions to writing and present it to the judge for his allowance. If true, it shall be the duty of the judge to allow and sign it.” Gen. Stat., p. 686, code, §303.
It would seem to follow from this that when the bill receives the signature of the judge it should be complete, and this we understand to be the substance and spirit of all the decisions. There is to be no further discussion, n0 further discretion; the record is made. “ The office of a ‘bill of exceptions is to bring upon the record some portion of those proceedings which do not of right and of course go upon the record.” (Stoner v. Jackson, 17 Kas. 607.) It is itself a part of the record. But a record must speak for itself. It must show upon its face all that it is. It must be its own evidence of all that it contains. No part of its contents may rest upon the discretion of the clerk, the recollection of the judge, or the testimony of counsel. But to insure this certainty, is it essential that everything be written out in full, every document and writing copied into the bill before signature? Such appears to be the import of some of the authorities cited; but that seems • to us unnecessary stringency, and to impose need- - , . . , , ^Tri - . . less clerical labor. Where a deposition or other r writing is to be made a part of a bill it can be referred to with such marks of identification as to exclude all doubt. That surely ought to be sufficient; and so we think the better authorities hold. But these things must exist to exclude all doubt:
1st. The bill in referring to such extrinsic document must purport to incorporate it into and make it a part of the bill. A mere reference to the document, although such as to identify it beyond doubt, or a statement that it was in evidence, is not sufficient, for such reference and statement do' not make it certain that judge or counsel intended that it should be copied into and made a part of the bill.
2d. The document itself must be in existence, written out and complete at the time of the signature of the bill; otherwise the door is open for dispute as to its language, and the bill may not in fact be allowed by the judge within the statutory time. A reference to the testimony of some witness to be thereafter written out by him, and as written out to be inserted, is improper; and such testimony, though written out and inserted, must be disregarded; for that in effect places in the bill the witness’s statements of the testimony, and not the judge’s. So also, if a document has been totally or partially destroyed, it must be restored before the signature, and the paper as restored clearly identified. And again: Suppose a paper in a foreign language is received in evidence and translated to the jury by some witness on the stand; it will not do to refer to that paper in the original, leaving the translation to be thereafter written out by any one, not even the witness who translated it to the jury; but the translation must be written out and properly referred to, so that the judge may approve it as the one given on the trial. The same principle renders it proper that short-hand notes be written out before the signature; for the notes of the stenographer are not a record; they are not conclusive as to what in fact was the testimony; they are not good against the certificate of the judge, and are no substitute for it. Whatever reliance the judge may place upon such notes, he after all must determine what was and what was not the testimony; and until those notes are written out, neither he nor counsel can determine what they will show as the testimony.
3d. And in this we appropriate the language of the supreme court of the United States in the case of Leftwich v. Lecann, 4 Wall. 187, in which the court says: “If a paper which is to constitute a part of a bill of exceptions is not incorporated into the body of the bill, it must be annexed to it, or so marked by letter, number, or other means of identification mentioned in the bill, as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions.” And these means of identification must be obvious to all. No mere memorandum, intelligible it may be to a single person, even the clerk, but indicating nothing to any one else, will be sufficient. They must be such that any one going to the record can determine what document is to be inserted, or, after insertion, that the clerk has made no mistake. The record must prove itself, and not the record and the testimony of the clerk. The clerk changes; the record endures. And long after judge and clerk are both gone, the record, if good, must carry on itself the evidence of its own integrity.
It may be well to notice some of the vast number of authorities cited by counsel. In the case of Heed v. Hubbard, 1 G. Greene, (Iowa,) 153, the bill of exceptions recited, that “The plaintiff exhibited his bill of particulars— |- pere insert the same.] ” And the court sustained . a motion to strike out the bill of particulars as copied by the clerk. See also same volume, the case of Humphrey v. Burge, p.223. In the case of Harmon v. Chandler, 3 Iowa, 152, the court says: “In order to bring before this court, as a part of the record, any 'paper used or proceeding had in the district court, not made a part of the record by statute, it must be embodied in the bill of exceptions, or so plainly identified that there cannot possibly be any mistake as to what is referred to. To refer to a motion, or instruction, as, ‘ marked, A/ and, ‘ [ here insert it,] ’ is not sufficiently certain for the ends of justice.” See also, Jordan v. Quick, 11 Iowa, 9; State, ex rel., v. Jones, 11 Iowa, 11; State v. Larkin, 11 Nevada, 314; Harbaugh v. Judge, 32 Mich. 259; Walker v. Stoddard, 31 Mo. 123; Oliver v. Town, 24 Wis. 514. In the case of Sexton v. Willard, 27 Wis., pages 465, 468, the court says: “The bill of exceptions on file is imperfect and incomplete on its face. Blanks are left in it for various depositions and other documents, which, it states, were read in evidence on the trial, and no reference is made to them, or description of them given, by which they can be identified. The attorneys might differ as to the identity of these, and there would be no means of settling the controversy. They should have been inserted in the bill, or made part of it by certain reference, in order that no such dispute may arise.” In the case of Hicks v. Person, 19 Ohio, 446, the court says: “All the evidence before the jury must be embodied in or made a part of a bill of exceptions. It will not do, as is sometimes attempted to be done, to refer to the records of courts, or records of deeds, and attempt to make them parts of bills of exceptions. It will not do to refer to depositions on file by the names of the deponents, or by artificial marks upon the depositions themselves, without something beyond this. They must be attached to or made part of the bill of exceptions, so that when a record of the case shall be made they can be introduced into that record as constituting a part of the case.” And further, Wells v. Martin, 1 Ohio St. 388; Busby v. Finn, 1 Ohio St. 409; Young v. State, 23 Ohio St. 578; Stewart v. Rankin, 39 Ind. 161; Kesler v. Myers, 41 Ind. 546; State v. Railroad Company, 44 Ind. 350; Vanderkarr v. State, 51 Ind. 91; Comm’rs Henry County v. Slatter, 52 Ind. 171; Everett v. Gooding, 53 Ind. 72. In the case of Garlington v. Jones, 37 Ala. 240, the court, speaking of papers not copied into the bill of exceptions, but made part thereof by reference, says, that they must “ be described by such identifying features as to leave no room for mistakes in the transcribing officer.” Strawbridge v. The State, 48 Ala. 308; Tuskaloosa Co. v. Logan, 50 Ala. 503; Huff v. Gilbert, 4 Blackf. 19; Spears v. Clark, 6 Blackf. 167; V. University v. Embree, 7 Blackf. 461.
Applying the rules above given to the case at bar, and what is the l’esult? Bill of exceptions No. '3 is the one purporting preserve the testimony taken on the trial. In the original bill of exceptions, as allowed and signed by the trial judge, the only identification of the evidence offered by plaintiff is as follows — quoting from the bill:
“As will appear from a stenographic record thereof as follows : [Here oopy record of testimony as kept by stenographer, down to resting of plaintiff’s case.] The said depositions taken by plaintiff, to-wit: [Here copy names of witnesses, and depositions, as read.] ”
And the only identification of evidence offered by the defendant to be inserted in said bill of exceptions is as follows:
“Defendant, to maintain the issue upon its part, offered evidence which was received by the court of the kind and in order as follows, as also kept by such stenographer: [Here copy defendant’s evidence.]”
And the evidence of plaintiff in rebuttal is not even identified by the stenographic record, but it is stated that, “ The plaintiff offered evidence in rebuttal which was received by the court as follows: [Here copy evidence in rebuttal.] ” Among the papers brought from the office of the clerk of the district court, and offered in evidence on the motion, is a large roll which upon examination reads as the testimony of witnesses given upon this trial, and which appears to have been copied into the transcript filed in this court as the testimony referred to in the original bill. But upon this roll we find no file-marks, or other marks of identification. From an examination of this roll no one could tell when it was placed among the papers of the clerk’s office, or even when it was written out; and if the clerk had produced any other roll or paper reading as testimony given upon that trial, no one could from inspection have told which was correct, or which was intended to be inserted, or which (if either) was written out by a stenographer. Indeed, the only means of identification which appear are, the facts that it reads as testimony given upon the trial, and that it is found among the papers of the case. To hold sudh means sufficient, would open the door to the loosest practice. Again, as a part of plaintiff’s evidence the original bill directs—“[Here copy names of witnesses and depositions as read.]” Who is to decide what depositions were read ? The court certainly by signing such a bill does not determine. It is a matter to be thereafter settled, and by whom ? Still again: The only identification of rebutting testimony is—“[Here copy evidence in rebuttal."]” Whence is the clerk to get it? Who is to decide what was then given in evidence? Such a direction settles nothing. It does not even purport to settle anything. We have refrained thus far from noting anything outside of that which appears upon the face of the papers, for we think -as indicated heretofore, that the identification should be apparent from the record itself, and obvious to all. In reference to the extrinsic testimony of which we received quite an amount on the hearing of the motion subject to further consideration as to its competency, we simply say this—that its contradictions only enforce the conviction that the record must be tried by itself, that the marks of identification must be on the papers, and in the record; and that such contradictious make it painfully certain that it would be in the highest degree dangerous to trust to the recollections of clerk, or counsel, or court. So far then as the motion refers to that portion of the bill of exceptions No. 3 which purports to give the testimony on t'he trial, it must be sustained.
