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Malone, J.;
Erika Anna Ingred Skillern appeals her sentence following her conviction of domestic battery, a class B person misdemeanor under K.S.A. 2011 Supp. 21-5414(b)(1). The district court sentenced Skillern to 6 months’ imprisonment in the county jail and ordered her to serve 48 hours in custody as a condition of her probation. Skillern asked the district court to suspend the 48 hours’ imprisonment, but the district court found that it did not have that option under the applicable sentencing statute. We con- elude that the district court erred in finding that K.S.A. 2011 Supp. 21-5414(b)(1) required Sldllem to serve 48 hours in custody as a condition of probation on her first-time conviction of domestic battery. Thus, we vacate Sldllern’s sentence and remand for the district court to exercise its discretion under the statute.
In January 2012, Sldllern pled no contest to and was convicted of one count of domestic battery, a class B person misdemeanor. The factual basis for tire plea established that Sldllern had slapped her boyfriend in the face during an argument. This was Sldllem’s first conviction of domestic battery. The district court sentenced Sldllern to 6 months’ imprisonment in the county jail and ordered her to serve 48 hours in custody as a condition of her probation. The district court also ordered that if Sldllern completed a batterer’s intervention program, the statutory fine would be waived. Although recognizing that the statute called for a minimum jail' sentence of 48 hours, Sldllern asked the district court to suspend the jail sentence and impose probation. The district judge stated, “I wish I felt that I thought this was a clear statute. It’s not. I think, though, that it means that I have to sentence her to serve at least 48 hours.” Sldllern timely appeals her sentence. The district court stayed tire 48-hour jail sentence pending Skillern’s appeal.
Sldllern argues that the district court erred when it determined that K.S.A. 2011 Supp. 21-5414(b)(1) required Sldllern to serve 48 hours in custody before being placed on probation. To support her argument, Sldllem compares the language of K.S.A. 2011 Supp. 21-5414(b)(1) to the language of other statutes that require a defendant to serve a minimum sentence before being placed on probation. The State argues that the district court interpreted the statute correctly and cites prior caselaw as supporting authority.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Collins, 294 Kan. 780, 782, 280 P.3d 763 (2012). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinaiy meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
When a statute is plain and unambiguous, an appellate court does not speculate as to the intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute’s language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature’s intent. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009).
Skillern was sentenced under K.S.A. 2011 Supp. 21-5414(b)(1), which states:
“(b) Domestic battery is a:
(1) Class B person misdemeanor and the offender shall be sentenced to not less than 48 consecutive hours nor more than six months’ imprisonment and fined not less than $200, nor more than $500 or in the court’s discretion the court may enter an order which requires the offender enroll in and successfully complete a domestic violence prevention program, except as provided in subsection (b)(2) or (b)(3).”
Skillern argues that the statute requires only that she be sentenced to at least 48 hours’ imprisonment. She interprets the statutory language as allowing the district court to sentence her to imprisonment and then suspend the sentence. To support her contention, Skillern first compares the language of K.S.A. 2011 Supp. 21-5414(b)(1) with the language of K.S.A. 2011 Supp. 21-5414(b)(2), which establishes when domestic battery is a class A misdemeanor. K.S.A. 2011 Supp. 21-5414(b)(2) states that domestic battery is a
“class A person misdemeanor if, within five years immediately preceding commission of the crime, an offender is convicted of domestic batteiy a second time and the offender shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $500 nor more than $1,000, except as provided in subsection (b)(3). . . . The offender shall serve at least five consecutive days imprisonment before the offender is granted probation, suspension or reduction of sentence or parole or is otherwise released.” (Emphasis added.)
Although this subsection requires the district court to sentence die offender to not less than 90 days’ imprisonment, it goes on to specifically require that the offender serve at least 5 consecutive days’ imprisonment before the defendant is granted probation. Skillem argues that if the legislature had wanted to require that a first-time domestic battery offender serve the 48-hour minimum imprisonment sentence, it would have used language similar to the language in K.S.A. 2011 Supp. 21-5414(b)(2). Similarly, Skillem compares the language of K.S.A. 2011 Supp. 21-5414(b)(1) with the language of K.S.A. 2011 Supp. 21-5414(b)(3), which establishes when domestic battery is a felony upon a third or subsequent conviction. K.S.A. 2011 Supp. 21-5414(b)(3) provides:
“[T]he offender shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less tiran $1,000 nor more than $7,500. The offender convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the offender has served at least 90 days imprisonment” (Emphasis added.)
Skillem also turns to K.S.A. 2011 Supp. 8-1567(b)(1)(B), which prohibits driving under the influence (DUI) and contains similar language to the domestic battery statute. K.S.A. 2011 Supp. 8-1567(b)(1)(B) states that the offender “shall be sentenced” to at least 90 days’ imprisonment and “shall serve” at least 5 consecutive days’ imprisonment before probation, suspension, or other release. Cf. K.S.A. 2011 Supp. 8-1567(b)(1)(A) which states that the offender “shall be sentenced” to not less than 48 consecutive hours nor more than 6 months’ imprisonment and “shall serve” at least 48 consecutive hours’ imprisonment or 100 hours of public service either before or as a condition of probation, suspension of sentence, or parole. Skillem again argues that had the legislature intended to require her to serve 48 hours in jail under K.S.A. 2011 Supp. 21-5414(b)(1), the statute would have clearly stated that requirement, as it does in the DUI statute, rather than merely requiring that she be sentenced to not less than 48 hours.
We find Sldllem’s argument persuasive. K.S.A. 2011 Supp. 21-5414(b) is clear and unambiguous as to its sentencing provisions. On a class B person misdemeanor for a first conviction of domestic battery, K.S.A 2011 Supp. 21-5414(b)(1) provides that the district court must sentence the offender to not less than 48 hours’ imprisonment, but there is no provision that the offender serve any portion of the minimum sentence before the offender is granted probation. On a class A person misdemeanor for a second conviction or on a person felony for third or subsequent conviction, subsections (b)(2) and (b)(3) of tire statute provide that tire district court must sentence the offender to a minimum term of imprisonment. But these subsections of the statute also specifically provide that the offender must serve a portion of the minimum sentence before being granted probation.
Even if there is ambiguity as to whether the offender must serve 48 hours’ imprisonment under subsection (b)(1), our Supreme Court has held that when construing statutes to determine legislative intent, appellate courts must consider various portions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009). Also, as a general rule, appellate courts must strictly construe criminal statutes in favor of the accused. State v. Jackson, 291 Kan. 34, 40, 238 P.3d 246 (2010). So any ambiguity in K.S.A. 2011 Supp. 21-5414(b) must be resolved in Skillern’s favor.
The State cites State v. Johnson, 27 Kan. App. 2d 813, 7 P.3d 1267, rev. denied 270 Kan. 901 (2000), to support its argument that the domestic battery statute requires the offender to serve a minimum of 48 hours in custody on a first offense. In Johnson, this court examined domestic battexy classification as a misdemeanor or a felony. Specifically, the defendant argued that under the language of the statute, the defendant must have three prior domestic battery convictions plus tire current offense, for a total of four offenses in a 5-year period, in order for the current offense to be charged as a felony. The defendant argued drat because he had only two prior convictions within the 5-year period, not three, his current offense was a misdemeanor.
After examining the legislative history of the domestic battery statute which, at the time, was codified at K.S.A. 1999 Supp. 21-3412, the court discussed the legislature’s intent to enhance the penalties for each successive domestic battery. The court noted, without further examination of the specific statutory subsection: “[A] first domestic battery is also classified as a class B misde meanor, but the offender must serve a minimum of 48 hours in custody, [citation omitted], and a fine must be imposed between $200 to $500, or the person can be required to complete a domestic violence prevention program.” 27 Kan. App. 2d at 816. The court went on to hold that the defendant’s interpretation of the statute was incorrect and that the defendant’s current domestic battery offense was classified as a felony because it constituted a third conviction within a 5-year period. 27 Kan. App. 2d at 816.
The State now argues that the court’s statement in Johnson should be followed in the instant case because the language of the statute has not changed from the prior version. But Johnson is not controlling because the issue in that case is not the same as the issue here, and the language in Johnson relied upon by the State is merely dicta. Johnson does not hold, as the State argues, that a first-time domestic battery offender must serve a minimum of 48 hours in custody before probation can be granted.
We conclude the district court erred in finding that K.S.A. 2011 Supp. 21-5414(b)(1) required Skillem to serve a minimum of 48 hours in custody before being granted probation. The legislature knows how to require a defendant to serve a portion of tire minimum sentence before probation or a suspended sentence can be granted, as the legislature has indicated in other subsections of the domestic battery statute and also in the DUI statute. Here, in response to Skillem’s request for the district court to suspend the jail sentence and impose probation without Sldllern serving 48 hours in jail, the district judge stated that K.S.A. 2011 Supp. 21-5414(b)(1) required Skillem to serve 48 hours in custody. Because the district court misunderstood its authority under the applicable sentencing statute, we vacate Skillerris sentence and remand for the district court to exercise its discretion under the statute.
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Standridge, J.:
During their marriage, Debra and David Tras-ter executed a postmarital agreement setting forth the respective legal rights and obligations of each spouse in the event the marriage did not survive. After more than 25 years of marriage, David filed for divorce and—contrary to the terms of the postmarital agreement—requested the court equitably divide the marital property. Debra moved for partial summary judgment, asking the district court to find that the postmarital agreement was valid and enforceable and that it controlled the disposition of any and all of the parties’ real and personal property.
The district court ultimately construed the postmarital agreement as a separation agreement and, as required by K.S.A. 60- 1610(b)(3), reviewed it to determine whether the agreement was valid, just, and equitable. After an evidentiary hearing, the court held the postmarital agreement (1) was invalid because it ran counter to public policy by encouraging divorce and (2) was unjust and inequitable in the distribution of property because Debra received virtually all of the personal property acquired during the marriage through gift, inheritance, and joint effort of the parties. On appeal, Debra alleges the district court erred in construing the postmarital agreement as a separation agreement under K.S.A. 60-1610(b)(3). Debra claims the district court was limited to reviewing the postmarital agreement to determine if it generally complied with contract principles. Reviewed in this context, Debra argues the agreement is not contrary to public policy and must be enforced as written. Finally, Debra claims she is entitled to an award of attorney fees based on an indemnity provision in the written agreement.
We conclude the district court erred in finding the postmarital agreement ran counter to public policy and in construing the post-marital agreement as a separation agreement under K.S.A. 60-1610(b)(3) for purposes of determining its enforceability. In the absence of a statute governing the law related to postmarital agreements between spouses who plan to continue their marriage, we conclude the appropriate standard for assessing the enforceability of postmarital agreement is review of the agreement by the court to determine whether (1) each party had an opportunity to obtain separate legal counsel of each party’s own choosing; (2) there was fraud or coercion in obtaining the agreement; (3) all assets were fully disclosed by both parties before the agreement was executed; (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce; (5) the terms of the agreement were fair and reasonable at the time of execution; and (6) the terms of the agreement are not unconscionable at the time of dissolution. Applying this standard to the postmarital agreement between David and Debra here, we find it enforceable and, therefore, reverse the decision of the district court and remand with directions to enforce it as written and agreed to by the parties.
Facts
David and Debra were married on June 25, 1976. They never had children. David has been a practicing attorney since 1981, while Debra’s employment during the marriage was limited. Although she graduated from law school, Debra never sat for the bar exam or practiced law due to mental health issues and a traumatic brain injury she received in 1983 as the result of a car accident.
The parties signed two postmarital agreements after they were married, both of which were drafted by David. The first agreement, drafted sometime in the 1980’s, provided that Debra would be entitled to all of the parties’ assets in the event of a divorce. This agreement was either lost or misplaced. In 2004, David drafted a second postmarital agreement, which was similar if not identical to the distributive provisions set forth in the original agreement. The 2004 written agreement acknowledged David’s role as scrivener and provided that Debra “does not have David’s practical experience with drafting and enforcing agreements. For this reason, David has superior knowledge and understanding concerning the drafting of agreements such as this and Debra is relying on David’s legal expertise and advice.”
The written agreement also acknowledged that the parties had experienced problems and difficulties during the marriage but stated that the parties “currently have a valid marriage” and that neither party had “current plans [to] seek a dissolution of the marriage.” In the event the marriage did fail, however, the agreement provided that David would receive his personal belongings and effects, including his clothing, tools, and guns, and Debra would receive all other assets including, but not limited to, the couple’s home, vehicles, personal property, accounts, funds, stocks, bonds, investments, buildings, contracts, and leases. The agreement also required David to maintain a $1 million life insurance policy naming Debra as the sole beneficiary, even if the marriage ended in divorce.
On June 20, 2007, David filed for divorce and—notwithstanding the terms of both agreements he drafted and executed during the marriage—requested “an equitable division of the property and debts.” In response, Debra requested an award of spousal maintenance and asked the court to divide the property consistent with the 2004 postmarital agreement. Debra later moved for partial summary judgment, asking the district court to find that the post-marital agreement was valid and enforceable and that it controlled the disposition of any and all of the parties’ real and personal property. Debra also requested attorney fees and costs, as contemplated by an indemnification provision in the postmarital agreement. In response to Debra’s motion, David argued the district court was required to make a determination under K.S.A. 60-1610(b)(3) that the postmarital agreement was “valid, just and equitable” prior to its incorporation into a final divorce decree. To that end, David argued the postmarital agreement was invalid because it ran counter to public policy by promoting and encouraging divorce. David also argued that the agreement was neither just nor equitable in the distribution of assets.
Following argument, the district court found the postmarital agreement was drafted and executed in contemplation of divorce and, therefore, qualified as a separation agreement under K.S.A. 60-1610(b)(3), subject to review by the court to determine if it was valid, fair, and equitable. In order to make such a determination, the court scheduled an evidentiaiy hearing to identify and consider the value of the parties’ assets that were subject to distribution under the postmarital agreement. After hearing the evidence, the court held the postmarital agreement was unjust and inequitable because enforcing it would result in a disproportionate share of the marital estate being distributed to Debra. In addition, the court held the postmarital agreement was invalid because it ran counter to public policy by promoting and encouraging divorce.
Having found the postmarital agreement to be inequitable and against public policy, the district court made its own decision on how to divide the parties’ property pursuant to K.S.A. 60-1610(b)(1). In addition, the court awarded Debra spousal maintenance for 120 months but denied her request for attorney fees. Finally, the district court denied Debra’s motion to alter or amend the judgment as it related to the postmarital agreement and attorney fees.
Analysis
On appeal, Debra claims the district court erred (1) in finding the postmarital agreement in this case ran counter to public policy; (2) in relying on K.S.A. 60-1610(b)(3), which governs separation agreements, instead of general principles of contract to determine whether the postmarital agreement in this case was enforceable; and (3) in denying her request for attorney fees under the terms of the parties’ postmarital agreement. We address each of Debra’s claims in turn.