Notwithstanding this we have examined the testimony at length; and, without asserting that there were absolutely no errors committed, we think that a verdict for the plaintiff upon such evidence would have to be sustained. There was more evidence to sustain the verdict, more tendjng t0,gh0W negligence on the part of the defendant, than in many of the contested cases that come to this court. We do not mean that the testimony was one-sided entirely, for there was abundance' of strong conflicting testimony. But still, as to the matters of fact the verdict of the jury would have had to be sustained, and a reversal, if ordered, must have been on some technical error in the admission of evidence, or in the instructions. As to the amount of the verdict, it was unquestionably excessive; but whether it was so excessive that for that reason alone, after having been approved by the district court, we should have felt compelled to reverse the judgment, is a matter we shall not decide. Perhaps the justices might not agree upon that.
Two motions were made to suppress certain depositions, taken respectively on the 1st and 3d of May 1875, and the 21st of October 1875. As to the first depositions, the grounds assigned were, that they were taken before P. S. Noble, a clerk of the plaintiff’s attorneys, and that they were so taken without notice to and in the absence of defendant’s attorneys; and as to the other, the grounds were that they were taken in short-hand, and afterward written out and signed by the witnesses, and also that they were taken before said Noble. Upon the face of the depositions everything áppears correct. The objecr tions are raised only by extrinsic testimony. In support of these objections the affidavits of two witnesses were filed. They were opposed by counter affidavits. These counter affidavits show that the taking of the depositions in short-hand, and before P. S. Noble, was by consent of parties; that Noble, though a clerk of the plaintiff’s attorneys, had no interest in 'this suit, and was not attorney or relative of either party, and was as a notary public in the habit of taking depositions for the different attorneys of Atchison for his own benefit, and not for the gain of the plaintiff’s attorneys; and also that the notice to take the first depositions was served on one of the principal officers of the defendant, and that F. M. Pierce, an attorney in the office of defendant’s attorney, though not regularly employed in this case, appeared at the time named as attorney for defendant and cross - examined ■ the witnesses without any objection on account of the notice. The motion to suppress states that Pierce was employed specially by the defendant to appear and object on account of the notice. Upon the questions of fact raised by the various affidavits, we cannot see that there was such a clear preponderance of testimony against the ruling of the district court as will justify a reversal. Again, it does not affirmatively appear that all the testimony presented on the motion is preserved in the record. McIntosh v. Comm’rs of Crawford Co., 13 Kas. 171.
We cannot forbear noticing at this point a matter which seems to have escaped the attention of counsel, and which tends to show how uncertain “skeleton bills” of exceptions are, even in their best estate. The skeleton bill, after referring to the motions to suppress depositions, states, that in support thereof defendant read “two certain affi¿javj¡;g as follows: [Here copy two first affidavits made by W. W. Guthrie and F. M. Pierce.]” The transcript filed with us shows at this place two affidavits of these gentlemen, of date November 10th. Further on the skeleton bill reads, “Plaintiff then read contra the certain affidavits of B. P. Waggener, P. S. Noble, and A. H. Horton, which are copied as follows: [Here copy such affidavits.]” The transcript here shows three affidavits of these three gentlemen respectively. The bill then further reads, “Defendant then read contra the certain other affidavits of Guthrie and Pierce, which are copied as follows: [Here copy such affidavits.]” And the transcript shows two such affidavits of date November 12th. Then according to the bill come the depositions themselves which were sought to be suppressed; but in the transcript there appear two more affidavits of P. S. Noble and one of B. P. Waggener, and which upon their face refer to the matters, in the motion, and which are also verified on the 12th of November. Now, were these last affidavits really read upon the motion? Was it intended that they should be inserted in the bill of exceptions as copied for this court-?’ or was this simply the act of the clerk, or copyist, thinking they ought to be in ? So also,"where it is said that plaintiff read the certain affidavits of B. P. Waggener, etc., and the direction was to copy such affidavits, was it intended that the clerk should copy one affidavit apiece of these gentlemen ? or, all affidavits of theirs he might find on file before the date of the motion? or, only such as upon examination he might deem pertinent to the matters in the motion? or, such as according to his memory were actually read? These questions find no satisfactory answer in the record. The transcript as it comes before us is doubtless correct, at any rate we may presume it to be so, as no question is made; but if it were challenged we should be at a loss from anything in the original bill to determine how many affidavits were properly copied ¿into the record by the clerk.
One other matter remains for consideration. After the testimony was all in, the court adjourned for the arguments to the ensuing morning. At that time, before the jury had been called, but while they were present in the court room and in their hearing the counsel for plaintiff produced and read to the court an affidavit stating substantially, “that since the adjournment one of the ¿efenciantfs employés and witnesses had admitted that the testimony that he had given adverse to the plaintiff he had been forced to give — that he knew he had done wrong, and done the plaintiff injustice, and that he was sqrry for it.” Upon this, and before proceeding further with the case, the witness, and the parties who claimed to have heard his admissions, were brought into court, questioned and cross-questioned as to the admission. When all had been so examined, the court, without taking any action on the matter so investigated, directed the argument to proceed. It is claimed that this was both “misconduct of the prevailing party,” and “irregularity in the proceedings of the court, and the prevailing party,'by which the defendant was prevented from having a fair trial,” and resulted in a judgment excessive and outrageous in the last degree. It was neither. The attention of the court was called by affidavits to a matter which demanded investigation. It was proper too to investigate it before the case was finally submitted to the jury; and while a private examination before the court, and out of the hearing of the jury, would ordinarily at least in the first instance be the preferable course, we cannot think that the fact of its publicity, and the presence of the jury, turned it in this case into misconduct or irregularity sufficient to compel the reversal of the judgment. Suppose it were true, that defendant had forced one of its employés to go into court and so testify against the plaintiff as to do him injustice and wrong: that would be of course misconduct, and sufficient if not discovered until after verdict, to compel a new trial. But if discovered before the case goes to the jury, must the party wait till after verdict and then seek to remedy the wrong by motion for a new trial? That often would be far from adequate remedy. It involves necessarily delay, and all that results or may result from delay. Waste of time, expense, annoyance, absence of witnesses, failing of memory, insolvency of defendant, are more or less certain consequences of a new trial. Besides, no jury can so fully appreciate the extent and force of the wrong as that which has heard the testimony by which the wrong was sought to be perpetrated. While therefore a party may wait until after verdict, and seek to remedy the wrong by motion for a new trial, he is not compelled to so wait, and may immediately upon discovering the facts call the attention of the court to it. On the other hand, if it be misconduct for a party to force an employé to testify untruly, it is no less misconduct for the opposite party to maliciously fabricate such a charge. And if the plaintiff had made such a charge and circulated it so as to come to the ears of the jury in any other manner than by directly and openly calling the attention of the court to and demanding an investigation of it, it would be misconduct. And more:*Although openly presented to the court, and investigation demanded, if it should appear that it was wholly without foundation, and made without any reasonable grounds therefor, that would also seem to be misconduct. But where the charge is true, or there are reasonable grounds to believe it true, the party is guilty of no misconduct in coming directly and openly into court and demanding an investigation in order that his rights may be protected against such a wrong. In this case the testimony was conflicting, and we do not think the charge was established; but still from the language which the witness admitted that he had used, to the effect “ that he had to go to the court and testify,” it is not strange that the plaintiff and his friends understood that the compulsion referred to was that of the employer, and not of the law. The charge was not wantonly brought. The plaintiff believed it. There were some grounds for believing it. It was apparently made in good faith, and there was no misconduct in making it.
Ordinarily, as we have said, such matters should first be investigated privately before the court, and not in the hearing of the jury, in order that their attention may not be distracted to side issues; but still, whether it shall be so.had or not, is a matter largely within the discretion of the court. The charge may have become so public that there is a probability of its having reached the ear of the jury. In such a case the interests of justice and the rights of both parties ' would seem to demand that they know the exact truth rather than return a verdict with a suspicion of wrong in their minds. In the case before us it does not seem that the public investigation of the charge was such an error or wrought such prejudice to the rights of the defendant as would justify any interference with the judgment.
The judgment will be affirmed.
Valentine, J., concurring.
Horton, C. J., not sitting, having been of counsel in the case.
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The opinion of the court was delivered by
Horton, C. J.:
It is contended on the part of the plaintiff in error that the court below ought to have overruled the demurrer to the first count or cause of action set forth in the .amended petition filed on February 2,1881. The argument is, that the plaintiff was entitled to a rescission of the contract for a conveyance of the real estate in controversy under the facts alleged in such amended petition. It is said that so long as the right to'specific performance exists in the one party to the contract, the other party possesses the right to have specific performance, or else to have the contract rescinded and declared forfeited; that the rights of the parties are reciprocal. Courtney v. Woodworth, 9 Kas. 443, is cited as an authority that the plaintiff had the right to commence his action to ask the court to rescind the contract. It is true that in the latter case it was stated that where a purchaser holding under a title bond fails or refuses to.pay the purchase-money when due, and fails to pay the same for a long time thereafter, and after being frequently requested to pay the same, the vendor may, where the equities are sufficient, seek relief by an action to rescind the contract and recover possession. But the case presented does not fall within the rule. It is a general doctrine of equity, that specific performance will not be decreed in favor of a plaintiff who has been guilty of laches, either in performing his part of the contract, or in applying to the court for relief.