1. The Postmarital Agreement Is Not Contrary to Public Policy
Competent parties are free to malee contracts on their own terms as long as the contracts are not contrary to public policy. National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 257, 225 P.3d 707 (2010). “A contract is against public policy if it is injurious to the interests of the public, contravenes some established societal interest, violates some public statute or tends to interfere with public welfare and safety.” 2 Elrod and Buchele, Kansas Law and Practice: Kansas Family Law § 11.12, p. 95 (1999) (citing Hunter v. American Rentals, 189 Kan. 615, 618, 371 P.2d 131 [1962]). Relevant to the issue presented here, “ ‘[p]ublic policy relating to marriage is to foster and protect it, to make it a permanent and public institution, to encourage the parties to live together and to prevent separation.’ ” Ranney v. Ranney, 219 Kan. 428, 431, 548 P.2d 734 (1976).
Based on these stated objectives, premarital and postmarital contracts between spouses generally are not contrary to public policy unless they encourage divorce or separation. Matlock v. Matlock, 223 Kan. 679, 683, 576 P.2d 629 (1978); Ranney, 219 Kan. at 431; see also Restatement (Second) of Contracts § 190 (1979) (marital agreements are unenforceable only if they operate to “change some essential incident of the marital relationship in a way detrimental to the public interest in the marriage relationship”). An agreement will be found to promote or encourage divorce if it obligates a spouse to procure a divorce, or obligates a spouse not to defend or contest a divorce. In re Estate of Cooper, 195 Kan. 174, 179-80, 403 P.2d 984 (1965). In the absence of terms or conditions that serve to encourage divorce or separation, postmarital agreements are considered to be consistent with public policy in that they encourage tire private resolution of family issues without resort to separation or divorce. See 2 Elrod and Buchele, Kansas Law and Practice: Kansas Family Law § 11.12, pp. 95-96. “By alleviating anxiety over uncertainty in the determination of legal rights and obligations upon dissolution, postnuptial agreements do not encourage or facilitate dissolution; in fact, they harmonize with our public policy favoring enduring marriages.” Bedrick v. Bedrick, 300 Conn. 691, 698, 17 A.3d 17 (2011); see also 5 Williston on Contracts § 11:7 (4th ed. 2009) (“[Separation agreements, as well as other postnuptial and family settlement agreements, are generally favored by the courts as a peaceful means of terminating marital strife and discord as long as they are not contrary to statute or otherwise inimical to public policy.”).
With these legal principles in mind, we turn to the postmarital agreement executed by David and Debra in this case. The district court held the agreement was contrary to society’s long-standing public interest in fostering and protecting marriage in that it promoted and encouraged divorce. In so holding, the court focused on a specific stipulation between the parties where David and Debra agreed that, if the marriage did not survive, Debra was entitled to receive virtually all of the personal property acquired during the marriage through gift, inheritance, and joint effort of the parties. The court found this stipulation necessarily provided David with “a substantial incentive to file for divorce as soon as possible” because the sooner David filed for divorce, the sooner he would be able to acquire nonmarital assets for his retirement that would not be subject to distribution under the terms of the postmarital agreement. Based on its finding that the stipulation provided David with a substantial incentive to file for divorce, the court concluded, as a matter of law, that the stipulation promoted and encouraged divorce.
But the district court’s factual finding—that the stipulation provided David with a substantial incentive to file for divorce—is belied by the factual record in this case. The parties signed a post-marital agreement in the 1980’s that was similar, if not identical, to the 2004 postmarital agreement at issue here; nevertheless, David did not file for divorce until decades later. Thus, David clearly did not believe the terms of the agreement provided him with a substantial incentive to file for divorce. And, although the parties signed the present agreement in 2004, David still did not file for divorce until 3 years later.
Moreover, the parties specifically and expressly represented and agreed at the time they executed the agreement that they intended to stay married and had no plans to divorce. The parties also acknowledged (in both the recitals and the body of the postmarital agreement) that Debra’s parents either directly or indirectly provided “all or nearly all” of the existing marital assets owned by the parties and that any assets contributed to the marriage by David from his employment had been, and would be, used by the parties solely to maintain their lifestyle. Based on these circumstances, the parties clearly and unambiguously agreed that David would not receive any of the existing marital assets if the marriage did not survive. If the parties stayed married, however, both David and Debra would continue to benefit from existing marital assets, from prospective marital assets that might be provided by Debra’s parents in the future, and from assets contributed to the marriage by David from his employment if the parties stayed married.
Based on our review of agreement, we find no evidence to support the district court’s conclusion that its terms created a substantial incentive for David to file for divorce as soon as possible. With that said, the terms of the agreement do appear to support the inference drawn by die district court that the sooner David filed for divorce, the sooner he would be able to acquire nonmarital assets for his retirement that would not be subject to distribution under the terms of the postmarital agreement. Of course, it is highly likely that one or more provisions within any postmarital agreement will, to some extent, benefit one of the parties in the event of a divorce. But a finding that a postmarital agreement will benefit one of the parties if the marriage ultimately fails falls far short of a finding that the agreement actually encourages one or both of the parties to file for divorce. See In re Estate of Cooper, 195 Kan. at 179-80 (holding an agreement promotes or encourages divorce if it obligates a spouse to procure a divorce or obligates a spouse not to defend or contest a divorce).
Finding no evidence to support the district court’s legal conclusion that the agreement encourages David and Debra to separate or divorce, we hold the postmarital agreement is not contrary to the public’s interest in protecting the institution of marriage.
2. We Construe David and Debra's Marital Contract as a Post-marital Agreement Subject to a Standard for Enforceability Separate and Distinct from the Standard Used to Determine Enforceability of Separation Agreements
Kansas statutes provide two options for defining and limiting the rights and obligations of parties who are entering into or dissolving a marriage. The Kansas Uniform Premarital Agreement Act (KU-PAA) governs the law relating to premarital agreements executed by couples who are contemplating marriage. K.S.A. 2011 Supp. 23-2401 et seq. By statute, Kansas courts will not enforce such an agreement if it was involuntary or unconscionable when executed or signed without an adequate disclosure of assets. See K.S.A. 2011 Supp. 23-2407(a). On the opposite end of the spectrum, the Kansas statutory scheme controlling dissolution of marriage governs “separation agreements” executed by spouses who are contemplating divorce and have no intention of staying married. K.S.A. 60-1610(b)(3); see 2 Elrod & Buchele, Kansas Law and Practice: Kansas Family Law § 11.1, p. 93. Once a divorce action is filed in Kansas, the statute requires the court to incorporate the separation agreement into the divorce decree if it finds the agreement is valid, just, and equitable. K.S.A. 60-1610(b)(3).
We should note drat we have cited to K.S.A. 60-1610, which was in effect when the parties executed their postmarital agreement and when David filed for divorce. The Kansas Legislature recodi-fied the statutes for divorce cases effective July 1, 2011; see K.S.A. 2011 Supp. 23-2701 et seq.
In addition to the premarital and separation agreements, many jurisdictions recognize a third option for couples who want to define and limit the rights and obligations relating to marriage without court input: the postmarital agreement. Also referred to as a marital or postnuptial agreement, the postmarital agreement is defined as an “ ‘agreement between spouses who plan to continue their marriage that alters or confirms the legal rights and obligations that would otherwise arise under . . . [the] law governing marital dissolution/ ” Ansin v. Craven-Ansin, 457 Mass. 283, 284 n.1, 929 N.E. 2d 955 (2010) (quoting American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations § 7.01[1][b] [2002]). Based on this definition, the postmarital agreement is distinguishable from the separation agreement in that a postmarital agreement is a contract executed by spouses who want to preserve their marriage, and a separation agreement is a contract executed by spouses planning to end their marriage. See 2 Elrod and Buchele, Kansas Law and Practice: Kansas Family Law § 11.1, p. 93; Bedrick, 300 Conn. at 693 n.1 (“A postnuptial agreement is distinguishable from both a prenuptial agreement and a separation agreement.”); Ansin, 457 Mass. at 289 (“A marital agreement stands on a different footing from both a premarital and a separation agreement.”).
Contrast the unique position from which each agreement is negotiated and entered into: spouses who want to preserve their marriage do not contract under the same conditions as either prospective spouses or spouses who already have determined to dissolve their marriage. Parties who intend to marry are generally trusting, loyal, and looking forward to a successful and enduring marriage; yet the fact that they are not yet married necessarily provides the parties with greater leverage to reject an unsatisfactory premarital agreement. It makes sense, then, fhat the Kansas statute governing the premarital agreement requires the court to enforce it unless there is evidence that it was involuntaiy when made, unconscionable when executed, or negotiated without an adequate disclosure of assets. See K.S.A. 2011 Supp. 23-2407(a).
When the marriage has failed and the stated intention of the parties is divorce, the parties look to their own future economic interests and the resulting separation agreement likely will be the product of classic arm’s-length bargaining. In this setting, the Kansas statute governing the separation agreement requires the court to incorporate it into the final divorce decree upon a finding that it is “valid, just and equitable” at the time the divorce is granted. K.S.A. 60-1610(b)(3).
Unlike parties to a premarital agreement or a separation agreement, parties to a postmarital agreement have stated their intention to remain part of an existing marriage in which they already share a vested interest, personal intimacy, and mutual trust. The trusting and confidential nature of this existing relationship exposes the parties to a greater risk of unfair advantage in the bargaining process for two reasons. First, spouses who intend to stay married are unlikely to view the marital interest as distinct from their own interest. As a result, spouses to a postmarital agreement run the risk of putting the interests of the couple ahead of their own which, in turn, will malee them less cautious than they would be if negotiating at arm’s length with an ordinary contracting party. See Bedrick, 300 Conn. at 703. Second, spouses who intend to stay married run a greater risk of unfair advantage in the bargaining process because the spouse who has the stronger desire to preserve tire marriage necessarily becomes more vulnerable to the financial demands of the other.
Given its unique characteristics, the postmarital agreement does not fall within tire statutory definition of either a premarital agreement or a separation agreement in Kansas. The postmarital agreement does not qualify as a premarital agreement under the KUPAA statute because, by definition, the parties already were married when they executed the agreement. See K.S.A. 2011 Supp. 23-2402(a) (defining “premarital agreement” as an agreement between prospective spouses made in contemplation of marriage); Davis v. Miller, 269 Kan. 732, 738-40, 7 P.3d 1223 (2000) (holding Kansas statutes governing premarital agreements do not apply to postmarital agreements because the parties entering into a post-marital agreement are in a vastly different position than people entering into a premarital agreement). The postmarital agreement does not qualify as a separation agreement either. This is because the statute governing separation agreements is part of the Kansas statutory scheme controlling dissolution of marriage. Although none of these statutes define the term “separation agreement,” one authority on Kansas family law has defined it as “a contract entered into by a married couple in contemplation of annulment, separate maintenance or divorce.” 2 Elrod & Buchele, Kansas Law and Practice: Kansas Family Law § 11.1, p. 93. Because the postmarital agreement is necessarily one made between spouses who plan to stay married, it cannot be construed as one executed under circumstances accompanying, connected with, or surrounding a contemplated separation or divorce.
We recognize that there is another situation that is not present in this case—instead of filing for divorce, parties can file for separate maintenance. In such cases, the court has authority to enter all the same orders it might make in a divorce case, but the court issues a decree of separate maintenance rather than a divorce decree. If parties entered into an agreement to determine their rights before filing for separate maintenance—but in contemplation of such a filing—-the statute governing separation agreements presumably would apply. In such a case, the court can make all the same orders dividing property that it can make in a divorce action, and the parties have entered the agreement in contemplation of a separate-maintenance decree. In the case of David and Debra, however, their postmarital agreement was not entered in contemplation either of a divorce action or a separate-maintenance action. Instead, they planned to continue living together as married spouses, and they did so.
Based on the discussion above, we recognize the postmarital agreement as a legitimate marital contract in its own right that does not come within the statutory purview of either a premarital or a separation agreement. Accordingly, it is not governed by the terms of K.S.A. 2011 Supp. 23-2407(a) or K.S.A. 60-1610(b)(3). In the absence of an existing statute in Kansas that governs the legal standard of review for enforcing postmarital agreements, we must determine the proper standard for such a review. We begin by reviewing appellate court decisions in Kansas that may be relevant to such a determination.
Before the provision in K.S.A. 60-1601 governing separation agreements was enacted, Kansas courts liberally construed all post-marital agreements to carry out the intention of the parties and generally upheld them upon a finding that they were fairly and understandably made, just and equitable in their provisions, and were not obtained by fraud and overreaching. See, e.g., In re Estate of Beeler, 175 Kan. 190, 193, 262 P.2d 939 (1953); In re Estate of Gustason, 173 Kan. 619, 622, 250 P.2d 837 (1952); Porter v. Axline, 154 Kan. 87, 91, 114 P.2d 849 (1941); Keller v. Keller, 121 Kan. 520, 521, 247 P. 433 (1926). Nevertheless, because these standards were set forth in cases decided before K.S.A. 60-1610 was enacted, they do not otherwise distinguish between a separation agreement that is made in anticipation of divorce and a postmarital agreement that is entered into when the marriage is still sound.
In a case decided after K.S.A. 60-1610 became law, the Supreme Court determined a postmarital agreement should be reviewed for enforceability under the standards set forth in the KUPAA applicable to premarital agreements. The court’s decision, however, was prompted solely by the fact that the parties specifically agreed in tire document itself that the standards governing premarital agreements in Kansas would control its enforceability. Davis, 269 Kan. at 738-40.
More recently, a panel of our court concluded in an unpublished opinion that any agreement between spouses presented for judicial approval in a divorce action should be construed as a separation agreement under K.S.A. 60-1610(b)(3), regardless of whether the parties’ intention was to stay married or divorce at the time the agreement was executed. In re Marriage of Wood, No. 97,123, 2007 WL 3146693, at *4 (Kan. App. 2007) (unpublished opinion), rev. denied 286 Kan. 1178 (2008). In fact, the district court in the case currently before us relied on the decision in Wood to justify construing David and Debra’s postmarital agreement here as a separation agreement. But we already have concluded as a matter of law that it would be improper to determine the enforceability of a postmarital agreement pursuant to existing Kansas statutes that govern the law relating to premarital agreements and separation agreements. Thus, our decision today directly conflicts with the decision reached in Wood. See State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010). (Kansas Court of Appeals are not bound by prior rulings of another panel.). “While we must carefully consider each precedent cited to us, we also must uphold our duty to cor- reedy determine the law in each case that comes before us. In doing so, we sometimes find that we must respectfully disagree with die opinion of another panel.” Uhlmann v. Richardson, 48 Kan. App. 2d 1, 13, 287 P.3d 287 (2012). To that end, we respectfully disagree with the panel’s decision in Wood, which concluded that an agreement executed by spouses who planned to continue their marriage should nonetheless remain subject to the statute governing separation agreements in divorce cases, K.S.A. 60-1610.
In sum, we conclude that neither the Kansas Legislature nor the courts in Kansas have embraced a standard for enforceability of a spousal agreement that properly distinguishes between a separation agreement executed by spouses who intend to divorce and a postmarital agreement executed by spouses who intend to stay married. Given -the need for such a standard, we look to other jurisdictions for guidance.
Some jurisdictions treat postmarital agreements under the same standards as premarital agreements. See, e.g., Tibbs v. Anderson, 580 So. 2d 1337, 1339 (Ala. 1991) (“[Bjecause the same concerns regarding the existence of undue influence or advantage by the dominant spouse in obtaining a waiver exist both before and after the marriage, we follow the same line of reasoning used in determining the validity of prenuptial waivers.”); Lipic v. Lipic, 103 S.W. 3d 144, 149 (Mo. App. 2003) (similarities surrounding policy concerns justify employing premarital agreement standards of enforceability to postmarital agreements); Stoner v. Stoner, 572 Pa. 665, 672 n.5, 819 A.2d 529 (2003) (“[Tjhe principles applicable to antenuptial agreements are equally applicable to postnuptial agreements.”); see also American Law Institute, Principles of the Law of Family Dissolution § 7.01, comment b. Under § 6 of the Uniform Premarital Agreement Act (UPAA), 9C U.L.A. 48-49 (2001), a premarital agreement is unenforceable when: (1) the challenger did not enter the agreement voluntarily, or (2) the agreement was unconscionable when executed and, prior to execution of the agreement, the challenger (a) did not receive a fair and reasonable disclosure of tire other party’s assets and liabilities; (b) did not voluntarily and expressly waive;'in writing, any right to disclosure beyond tlrat provided; and (c) did not have, or reasonably could not have had, adequate knowledge of the other party’s assets and liabilities.
Other jurisdictions go beyond the standards imposed by premarital agreements and subject postmarital agreements to greater scrutiny. See, e.g., Bedrick, 300 Conn. at 703 (“postnuptial agreements require stricter scrutiny than prenuptial agreements”); Ansin, 457 Mass. at 290 n.8 (applying greater scrutiny to postmarital agreement because “tire principles applicable to premarital and marital agreements are not the same in all respects”); Pacelli v. Pacelli, 319 N.J. Super. 185, 196, 725 A.2d 56 (1999) (rejecting use of UPAA to judge validity of postmarital agreements). These jurisdictions require greater scrutiny based on the fact that spouses stand in a confidential relationship with each other and the agreements are “executed when the parties do not contemplate divorce and when they owe absolute fidelity to each, other.” Ansin, 457 Mass. at 297; see 2 Hunter, Modern Law of Contracts § 24:14 (2011) (Because of the fiduciary relationship between spouses, agreements between them “must meet the high standards of fiduciary trust, which means that there must be full disclosure and fair dealing.”).
Due to perceived risks of unfair advantage and of unequal bargaining positions that are unique to the postmarital agreement, the Massachusetts Supreme Court in Ansin set forth certain factors a spouse seeking to enforce a postmarital agreement must satisfy. Drawing heavily on the work of the American Law Institute, the court held that judges must carefully scrutinize this type of agreement to determine whether
“(1) each party has had an opportunity to obtain separate legal counsel of each party’s own choosing; (2) there was fraud or coercion in obtaining the agreement; (3) all assets were fully disclosed by both parties before tire agreement was executed; (4) each spouse knowingly and explicitly agreed in wilting to waive the right to a judicial equitable division of assets and all marital rights in tire event of a divorce; and (5) the terms of the agreement are fair and reasonable at tire time of execution and at the time of divorce.” Ansin, 457 Mass. at 291 (citing ALI, Principles of the Law of Family Dissolution § 7.01 et seq).
Thus, in addition to the usual protections against fraud and coercion, the Ansin court stressed the need for opportunity to obtain separate legal counsel, for full financial disclosure before execution, for a knowing and voluntary waiver of rights, and for fair and reasonable terms both at execution and at enforcement. With regard to fairness and reasonableness, the court noted that a “judge is not required to "divine’ what judgment [he or] she would likely enter had the case been litigated in the absence of an agreement. Rather, [he or] she considers only whether the agreement is "fair and reasonable’ when considered in light of the factors we have identified and any other relevant circumstances.” Ansin, 457 Mass. at 299. Applying its newly created legal framework to the facts presented, the Ansin court ultimately enforced the agreement executed by the parties.
In Bedrick, the Connecticut Supreme Court looked to tire Ansin factors for guidance but ultimately decided to use one standard for judging fairness at the time of execution and a different standard for judging fairness at the time of enforcement. See Bedrick, 300 Conn. at 703-04 (“[A] court may enforce a postnuptial agreement only if it complies with applicable contract principles, and the terms of the agreement are both fair and equitable at the time of execution and not unconscionable at the time of dissolution.” [Emphasis added.]). The court made clear in its decision that mere unfairness or inequality at the time of dissolution is not enough to render the agreement unenforceable; instead, the court must look to the impact that tire terms of tire agreement will have on the parties. The standard to determine whether enforcement of an agreement will be unconscionable ‘"is analogous to determining whether enforcement of an agreement would work an injustice.” 300 Conn. at 706. The court added that ‘"[unforeseen changes in the relationship, such as having a child, loss of employment or moving to another state, may render enforcement of the agreement unconscionable.” 300 Conn. at 706. Given the dramatic change in the parties’ economic circumstances since the agreement had been executed, the Bedrick court ultimately found the agreement unconscionable at the time the husband sought to enforce it. 300 Conn. at 708.
Our review of die analysis conducted by other jurisdictions provides a good framework for our own analysis. But the contractual nature of a postmarital agreement necessarily means that our ultimate determination regarding the proper standard in Kansas for enforceability of that agreement must'be consistent with Kansas law pertaining to contracts. Kansas courts long have held that competent parties may make contracts on their own terms and fashion their own remedies where they are not illegal, contrary to public policy, or obtained by fraud, mistake, overreaching, or duress. Belger Cartage Serv., Inc. v. Holland Constr. Co., 224 Kan. 320, 327, 582 P.2d 1111 (1978). Relevant here, the freedom to contract in Kansas was critical to the decision reached by our Supreme Court in Davis. In Davis, the court confirmed the legality of a provision in tire postmarital agreement where the parties stipulated that the KUPAA would govern its enforceability of the agreement instead of K.S.A. 60-1610(b), notwithstanding the fact that the KUPAA statute expressly states that it was not enacted to apply to post-marital agreements. Davis, 269 Kan. at 738-40.
Notably, an exception to the freedom of contract principle is recognized in Kansas when a contract is so one-sided that it is found to be unconscionable. Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 757, 549 P.2d 903 (1976). “A doctrine of uncons-cionability is used to deny enforcement of unfair or oppressive contracts because of procedural abuses arising out of the contract formation or because of substantive abuses relating to terms of the contract.” Adams v. John Deere Co., 13 Kan. App. 2d 489, 492, 774 P.2d 355 (1989). In order to be unconscionable, a contract must be so outrageous and unfair in its wording or its application that it shocks the conscience or offends the sensibilities of the court. 13 Kan. App. 2d at 492. In addition, there must be some element of deceptive bargaining conduct present as well as unequal bargaining power. State ex rel. Stovall v. ConfiMed.com, 272 Kan. 1313, 1321, 38 P.3d 707 (2002).
Based on the discussion above, we conclude the appropriate standard for assessing the enforceability of a postmarital agreement necessarily must be guided by two overriding principles: (1) public policy in Kansas that promotes, fosters and protects the institution of marriage by encouraging spouses to live together and preventing separation; and (2) well-established principles of contract law in Kansas endorsing the right of its citizens to negotiate and enforce their own contracts without government interference in the absence of fraud, mistake, duress, or terms so shocking that the court deems them unconscionable. The courts in Bedrick and Ansin provided a helpful list of factors that should be considered, but the Bedrick court’s refinement of the Ansin factors is consistent with Kansas law. While Ansin, 457 Mass. at 289, authorized a court to void the parties’ contractual agreement if it was, in the court’s view, no longer “fair and reasonable” at the time of making and. at the divorce, Bedrick gives a court such authority only if the agreement was unfair at the time of making or unconscionable at the time of divorce. 300 Conn. at 703-04. Bedrick is thus more consistent with the emphasis of Kansas law in granting greater freedom of contract to tire parties.
Based on these principles, we hold the appropriate standard for assessing tire enforceability of a postmarital agreement is review of the agreement by the court to determine whether (1) each party had an opportunity to obtain separate legal counsel of each party’s own choosing; (2) there was fraud or coercion in obtaining the agreement; (3) all material assets were fully disclosed by both parties before the agreement was executed; (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce; (5) the terms of the agreement were fair and reasonable at the time of execution; and (6) the terms of the agreement are not unconscionable at the time of dissolution. Having determined the appropriate standard, we are ready to review David and Debra’s postmarital agreement to determine whether the agreement is enforceable. Although the district court did not have an opportunity to evaluate the agreement under this standard, remand is unnecessaxy because the record contains sufficient factual information for us to reach a decision. See Newman Mem. Hospital v. Walton Constr. Co., 37 Kan. App. 2d 46, 72, 149 P.3d 525, rev. denied 284 Kan. 946 (2007).
a. Opportunity to Obtain Legal Counsel
Representation by counsel is an important factor in determining whether a spouse voluntarily enters into an agreement. See Davis, 269 Kan. at 741. Although representation by counsel is not required for an agreement to be enforceable, access to independent counsel is “crucial for a party waiving important legal rights.” See Uniform Premarital and Marital Agreement Act § 9, Comment (October 1, 2012).
Here, it is not clear whether Debra had the opportunity or desire to obtain independent legal counsel prior to signing the postmarital agreement. But it would be difficult for David, as the spouse seeking to invalidate the agreement, to argue that he did not have the opportunity to consult with independent counsel regarding the waiver of his rights. There is no dispute here that David is a lawyer and that he is die individual who drafted die agreement. In fact, the agreement itself states that “David has superior knowledge and understanding concerning die drafting of agreements such as this” and Debra is “relying on David’s legal expertise and advice.”
b. Fraud and Coercion
“[W]here a party voluntarily signs a postmarital contract and thereafter seeks to refute it on the ground its execution was obtained by fraud, such fraud must be made to appear clearly before the contract may be declared invalid.” In re Estate of Beeler, 175 Kan. at 194. We note, as a preliminary matter, that David does not contend that the agreement was the product of fraud or coercion. And even if he had, there is nothing in die record to support such a conclusion.
“The elements of an action for fraud include an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or with reckless disregard for die truth, upon which another party justifiably relies and acts to his or her detriment. [Citation omitted.]” Alires v. McGehee, 277 Kan. 398, 403, 85 P.3d 1191 (2004). There is no evidence of fraud here.
Coercion comes into play when improper pressure by one party to a contract deprives anodier party of the exercise of his or her free will and causes him or her to act to his or her detriment. Hastain v. Greenbaum, 205 Kan. 475, 482, 470 P.2d 741 (1970). Unlike fraud, coercion does not require an act of deceit. The determinative factor in a coercion claim is whether die pressured party executed the contract voluntarily. In determining whether a party to a premarital agreement entered into it voluntarily, our Supreme Court engaged in the following analysis:
“ ‘To determine if the agreement was voluntary, the court will focus on the surrounding facts and circumstances. These include the situation of the parties as compared to each other, such as their respective ages, educational backgrounds, business experience, property, family ties and connections. Additionally the court will look at tire circumstances leading up to the execution of the contract and marriage, such as timing of the presentation and execution of the agreement, who drafted the agreement, provisions for the dependent spouse, statements made by the party wanting the agreement, if diere was independent legal counsel, and who was present at the execution of the agreement. Absent a showing of undue influence or fraud, die agreement will be upheld.’ 1 Elrod and Buchele, Kansas Family Law § 2.24, pp. 99-100.” Davis, 269 Kan. at 741.
There is no dispute here that David is a lawyer and that he is tire individual who drafted the agreement. The agreement itself states that “David has superior knowledge and understanding concerning the drafting of agreements such as this and Debra is relying on David’s legal expertise and advice.” The agreement further provides that both Debra and David were entering into the agreement “freely, voluntarily and with full understanding of all of its provisions” and that each of them had read the agreement and understood the rights, obligations, and legal consequences arising out of it. Although the provisions relating to property division greatly favored Debra and the agreement was, at least partly, executed in consideration for Debra’s agreement not to obtain a divorce at various times throughout the marriage, there is no evidence that David executed the agreement against his will.
c. Disclosure of Assets
Parties disclosing assets in a premarital context need not provide an exact dollar amount as long as there is a general knowledge of the nature and extent of the property involved. Davis, 269 Kan. at 743; see, e.g., In re Marriage of Adams, 240 Kan. 315, 320, 729 P.2d 1151 (1986) (adequate disclosure where wife was “advised generally of the nature and extent” of husband’s assets, knew he was a multimillionaire, and had known him more than 20 years before signing agreement); In re Estate of Schippel, 169 Kan. 151, 165, 218 P.2d 192 (1950) (husband need not give detailed disclosure of his assets where wife has “general understanding” of nature and extent of his property).
But disclosure of assets in a mid-marital environment is unlike a disclosure in a premarital environment in that a confidential fiduciary relationship already has been established and currently exists between spouses. As such, the parties should be required to disclose more than just a general overview of the nature and extent of the property held. Although—like a premarital agreement—the parties disclosing assets in a postmarital context should not be required to provide an exact dollar amount, a postmarital agreement generally should be enforced only if the parties have a reasonably accurate understanding of the monetary value attached to material assets held jointly or separately by the other party.
The relevant portion of the postmarital agreement in this case provided:
“The Parties each agree that they are both aware of the full extent of the Assets of tire [Parties] and expressly waive any right to further disclosure of the property or financial obligations of the other party. The Parties each acknowledge that he or she has given full consideration to the Assets, liabilities and income of the other and that he or she is entering into this Agreement freely, voluntarily and with full understanding of all of its provisions.”
David does not argue, and the evidence does not suggest, that Debra hid any material assets from David or provided David with misinformation as to the value of any material assets. Moreover, David agreed in writing that he was fairly apprised of the nature and extent of the property and interests awarded to Debra under the agreement, and he waived his right to any further disclosure of Debra’s assets. Under these circumstances, we find the disclosure of assets sufficient.
d. Waiver of Judicial Equitable Division of Assets
Waiver as it relates to a postmarital agreement is important because it emphasizes a party’s exercise of a meaningful choice to give up certain rights. In determining whether a party meaningfully waived his or her right to a judicial division of assets, the Ansin court held that a judge should consider “ whether each party was represented by independent counsel, the adequacy of the time to review the agreement, the parties’ understanding of the terms of the agreement and their effect, and a party’s understanding of his or her rights in the absence of an agreement.’ ” Ansin v. Craven-Ansin, 457 Mass. 283, 296, 929 N.E.2d 955 (2010).
The terms of the agreement in this case readily establish that David knew he was entitled to have the court divide the marital assets in the event of divorce but—for a myriad of reasons expressly stated in the agreement itself—he wanted to relinquish that right. Again, David drafted the agreement himself, which necessarily precludes any argument that David lacked adequate time to review the agreement or that he did not understand its terms. The terms of the agreement itself state that David understood the rights, obligations, and legal consequences arising out of it. Finally, the fact that David was a practicing attorney is strong evidence that David knew he was entitled to have the court divide the marital assets in the event of divorce.
e. Fair and Reasonable Terms When Executed
Next, we turn to the requirement that a postmarital agreement contain terms that are “fair and reasonable” at the time of execution. In analyzing Debra and David’s agreement under this factor, we are mindful of the rule that tire terms of written instruments generally are construed against the scrivener. See T.R. Inc. of Ashland v. Brandon, 32 Kan. App. 2d 649, 654, 87 P.3d 331. (2004).