The plaintiff has neglected for a great length of time to assert any right under the contract or upon the notes executed thereunder. No adequate excuse for the delay has been presented, and such delay has been so long as to charge the plaintiff with gross negligence'in seeking relief. The balance of the purchase-money for the land was due according to the dates of the promissory notes more than eleven years before the commencement of this action. Of course, under the statute of limitation, any action on the notes was therefore barred many years before the plaintiff saw fit to institute his suit. It is conceded that no judgment could have been rendered on the notes. The delay is a bar to plaintiff’s action for any specific performance as vendor. As time was not of the essence of the contract or the agreement between the parties, and as the ancestor of defendants was let into possession and plaintiff deferred any action until, after the notes given to pay the balance of the purchase-money had long been barred by the statute of limitations, we do not perceive that possession of the premises can be recovered on the ground that the contract had been forfeited. In O’Neill v. Martin, 26 Kas. 494, the matter of delay or laches was not presented or noticed. This leaves for determination the question whether plaintiff was entitled to maintain his action of ejectment by virtue of the tax deed executed to Flint and recorded November 22, 1877, aided by the quitclaim deed from Flint to plaintiff executed the 22d day of October, 1879. But for the action commenced by Flint on the 22d day of September, 18.79, the plaintiff would clearly be out of time to claim anything under his tax purchase, as his action was not commenced until the 4th day of January, 1881, more than two years after the date of the recording of the tax deed. (Subdiv. 3, § 16, art. 3 of the code.) Said subdivision was not repealed by §141, ch. 34, Laws of 1.876, which took effect on March 11,1876. The two-years statute of limitation mentioned in said subdivision applies to a party out of possession and seeking to recover upon the strength of a tax title. Such a party must-bring his action for the recovery of the real property sold for taxes within two years after the date of the recording of the tax deed. Sec. 141 of ch. 34, Laws 1876, applies to any suit or proceedings against the tax purchaser, his heirs or assigns, for the recovery of land sold for taxes, or to defeat or avoid a sale or conveyance of land for taxes. Under said section, the owner- of the fee out of possession may commence his action against the tax purchaser at any time within five years from the time of recording the tax deed. However, as Flint dismissed his action on the 6th day of September, 1880, he failed in such action otherwise than upon its merits, and he had the right to commence a new action within one year after the dismissal. Under the authority of Shively v. Beeson, 24 Kas. 352, as Flint could have sued within one year after the dismissal, his assignee, the plaintiff, had the same right. Counsel for defendants claim that plaintiff could have commenced his action only within one-year from the time he obtained his deed, which was October 22, 1879, and insist as a reason for this, that plaintiff could not have taken Flint’s place in the action because he could not sue himself. The fact is, the plaintiff was merely a nominal party in the action of Flint v. Thornburgh, and could have been substituted in the place of plaintiff as against Melinda Ballinger, and the case could then have been carried on in the court below as between plaintiff and said Ballinger.. By the conveyance to Flint, and from Flint to plaintiff, the-plaintiff obtained an assignment and transfer of all the rights of Flint in the premises, and thereafter he stood in his shoes. He might have been substituted as plaintiff, and as the action of Flint failed otherwise than upon its merits, plaintiff, as assignee of Flint, had the same right as Flint to commence a new action within one year after the dismissal.
There is nothing in the record to show that there was ever any settlement between Flint and Mrs. Ballinger, or that the action of Flint was settled by any compromise or agreement with Mrs. Ballinger, and the intimation made that Flint and Mrs. Ballinger settled with each other is not sustained.
The court below seems to have tried the ejectment proceeding upon the theory that plaintiff was barred by the two-years statute of limitation from recovering the real estate; or if the tax title was invalid, from recovering the amount due thereon, together with interest, penalty and costs, as the tax deed and all evidence offered of the payment of taxes, and the proceedings attending the tax sale, were rejected. This view was erroneous on account of the provisions of § 23 of the code, and the arrangements between Flint and plaintiff. Subdivision 3 of §16 of the code is no bar to the suit of plaintiff.
Of course the action of the trial court in refusing to poll the jury when requested so to do by plaintiff was erroneous. A party entitled to a jury trial is entitled to have a verdict of a jury, unless a jury is waived. A judgment is not fo.unded upon a verdict' of the jury where' such verdict is rendered under the orders and directions of the court, and the party is not permitted to have the jury polled. (Maduska v. Thomas, 6 Kas. 153.)
The judgment of the district court will be reversed, and the case remanded with directions for further proceedings in accordance with the views herein expressed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
This is a proceeding to review an order of the court below confirming a sheriff’s sale. The facts are substantially as follows:
On July 14,1880, A. L. Lindsay, one of the defendants in error j (plaintiff below,) commenced an action against plaintiffs in error, (defendants below,) to recover $2,150 as damages sustained on account of certain alleged wrongful acts of the defendants. Service was made by publication in a newspaper. An. affidavit alleged that the defendants were nonresidents of the state was filed, and an order of attachment obtained and levied on four hundred acres of land in Neosho county. At the November term, 1880, of the district court, judgment was rendered by default in favor of Lindsay against the Johnsons for $2,150, with seven per cent, interest from July 14,1880, and costs, and the property attached was ordered to be sold. The order of sale issued December 27,1880; the land -was sold February 12, 1881, the defendant in error' Henry Lodge being the purchaser of a part thereof, and. Lindsay being the purchaser of the balance. On March 28, 1881, plaintiffs in error caused notice to be personally served on Lindsay, that on’April 5,1881, (being the first day of the April term of court,) at 10 o’clock A. M., they would apply to the court for an order setting aside the judgment and letting them in to defend, for the reason that the judgment had been rendered without other service than by publication in a newspaper, and that they had had no actual notice of the suit in time to appear and defend. This notice, with proof of service, the affidavit required by § 77 of the code, and a full answer to the petition, were all filed on said April 5th. Thereupon the motion to open up the judgment and to allow defendants below to be let in to defend was called up at the first call of the docket on April 5, 1881, and Lindsay also called up the motion to confirm the sale. The attorneys for Lindsay stated in open court that they desired to resist the motion to vacate the judgment, and wanted time to prepare and read counter affidavits, and the matter then went over. On April 11, 1881, the case was called again, and the John-sons said they were ready with their motion to vacate. The attorneys for the defendant in error H. Lodge said they were ready with a motion to confirm the sale of the land. The Johnsons objected to a confirmation of the sale until their motion to vacate could be heard, and asked that the motion to vacate be heard first. The attorneys of Lindsay and Lodge objected, and made application, with an affidavit in support thereof, for the continuance of the motion to vacate. The court stated that it would pass upon the motion to confirm first, and refused to consider at the time the motion to vacate. The Johnsons made several objections to the confirmation of the sale, but the court overruled the objections and confirmed the sale, and took the motion to vacate under advisement until the next term of the court, and gave Lindsay forty days in which to file counter affidavits in opposition to the affidavit to obtain a vacation of the judgment.
The action of the court below in disposing of the motion for confirmation, and confirming the sale before rendering a decision upon the motion to vacate the judgment, was under the circumstances of this case grossly unjust to the'plaintiffs in error, against whom the judgment had been rendered. By the terms of said §77 of the code, the title to any property the subject of the judgment sought to be opened, which by it or in consequence of it shall have passed to a purchaser in good faith, is not affected by the vacation of the judgment. Therefore a confirmation of sale, made pending a motion to open up the judgment and permit a defendant to defend, may deprive a defendant of all the substantial benefits of the section. While the confirmation of a sale relates back to tbe date of the sale, the proceedings under an execution or order of sale are in fieri, and not perfected until the court has examined the proceedings, attd directed the clerk to make an entry on the journal that the court is satisfied with the legality of the sale, and for the officer to make to the purchaser a deed for the lands and tenements so sold. The officer making the sale retains the purchase-money in his hands until the court confirms the proceedings, and no title passes to the purchaser without the order of confirmation, and until such confirmation the sale is not legally consummated, so as to entitle the purchaser to a conveyance thereof. Before the confirmation, the title to the property ordered sold under the judgment had not passed to the purchaser thereof, and pending the motion to vacate the judgment the court ought not to have attempted to pass the title of any part of the property so that it would be beyond the reach of being affected by the vacation of the judgment. The property had been seized upon attachment, under the provisions of the statute requiring no bond of indemnification, in the event the attachment had been wrongfully sued out; the service was had by publication, and within a very brief time thereafter the proper proceedings were commenced to have the judgment opened up. Now as the title to the property had not passed to the purchaser when this motion was called for hearing, the court should have disposed of the motion before confirming the sale. In view of the extrinsic circumstances presented to the court at the time the motion of confirmation was called up, neither Lindsay nor Lodge had any absolute right to have the confirmation then made. A court ought not to allow itself voluntarily to be made the instrument of oppression or fraud, and if it should appear, upon the trial of the case upon its merits, that the plaintiffs below had no cause of action, and the confirmation is permitted to stand, such confirmation might deprive defendants below of their property without recourse. (Howard v. Entreken, 24 Kas. 428; Dewey v. Linscott, 20 Kas. 684; Company v. Smith, 25 Kas. 622.) The proceedings upon the sale should have stopped until the motion for the vacation of the judgment had been decided.- If the court finally orders the judgment opened up, then the proceedings subsequent thereto, including the sale, should be set aside.
The order of the district court confirming the sale will be reversed, and the case remanded with instruction to defer any action upon the motion to confirm until the motion to have the judgment opened up is disposed of.
All the Justices concurring.
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Per Ouriam:
The judgment sought to be reversed in this case was rendered in the court below on February 12,1880, and the case was not brought to this court until June 30, 1881, more than one year after the rendition of the judgment in the court below; hence, under § 2, ch.126, of the Laws of 1881, we have no jurisdiction of the case, which must be dismissed. (Estate of McDermott v. Loftus, ante, p. 68.)
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The opinion of the court was delivered by
Lockett, J.:
Defendant was convicted of first-degree premeditated murder (K.S.A; 21-3401), two counts of felony theft (K.S.A. 1993 Supp. 21-3701), and unlawful possession of a firearm (K.S.A. 1993 Supp. 21-4204[a][3]). He appeals, claiming: (1) an improper readback of testimony; (2) failure to give a limiting instruction; and (3) the unconstitutional use of a juvenile adjudication to calculate criminal histoiy for sentencing.