With regard to this “fair and reasonable when executed” requirement, the Ansin court afforded
“greater latitude for agreements reached where each party is represented by separate counsel of their own choosing. [Citation omitted.] A judge may consider ‘the magnitude of the disparity between the outcome under the agreement and the outcome under otherwise prevailing legal principles,’ whether ‘foe purpose of the agreement was to benefit or protect the interests of third parties (such as the children from a prior relationship),’ and ‘foe impact of foe agreement’s enforcement upon foe children of foe parties.’ [Citation omitted.] Other factors may include foe length of the marriage, foe motives of foe contracting spouses, their respective bargaining positions, foe circumstances giving rise to foe marital agreement, foe degree of foe pressure, if any, experienced by foe contesting spouse, and other circumstances foe judge finds relevant.” 457 Mass. at 297.
In this case, the parties had been married approximately 28 years. Although property division under the agreement was not an even split, the agreement explained that Debra would receive a substantial portion of the parties’ assets in the event of a voluntary dissolution of the marriage because nearly all of the parties’ assets had been contributed by Debra’s parents and because Debra would have a limited ability to obtain gainful employment and no social security benefits. Conversely, David practiced law in association with one of the largest and most prestigious law firms in Kansas and had a steady stream of income for the foreseeable future. Despite the disparity in property division between the parties, the agreement specifically acknowledged that its terms were fair and reasonable, that David voluntarily entered into the agreement, and that he had received full disclosure of Debra’s property and assets. Under these circumstances, we find David and Debra’s agreement was fair and reasonable at the time it was executed.
£ Unconscionable at Dissolution
Whether an agreement is unconscionable involves a question of law and is to be determined based on the facts and circumstances of each case. See Davis v. Miller, 269 Kan. 732, 742-43, 7 P.3d 1223 (2000). In the context of a premarital agreement, our Supreme Court in Davis relied on the following comment to the UPAA to determine whedier such an agreement was unconscionable at the time of divorce:
“ ‘The test of “unconscionability” is drawn from Section 306 of the Uniform Marriage and Divorce Act (UMDA) [citations omitted.] The following discussion set forth in the Commissioner’s Note to Section 306 of the UMDA is equally appropriate here:
“Subsection (b) undergirds tire freedom allowed the parties by making clear drat the terms of the agreement respecting maintenance and property disposition are binding upon the court unless those terms are found to be unconscionable. The standard of unconscionability is used in commercial law, where its meaning includes protection against one-sidedness, oppression, or unfair surprise [citations omitted], and in contract law [citations omitted]. It has been used in cases respecting divorce settlements or awards. [Citations omitted.] Hence the act does not introduce a novel standard unknown to die law. In the context of negotiations between spouses as to tire financial incidents of tireir marriage, the standard includes protection against overreaching, concealment of assets, and sharp dealing not consistent with the obligations of marital partners to deal fairly with each other.
“In order to determine whether the agreement is unconscionable, the court may look to tire economic circumstances of the parties resulting from the agreement, and any othér relevant evidence such as the conditions under which the agreement was made, including the knowledge of tire other party. If the court finds the agreement not unconscionable, its terms respecting property division and maintenance may not be altered by the court at the hearing.’ ” Davis, 269 Kan. at 742-43 (quoting ULA Comment to § 6 of the UPAA, 9B U.L.A. 376-77).
The postmarital agreement in this case provides Debra with a substantial amount of the parties’ assets. However, inequality alone does not render a postmarital agreement unfair and/or unreasonable, as diere is no requirement in Kansas that joint marital property be divided equally. In re Marriage of Vandenberg, 43 Kan. App. 2d 697, 715, 229 P.3d 1187 (2010) (Although the ultimate division of property must be just and reasonable, it need not be equal.); see In re Marriage of Brane, 21 Kan. App. 2d 778, 783, 908 P.2d 625 (1995). Debra received more under the agreement, in part, because her age and disability would make it difficult for her to obtain gainful employment following a divorce. Moreover, the agreement readily acknowledged the unequal distribution of assets and explained the parties intended to do so because of the significant gifts and loans Debra’s family had provided to them during the marriage. Further support for the parties’ intentions may be found in the contract for will that the parties executed at die same time as the postmarital agreement, which was also written by David. The contract for will provided for a similar distribution of assets as the postmarital agreement, and states in pertinent part:
“Whereas, to Don and Pat Concannon [Debra’s parents], family is and was everything and it is and was their desire for their wealth, accumulated through considerable hard work, sacrifice and struggle, to remain in the Concannon family. Because of David’s great love and respect for both Don and Pat, his respect for their hard work, his understanding of their desire to have their own children and grandchildren benefit from their efforts, as well as his deep and abiding appreciation and gratitude for both Don’s and Pat’s support of David and Debra in both material and non-material ways and because of tire opportunities that both Don and Pat have given David to grow and achieve much more than he could have ever anticipated, David desires to honor Don’s and Pat’s desires to [provide] for their own family and to return to them or their issue the assets which were given to David and Debra as well as the accumulation of assets made possible by their generosity, their teaching, and the opportunities they have given Debra and David.”
Notably, the postmarital agreement stated that Debra had disclosed its existence to her father. Thereafter, Debra’s family continued to provide gifts to Debra and David with the knowledge that these gifts would remain with Debra in the event of dissolution of their marriage. Although David accepted all the benefits of these gifts, he now seeks to modify that same agreement to avoid its disadvantages. “A party may not accept the benefits of a judgment and reject its burdens. [Citation omitted.]” Drummond v. Drummond, 209 Kan. 86, 92, 495 P.2d 994 (1972).
We conclude from the facts and circumstances before us—including David’s role as the scrivener of the agreement, Debra’s reliance on David’s expertise and knowledge in drafting the agreement, the substantial assets contributed to the marriage by Debra’s family, Debra’s mental disability and corresponding needs, Debra’s inability to earn income and acquire capital assets in the future, David’s profession, David’s opportunity to earn income and acquire capital assets in the future, the absence of alimony for Debra in the agreement—that the postmarital agreement is neither outrageous and unfair in its wording nor in its application and thus does not shock the conscience or offend the sensibilities of this court. See Adams, 13 Kan. App. 2d at 492 (defining an unconscionable provision in a contract as one that is so outrageous and unfair in its wording or its application that it shocks the conscience or offends the sensibilities of the court).
3. Debra Is Entitled to Attorney Fees Under the Indemnity Provision
As a final point, we must address Debra’s argument that she is entitled to attorney fees pursuant to the indemnity provision in the postmarital agreement, which provides:
“Indemnification. Each of The Parties agrees to refrain from attempting to obtain any court order or decision that is contrary to the terms of this Agreement. Each of the Parties hereby agrees to indemnify the other for any loss, cost or expense (including attorney fees and expenses) incurred because a Party seeks to obtain judicial modification of this Agreement. This indemnification on behalf of each party shall be binding upon and include any claims, demands, or litigation filed by the legal or personal representatives, executors, heirs, legatees, devisees or beneficiaries of either party.”
A court may not award attorney fees absent statutory authority or an agreement by the parties. Unruh v. Purina Mills, 289 Kan. 1185, 1200, 221 P.3d 1130 (2009). Where the district court has authority to grant attorney fees, its decision is reviewed under an abuse of discretion standard. An abuse of discretion occurs if the discretion is guided by an erroneous legal conclusion. Farrar v. Mobil Oil Corp., 43 Kan. App. 2d 871, 876-77, 234 P.3d 19, rev. denied 291 Kan. 910 (2010).
In rejecting Debra’s request for attorney fees, the district court stated:
“No attorney fees are granted against David and in favor of Debra. In making this decision the court considered that the property award of the parties greatly favors Debra and that Debra has been provided Spousal maintenance for 120 months. To award Debra an additional amount for attorney fees would not be fair, just and equitable and would warrant a reconsideration of the award of spousal maintenance and property. David’s actions in this case were consistent in directing the court to follow the law. Finally a substantial contributor to the significant attorney fees incurred by Debra and the delay in getting this matter to the court was due to Debra and her mental illness.”
Debra claims that she is entitled to an award of attorney fees because David sought “to obtain judicial modification” of the post-marital agreement, contrary to the terms of the indemnity provision.
David’s request for an equitable division of property in the divorce, including his argument that the postmarital agreement was unenforceable, was a clear attempt to obtain judicial modification of the agreement. In light of our holding that the postmarital agreement is enforceable and is not contrary to public policy, the indemnity provision contemplating attorney fees must also be enforced against David.
Conclusion
The district court erred in construing the present agreement as a separation agreement and reviewing it for fairness under K.S.A. 60-1610(b)(3). The agreement is an enforceable postmarital agree ment that is not contrary to public policy. We therefore remand this case to the district court with directions to divide the parties’ assets consistent with the terms of the postmarital agreement and to enter an attorney fee award in favor of Debra.
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Hill, J.:
In this appeal, we overturn the district court’s ruling that Joseph R. Koch acquired a prescriptive easement in a roadway on land owned by E. Lynn and Jayne E. Packard in Barber County. Kansas caselaw requires exclusivity as an element for prescriptive uses. The facts in this record reveal that Koch has not had the exclusive use of this roadway over the years and, therefore, the court erred when it ruled that he had a prescriptive easement.
Installation of a gate leads to legal action.
This lawsuit involves adjacent landowners located in Barber County, Kansas. Joseph R. Koch (as trustee of the Joseph R. Koch Revocable Trust) owns one tract. Koch purchased this ground in 1993. E. Lynn Packard and Jayne E. Packard also own real property adjacent to Koch’s. The Packards purchased part of their land in 2000 and the remainder in 2005.
In January 2011, Koch filed a petition for declaratory judgment in Barber County District Court claiming he had a prescriptive easement across the Packard land. Koch claimed that a roadway across the Packards’ land gave him access to his land—and that the Packards had interfered with this access by installing a gate that prevented Koch from getting to his property. Koch asked the court for an order determining he had a prescriptive easement across the Packards’ land, an award for damages sustained when the Packards interfered with his easement, and a permanent injunction enjoining the Packards from interfering with the easement. We note that Koch is not asking for an easement by necessity. When Koch acquired his property, he was required to prove he had access in order to qualify for title insurance. Consequently, Koch obtained a warranty deed that included a “perpetual road easement” for the purpose of ingress and egress to his property.
We summarize the findings of the district court.
After weighing the testimony of the witnesses, the court found that when Koch purchased the tract, he was advised by counsel to obtain affidavits from a prior landowner, Phillip R. Stonestreet, and a farm tenant, George E. Catlin, Sr., confirming the belief that Koch had acquired unrestricted access to the Koch land via the roadway. The court found that when Koch bought tire land, he was told the roadway was his access to the property and there was no other roadway to the land. lie was also told the access was unrestricted and foe roadway had been used to access the tract for more than 20 years. The court determined Koch never requested permission, nor was he ever given permission, to use foe roadway because he believed he acquired use of the roadway upon his purchase of foe farm.
When the court looked at foe actual usage of the roadway, it found Koch had been using the roadway for farming, recreational, and hunting purposes, and to generally care for his land since 1993 (a period greater than 18 years)—and this usage had been unrestricted. The court also found that Koch and his invitees frequently used the roadway and that Koch had even attempted to perform maintenance on foe roadway at one point. The court noted Koch’s testimony that foe roadway had also been used by foe landowners that own property south of the Packards’ land, and he and others are currently using the roadway and have been for many years. The court observed that Koch admitted he was not claiming “exclusive use” of the roadway.
Turning to the Packards’ evidence, the court determined foe Packards were aware that persons, including Koch, had used the roadway for access for many years prior to the Packards’ purchase of their land. The court found foe Packards never questioned Koch’s use of foe roadway nor tried to stop his use of foe roadway until there was a dispute in 2010 regarding deer hunting. The court said that although Mr. Packard initially claimed he gave Koch permission to use the roadway, he later testified foe Packards never gave Koch permission to use the roadway and Koch never asked for permission. The court found foe Packards were also aware that third parties used foe roadway to access property south of foe Pack-ards’ land. The court noted testimony that the roadway was used by Catlin, Bob Larson, Robert Larson, Pat Bidwell, friends of Koch, people who checked on CRP planting, and people who came on foe land to spray alfalfa.
In addition, the court found that in 2010 the Packards began allowing cattle to roam freely on the roadway. The court also determined the gate did not block anyone’s ability to drive down the roadway.
The district court ultimately determined that Koch had acquired a prescriptive easement across the Packards’ land. In addition, the court found the Packards had committed trespass by installing a gate across the easement and by allowing cattle to graze there. The court awarded Koch damages, ordered tire Packards to remove the gate, and enjoined them from interfering with Koch’s use of the roadway.
In reaching its decision, the district court concluded there was “more than sufficient evidence to establish clearly and convincingly” that Koch had been using the roadway for more than 15 years and the Packards did not give Koch permission to do so. The court also concluded Koch had good reason to believe he had an ownership interest in the roadway and Koch’s use of the roadway was exclusive. With regard to tire latter, the court said the caselaw “clearly indicates” that exclusivity differs for purposes of a fee interest from exclusivity for purposes of an easement. The court stated: “When considering a claim for prescriptive easement, the type, nature of use and surrounding circumstances must be considered. Here, [Koch] has shown exclusive use for access to his property, the fact that others have also used the roadway does not negate his claim.”
The Packards appeal tire decision of the district court, arguing that Koch cannot have a prescriptive easement in the roadway because he did not prove he had “exclusive use” of the roadway.
We review the rules that apply in prescriptive easement cases.
We look to the law of adverse possession when determining the legal rules that apply in prescriptive easement cases. A firm ruling on this point can be found in Feist v. Steere, 175 Kan. 1, 5, 259 P.2d 140 (1953), where the court stated:
“ ‘To obtain an easement for a private way by prescription, the use of such private way must be substantially such a use as, if applied to land, would give title by adverse occupancy. It must have been continuous, exclusive to tire extent the nature of the use will permit, and adverse. A use under a mere license will not ripen into an easement by prescription.’ [Citation omitted.]”
In Feist, the court held that the party claiming the easement, Feist, had proved that for 35 or 40 years he had used a small, unfenced triangular tract of Steere’s land as a means of ingress and egress to his hay meadow. Further, Steere and his predecessors in title knew of the use and had made no objection to its use. Our Supreme Court opined: “[T]he most that can be said for such evidence is that it established a license to use the premises which ... can never ripen into an easement by prescription.” 175 Kan. at 6; see Allingham v. Nelson, 6 Kan. App. 2d 294, 298, 627 P.2d 1179 (1981).
When a party seeks title by adverse possession, the presumption is in favor of the holder of the legal title. The law does not allow a person’s property to be taken by another upon presumptions or probabilities. Stith v. Williams, 227 Kan. 32, 36, 605 P.2d 86 (1980). Thus, to prove a prescriptive easement, the person seeking the right to the easement has the burden of establishing all the elements of prescriptive use by clear, convincing, and satisfactory evidence. Fiest, 175 Kan. at 6.
The question whether title is acquired by adverse possession is a question of fact. Wright v. Sourk, 45 Kan. App. 2d 860, 871, 258 P.3d 981, rev. denied 293 Kan. 1114 (2012). When reviewing the lower court’s determination on this question, this court looks to whether that determination is based on clear and convincing evidence. See Brady Fluid Service, Inc. v. Jordan, 25 Kan. App. 2d 788, 793-94, 972 P.2d 787 (1998). This court views the evidence in a light most favorable to the prevailing party and does not reweigh the evidence or assess credibility. Wright, 45 Kan. App. 2d at 871.
The statute dealing with adverse possession, K.S.A. 60-503, provides
“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.”
The Kansas cases dealing with adverse possession make clear that “exclusive use” is a necessary requirement to prove title by adverse possession.
In Stith, the court held the Williams did not prove ownership of land by adverse possession where the evidence did not show the Williams’ use of the land was “exclusive” or “continuous.” In reaching this conclusion, the court noted the Williams “occasionally” used a cellar and shed located on the land and some neighbors used the land as a trash dump. 227 Kan. at 37.
Similarly, in Thompson v. Hilltop Lodge, Inc., 34 Kan. App. 2d 908, 910-11, 126 P.3d 441 (2006), a panel of this court affirmed a district court’s determination that the claimants did not have “exclusive possession” of land allegedly taken by adverse possession, noting several of the landowner’s employees had performed maintenance on the land.
Then, in Allingham this court commented on the exclusivity requirement, but in the context of a prescriptive easement. There, the court referred to the requirement and noted there was evidence in that case that both the public and KP&L used the land at issue. Nevertheless, the court observed there was “no serious contention on appeal by either party” in that case that the use of the land was not exclusive. 6 Kan. App. 2d at 299.
Koch points out that the Allingham court said there is a distinction between prescriptive easements and adverse possession, noting a prescriptive easement is a “non-exclusive” right acquired by the manner of use. Koch misconstrues Allingham on this point. While the Allingham court indeed acknowledged that some legal literature has described a prescriptive easement as a nonexclusive right, tire court explained that the distinction in Kansas between adverse possession and the prescriptive easement has been somewhat “blurred.” Thus, the court explained, Kansas cases use the statute of adverse possession as a basis for evaluating prescriptive easement claims. 6 Kan. App. 2d at 298. The Allingham court cited K.S.A. 60-503, which specifically lists exclusive use as a requirement for proving adverse possession, and later referred to the exclusive use requirement in its analysis. 6 Kan. App. 2d at 298-99.
We apply those rules to the facts of this case.
In this appeal, the Packards argue Koch failed to meet his burden of proving an essential element of prescriptive use. Viewing the evidence in the light most favorable to Koch, see Wright, 45 Kan. App. 2d at 871, we examine the record to determine whether clear and convincing evidence supports the district court’s determination that Koch proved the prescriptive use of tire roadway.
A fair review of the evidence makes it clear that Koch did not have exclusive use of the roadway.
First, tire district court found, based on Koch’s own testimony, that the roadway was used by the landowners south of the Packards’ land and Koch and others had been using the roadway for years. The court found the Packards were aware that persons including Koch had used the roadway for many years and third parties used tire roadway to access the property south of the Packards’ land. The testimony of both Koch and the Packards reveals that persons other than Koch were using the roadway.
Second, the district court observed that when Koch purchased his land, he was advised by counsel to obtain affidavits from Stones-treet and Catlin confirming that he had unrestricted access to the Koch land via the roadway. In Stonestreet’s affidavit, he indicated the roadway was “available for unrestricted access ... by the owners, tenants and other persons.” Catlin made a similar statement in his affidavit. Stonestreet’s and Catlin’s statements suggest persons other than Koch used the roadway even before Koch’s ownership of his property.
Third, Koch admitted—and the court explicitly found—he was not claiming exclusive use of the roadway. Koch testified as follows:
“Q. So you’re not claiming exclusive use?
“A. That’s right.
“Q. Okay. Just that you ought to have the right to use it because you said it was used by other people?
“A. Right. Plus, my period of time using it.”
Significantly, Koch’s own testimony indicates he believed he had the right to use the roadway because it was being used by other people as well. This undercuts his argument that exclusivity only requires the claimant not depend on the rights of others.
Fourth, the district court found the Packards’ gate did not block any persons’ ability to drive down the roadway and noted testimony that the roadway was used by Catlin, Bob Larson, Robert Larson, Pat Bidwell, friends of Koch, government workers who checked on CRP ground, and people who came on the land to spray alfalfa. Koch does not challenge any of these factual findings on appeal.
We look at the arguments of the parties on the issue of exclusivity.
Koch’s central argument on this point is that the exclusivity requirement does not mean tire land at issue must be used solely by tlie person claiming the prescriptive easement. Koch says that here, a third party had access to the roadway—but this third party was an adjoining landowner who also used the easement for the same reason Koch did, and his rights did not conflict with the third party’s rights. Koch points to cases in other jurisdictions where courts have determined the exclusivity requirement does not mean the land can only be used by die person claiming the easement, but only that the claimant may not depend on the rights of others to support his claim. Koch says the claimant’s use must be exclusive against the public at large, but it need not be exclusive against others with similar claims of prescriptive use.
We note a few examples of rulings from other states. In Wheeler v. Newman, 394 N.W.2d 620, 623 (Minn. App. 1986), the court held the exclusivity requirement was met where sporadic public use of the land did not defeat a finding that the claimant’s use of the land did not depend on a right shared by the community at large. In Werner v. Schardt, 222 Neb. 186, 188-89, 382 N.W.2d 357 (1986), the court stated the word “exclusive,” as it pertains to a prescriptive easement, does not mean there must be use by only one person, but it means the use cannot be dependent upon a similar right in others. These decisions seem reasonable in light of the fact that a party is not claiming title to real estate but is claiming access. But we are in no position to follow their reasoning.
No Kansas court has ever analyzed tire element of exclusivity in a similar manner. When Kansas courts have considered the requirement of exclusivity in the adverse possession context, those courts have determined the claimant’s use of the property at issue must be to the exclusion of all other persons. See Stith, 227 Kan. at 37; Thompson, 34 Kan. App. 2d at 910-11. The Allingham court confirmed that because the distinction between adverse possession and prescriptive easements has been “blurred” in Kansas, courts use the statute of adverse possession as a basis for evaluating prescriptive easement claims. 6 Kan. App. 2d at 298.
We recognize that a certain inequity arises under the facts of this case. Koch purchased the property thinking he had easy access to his land from this roadway and then, along with others, proceeded to use the roadway for the next 18 years. Because of a hunting dispute, his access was shut off. While it is true that Koch has access to his property through an easement he purchased separately, its use will require an investment of time, labor, and money to make it usable. But according to our caselaw that we are duty bound to follow, all of the elements of adverse possession must be proved in order for Koch to prevail. See Tyler v. Goodyear Tire & Rubber Co., 43 Kan. App. 2d 386, 391, 224 P.3d 1197 (2010). One of those elements is exclusivity. He cannot prove that under the circumstances of this case. Like Feist, who had used the roadway for 35 to 40 years, all Koch had was a license which cannot change into a prescriptive easement.
We reverse the ruling of the district court that Koch has a prescriptive easement. We vacate the judgment for damages and dissolve the injunction. | [
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|
Leben, J.:
The Kansas Corporation Commission (KCC) ordered a local telephone company to provide information that would be used to determine future payments to the company from the Kansas Universal Service Fund, and die telephone company provided some of that information. When the KCC failed to take further action within 30 days, the telephone company moved for an order directing increased support from the service fund based on the information the company had provided. The telephone company sought to apply a deadline found in K.S.A. 66-117(c), a Kansas statute that comes into play when a common carrier or utility has applied for some change in rates or charges.
But the KCC denied the motion because it said that the telephone company had made no application under K.S.A. 66-117. We agree. An application is a request for some action or relief, not the mere filing of information in response to the order of a regulatory agency. No application was made here, and the 30-day limit found in K.S.A. 66-117(c) wasn’t at issue.
All of this is critical to the telephone company’s appeal because we have no jurisdiction over the appeal unless the KCC has taken final action on something before it. The telephone company’s assertion that the KCC took final action here is solely dependent upon its claim that the KCC’s failure to act constituted action because of the 30-day time limit in K.S.A. 66-117(c). Since that time limit has no application to this case, the KCC hasn’t taken any appealable action; we therefore must dismiss this appeal for lack of jurisdiction.
Factual Background
Let’s begin by reviewing how this appeal came about since the first question we must address—one drat we have found decisive— is whether we have jurisdiction to consider the appeal at all.
During proceedings involving many phone companies, KCC staff concluded that the S&T Telephone Cooperative Association, Inc. (S&T Telephone) was getting more money than it should from the Kansas Universal Service Fund (the Fund). KCC staff filed a motion asking the KCC to order an audit to determine how much support S&T Telephone should receive from the Fund. KCC staff alleged that S&T Telephone was receiving more support from the Fund than could be justified by its cost of service, contending that this had been true in each year from 2005 to 2010.
In response, S&T Telephone said it stood “ready to file any information required by the Commission” and asked that the KCC use data from 2011 as a “test year” upon which to base future payments. S&T Telephone also suggested that it file the required information in “mid to late March 2012” based on its 2011 audited financial data; S&T Telephone said that its 2011 financial audit would be “completed by the first or second week of Februaiy 2012.”
Based on these suggestions, the KCC approved using 2011 as the test year and ordered that S&T Telephone provide specified information, “based upon 2011 audited financial information,” by March 15, 2012. S&T Telephone sought a short extension of that deadline and filed a response on March 23, 2012.
The response contained written testimony from Kevin J. Kelly, S&T Telephone’s expert witness, and Steve Richards, S&T Telephone’s chief executive officer. Richards explained that S&T Telephone was a rural, local-exchange telephone provider to about 2,400 customers in northwest Kansas. Kelly said that the response was a “compliance filing” in response to the KCC’s order. Kelly provided financial schedules that showed a “revenue deficiency” for the company of $1,167,107, but he also noted that the company’s financial data as reported wasn’t from audited statements. He said that S&T Telephone estimated that audited statements would be available within 1 month. Kelly’s testimony said that “[o]nce the auditors have issued the [audited] financial statements, S&T will provide the Commission a copy
But the next tiring S&T Telephone filed—1 month later—wasn’t the audited information. Instead, the company filed a motion asking the KCC to rule that because the KCC had not acted within 30 days after S&T Telephone’s March response, S&T Telephone’s reimbursements from the Fund must be adjusted according to the financial data S&T Telephone had filed for the 2011 test year. S&T Telephone contended in the motion that its March 23 filing counted as an application for change in rate or charge under K.S.A. 66-117 and that such changes become effective after 30 days if the KCC does not act to suspend the change under K.S.A. 66-117(c).
KCC staff responded that S&T Telephone hadn’t made an application of any land and that the proceeding was governed by K.S.A. 2011 Supp. 66-2008—a specific statute authorizing periodic KCC review of Fund disbursements—not K.S.A. 66-117, the general statute for utility rate-change proceedings.
The KCC agreed with its staff s position, denying S&T Telephone’s motion. The KCC ruled that the proceeding initiated by its audit order was a Fund-specific one under K.S.A. 2011 Supp. 66-2008, not a rate proceeding under K.S.A. 66-117. And the KCC found that S&T Telephone’s filing wasn’t an application for a change of rates or charges under K.S.A. 66-117, so no 30-day time limit applied. The KCC also noted that S&T Telephone hadn’t provided audited information, as required by the KCC’s earlier order:
“It is irrational to suggest that S&T should be automatically entitled to an increase in [Fund payments] in excess of $1 million based upon a filing which omits mandatory information, particularly when the completed financial statements will likely require S&T to malee adjustments to the information and financial data included in its filing.”
S&T Telephone asked for reconsideration, arguing that the KCC’s position was contrary to its past practice in Fund-audit proceedings; S&T Telephone cited several Fund-audit proceedings in which the KCC had issued orders suspending any change in Fund reimbursements while the audit was pending, an act consistent with S&T Telephone’s position. S&T Telephone didn’t dispute its failure to provide audited financial statements in its initial filing, but it said it had provided that information to KCC staff on May 15, 2012—2 weeks after it had filed the motion claiming that the KCC’s failure to act on the company’s rate-change application within 30 days required that the change be put into effect immediately.
The KCC denied the motion for reconsideration. As to its past practice of issuing suspension orders, the KCC said that “although suspension orders have been issued in past [Fund] audits, tire Commission has never decided whether a suspension order is necessary or ruled on the effect of non-issuance.” The KCC again emphasized that S&T Telephone hadn’t applied for any relief and that Fund audits were governed by K.S.A. 2011 Supp. 66-2008, not K.S.A. 66-117. As to the lack of audited information, the KCC noted that S&T Telephone still had not filed audited financial information; no filing reflecting audited financial information is found in the record on appeal.
S&T Telephone has appealed to this court.
Analysis
We begin—and end—our analysis with the jurisdiction question. Appeals from the Kansas Corporation Commission are governed by the Kansas Judicial Review Act, K.S.A. 77-601 et seq. The Kansas Supreme Court noted in Bartlett Grain Co. v. Kansas Corporation Comm’n, 292 Kan. 723, 727, 256 P.3d 867 (2011), that the Kansas Judicial Review Act applies to all KCC appeals other than those arising from a rate hearing. See K.S.A. 2011 Supp. 77-603(a). For rate hearings, appeals are directly made to the Court of Appeals (as S&T Telephone has done here), but the Kansas Judicial Review Act applies in other respects. See K.S.A. 2011 Supp. 77-603(a); K.S.A. 77-609; K.S.A. 66-118a(b); K.S.A. 2011 Supp. 66-118c; Citizens’ Utility Ratepayer Bd. v. Kansas Corporation Comm’n, 47 Kan. App. 2d 1112, Syl. ¶ 1, 284 P.3d 348 (2012).
The significant point from the Kansas Judicial Review Act here is that appeals are allowed only from a final agency action, such as the approval or denial of a requested license, except when postponement of the appeal would result in irreparable harm or an inadequate remedy. See K.S.A. 77-607; K.S.A. 77-608. S&T Telephone doesn’t claim irreparable harm or inadequate remedy if its appeal is delayed, so we have a single question that determines our jurisdiction: Has the KCC taken any final action here?
S&T Telephone’s claim that the KCC has taken some final action is dependent upon its assertion that the telephone company did make an application under K.S.A. 66-117, triggering the requirement of K.S.A. 66-117(c) that the “schedule” proposed in a rate-change application “shall be deemed approved by the commission and shall taire effect on the proposed effective date” if the KCC doesn’t “suspend the proposed schedule within 30 days of the date die [schedule] is filed” in the utility’s “application.”
But here it’s clear that S&T Telephone made no application. And even if its filing could somehow be considered an application, Fund-audit proceedings are governed by K.S.A. 2011 Supp. 66-2008, not K.S.A. 66-117. So the 30-day time limit in K.S.A. 66-117(c) doesn’t apply, and the KCC’s failure to act within 30 days of S&T Telephone’s filing can’t be deemed a final action approving a new Fund-reimbursement rate for S&T Telephone.
First, S&T Telephone didn’t malee an application of any kind. An application, in this context, is a request for something. One of the definitions of application is a “request, as for assistance, employment, or admission to a school.” American Heritage Dictionary 86 (5th ed. 2011). Here, S&T Telephone filed what its expert witness called a “compliance filing” in response to a KCC order to do so. Although the filing showed a revenue shortfall for the company (which might support a greater distribution from the Fund), it didn’t contain a request for any relief—and it noted that audited financial information wasn’t yet available and would be provided in about a month.