Donnie W. L. Lolar, a/k/a Doni W. L. Hamilton, was charged with first-degree murder, two counts of felony theft, and unlawful possession of a firearm stemming from the killing of Kurt Finuf on October 26,1993. Because the issues on appeal relate to nonfactual issues, the facts are highly summarized.
Hamilton traveled from Topeka to Wichita by bus on October 18, 1993. In the early morning hours of October 20, his uncle, David Towles, refused to drive him to Winfield to see another uncle, Brian Towles. Hamilton told David he would steal a car to get to Winfield. Subsequently, Hamilton stole a car and drove to Winfield.
Hamilton and Brian attended a party at Kurt Finuf’s house in Winfield on October 23, 1993. Finuf had two guns, a .9 mm and a .22 caliber, in a cabinet. An individual observed Finuf give Hamilton the .9 mm gun from the cabinet. Hamilton stuck the gun in the front of his pants. Another witness testified that 2 days after the party, Finuf had both guns.
On the evening of October 25, Hamilton sought a ride from Arkansas City to Wichita. When he was unable to reach Brian, Hamilton called Finuf. Around 11:15 p.m., Finuf and Hamilton purchased some beer at a grocery store. At 11:56 p.m., Hamilton phoned his girlfriend in Topeka from Finuf’s home in Winfield.
Hamilton arrived in Wichita at David Towles’ house around 3 a.m., driving Finuf’s car. Hamilton told David that he had gotten into a fight with someone in Winfield and had taken two suitcases full of items and a car from that person. The items were identified at trial as belonging to Finuf. When Hamilton informed Dávid he wanted to get rid of the car, David suggested that Hamilton bum the car. After burning the car near Augusta, they returned to David’s house. Hamilton admitted to David that he had shot the person twice, once with a .9 mm gun and once with a .22 caliber gun.
Finuf was found dead in his home. Finuf had suffered two gunshot wounds to his head, one from a .9 mm gun and one from a :22 caliber gun.
Hamilton testified at his trial that David Towles killed Finuf during a drug transaction Hamilton had arranged between Finuf and David. Hamilton testified that while David and Finuf discussed purchasing cocaine, he drove to a convenience store in Finuf’s car. When he returned to Finuf’s house, Finuf’s body was in the front room. Hamilton testified that he drove David’s car back to Wichita and David drove Finuf’s car. David later set Finuf’s car on fire.
The jury convicted Hamilton of first-degree premeditated murder, two counts of felony theft, and unlawful possession of a firearm. Hamilton received sentences totalling life plus' 32 years. He appeals.
Readback of a Witness’ Testimony
Hamilton’s first claim is that the trial court erred in denying his motion for a new trial based on the court’s improper readback to the jury of David Towles’ trial testimony. When asked what happened when he saw Hamilton on October 20, David testified:
“I went in — I spoke to all the people that was in the house. [Hamilton] told me he wanted to talk to me .... And he was crying, grabbed me, hugged me, cried for a few minutes and told me that he was tired of people messing with him. Said he had got into some trouble in Topeka and almost shot this guy.”
Hamilton’s counsel objected to the testimony’s relevance, argued the response was prejudicial, and requested that the response be stricken. The trial judge sustained the defendant’s objection and instructed the jury that it was to disregard the witness’ answer.
After the jury began deliberations, it requested a readback of the testimony of four witnesses, including David Towles. During the readback of David’s testimony, the court reporter read the testimony that was objected to and noted the defendant’s objection. The court reporter did not read the court’s admonition that the jury was to disregard the answer. During a later break in the readback of testimony, Hamilton’s counsel informed the court that its admonition had been omitted from the readback. The judge offered to again admonish the jury. Hamilton’s counsel declined.
In a motion for a new trial, Hamilton claimed that the trial judge’s failure to exclude that evidence or repeat the admonition during the readback of David Towles’ testimony was so prejudicial that it required he be granted a new trial. In response, the trial judge noted that Hamilton’s attorney had declined the judge’s offer to again admonish the jury to disregard the evidence excluded during trial; the judge concluded that because the defendant rejected the court’s offer to again admonish the jury, he could not assert it was error and denied the motion for a new trial.
On appeal, Hamilton claims he did not waive the issue by declining the subsequent admonition to the jury because the judge’s admonition would have highlighted the inadmissible testimony. Further, Hamilton argues that the testimony was highly prejudicial because that testimony implied he had a propensity for violence and to use a gun and portrayed him as capable of murder.
The readback of testimony at a jury’s request is required by K.S.A. 22-3420(3). See State v. Boyd, 257 Kan. 82, 87-88, 891 P.2d 358 (1995). However, the manner and extent of the trial court’s response to a request for a readback lie within the sound discretion of the trial court. 257 Kan. at 87; see State v. Hopkins, 257 Kan. 723, Syl. ¶ 1, 896 P.2d 373 (1995).
The trial court may grant a new trial if required in the interest of justice. K.S.A. 22-3501(1). In State v. Morris, 255 Kan. 964, 880 P.2d 1244 (1994), the defendant claimed that the court erred in refusing to admit certain evidence. In reviewing whether the failure to admit the evidence was error, this court stated:
“Review of the admission or the exclusion of evidence is governed by K.S.A. 60-261, the harmless error rule, which provides that no error in either the admission or the exclusion of evidence by the court is a ground for granting a new trial or for setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. State v. Getz, 250 Kan. 560, 569, 830 P.2d 5 (1992).” 255 Kan. at 983.
Did the failure of the court reporter to include the admonition in the readback of the testimony require a new trial? Here, the judge admonished the jury to disregard that evidence during David’s initial testimony. Although the jury was not reminded of the admonition during the readback of David’s testimony, the court reporter did note to the jury the defendant’s objection. Therefore, the jury was aware of the initial admonition and could recall that admonition during the readback. In addition, the judge’s written instructions to the jury in part stated:
“Members of the Jury: It is my duty to instruct you in the law that applies to this case, and it is your duty to follow all of the instructions. You must not single out one or more instructions and disregard others. You should construe each instruction in the light of and in harmony with the other instructions, and you should apply the instructions as a whole to the evidence. You should decide the case by applying the law to the facts as you find them. The order in which the instructions is given is no indication of their relative importance.
“You may consider as evidence whatever is admitted in the trial as part of the record, whether it be the testimony of witnesses, a stipulation of the parties or an article or document marked as an exhibit. You should consider only testimony and exhibits admitted into evidence.
“You should evaluate the evidence admitted in this case and determine whether the defendant is guilty or not guilty in accordance with these instructions.”
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 in the case, and if the jury could not reasonably have been misled by them, the instructions do not constitute reversible error although they may be in some small way erroneous. State v. Johnson, 255 Kan. 252, Syl. ¶ 4, 874 P.2d 623 (1994).
While the judge’s admonition to disregard the testimony should have been given to the jury during the readback, under the facts and circumstances here the trial court did not abuse its discretion in refusing to grant a new trial.
Limiting Instruction
Hamilton was charged with unlawful possession of a .22 caliber pistol based on his prior conviction of a felony. Prior to trial, Hamilton sought to exclude the .22 caliber pistol from being admitted into evidence at trial because that gun could not be identified definitely- as one of the murder weapons. During the hearing on that motion, Hamilton’s counsel also sought to exclude evidence of the defendant’s prior felony conviction. Counsel suggested that the trial judge take judicial notice of Hamilton’s prior conviction, and if Hamilton was convicted of possession of a weapon, the judge could, then consider the defendant’s prior felony conviction when imposing sentence. After overruling the defendant’s request, the trial judge suggested that he could instruct the jury that it could consider the prior felony conviction only as to the charge of unlawful possession and not as to the charge of homicide.
K.S.A. 60-406 states that when evidence is admissible for one purpose but is inadmissible for another purpose, “the judge upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” Here, evidence of the defendant’s prior felony theft conviction was relevant and admissible as an element of the unlawful possession of a firearm charge but was otherwise inadmissible. If Hamilton had requested an instruction limiting the jury’s consideration of the prior crime, the trial judge would have been required to give such an instruction.
At trial, evidence of defendant’s prior convictions were admitted incidentally through the journal entry of conviction. The trial judge did not instruct the jury that it could consider the defendant’s prior felony theft conviction only as proof of an element for the unlawful possession of a firearm charge. The defendant did not request an instruction or object to the court’s failure to instruct the juiy.
K.S.A. 22-3414(3) has been interpreted to state that no party may assign as error the giving of or the failure to give an instruction unless the party objects thereto before the jury retires, unless the failure to instruct is clearly erroneous. Giving an instruction or failing to give 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. See State v. Novotny, 252 Kan. 753, Syl. ¶ 1, 851 P.2d 365 (1993); State v. Deavers, 252 Kan. 149, Syl. ¶ 4, 843 P.2d 695 (1992), cert. denied 125 L. Ed. 2d 676 (1993). Hamilton’s counsel was informed at a pretrial hearing that he could request a limiting instruction concerning the prior conviction, but he failed to make that request at trial. Our standard of review is whether the failure to give the instruction was clearly erroneous.
Here, the evidence of the defendant’s prior convictions was minuscule. A journal entiy admitted at trial shows that Hamilton was charged with aggravated robbery, a class B felony, and burglary, a class E felony, and that he pleaded guilty to theft, a class E felony, and battery, a class B misdemeanor. In testimony covering two- and-one-half pages of a transcript of evidence in excess of 1,000 pages, a court services officer stated that on February 8, 1993, Hamilton was convicted of theft, a class E felony, and battery, a class B misdemeanor. In what was one of numerous trial exhibits, the journal entry of the prior felony conviction was admitted into evidence. There is no real possibility that the jury would have reached a different verdict had it been instructed to limit its consideration of Hamilton’s prior felony conviction. The failure to give a limiting instruction was not clearly erroneous.