Within the context of K.S.A. 66-117, for S&T Telephone’s filing to be an “application,” it would need to much more clearly communicate that something was being requested. K.S.A. 66-117(a) provides that a common carrier or utility under KCC jurisdiction can’t “make effective any changed” rate or charge unless it files tire proposed change “at least 30 days prior to the proposed effective date.” K.S.A. 66-117(c) provides that the KCC may not delay the effective date “more than 240 days beyond the date the public utility or common carrier filed its application requesting the proposed change.” (Emphasis added.) And K.S.A. 66-117(c) also provides that if the KCC “does not suspend the proposed schedule within 30 days of the date the same is filed . . . , [the] proposed schedule shall be deemed approved by the commission and shall take effect on the proposed effective date.” So the statute refers to a “proposed change” that has been “requested]” in an “application.” The statute also refers to a “proposed effective date.” The “compliance filing” S&T Telephone made in response to the KCC order didn’t mention a proposed effective date and didn’t explicitly request any change in S&T Telephone’s Fund distribution amount. The filing can’t be considered an application, which would be required if K.S.A. 66-117(c) were to he applied.
Second, even if this filing could be considered an application, K.S.A. 66-117 doesn’t apply at all—this was a proceeding authorized by K.S.A. 2011 Supp. 66-2008, not K.S.A. 66-117. K.S.A. 2011 Supp. 66-2008 required the KCC to establish the Fund, and it gives the KCC the duty to “periodically review” the Fund “to determine if the costs” of qualified carriers “to provide local service justify modification” of the Fund. And K.S.A. 2011 Supp. 66-2008 has its own procedures and time limits. Carriers can request additional funding under either subsection (d) or (f). If subsection (d) applies, the KCC must “issue an order on the request within 120 days of filing,” and while that time limit is not applied to requests under subsection (f), the KCC still must act “expeditiously.” K.S.A. 2011 Supp. 66-2008(d), (f). Given these specific provisions, there would be no reason to apply the general rate-hearing provisions of K.S.A. 66-117. Though K.S.A. 66-117 applies to hearings that may change a regulated entity’s rates, tolls, charges, or classifications, none of those would be changed in a Fund audit. The only thing that may be changed as a direct result of the Fund audit are the payments made to the entity (here, S&T Telephone) from the Fund.
It’s the time limit within K.S.A. 66-117(c) that S&T Telephone seeks to apply, but K.S.A. 2011 Supp. 66-2008 has its own time limits, as we’ve just noted—and they differ from those found in K.S.A. 66-117. K.S.A. 66-117(c) generally gives tire KCC 240 days to consider a rate-change request, though the KCC must act within 30 days to suspend the effective date of the proposed change. But K.S.A. 2011 Supp. 66-2008 requires that the KCC act within 120 days on some requests for supplemental money from the Fund and explicitly provides no time limit in other cases. See K.S.A. 2011 Supp. 66-2008(d), (f). Where two potentially applicable statutes would produce inconsistent results, the more specific statute controls over a more general one. State v. Turner, 293 Kan. 1085, 1088, 272 P.3d 19 (2012). K.S.A. 2011 Supp. 66-2008 is a specific statute that applies to KCC consideration of changes to Fund payments.
There is one past case that we should mention—Columbus Telephone Co. v. Kansas Corporation Comm’n, 31 Kan. App. 2d 828, 75 P.3d 257 (2003)—because it involved a Fund-audit appeal, and our court held that the statute allowing direct appeal to the Court of Appeals applied, even though that statute, K.S.A. 66-118, is pail of the rate-hearing statutes, not the specific statute regarding Fund audits. But the Columbus Telephone Co. opinion didn’t conclude that Fund audits were rate proceedings under K.S.A. 66-117. Rather, the court simply concluded that an appeal from a Fund audit was “sufficiently like a standard rate hearing to serve the purposes of the statute” and allow direct appeal to the Court of Appeals. Columbus Telephone Co., 31 Kan. App. 2d at 833. Fund aucfits are not rate hearings under K.S.A. 66-117, and Columbus Telephone Co. has no contrary holding.
S&T Telephone has one additional argument that we must consider—that because the KCC has treated Fund audits in the past as if they were rate proceedings under K.S.A. 66-117, it must continue to do so. It’s true that when an agency changes a long-standing practice, it must provide an explanation for the change. See Kansas Industrial Consumers Group, Inc. v. Kansas Corporation Comm’n, 36 Kan. App. 2d 83, 90, 138 P.3d 338, rev. denied 282 Kan. 790 (2006). But it’s also true that an administrative agency can’t modify the terms of a statute. See, e.g., Hall v. Knoll Building Maintenance, Inc., 48 Kan. App. 2d 145, Syl. ¶ 9, 285 P.3d 383 (2012). Here, K.S.A. 66-117 simply doesn’t apply. The KCC is free to apply some of the same procedures it applies in rate hearings to Fund-audit proceedings—but it’s certainly not required to do so by any statute. And the KCC has adequately explained the position it has taken in S&T Telephone’s case.
The proceeding before the KCC here was an audit to determine S&T Telephone’s need for payments from the Fund. S&T Telephone’s filing in response to the KCC’s order was neither an application for any relief nor a proposed change to any rate or charge on a scheduled date. Thus, the 30-day time limit found in K.S.A. 66-117(c) did not apply. S&T Telephone concedes that if that provision doesn’t apply here, then the KCC has taken no final action. Because tire KCC hasn’t taken any final action, we have no jurisdiction to consider this appeal.
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Green, J.:
Following a trial by jury, Russell Lee Shumway was convicted of intentional second-degree murder and attempted theft and sentenced to 620 months’ imprisonment. His convictions were later affirmed by this court on direct appeal. State v. Shumway, 30 Kan. App. 2d 836, 50 P.3d 89, rev. denied 274 Kan. 1117 (2002).
Shumway filed a habeas corpus motion under K.S.A. 60-1507 alleging that he was denied effective assistance of counsel when trial counsel failed to call two alibi witnesses. Later, Shumway filed an amended habeas corpus motion under K.S.A. 60-1507 maintaining that he was denied effective assistance of counsel because his trial counsel failed to call several witnesses who would have supported his defense theory. The trial court dismissed Shumway s motions without an evidentiary hearing. On appeal, this court reversed the trial court’s decision and remanded to the trial court with directions to grant Shumway an evidentiary hearing on his first claim (included in the original, timely filed habeas corpus motion) and to determine whether Shumway s remaining claims (brought in the amended habeas corpus motion) should be considered to prevent manifest injustice. See Shumway v. State, No. 102,027, 2010 WL 1462712 (Kan. App. 2010) (unpublished opinion). After an evidentiary hearing, tire trial court denied both motions.
Shumway’s principal argument on appeal is that his trial counsel’s performance—in failing to call two alibi witnesses, in failing to call a witness who would have contradicted the testimony of the State’s two principal witnesses, and in failing to call two witnesses who would have supported his defense theory—was not only deficient but also prejudicial to his defense, which deprived him of a fair trial. Thus, Shumway contends that the trial court erred (1) when it concluded that Shumway’s trial counsel’s decision not to call two alibi witnesses was reasonable trial strategy and (2) when it concluded that Shumway’s remaining ineffective assistance of counsel claims should be dismissed because Shumway had failed to show manifest injustice. Finding merit in Shumway’s first and second arguments, we reverse his convictions and remand for a new trial.
The Death of Mitchell Davis
Mitchell Davis was found dead in the backyard of his home around noon on October 7, 1999. The cause of death was blunt force trauma to the head; his injuries were consistent with having been struck with a two-by-four board. Davis’ blood was found on a two-by-four board in the alley near his home, hidden under a bush. No fingerprints were found on the board.
The coroner could not establish a time of death. Two neighbors of Davis saw him alive with a young woman tire evening of October 6, between 11 p.m. and 11:30 p.m. One neighbor identified the woman as “Angie.” Another person Saw Davis on his'front porch around midnight.
It was determined that Davis was under the influence of methamphetamine when he died. He had both amphetamine and methamphetamine in his system, and he had a syringe in his pocket.
The Case Against Russell Shumway
John Finney alleged that he saw Shumway kill Davis. He testified tlrat on tire evening of October 6, 1999, at about 10:30 p.m., he and Shumway left their residence to walk to North Topeka. After walking about 10 minutes, and traveling two to three blocks, they found themselves in the alley behind Davis’ residence. They saw some bicycles in Davis’ backyard and decided to steal them. When Finney discovered that the bicycles were chained, he suggested that they leave. After Finney walked out into the alley, he heard a moan from tire backyard. He looked over the fence and saw Shum-way hitting Davis with a board. Finney ran back .to their residence. It took him 4 to 5 minutes to run this distance: His wife, Mary Finney, Shumway’s Wife, Catherine Dennis, her daughter, Angela Dennis, and Angela’s two small children were there when he arrived. He told the three women tlrat he thought Shumway had killed someone. ' .
John Finney testified that Shumway told him that he took some cash and credit cards but of Davis’ pocket and hid them under a bush in the alley about a block from Davis’ residence along with the two-by-four board. Nevertheless, no cash or credit cards were found with the board. •
In testifying against Shumway, John Finney was able to avoid 6 months in jail. Finney’s criminal record indicated that he had been convicted of theft and forgery involving false statements or dishonesty. Finney admitted that the police had supplied him with details regarding this crime: that Davis had been hit in the head with a two-by-four board and that the two-by-four board was found under a bush in the alley. The police also showed him a picture of the backyard, a picture of the bicycles behind the house, and other pictures and diagrams of the crime scene.
Mary Finney testified that her husband and Shumway left the residence before 11 p.m. and returned a half hour to an hour later. She alleged that her husband came home and told them that Shum-way had killed someone. When Shumway returned home, there was blood on his shirt and shorts. Shumway warned John Finney not tell anyone what he had seen.
Like her husband, Mary Finney had been convicted of forgeries and thefts involving dishonesty and false statements. She and her husband discussed the evidence that the police had showed him before she spoke to the police. She was on probation and had two pending criminal cases when she testified against Shumway at his preliminary hearing.
Vickie Thomas testified that the weekend after Davis’ death, she accused Shumway in front of his wife Catherine Dennis of having killed Davis. She alleged that Shumway admitted striking Davis and that Catherine Dennis heard his admission.
The other witnesses against Shumway were jailhouse informants. Ed Radford had previous convictions for theft, forgery, and bad checks involving dishonesty or false statements. He testified that Shumway had made a jailhouse confession to him that he killed Davis.
Another jailhouse informant, John L. Powers, Sr., urged the State to use him as a witness instead of Ed Radford. Powers maintained that Radford got his information by reading Shumway’s paperwork. Powers also had convictions for thefts, forgeiy, and bad checks involving dishonesty and false statements.
The final jailhouse informant, Russell Lutz, testified that he was friends with Shumway and that Shumway told him that he hit Davis too hard. In exchange for Lutz’ testimony, the State amended his charge from aggravated burglary to attempted aggravated burglaiy and dismissed other counts.
The Case Against Troy Love
The defense theory of the case was that Davis was lulled by a drug dealer named Troy Love in a dispute over drugs or drug money. Shane Lynn testified that when the police first arrived to investigate Davis’ death, people in the community believed that Love had lulled Davis. Lynn told one of the investigating officers that he believed that Love lulled Davis over drug money.
Defense witness Stephanie Markham, one of Davis’ neighbors, testified that she saw Davis around 1 a.m., on October 6,1999, the day before his body was found. She described him as veiy nervous. Davis told her that he had been pulled over by the police. Moreover, he told Markham that he had a large quantity of drugs in his possession, which he had received from Love. He told her that he threw the drugs out of the car window when the police approached him.
Markham further testified that around noon on October 6,1999, Love came to Davis’ home, looking for him, but Davis was not home. Marida am told Davis about Love’s visit when he returned home. Markham described Davis as nervous and anxious that day; he was carrying a gun in the back of his pants.
Topeka Police Officer Bruce Voigt, of the narcotics unit, confirmed that he had stopped Davis on October 5, 1999, for a defective tail light. Officer Voigt believed that Love was selling methamphetamine from a residence in the area, and he thought that Davis had come from this residence. He questioned Davis about Love and his activities related to methamphetamine, and he received some information from Davis. Pie asked Davis to make a controlled buy from Love. But he did not arrest Davis. Although Officer Voigt testified that he did not see Davis throw anything from his car, he stated that it was possible that Davis threw something from the car.
During the trial, the State requested an instruction on second-degree murder as a lesser included offense of first-degree felony murder, which the court granted. The jury found Shumway guilty of murder in the second degree and attempted misdemeanor theft.
Our court affirmed Shumway s convictions on direct appeal. See Shumway, 30 Kan. App. 2d 836. On January 10, 2003, Shumway moved for a new trial. He alleged that he had newly discovered evidence. Shumway’s motion for a new trial was denied, and that decision was later affirmed by our court. See State v. Shumway, No. 92,871, 2005 WL 2495794 (Kan. App. 2005) (unpublished opinion).
Shumway’s Habeas Corpus Motion under K.S.A. 60-1507
On September 23, 2003, Shumway filed* a 60-1507 motion in which he alleged, in part, that he was denied effective assistance of trial counsel when his counsel failed to call two alibi witnesses. On August 9, 2005, Shumway filed an amended 60-1507 motion arguing, in part, that he was denied effective assistance of trial counsel because his counsel failed to call several witnesses who would have supported his theoiy of defense. The trial court dismissed Shumway’s 60-1507 motion without holding an evidentiary hearing. After the trial court summarily dismissed Shumway s 60-1507 motion, our court reversed and remanded to the trial court with directions to grant Shumway an evidentiaiy hearing on his alibi witness claims and to determine if Shumway’s untimely ineffective assistance of counsel claims should be addressed to prevent manifest injustice. Shumway v. State, No. 102,027, 2010 WL 1462712 (Kan. App. 2010) (unpublished opinion).
Ryan Kipling Elliot and Julia Spainhour were the attorneys who represented Shumway at trial. Both testified at Shumway’s 60-1507 hearing. Shumway, along with several of the witnesses who he believed should have been called at trial, also testified. In its memorandum decision, the trial court denied Shumway’s timely filed K.S.A. 60-1507 claims and dismissed his amended K.S.A. 60-1507 claims as untimely. Specifically, the trial court concluded the following: (1) that Shumway had “failed to prove that his trial counsel acted unreasonably when they decided not to call Catherine Dennis and Angela Dennis as potential alibi witnesses”; and (2) that Shumway’s “alleged lack of access to his discovery as an excuse for his untimely filing of his amendments to his petition [was] not credible and does not constitute a basis for finding manifest injustice.”
Although the trial court dismissed Shumway s untimely claims, it went ahead and addressed the merits of those allegations. In particular, the trial court concluded that Shumway s attorneys were not ineffective for failing to call certain witnesses -because the witnesses’ testimony was cumulative and their failure to call the witnesses did not constitute manifest injustice.
Did the Trial Court Properly Conclude that Shumway’s Trial Counsel’s Decision to⅜ Dismiss Catherine and Angela Dennis as Alibi Witnesses Was Reasonable Trial Strategy, Thereby Precluding Relief under Shumway’s K.S.A. 60-1507 Motion?