Use of Juvenile Adjudications
Hamilton had a juvenile adjudication for residential burglary which was considered in calculating his criminal history score under the Kansas Sentencing Guidelines Act (KSGA). He contends that using his juvenile adjudication for this purpose is unconstitutional as violative of due process and the prohibition against ex post facto laws.
Hamilton’s challenge to the constitutionality of considering juvenile adjudications under the KSGA was recently decided adverse to his position in State v. LaMunyon, 259 Kan. 54, 911 P.2d 151 (1996). We find that LaMunyon controls.
Affirmed.
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The opinion of the court was delivered by
McFarland, C.J.:
The driver and the owner/passenger of a Mercedes automobile were charged with a variety of drug offenses after the vehicle was searched following the arrest of the driver on an unrelated matter. The district court held that the search was improper and suppressed the seized evidence. The State appealed therefrom pursuant to K.S.A. 22-3603. The Court of Appeals affirmed the district court in two unpublished opinions: State v. Anderson, No. 71,404, and State v. Huffman, No.. 71,994, both filed April 21,1995. We granted the State’s petitions for. review; and the cases have been consolidated before us.
The undisputed facts may be summarized as, follows. On October 26, 1993, at approximately 6:15 a.m., Lee Williams, an Overland Park police officer, was running radar near 61st and Met-calf. Officer Williams observed a fylercedes make an unsafe lane change which nearly resulted in a collision with a van. The .officer stopped the Mercedes and approached the driver’s side. The driver was a woman, and the individual in the passenger seat was a man. An infant was asleep óñ the back seat. The officer asked to , see the woman’s driver’s license and a plastic film container he saw in the vehicle. Both were provided to him. The officer is'uncertain as to which request was made first. The officer wanted to inspect the container, as he knew illicit drugs were often transported in such containers. There was nothing in the plastic film container. The officer then obtained identification from the passenger, who advised that he was the owner of the vehicle, and returned to thé police car. A records check revealed nothing as to the passenger, Daniel Anderson. The check on the driver, Sarah Huffman, revealed: (1) The license she provided had been suspended, and (2) there was an outstanding warrant for her arrest in connection with a charge of operating a vehicle with “no child restraint.”
Upon the arrival of his backup unit, Officer Williams returned to the Mercedes, asked Huffman to step out of the vehicle, arrested her for driving on a suspended license and on the warrant, handcuffed her, walked her back to his vehicle, and placed her in the back seat, from which she could not exit. Huffman was not searched. Officer Williams desired to search the Mercedes. For this purpose, he and his backup, Officer John Sanders, approached the vehicle. Anderson was asked to step out of the vehicle to facilitate the search. In the glove compartment, Williams found a modified test tube with á residue in it. The officer’s experience and training led him to believe this was a crack pipe. Based on finding the .crack pipe, the officer took the keys from the ignition and opened the trunk. Inside, the officer observed an assortment of plastic bags, chemicals, scales, and other items. The officer recognized these as ingredients used in the operation of a methamphetamine laboratory. Anderson was then arrested. When Anderson was booked into jail, a motel room key was found. The execution of a search warrant at the motel room revealed a virtual cornucopia of illicit drug-related items. Specific descriptions of the items seized from the trunk and the motel room and the conduct of such searches are irrelevant to this appeal.
The issues herein stand or fall on Officer Williams’ right to search the interior of the Mercedes. The seizures of the evidence from the trunk and the motel room flow from the discovery of the crack pipe in the glove compartment. The parties are in agreement that we need concern ourselves only with the facts relevant to the seizure of this item of evidence to resolve the issues herein.
Before proceeding, the applicable standards of review should be stated.
If the findings of the trial court on a motion to suppress evidence are based on substantial evidence, this court on review will not substitute its view of the evidence for that of the trial court. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979). When the facts material to a decision of the court on a motion to suppress evidence are not in dispute, the question of whether to suppress becomes a question of law. State v. Vandiver, 19 Kan. App. 2d 786, 788, 876 P.2d 205 (1994), aff’d 257 Kan. 53, 891 P.2d 350 (1995). An appellate court’s scope of review on questions of law is unlimited. State v. Heffelman, 256 Kan. 384, 386, 886 P.2d 823 (1994). Further, on a motion to suppress evidence, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. State v. Damm, 246 Kan. 220, 222, 787 P.2d 1185 (1990) (citing Mincey v. Arizona, 437 U.S. 385, 390-91, 57 L. Ed. 2d 290, 98 S. Ct. 2408 [1978]).
The only evidence presented relative to pertinent events was the testimony of Officer Williams. No material facts are in dispute. Thus, the issue is whether the search was lawful under the undisputed facts herein. This is a question of law, and our scope of review is unlimited.
A vast body of law has developed in the general category of “search and seizure” under the United States Constitution. Many different aspects of the general subject are included therein. Failure to state the precise aspect of search and seizure law that is involved in the issue to be determined before getting into the law of search and seizure may be likened to attempting to drink from a fire hydrant.
In the case before us, an extremely narrow issue is involved. The search of the vehicle was purely and solely a search incident to arrest. There is no evidence of or claim made that probable cause was present for the search.
K.S.A. 22-2501 sets forth the circumstances under which a search incident to arrest may be made as follows:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person s immediate presence for the purpose of
(a) Protecting the officer from attack;
(b) Preventing the person from escaping; or
(c) Discovering the fruits, instrumentalities, or evidence of the crime.”
Officer Williams testified that neither defendant exhibited any hostility and that each cooperated with his requests. Candidly, the officer stated he was not fearful that he would be attacked, that either individual was armed, or that a weapon might be in the vehicle. The officer’s conduct was consistent with his lack of concern for his personal safety. At the time of the search of the vehicle, the woman arrested was in handcuffs in the back seat of a police car. There was no way she could leave the back seat on her own initiative. The woman had been arrested for driving on a suspended license and on the “no child restraint” traffic warrant. The searching officer did not claim he was looking for “fruits, instrumentalities, or evidence” of either crime or for any evidence relative to the unsafe driving he had observed. The officer was looking for illicit drugs and drug-related items when he searched the vehicle. Clearly, the district court was correct when it held that the search was not conducted for any of the purposes set forth in K.S.A. 22-2501. It must be stressed that there is no claim that the search was made under the plain view doctrine, that the officer had probable cause to search the vehicle, or that the search occurred for any reason other than as an incident to arrest. The officer smelled ho marijuana smoke, observed no green leafy material, and had no probable cause for believing drugs or drug paraphernalia were present in the vehicle.
Notwithstanding these facts, the Státe claims the search was valid solely as an incident to the arrest of Huffman and that K.S.A. 22-2501 governs and permits the search herein. The State reasons as follows: When K.S.A. 22-2501 was enacted in 1970, it codified existing federal law relative to constitutionally permissible searches incident to arrest as enunciated in Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 895 S. Ct. 2034, reh. denied 396 U.S. 869 (1969).
In Chimel, the officer had a warrant for defendant’s arrest for the burglary of a coin shop. The officers went to Chimel’s home to arrest him. They asked for permission to “look around.” Chimel objected, but the police searched the entire home, including the attic, garage, and workshop, and seized various items which were introduced as evidence.
The Chimel Court considered whether the warrantless search of Chimel’s entire house could be constitutionally justified as incident to his lawful arrest. 395 U.S. at 755. Concluding that it could not, the Court held:
“Application of sound Fourth Amendment principles to the facts of this-case produces a clear result. The search here went far beyond [Chimel’s] person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. The scope of the search was, therefore, ’unreasonable’ under the Fourth and Fourteenth Amendments, and [Chimel’s] conviction cannot stand.” 395 U.S. at 768.
In reaching this conclusion, Chimel overruled earlier cases which had allowed the scope of warrantless searches to extend to the area that is considered to be in the “possession” or under the “control” of the person arrested. The Court believed that scope was too broad for constitutional protection. 395 U.S. at 760, 768. Although the rationale in these earlier cases would have allowed the search of Chimel’s home, the Court believed that
“[n]o consideration relevant to the Fourth Amendment suggests any point of rational limitation, once the search is allowed to go beyond the area from which the person arrested might obtain weapons or evidentiary items. The only reasoned distinction is one between a search of the person arrested and the area within his reach on the one hand, and the more extensive searches on the other.” 395 U.S. at 766.
Further, the Court noted that “[t]here is ample justification . . . for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which [the suspect] might gain possession of a weapon or destructible evidence.” 395 U.S. at 763. Chimel is primarily concerned with the scope of a search made incident to an arrest. There is no issue in the case before us relative to the scope of the search.
The State’s reasoning appears to be that when the United States Supreme Court decided New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, reh. denied 453 U.S. 950 (1981), the decision somehow altered the requirements of K.S.A. 22-2501, or should be considered as supplemental thereto, and that Belton legitimizes the search herein, which was not in accordance with the statute.
In Belton, a law enforcement officer stopped a speeding automobile. There were four occupants in the automobile, one of whom was Belton. In the course of checking the driver’s license and registration, the officer discovered that none of the men owned the car or was related to the owner. Meanwhile, the officer had smelled burnt marijuana and had seen an envelope he believed to contain marijuana lying on the floor of the vehicle. Believing the four occupants were in possession of marijuana, the officer ordered all of them out of the car and placed them under arrest. The four were separated and searched. The passenger compartment of the vehicle was also searched. In the course of that search, cocaine was discovered in a zipped pocket of Belton’s jacket lying on the back seat. Belton argued that the seized materials should be suppressed.
The Court characterized the question before it in Belton as: “When the occupant of an automobile is subjected to a lawful cus todial arrest, does tíre constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding?” 453 U.S. at 455. Belton held that it does. 453 U.S. at 460.
The Court held that
“when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that , automobile.
“It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of tire arrestee, so also will containers in it be within Iris reach.” 453 U.S. at 460 (citing United States v. Robinson, 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467 [1973]).
However, the Belton Court provided a footnote here, indicating that this holding did not change ChimeVs principles. That footnote is as follows: “Our holding today does no more than determine the meaning of ChimeVs principles in this particular and problematic context. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” 453 U.S. at 460 n.3.
Much has been written as to how bright the “bright line” rule said to be established by Belton actually is and how Belton and Chimel fit together. For our purposes, however, we need not discuss the federal law further. Chimel and Belton involve issues of whether the search was unreasonable under the Fourth Amendment to the United States Constitution. In Kansas, we have a statute that sets forth the permissible circumstances and purposes under which a search incident to an arrest can be made. The statute may possibly be more restrictive than prevailing case law on the Fourth Amendment would permit, but this does not alter the plain language of the statute. For convenience, K.S.A. 22-2501 is repeated:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of
(a) Protecting the officer from attack;
(b) Preventing the person from escaping; or
(c) Discovering the fruits, instrumentalities, or evidence of the crime.”
Under the Státe’s interpretation, the statute should be considered to end with the word “presence” and read:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence.”
We find no legal basis for such a statutory modification. Belton may expand the scope of the constitutionally permissible search of a vehicle but not the permissible purpose of the search. Be this as it may, the language employed in the statute controls the issue herein.
The State further argues that Kansas case law has already approved of searches such as the one before us. In support thereof the State cites State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983); State v. White, 230 Kan. 679, 640 P.2d 1231 (1982); State v. Van Wey, 18 Kan. App. 2d 260, 850 P.2d 283 (1993); and State v. Press, 9 Kan. App. 2d 589, 685 P.2d 887, rev. denied 236 Kan. 877 (1984). These cases do not support the proposition.
In State v. Press, 9 Kan. App. 2d 589, the defendant had been arrested for DUI and the officer was searching the defendant’s vehicle for a bottle when marijuana was found. In State v. White, 230 Kan. 679, defendant was a robbery suspect who was arrested after a high speed chase. A jacket, cap, and cash scattered about the car in plain view were seized. In State v. Deskins, 234 Kan. 529, the primary issue was the propriety of the stop of the defendant during a driver’s license check. After Deskins failed certain field tests, he was arrested for DUI and, when his vehicle was searched, marijuana was found in the glove compartment. There was no issue challenging the search per se, and the court stated: “The arrest of the defendant being lawful, the search of the passenger compartment of his automobile was also lawful. State v. White, 230 Kan. 679, 640 P.2d 1231 (1982).” 234 Kan. at 543. Presumably, the officer was looking for a bottle, as in Press, although this was not discussed as it was not an issue. The search of defendant’s vehicle in State v. Van Wey, 18 Kan. App. 2d 260, was held improper as being too remote from the place of his arrest. None of these cases stands for the proposition that a search solely as an incident to arrest may be for some purpose other than one or more of those contained in K.S.A. 22-2501.
Conclusion
The sole basis on which the State urges that the search herein was valid is that it was a search incident to a lawful arrest. The State concedes such searches are controlled by K.S.A. 22-2501. The statute sets out three purposes for which said searches may be made, and a search wholly under the statute must be for one of the purposes set forth therein. By the searching officer s own testimony, none of the three statutory purposes was his purpose in conducting the search. The burden is on the State to prove the search was lawful. This it has failed to do. We find no error in the district court’s determination that the search and seizure of the crack pipe from the glove compartment was unlawful under K.S.A. 22-2501 and that the evidence must be suppressed.
The judgments of the Court of Appeals affirming the judgments of the district court are affirmed. The judgments of the district court are affirmed.
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The opinion of the court was delivered by
Davis, J.:
The sole question in this criminal appeal is whether prosecutorial misconduct denied the defendant a fair trial. Leonard C. Foster appeals from his convictions of rape, aggravated kidnapping, aggravated battery, aggravated sexual battery, and aggravated burglary, claiming that prosecutorial misconduct denied him a fair trial. Finding no reversible error, we affirm.
The defendant gave a detailed videotaped confession admitting his involvement and guilt. His confession is consistent with the statement of events related by the victim, who is referred to as
D.M. in this opinion. While there are some discrepancies between the two versions, a review of the video confession when considered with the statement of the victim, presents compelling evidence of the defendant’s guilt. The defendant testified at trial; he denied any guilt and argued that his confession was coerced. A detailed statement of facts follows.
Just after midnight in early February 1992 in Wichita, D.M. arrived at her house. As she put the key in her front door lock, she turned and saw a person at the bottom of her steps. The person came at her and threw her onto her stomach. He began beating her on the back of the head with a hard object that felt like a gun. D.M. was able to get a glimpse of her assailant. His face was covered with a mask, such as a race-car driver might wear, and he was wearing large safety glasses. He also had on a big army-type jacket and was carrying a gun and what looked to be a small club.
During the ensuing struggle her assailant began choking her, and she lost consciousness. When she regained consciousness, she had fallen off the porch. The assailant picked her up, threw her back onto the porch, and began hitting her. He then used her keys to unlock her front door and then pushed her into the house.
Once inside the house, D.M. struggled with the assailant and tried to get away, but he pushed her to the ground and tied her hands behind her back. As D.M. was lying on the floor, she saw the assailant take some 3-inch cloth tape from a bag that he was carrying. She testified that the tape looked like the kind commonly used at Boeing, where she worked. The assailant began wrapping the tape around D.M.’s eyes, but the tape would not stick because of the amount of blood on her head. Eventually, the assailant wrapped her head in the tape.
The assailant rolled D.M. onto her back, cut her shirt and bra off, and began fondling her breasts. He pulled off her boots and jeans and placed his mouth on her vagina. Finally, he placed her face-down on the couch and engaged in vaginal intercourse.
D.M. was able to testify that her assailant was short and somewhat fat. She based this description upon her position during the rape and on the fact that the assailant placed her legs around his middle. This general description fit the defendant. Following the rape, the assailant squirted some kind of liquid into D.M.’s vagina. He then poured some liquid over her body. In his confession, the defendant stated that he squirted peroxide into and around her vagina. The assailant left the house, taking her purse.
D.M. managed to free herself. She stumbled over to a neighbor’s house. The neighbor testified that D.M. came to his house, that she was badly wounded, and that there was a strong skunk-like odor around her. An ambulance and the police were summoned. D.M. was taken to the hospital, and the wounds to her head required 21 sutures. A rape kit was also performed. According to Dr. Harold Stopp, the examining physician, the rape kit disclosed non-motile sperm in D.M.’s vagina.
While in the hospital, D.M. began to suspect that one of her coworkers might be the man who attacked her because the assailant was wearing safety goggles of the type used at Boeing and had the same kind of tape as that used at Boeing. Further, she felt the assailant was someone she knew because he had not spoken to her, indicating that he was afraid she might recognize his voice. Specifically, D.M. began to suspect the defendant, who worked with her at Boeing, because he had the same short, fat build as her assailant.
D.M. was released from the hospital after 3 days. The next day, the defendant came by D.M.’s house to see her. He told her that he had heard about the attack and had come over to check on her health. D.M. thought this was unusual because she had not been to work, nor had she told any of her acquaintances at work, except her supervisor, about the incident. When she questioned the defendant as to how he found out about the incident, the defendant indicated that one of the inspectors at work had told him.
According to D.M., the defendant asked a number of unusüal questions. He inquired as to the jagged cuts on the back of her head and asked when she would be getting her stitches out. Until that time, D.M. did not know the cuts on the back of her head were jagged. She had told no one that she had to have stitches, and the stitches were covered by her hair. The defendant also asked questions about the boots D.M. was wearing the night of the rape: The defendant knew that these boots had been taken by police in a search for evidence. Also, D.M. noted that the defendant seemed nervous during the visit.
D.M. stated that she sometimes worked next to the defendant and described, the defendant as “weird.” She also stated that the defendant was not very intelligent but likes to act as though he is. She noted that the defendant would get upset with her whenever she mentioned letting her former husband come over to see her children.
After the incident, D.M.’s former husband began staying at D.M.’s house to protect her and look after their two children; Two weeks after the incident, when returning to her home at approximately 1 a.m. with her former husband, D.M. noticed the defendant’s truck parked around the comer from her home. Her former husband saw an unidentified person ran from D.M.’s driveway and gave chase, D.M. drove her track to where the defendant’s truck was parked, in case the unidentified person was the defendant and he tried to get back to his vehicle. D.M.’s former husband was unable to identify the person running from her driveway.
The defendant was interviewed by Detective Thomas Lee of the Sedgwick County Sheriff’s Office. Lee stated that he read the defendant his rights and that the defendant indicated that he had already contacted an attorney but agreed to talk with Lee. According to Lee, the defendant denied any involvement in the attack on D.M. When asked why his truck was later at D.M.’s residence, the defendant advised Lee that the truck had been stolen. The defendant provided hair and blood samples and also gave permission for a search of his home. Detective Lee advised the defendant to stay away from D.M.