Shumway first argues that his defense attorneys were ineffective because they failed to call Catherine Dennis and Angela Dennis as alibi witnesses. The State disagrees and maintains that the trial court correctly found that Shumway’s defense attorneys were not ineffective for failing to call Davis’ alibi witnesses because their decision was reasonable trial strategy.
When the trial court has conducted an evidentiary hearing, appellate courts review the denial of a 60-1507 motion to determine if the trial court’s factual findings are supported by substantial competent evidence and are sufficient to support its conclusions of law. Bledsoe v. State, 283 Kan. 81, 88, 150 P.3d 868 (2007). Substantial evidence is legal and relevant evidence that a reasonable person might view as sufficient to support a conclusion, and appellate courts have unlimited review of conclusions of law. State v. Walker, 283 Kan. 587, 594-95, 153 P.3d 1257 (2007); see Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007). An appellate court cannot weigh conflicting evidence, evaluate the credibility of witnesses, or redetermine questions of fact. In re Estate of Hjersted, 285 Kan. 559, 571, 175 P.3d 810 (2008). “Ultimately, the district court’s conclusions of law and its decision to grant or deny the 60-1507 motion are reviewed using a de novo standard.” Bellamy v. State, 285 Kan. 346, 354-55, 172 P.3d 10 (2007).
An allegation of ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. To establish ineffective assistance of counsel, a defendant must establish the following under the totality of evidence before the jury: (1) that counsel’s performance was deficient because counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the Constitution of the United States; and (2) that counsel’s deficient performance prejudiced the defense because his or her errors deprived the defendant of a fair trial. Bledsoe, 283 Kan. at 90-91.
In other words, defense counsel is ineffective if his or her efforts were objectively unreasonable as measured against prevailing professional norms and if counsel’s errors were prejudicial. Strickland v. Washington, 466 U.S. 668, 688-94, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Prejudice equates to a probability sufficient to undermine confidence in the outcome; a reasonable probability that the proceedings would have produced a different result if not for counsel’s deficient performance. Phillips v. State, 282 Kan. 154, 159-60, 144 P.3d 48 (2006). Moreover, under allegations of ineffective assistance of counsel, judicial scrutiny of counsel’s performance is highly deferential, and a strong presumption exists that counsel’s conduct is reasonable. 282 Kan. at 159-60.
At the K.S.A. 60-1507 hearing, the trial court concluded that defense counsel’s actions in not calling Catherine Dennis and Angela Dennis as alibi witnesses were a matter of trial strategy. In discussing trial strategy, our Supreme Court explained that strategic decisions made by trial counsel based on a thorough investigation are virtually unchallengeable:
“Trial counsel has the responsibility for making tactical and strategic decisions including the determination of which witnesses will testify. Even though experienced attorneys might disagree on the best tactics or strategy, deliberate decisions based on strategy may not establish ineffective assistance of counsel. Strategic choices based on a thorough investigation of the law and- facts are virtually unchallengeable.” Flynn v. State, 281 Kan. 1154, Syl. ¶ 5, 136 P.3d 909 (2006).
Nevertheless, defense counsel may not “disregard pursuing a line of investigation and call it Trial strategy.’ ” State v. James, 31 Kan. App. 2d 548, 554, 67 P.3d 857, rev. denied 276 Kan. 972 (2003). “[W]hen counsel lacks the information to make an informed decision due to inadequacies of his or her investigation, any argument of ‘trial strategy’ is inappropriate.” Mullins v. State, 30 Kan. App. 2d 711, 716-17, 46 P.3d 1222, rev. denied 274 Kan. 1113 (2002) (citing Clay v. State, 954 S.W.2d 344, 349 [Mo. App. 1997]). Upon review, “[strategic choices based on less than a complete investigation are reasonable to the extent that reasonable professional judgment supports the limitation on the investigation. [Citation omitted.]” Flynn, 281 Kan. at 1157.
Here, Shumway maintains that Elliot, his defense counsel, was ineffective because he dismissed his alibi witnesses, Catherine Dennis and Angela Dennis. Specifically, Shumway contends that Elliot’s decision to dismiss the Dennises as witnesses was unreasonable because his choice “was hasty and unreasonable, in light of the fact that the witnesses had attended numerous meetings, had cooperated with his pretrial efforts and were present in order to support the defense he had prepared.”
At the K.S.A. 60-1507 evidentiary hearing, Elliot testified that he received his license to practice law in Kansas in 1997. In the year 2000, Elliot was an attorney at the Northeast Kansas Conflicts Office. That same year, Elliot and Spainhour were appointed to represent Shumway. Elliot testified that although part of their trial strategy was to show that Troy Love committed the crime, their primary defense strategy was a “theory of innocence,” i.e., that Shumway did not commit the crime. Under this strategy, Elliot maintained that his primary focus was to show that the State’s key witness, John Finney, was not credible. Specifically, Elliot noted that John Finney had prior convictions for crimes involving dishonesty or false statements and was testifying in exchange for a favorable deal from the State in his own case. Elliot also testified that John Finney’s interaction with the officers during the investigation, which he described as “police misconduct,” would show that John Finney’s testimony was not credible.
As for his failure to call Catherine Dennis and Angela Dennis as alibi witnesses, Elliot testified that although he had filed a notice of alibi for them, he had not made a firm decision to use them as witnesses. Elliot explained that he was concerned with Catherine’s and Angela’s potential testimony for several reasons, including the following: (1) Catherine and Angela failed to show up to a meeting he had scheduled with them for 7 a.m. the morning of the trial; (2) Catherine’s statements concerning her potential testimony “were not overly consistent,” which made him unsure about what her testimony would be, and Catherine could have been under the influence or tired the day she was supposed to testify because she was “acting land of strange”; (3) Angela was believed to have been involved in a romantic relationship with her uncle John Finney, the State’s key witness; and (4) Angela seemed “aloof and not engaged” on the day that she was supposed to testify.
Elliot went on to explain that he believed the State’s evidence was weak. Moreover, he believed that he and Spainhour had been able to show the flaws in the State’s case on cross-examination. In other words, Elliot believed that Catherine Dennis’ and Angela Dennis’ questionable credibility could have hurt Shumway’s case if he had put them on the stand.
The State argues that Elliot’s alleged ineffectiveness was simply an appropriate exercise of professional judgment because he investigated the potential alibi defense but ultimately decided to reject it. The State’s argument has merit. As mentioned earlier, “[strategic choices based on a thorough investigation of the law and facts are virtually unchallengeable.” Flynn, 281 Kan. 1154, Syl. ¶ 5. Here, Shumway does not maintain that Elliot failed to complete a thorough investigation for his potential alibi defense, which generally has been a ground for establishing ineffective assistance of counsel. See, e.g., State v. Sanford, 24 Kan. App. 2d 518, 522-23, 948 P.2d 1135, rev. denied 262 Kan. 967 (1997) (defendant received ineffective assistance of counsel when his attorney failed to investigate or contact alibi witnesses); State v. James, 31 Kan. App. 2d 548, 553-55, 67 P.3d 857 (2003) (attorney demonstrated ineffective assistance of counsel when he failed to contact or subpoena defendant’s alibi witnesses); see also State v. Thomas, 26 Kan. App. 2d 728, 731-32, 993 P.2d 1249 (1999), aff'd 270 Kan. 17, 11 P.3d 1171 (2000) (defendant received ineffective assistance of counsel when his attorney failed to file a notice of alibi but unsuccessfully tried to establish an alibi defense through witness who had not been properly and timely endorsed).
Nevertheless, a strong argument can be made that Elliot’s decision not to call either Catherine Dennis or Angela Dennis or both cannot be approved as a matter of trial strategy. In stating that an alibi is able to establish a defendant’s innocence, our Supreme Court declared: “An alibi places tire defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for the accused to be the guilty party. [Citations omitted.]” State v. Pham, 234 Kan. 649, 656, 675 P.2d 848 (1984); see K.S.A. 22-3218.
Elliot testified that there had been some concerns raised about using Angela Dennis as a witness because he had heard that Angela might have been in a “boyfriend/girlfriend” relationship with her uncle by marriage, John Finney. Moreover, Angela seemed “somewhat aloof’ that day. He feared that if he put Angela on the witness stand, she would recant everything that she had previously told them. He agreed, however, that despite her bad relationship with Shumway, and despite the fact that she was warned she might lose her child should she fail to cooperate with the police, she alibied Shumway when she spoke to Detective Kenneth Eaton. Despite the fact that she had a bad relationship with Shumway, she came to Elliot’s office to discuss the case with him and appeared in court on the day that she was to testify. Moreover, Angela did not tell Elliot, the day of trial, she would not testify to the alibi; she did not tell him that she was going to recant. Elliot could not recall if he asked her those questions. Elliot testified that he did not believe that the State had presented strong evidence, and because of this, he believed both Angela Dennis and Catherine Dennis would have hurt their defense.
Regarding Catherine, Elliot testified that she seemed tired that morning. Moreover, he was concerned about her ability to stick with her statement through cross-examination.
We are aware of the old adage that a bad witness does more harm to a cause than many good ones can repair. Nevertheless, Elliot had no other witnesses who could establish Shumway’s innocence. Even if Elliot considered Angela Dennis and Catherine Dennis were bad witnesses, they were the only witnesses who could possibly show that Shumway did not kill Davis. For example, Angela Dennis testified at the evidentiary hearing that Shumway was at home on the night of Davis’ murder. Angela further explained that the house where they lived was very small. The house had one door, which opened into the area where Angela stayed with her two young children. Because of this arrangement, Angela stated that when she was home, no one could leave the house without being either seen or heard by her. Angela relayed this information to Detective Eaton when she was interviewed by police. In addition, Angela’s testimony would have contradicted John Finney’s testimony because she stated that she did not see John Finney or Mary Finney the night of Davis’ death. Moreover, she never heard Shumway state that he had hurt Davis, and she never saw or heard John Finney accuse Shumway of hurting Davis. Angela further explained that if Elliot had called her as a witness, her testimony would have been consistent with the statement she gave Detective Eaton.
Because Catherine died before the evidentiary hearing, we do not have the benefit of her testimony.
When attorneys must rely on the testimony of a bad witness, they will gather every piece of corroborating testimony they can and combine it where it will best support the weak witness. If there are some corroborating circumstances, the task of supporting the weak witness is far from hopeless. Here, the defense had another witness who could have corroborated the testimony of Angela Dennis and Catherine Dennis. This witness, who we will discuss in detail later, stated that she was with Davis at his home until 1 or 2 a.m. on October 7, 1999. Moreover, this was a disinterested witness who had no motive to fabricate her testimony.
But, as discussed later, Elliot did not call this disinterested witness to testily during the trial. Thus, if the jury believed this disinterested witness, along with Angela or Catherine or both, as discussed in the next paragraph, Shumway could not have killed Davis when John Finney alleged that he saw Shumway beating Davis. Importantly, during the evidentiary hearing, Elliot conceded that without the testimony of Angela Dennis and Catherine Dennis, he did not have any equivalent evidence to counter the testimony of John and Mary Finney.
In this case, the timing of Davis’ beating was of critical importance to Shumway. The State, through the testimony of John and Mary Finney, attempted to show that Davis was beaten between 10:30 p.m. and midnight on October 6, 1999. Admittedly, Elliot was aware that the State would attempt to establish that time frame based on the testimony of John and Maiy Finney. Thus, the time when Davis was beaten was a critical factor in determining Shum-way’s innocence or guilt. To illustrate, one question the jury would have wanted to have answered is: Could Shumway have been there when Davis was beaten to death? If Shumway could not have been there when Davis was beaten to death, Shumway was not guilty. Elliot had no witnesses who could establish that Shumway was not there when Davis was beaten to death except Angela Dennis and Catherine Dennis. Elliot testified that their primary defense strategy was a “theoiy of innocence”: that Shumway did not commit the crime. As stated earlier, an alibi is an innocence theory of defense. Moreover, the time frame between 10:30 p.m. and midnight on October 6, 1999, was critical to Shumway’s “theoiy of innocence” because he had an alibi for this period of time. Based on the “theoiy of innocence” defense, trial counsel was ineffective for failing to call either Angela Dennis or Catherine Dennis or both as an alibi witness.
Because trial counsel’s failure to call either Angela Dennis or Catherine Dennis or both as an alibi witness is so closely interwoven with the next two issues, we will delay addressing the prejudice prong of the Strickland test until the last issue.
Did the Trial Court Err When It Found that Shumway’s Remaining Claims Did Not Have to Be Considered Because They Were Untimely?
Next, Shumway argues that the trial court erred when it found that his amended 60-1507 motion was untimely and that manifest injustice did not exist to extend the 1-year time limitation of K.S.A. 60-1507(f)(l). The State, however, argues that Shumway’s remain ing claims were time barred because he “should have included [them] in his first [1507] petition.”
K.S.A. 60-1507(f)(l) provides that a 60-1507 motion must be filed within 1 year of the following time frame: tire final order of the appellate court in the direct appeal; the denial of a petition for writ of certiorari; or the final order of the United States Supreme Court. Because the 1-year time limit under K.S.A. 60-1507(f)(1) did not become effective until July 1, 2003, a defendant whose conviction became final before the effective date of this statute had until June 30, 2004, to file a timely K.S.A. 60-150(f)(1) motion. See Hayes v. State, 34 Kan. App. 2d 157, 161-62, 115 P.3d 162 (2005).
In this case, Shumway’s convictions became final on September, 24, 2002, when our Supreme Court denied his petition for review. See State v. Shumway, 30 Kan. App. 2d 836, 50 P.3d 89, rev. denied 274 Kan. 1117 (2002). Shumway filed his original 60-1507 motion on September 23, 2003, which was within the 1-year time limitation of K.S.A. 60-1507(f)(l). Shumway did not file his amended 60-1507 motion until August 9,2005, which was well past dre 1-year time limitation under K.S.A. 60-1507.
In Pabst v. State, 287 Kan. 1, Syl. ¶ 7, 192 P.3d 630 (2008), our Supreme Court held that an amendment to a K.S.A. 60-1507 motion “that asserts a new ground for relief which is supported by facts that differ in both time and type from those grounds set forth in the original motion does not relate back to the date of the original motion, so as to circumvent the 1-year limitation of K.S.A. 60-1507(f)(1).” In other words, if an amended 60-1507 and original 60-1507 motion are related to the same general conduct, transaction and occurrence, then there is nothing barring the amended 60-1507 from relating back to the original 60-1507 motion. In reaffirming its holding in Pabst, our Supreme Court in Thompson v. State, 293 Kan. 704, 714, 270 P.3d 1089 (2011), stated the following:
“If an amendment to a K.S.A. 60-1507 motion is permitted, the timeliness of amended claims is subject to the Pabst time and type test enunciated in K.S.A. 60-215(c), i.e., relation back is permitted only if the new claims arose ‘out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.’ ”
Neither Shumway nor the State has graced us with an argument concerning the relation back test. The trial court held that Shum-way’s claims under his amended K.S.A. 60-1507 motion were untimely. The court found that Shumway’s excuse for his untimely filing of those claims was inadequate. Thus, the failure of his trial counsel to call certain witnesses in support of his theory of defense did not constitute manifest injustice.