Within a few days of this first interview, the defendant returned to D.M.’s home, but D.M. refused to let him in. Detective Chris Moore testified that when D.M. reported that the defendant had come to her home, he called in the defendant to talk to him. When asked why he had gone to D.M.’s house even though he had been instructed to stay away, the defendant answered that he did not remember any such instructions. The defendant also stated that he had received a threatening phone call from a female stating, “[Y]ou want to bum in hell you bastard, for what you did to me, and you better start apologizing.” According to Moore, the defendant then admitted to raping D.M.
Moore stated that the defendant told him that he was under a lot of pressure at work. According to Moore, the defendant stated that D.M. was always talking at work about her sexual escapades and that she had talked of using sex as a means to get her way. Moore stated that the defendant admitted raping D.M. and then squirting peroxide into her vagina to try to destroy any evidence. The defendant then gave a detailed videotaped confession admitting his involvement.
At trial, William Allen Hamm, DNA analyzer for the KBI, testified on behalf of the State. In the internal and external samples taken from D.M.’s pubic area, he found that the DNA was similar to and matched the banding pattern of the sample submitted by the defendant. He testified that there was a match between the top band and the second band with the defendant’s known sample in both instances. According to Hamm, the probability of another person in the Caucasian population having the same banding pattern was 1 in 100,000.
During cross-examination, Hamm admitted that there was a variation in the numerical values between the standard for defendant and the samples but testified that they were within the “match criteria.” Hamm stated that he was not aware of the FBI having any published study on American Indian populations and had no data on Pawnee Indians. The defendant’s brother later testified that the defendant is one-eighth Pawnee Indian.
The videotape of the defendant’s deposition viewed by the jury is contained in the record on appeal. A viewing of the videotape reveals that the defendant’s version of events on the evening is remarkably similar to the testimony of the victim. The similarity occurs in the sequence of events, the actions taken against the victim by the assailant, and in the details concerning the position of the parties during the actual rape. The defendant claimed that he related only information learned from the detective prior to giving his confession and from the victim during his conversations with her after the rape. The victim denied that she discussed any of the details of that evening with the defendant, and Detective Moore denied discussing any of these details with the defendant before his confession. The confession provides clear evidence of its voluntary nature and fails to disclose any evidence that the confession was coerced.
The defendant called five witnesses who had known him for a number of years and in some instances for all his life. Each of these witnesses testified that the defendant had a reputation for nonviolence, and one witness testified that she had never known the defendant to even have been in a fight. The defendant took the stand and described the pressure he was under at the time of his videotaped confession. He testified that the detective told him that he could help the defendant if the defendant would just admit that he committed the crime. Detective Moore fefuted the defendant’s claim. The defendant also stated that the detective told him his confession would make D.M. feel better and like him more. The defendant also stated that he did not own a green jacket that D.M. testified her assailant wore and that he did not throw away any evidence, did not have skunk scent, and did not commit the crime.
The defendant identifies four separate instances of prosecutorial misconduct which he claims require reversal of his convictions. Three occurred during the closing argument, and the fourth occurred during the cross-examination of the defendant. We examine each claim with two questions in mind: first, whether such misconduct is present and second, if so, whether the misconduct denied the defendant a fair trial.
The standard of review where a defendant alleges prosecutorial misconduct during closing argument is well settled in Kansas:
“ 'Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and deny him a fair trial. [Citation omitted.] The prosecutor is entitled to considerable latitude in arguing the case to a jury. There is no prejudicial error where the questionable statements of a prosecuting attorney are provoked and made in response to previous arguments or statements of defense counsel. [Citation omitted.] Since Kansas does not follow the “plain error” rule used in federal courts, .reversible error cannot be predicated upon a complaint of misconduct of counsel during closing argument where no contemporaneous objection is lodged. [Citation omitted J Remarks made by the prosecutor in closing argument are harmless error if the court finds that the error had little likelihood of changing the result of the trial.’ [Citation omitted.]" State v. Sexton, 256 Kan. 344, 363, 886 P.2d 811 (1994).
In State v. Lewis, 238 Kan. 94, 98, 708 P.2d 196 (1985), we listed three factors to be considered in determining whether a new trial should be granted for prosecutorial misconduct:
“First, is the,misconduct so gross and flagrant as to deny the accused a fair trial (i.e., are-the objectionable statements likely to affect the jurors to the defendant’s prejudice)? Second, do the remarks show ill will on the prosecutor’s part? Third, is the evidence against the defendant of such a direct and overwhelming nature that it can be' said'that the prejudicial remarks of the prosecutor were likely to have little weight-in the minds of the jurors?”
With the above in mind, we examine the specific allegations of the defendant.
(T) The first instance, involves the following comments made by the prosecuting attorney during the first part of her closing argument concerning the defendant’s contact with an attorney before being questioned by the police:
“MS. PARKER [Prosecutor,]: Contact's with the attorney. This was brought out on cross-examination.by Mr. O’Hara [Defense-Counsel]. When the officers first talked to him, Detective Lee — and Mr. O’Hara clearly brought this out — that this man, Mr. Foster, indicated to Detective Lee, yeah, I will go ahead and talk to yóu-, bedause I have already contacted an attorney. Now why does this innocent inan, Mr. Foster — up until this point he’s innocent — for some reason he’s decided to go contact a lawyer about .this.
“MR.: O’HARA: To which I object, Your Honor, and ask for a record. It’s an improper comment in front- of the jury.
“THE COURT: I will overrule the objection.
“MR. O’HARA: Thank you.
“MS-: PARKER: In addition, he'contacted.an attorney between the conversations, as. you recall.”
During defense counsel’s cross-examination of Detective Thomas E. Lee of the Sedgwick County Sheriff’s Department, the following exchanges occurred concerning the defendant’s contact with an attorney:
“Q. The defendant waived all his rights?
“A. Yes, sir, he did.
“Q. I think at the time the defendant mentioned that he had an attorney, is that correct?
“A. Yes. He advised he had contacted an attorney, but he would go ahead and talk to us.
“Q. Did he tell you who that attorney was?
“A. No, sir, he did not.
“Q. He told you at the time that he came in on the 16th who his attorney was. He said he was Carl Kelly, didn’t he?
“A. He told us he did contact an attorney. I didn’t know if it was this individual. He mentioned he had an attorney by the name of Carl Kelly, but he did not say that is the individual he talked to.”
The defendant argues that the prosecutor’s comments during argument were unfair and unreasonable in that the comments suggested that an innocent man would have no need of contacting an attorney. The defendant acknowledges that this does not present a comment by the prosecution on post-arrest silence, but he nevertheless relies upon the case of State v. Higgins, 243 Kan. 48, 755 P.2d 12 (1988), a case involving a comment by the prosecution on the defendant’s post-arrest silence. In Higgins, this court found that a defendant’s silence after arrest and receiving Miranda warnings could not be used to impeach the defendant at trial and that such use constituted a violation of the defendant’s due process rights. 243 Kan. at 51. The defendant argues that the rationale of Higgins applies in this case because the prosecution asked the jury to draw an inference of guilt based upon the defendant’s exercise of his rights under Miranda to retain an attorney.
However, the defendant’s reliance upon Higgins is misplaced. The reason that post-arrest silence may not be used to impeach a defendant is that the Miranda warnings imply that the exercise of the rights contained therein will carry no penalty. As pointed out in Higgins, it is fundamentally unfair to use the exercise of those rights to impeach the defendant. See Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). In this case, the objected-to statements did not refer to the defendant’s post-Miranda assertion of his right to counsel but referred to the fact that the defendant had already spoken to counsel both before being contacted by the police and between two visits with the police.
The State argues that the prosecutor’s remarks were nothing more than a fair comment on die defendant’s cross-examination of Detective Lee. It contends that defense counsel’s reference to die defendant’s consultation with an attorney was not, as contended by the defendant, “purely incidental” but was rather for the purpose of creating the inference that even though the defendant had consulted with an attorney, he had nothing to hide and was willing to speak with law enforcement authorities. According to the State, the prosecutor’s closing remarks were an appropriate attempt to show the jury that a different inference could be raised from the defendant’s contact with an attorney.
The above argument was not made to the trial court but perhaps may have been die rationale as to why the trial court overruled the defendant’s objection. We, however, conclude that the remarks made by the prosecutor were improper and calculated to have the jury draw an inference of guilt based upon the defendant’s contact with an attorney. The comments were objectionable, and the defendant’s objection should have been sustained. The comments amount to prosecutorial misconduct.
However, the comments were not so gross and flagrant as to prejudice the jury against the defendant and deny him a fair trial. When these remarks are viewed in the light of the trial record as a whole, and in light of the overwhelming evidence of guilt, we are able to conclude that the error had little likelihood of changing the result. The error is, therefore, harmless error. See State v. Whitaker, 255 Kan. 118, 134, 872 P.2d 278 (1994), and cases discussed therein.
(2) The defendant claims that the following comment by the prosecutor in closing suggested to the jury that the defendant engaged in other rapes and assaults, even though there was no evidence supporting such remarks:
“And then the clothes, about the black jacket and tennis shoes, to touch on that. You remember about how he said those things when he was asked about what he was wearing, what he said about the tennis shoes, ‘that night, that time.’ How many times—
“MR. O’HARA: Objection, Your Honor.
“THE COURT: I will sustain the objection.
“MR. O’HARA: Thank you.
“MS. PARKER: You can think about his words, Tou always wonder about that,’ and, ‘that time.’ ”
The defendant notes that even after the objection was sustained, the State asked the jury to speculate about the issue of other crimes.
During the trial when the prosecutor was cross-examining the defendant concerning his confession, the following exchange took place:
“Q. Do you remember what you said you were wearing, a black jacket? Do you remember saying that?
“A. Yes.
“Q. And you also said that you were wearing tennis shoes that time. What did you mean, Mr. Foster, when you said you wore tennis shoes that time?
“A. I didn’t say no [sic] ‘that time.’
“Q. So you’re saying that’s not on the tape?
“A. I never wore nothing but tennis shoes.
“Q. You said, that time. You said, all I have ever wore was tennis shoes.
“A. All I ever had.
“A. All I’m asking is what you meant by that time?
“A. I don’t know.
“Q. Has there been other times?
“A. There has been no other time. Other time of what?
“Q. That you have been after [D.M.] or something like this has happened.
“A. No.”
The defendant argues that the prosecutor impermissibly inferred that the defendant had participated in other rapes and assaults. The defendant contends that this inference constituted reversible error.
We have held that “[n]o rule governing oral argument is more fundamental than that requiring counsel to confine their remarks to matters in evidence.” State v. Whitaker, 255 Kan. at 134. “The stating of facts not in evidence is clearly improper.” 255 Kan. at 134. However, in summing up a case, a prosecutor may draw reasonable inferences from the evidence and is allowed considerable latitude in discussing the evidence. State v. Dorsey, 224 Kan. 152, Syl. ¶ 1, 578 P.2d 261 (1978).
The phrase “you always wonder about that” was a reference to the defendant’s answer to a question asked during his videotaped confession about whether he was worried about being caught. The State’s comment that “you always wonder about that” was an appropriate comment based upon evidence in the record and therefore did not constitute prosecutorial misconduct.
However, the other comments during argument by the prosecutor might have suggested to the jury that the defendant may have committed similar crimes. To this extent, the comments and question constitute prosecutorial misconduct. We fail to understand why a seasoned prosecutor would risk reversal by injecting such remarks during trial. Such comments are not now, nor have they ever been, sanctioned by this court.
The question remains whether the improper remarks require reversal. We note that the improper remarks were cut off by the trial court. Remarks made by the prosecutor in closing argument are harmless error if the court finds that the error had little likelihood of changing the result of the trial. State v. Sexton, 256 Kan. at 363. Our review of the entire record convinces us the error had little likelihood of changing the result of the trial. We conclude that the error is harmless.
(3) The third instance of claimed prosecutorial misconduct during closing argument occurred when the prosecutor stated:
“This is not a game to [D.M.], but I submit to you it’s a game to the defense. And one of the things that shows up the fact it’s a game, is this. Detective Snyder was asked about the color of these panties. Of all the stuff, [defendant’s attorney] puts in these panties .... Why? Because it’s part of the game. And why? Because it is red. Red. That means maybe [D.M.] deserved this, she so lewd to wear red panties.”
At this point, the defendant’s attorney objected. The objection was sustained whereupon the State announced: “Everyone is entitled to the integrity of their own body, regardless of the color of their panties, whether they go dancing. And no one deserves the kind of cruelty that was inflicted on [D.M.].”
Defense counsel’s stated purpose for introducing the underwear was to establish through Kelly Robbins, a KBI forensics serologist, that the underwear D.M. was wearing during the incident had no signs of the defendant’s blood on them. The Sthte objected to this testimony since the underwear had not been introduced into evidence. The following exchange took place between the KBI serol-ogist and defense counsel:
“Q. When you examined the panties, did you find any blood on there from Leonard Foster? ■
“A. No, I did not.
“Q. Whose blood did you find on there?
“A. I identified human blood that would be consistent with’the known blood sample from [D.M.]”
The suggestion by the State that the defendant introduced the panties to cast D.M. in a bad light is contrary to the’evidence and also contrary to the final argument of defense counsel Dining final argument, defense counsel did not dispute the fact that the rape occurred, nor did counsel suggest that the victim was lying, but his approach was that the defendant did not commit the acts and that his confession was coerced. The prosecutor’s 'comment on the defense’s motives for introducing the panties was inappropriate and may have been error. However, the comment was not misconduct so gross and flagrant as to deny the accused a fair trial. Thus, any error resulting is harmless. Because no evidence supports such a comment and nothing the defendant or defense counsel said during trial would support such a comment, it may be concluded that such a remark tends to undermine the credibility of the prosecutor.
(4) The final instance of prosecutorial misconduct alléged by the defendant occurred during cross-examination of the defendant. The following colloquy occurred:
“[Prosecutor]: Mr. Foster, Detective Moore is not the only person you confessed to, is he?
“[The defendant]: He’s the only one.
“[Prosecutor]: How about your psychiatrist?”
Prior, to trial, the defendant had served notice of his intent to rely upon an insanity defense and had submitted to a psychological evaluation for the purpose of determining his sanity at fhe time he committed fhe crimes. The results of this examination, as required by K.S.A. 1994 Supp. 22-3219(2), were made available to the State. See State v. Williams, 20 Kan. App. 2d 185, 190-191, 884 P.2d 755 (1994). At the time the prosecutor asked the above question, the psychologist who had prepared the report had not testified, and the defendant’s sanity had not been put in issue. Thus, fhe defendant’s conversations with the psychologist remained privileged. See State v. Williams, 20 Kan. App. 2d at 191.
Defense counsel objected and asked for a hearing outside the presence of the jury. The defendant then moved for a mistrial based on the fact that the State had asked about medical testimony that was clearly covered by the psychologist-client privilege. The State argued that the defendant had filed a notice of insanity defense in the case and, therefore, was required by law to produce fhe reports. The State contended that, as a result, that area was made an issue and any privilege was waived.
After hearing arguments from fhe parties and conducting some research, the district court stated:
“I am going to find that the privilege existed in this case, the filing of the notice of the intent to rely on insanity did not waive that privilege of the psychologist-client privilege set forth in 74-5323; and the question that was pursued or beginning to be pursued by the state, it then would not be permissible, since it would be getting into a privileged communication. Had this been a physician-patient privilege, on the other hand, I think that it clearly was within a line of questioning the state would be entitled to pursue, because the defendant has raised a question about the confession being coerced and the fact that he may have made other confessions to other individuals, certainly would be relevant and within the scope of direct examination. But it’s only because of the privileged communication that prevents the state from inquiring into the area.”
The court then determined that the State’s question was not so damaging as to require a mistrial. The defendant does not claim on appeal that the trial court abused its discretion by not granting a mistrial, and we do not address this question.
The trial court elected to handle the defendant’s objection in the following manner:
“THE COURT: I think the best way to proceed with it at this time, rather than to emphasize what the last question is, for me not to restate it and to point out what the question is; but I will just advise the jury that the defense’[s] objection to the last question is being sustained and that the jury is then admonished to disregard that question from the state. And I think that’s the best, we can do at this point without providing further attention to the question that was being asked or any inference from that.
“MR. O’HARA: I understand your ruling. Is there anyway I can talk to Mr. Foster back in the library to make sure he understands where we are, what we are doing, so he doesn’t get mixed up on the witness stand?
“THE COURT: Five minutes.
“MR. O’HARA: Five minutes.”
Upon return of the jury, the court stated:
“When we last left off this morning, the defense had an objection, and I want to advise the jury at this time that the defense’fs] objection is being sustained and the jury is being admonished to disregard the last question that was made by the state. With that, Ms. Parker, you may go ahead and resume with your cross-examination.”
The question asked by the prosecution constituted error and was prosecutorial misconduct. However, this does not mean that reversible error was necessarily committed.
The objection to the prosecutor’s question was immediate. The only response as noted by the trial court when denying a mistrial was the negative response of the defendant. The trial court sustained the defendant’s objection and admonished the jury to disregard the question. We have held that where the trial court sustains an objection and admonishes the jury to disregard the prosecutor’s improper comment, reversal is not required unless the remarks are so prejudicial as to be incurable. See State v. Spresser, 257 Kan. 664, 672, 896 P.2d 1005 (1995).
Courts looking at other cases in which prosecutors have imper-missibly asked questions in privileged areas have generally looked at the circumstances surrounding the questions to determine whether the error was reversible. See Namet v. United States, 373 U.S. 179, 186, 10 L. Ed. 2d 278, 83 S. Ct. 1151 (1963). In Namet, the Court stated that where such an error is predicated upon the concept of prosecutorial misconduct, the inquiry focuses on the conscious attempt of the prosecution to build its case out of infer- enees arising from the use of testimonial privileges. 373 U.S. at 186. We have also determined that the absence of bad faith on the part of the prosecutor is an important consideration in the determination of whether conduct is prejudicial. State v. Basker, 198 Kan. 242, 244, 424 P.2d 535 (1967). In State v. Lewis, 238 Kan. 94, 98, 708 P.2d 196 (1985), we indicated that an appropriate question to ask in similar circumstances is whether the “remarks show ill will on the prosecutor’s part.”
The record in this case indicates no conscious attempt by the State to force the defendant to assert his privilege in order to build a case from the inference created by the invocation of the privilege. Instead, the record demonstrates that the State believed, although mistakenly, that the disclosure of the defendant’s psychological evaluation as part of the required disclosure for a possible insanity defense constituted a waiver of the privilege. There is nothing in the record to indicate that the State acted in bad faith. After a timely objection was imposed, the State made no further attempts to inquire in this area. The trial court sustained the objection and admonished the jury to disregard the question posed by the prosecutor.
. Moreover, the record contains direct and overwhelming evidence of the defendant’s guilt. Under all these circumstances, we conclude that the question posed by the prosecution had little likelihood of changing the result of the trial. Accordingly, the error is harmless.
In conclusion, we do not condone the instances of prosecutorial misconduct in this case. However, the defendant was not denied a fair trial. In light of the overwhelming evidence of guilt, including the defendant’s confession and the DNA evidence, die misconduct was harmless error.
Affirmed.
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