The 1-year time limitation of K.S.A. 60-1507(f)(l) for bringing an action may be extended by the trial court only to prevent a manifest injustice. K.S.A. 60-1507(f)(2). “Manifest injustice” has been interpreted to mean “ ‘obviously unfair’ ” or “ ‘shocking to the conscience.’ [Citations omitted.]” Ludlow v. State, 37 Kan. App. 2d 676, 686, 157 P.3d 631 (2007). Moreover, the State argues that Shumway has not demonstrated manifest injustice that would allow for the extension of the 1-year time limitation of K.S.A. 60-1507(f).
Nevertheless, because the parties and the trial court have failed to consider the relation back test under Pabst, this court is tasked with the following question: Were any of Shumway’s amended claims under his amended K.S.A. 60-1507 motion related to the same general conduct, transaction, or occurrence set forth or attempted to be set forth in Shumway’s original K.S.A. 60-1507 motion to avoid the bar of the 1-year time limitation under K.S.A. 60-1507(f)(1)?
As discussed earlier, Shumway’s original 60-1507 motion alleged, in part, that he was denied effective assistance of trial counsel when his counsel failed to call Angela Dennis and Catherine Dennis as alibi witnesses. He maintained that this adversely affected his “theory of innocence” defense. Likewise, Shumway, under his amended 60-1507 motion, argued, in part, that he was denied effective assistance of counsel because his trial counsel failed to call several witnesses who allegedly would have supported his theoiy of defense. Shumway, in his K.S.A. 60-1507 original motion, contended that his trial counsel was ineffective for failing to call certain witnesses who would have supported his theory of defense. Thus, the amended motion and the original motion are related to the same general conduct, transaction, and occurrence which involved Shumway s claim of ineffective assistance of trial counsel. There is nothing to bar these amended claims from relating back to Shumway’s original K.S.A. 60-1507 motion. See Walker v. State, No. 101,431, 2012 WL 686685 (Kan. App. 2012) (unpublished opinion) (Because the amended motion and tire original motion were related to the same general conduct, transaction, and occurrence which involved movant’s claim of ineffective assistance of trial and appellate counsel, there was nothing to bar this amended claim from relating back to movant’s original K.S.A. 60-1507 motion.). As a result, the trial court erred when it held that Shumway’s amended claims were untimely.
Did the Trial Court Err in Finding that Shumway’s Trial Counsel Was Not Ineffective for Failing to Call Several Witnesses at Trial?
Although the trial court ruled that the claims from Shumway’s amended 60-1507 motion were time-barred, it, however, addressed the merits of those claims. On appeal, Shumway maintains that the trial court erred in finding that his counsel was not ineffective for failing to call several witness—Angela Kendall, Lori Treiber, and John Funk—at trial. The State disagrees and maintains that the trial court’s finding was correct because the testimony of those witnesses would have been cumulative.
We have previously set out the standards for a trial court’s denial of a K.S.A. 60-1507 motion when it has conducted an evidentiary hearing and for an allegation of ineffective assistance of counsel, so we will not repeat them here.
The duty of counsel to make reasonable investigations has been set forth in State v. Hedges, 269 Kan. 895, 914, 8 P.3d 1259 (2000), as follows:
“Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any effectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. [Citations omitted.]”
A. Testimony of Angela Kendall
Shumway first argues that “the district court erred in its legal conclusion that Angela Kendall’s testimony was cumulative.” Ken dall testified at the 60-1507 evidentiary hearing. At the hearing, Kendall testified that she had been at Davis’ house on October 6, 1999. Specifically, Kendall stated that she arrived at Davis’ house between approximately 10 and 11 p.m. and stayed until 1 or 2 a.m. Kendall explained that she went to Davis’ house to pick up some methamphetamine, but the drug dealer never arrived with this drug. Kendall’s testimony at the hearing, however, differed from the information that she gave police shortly after Davis’ murder.
According to Kendall’s written police statement, she told police that she left Davis’ house around midnight. Shumway argued that his trial counsel should have called Kendall as a witness because her testimony would have contradicted John and Mary Finney’s testimony that Davis’ murder occurred between 10:30 p.m. and midnight.
In evaluating the merits of Shumway’s claim, the trial court found that Kendall’s testimony was cumulative. In particular, the trial court stated:
“In examining the testimony of Ms. Kendall, it is noted that her testimony would have been on the same subject matter as other witnesses who testified at trial. Stephanie Markam, Shane Lynn and Piper McPherron all testified that they had seen Mitch Davis alive at some point in the timeframe in which the State alleged Mr. Davis was murdered. The Court is not convinced that defense counsel’s performance was prejudicially deficient in deciding not to call an additional witness for tire purpose of pointing out that Mr. Davis was seen alive at the time when the principal accuser alleged the crime was committed. The testimony of Ms. Kendall would have been cumulative.”
Nevertheless, Kendall’s testimony was not cumulative to the testimony of Markham, Lynn, and Piper McPherron. Instead, their testimony corroborated Kendall’s account, lending it credibility. For example, Markham, Lynn, and McPherron all testified that they saw Davis alive on October 6, 1999. Markham testified that “Angie” (presumably Angela Kendall) arrived at Davis’ house at about 10:30 and that she saw Kendall and Davis sitting in the front room of his house at about 11 or 11:30. Lynn testified that he saw Davis sitting on his front porch at around midnight. Finally, McPherron testified that she saw Davis sitting on the front porch with a girl at about 11:30 p.m. Thus, these witnesses would have corroborated Kendall’s account.
Moreover, although these witnesses testified that they saw Davis alive at or before midnight, none of them testified that they had seen him alive between I a.m. and 2 a.m. Nor did they testify that they were with Davis at his home between 1 a.m. and 2 a.m. Kendall’s testimony would have extended the time frame that Davis was alive while directly contradicting John and Mary Finney’s testimony that Davis was killed sometime between 10:30 p.m. and midnight. According to John Finney, he and Shumway left their residence around 10:30 p.m., and it took them about 10 minutes to arrive at Davis’ home. Shumway allegedly attacked Davis a short time later (probably before 11 p.m.). Mary Finney testified that Shumway and her husband left their home before 11 p.m. and returned a half hour, to an hour later. As stated earlier, Kendall testified that she had been at Davis’ home the evening of October 6, 1999, arriving between 10 and 11 p.m. and leaving between 1 or 2 a.m. She testified that no one attacked or beat Davis while she was there. Davis was fine when she left; he walked her to her car. She saw the crime scene tape around Davis’ house the next day and learned the police were looking for her.
Kendall went to the police department and spoke with a detective. She gave him a statement regarding her contact with Davis the night before his body was found. She agreed with the detective’s report stating that she told him that she was at Davis’ home until midnight or 12:15 a.m. She believed at the time that she was “the number one suspect” so she may have told the police that she left earlier than she actually did, because she did not want them to think she was there at 2 a.m.
Kendall further explained she did not leave Davis’ home until 1 or 2 a.m. because she was waiting for a delivery of methamphetamine, which never arrived. She was sure she stayed until at least 1 a.m. because “an addict will wait on dope forever .... So I find it hard to believe and I got there at 11:00 and left at midnight, because that’s only an hour of waiting.” Kendall testified that she was never contacted by anyone from the defense team, and she was not called as a witness at trial. Kendall also testified that she did not know Shumway in October 1999, or when she gave the police her statement in this case.
Elliot testified that he was aware of Kendall’s statement and knew that the police believed that Davis had been killed during the time period between 10 p.m. and midnight. Elliot agreed that if Kendall testified consistently with her statement to Detective Eaton, she would have directly contradicted John and Maiy Fin-ney’s testimony and that it would have been beneficial to Shum-way’s defense. He was sure that the defense team had considered using her as a witness, but he could not recall why they did not. Pie could not recall interviewing her and could not recall any strategic or tactical reason for not calling her.
Spainhour also saw the report regarding Kendall’s statement. She stated that she was certain they considered using her as a witness, but she did not know why they did not interview her. She could recall no strategic reason for not investigating the possibility of calling her as a witness.
The decision of whether to call a particular witness is a matter of trial strategy. See Winter v. State, 210 Kan. 597, Syl. ¶ 2, 502 P.2d 733 (1972). “On the other hand, defense counsel cannot make a strategic decision against pursuing a line of investigation when he or she has not yet obtained facts upon which that decision could be made. [Citation omitted.]” Mullins v. State, 30 Kan. App. 2d 711, 716, 46 P.3d 1222, rev. denied 274 Kan. 1113 (2002). When counsel does not have the information to make an informed decision due to an inadequate investigation, any argument of “trial strategy” is improper. 30 Kan. App. 2d at 716-17; see, e.g., State v. James, 31 Kan. App. 2d 548, 553-55, 67 P.3d 857 (2003) (attorney demonstrated ineffective assistance of counsel when he failed to contact or subpoena defendant’s alibi witnesses); State v. Sanford, 24 Kan. App. 2d 518, 522-23, 948 P.2d 1135, rev. denied 262 Kan. 967 (1997) (defendant received ineffective assistance of counsel when his attorney failed to investigate or contact alibi witnesses).
Although both trial counsel testified that there must have been some strategic reason for failing to interview Kendall, or use her as a witness, neither lawyer could recall a reason. They had both been made aware of the nature of Shumway’s claim and had been offered access to their trial materials, and thus had the opportunity to review their records and discover the reason, if there was one, for failing to interview Kendall or use her as a witness.
Had counsel interviewed Kendall, they would have learned the importance of her testimony in light of the time line sworn to by John and Mary Finney. They would have realized she was at Davis’ home longer than the written report indicated. The trial court excused this failure to pursue a line of defense on the grounds that her testimony would have been cumulative. But none of the witnesses who testified at trial stated that they were with or observed Davis during and beyond the entire time period during which John Finney contended that Shumway had attacked Davis.
B. Testimony of Lori Treiber and John Funk
Finally, Shumway maintains that Elliot was ineffective for failing to call Lori Treiber and John Funk as witnesses. Both Treiber and Funk testified at the 60-1507 evidentiary hearing. Treiber testified that she knew Davis based on their involvement with methamphetamine. Treiber explained that on October 5, 1999, she went to Davis’ house to complete a drug sale with Davis and Troy Love. Treiber had agreed to sell Love $600 worth of methamphetamine. Although Love only had $500 on him, Treiber completed the sale because Davis agreed to pay her the remaining $100 by 10 a.m. the next day.
When Davis failed to pay Treiber the $100 as agreed, Treiber spent the day (October 6, 1999) looking for Davis, but she could not find him. That evening, Love met with Treiber between 8 and 9 p.m. Love was upset because he believed that he had been shorted on the methamphetamine sale. Treiber replied that she had been shorted $100. Love stated that he had given the money to Davis, but Treiber told him she had not received it. Love paid Treiber another $100.
Love called Davis about the drug sale. Love believed that he had not only been shorted, but also had to pay twice for methamphetamine that he never received. Treiber testified that as Love spoke to Davis on the phone, he became very angiy. After Love ended his phone conversation with Davis, he told Treiber that “if she had anything to do with [Davis, she] better take care of it that night. . . ‘because there wasn’t going to be a [Davis] tomorrow.’ ” (Emphasis added.) Shortly after Davis’ body was found, Treiber told the police about those events during a videotaped interview. Treiber testified that she had no other involvement in the case and that she was not contacted by defense counsel.
Funk testified at the evidentiaiy hearing that Davis was a friend whom he had known for several years. Funk explained that Davis was afraid of Love. Funk further testified that within a few days of Davis’ death, he saw Davis and Love talking outside Davis’ house. When Love left, Davis asked Funk to help him to obtain some guns from tire house of Davis’ father. Funk reluctantly agreed, and tire two went to Davis’ father’s house and stole the guns. Funk testified that Davis got the guns, in part, because of his fear of Love. Funk stated that he told this information to the defense investigator with whom he spoke, but he was not asked to testify on Shumway’s behalf.
When Elliot was questioned about his failure to call Treiber as a witness, he stated that he could not remember if he had interviewed Treiber. Elliot went on to add that he would have no reason to dispute Treiber’s testimony that she was not contacted by the defense. In downplaying the importance of Treiber’s testimony to Shumway’s theory of defense, Elliot stated:
“You know, all I—again, you know, this has been ten years ago. And a lot of tilings that you think about, and strategy-wise, are not pieces of paper. And if I remember correctly, and I have not reread the entire transcript of the trial, but I seem to remember, I mean, when we—when Troy Love came up, Troy Love’s name comes up in a lot of cases. And, you know, our basic strategy was that [Shumway] did not do this and that [the State] did not have the evidence to show that he did, and yes, there was possibly somebody else that might have done it or had a reason to, and again, without re-reading the transcript, it seems to me that what we, [Spainhour] and I, decided, was that we're not going to hang our cases on Troy Love, that he did this. You know, we thought we had stronger stuff, let me throw his name out. His name did get thrown out. Let the jury bite onto that if they want to. We were not going to put all our eggs in that basket, because it didn’t make sense to us.”
Similar to Elliot, Spainhour testified that the defense team had received a copy of Treiber’s police report and videotaped interview, but she did not remember watching the videotape before trial. When asked if the defense had considered calling Treiber as a witness, she said, ‘1 don’t recall discussing Miss Treiber at all.”
As for the failure to call Funk, Elliot testified that he could not remember if he contacted him and could not remember anything else about him. Elliot agreed that Funk’s testimony would have been consistent with the theory that Love lulled Davis. Spainhour also testified that Funk’s testimony would have been consistent with the theory that Love killed Davis. Spainhour testified that she could not remember if they had investigated using Funk as a witness, and she could not remember anything else about Funk.
In evaluating the merits of Shumway’s claim, the trial court found that Treiber and Funk’s testimony was cumulative. In considering Treiber’s testimony, the trial court declared:
“While the specific wording and intent of Mr. Love’s purported statement can be debated, and while the parties can also debate whether such statement would be inadmissible hearsay or would have required the availability of Mr. Love as a witness, it does not appear that Ms. Treiber could offer any evidence that pointed to Mr. Love actually acting on the purported threat. The evidence that Troy Love possibly had a motive to kill Mr. Davis was planted in the minds of the jury through witnesses, Mr. Lynn, Ms. Markham and Officer Voight. The Court is not convinced that the failure to call Ms. Treiber as an additional witness would have likely resulted in a different trial outcome because the motive of Mr. Love to harm Mr. Davis was placed before the jury by other witnesses. It is noted further that apparently the police considered but dismissed Troy Love as a potential suspect during the investigation.”
In considering Funk’s testimony, the trial court stated:
“The testimony that could have been offered by Mr. Funk was covered by Stephanie Markham’s testimony. She testified that Mr. Davis was anxious and carrying a weapon. The Court is not persuaded that the failure of defense counsel to call Mr. Funk as an additional witness constituted deficient performance or caused Mr. Shumway any prejudice. The testimony would have been cumulative.”
Funk’s testimony, although somewhat cumulative to the neighbor’s testimony, would have provided further support for the defense position that Davis was fearful of Love in the days preceding his death. Nevertheless, Treiber’s testimony was not cumulative. No other witness, as Shumway points out, testified that Love was angry with Davis, testified Love was convinced Davis had cheated him on a drug deal, or most importantly, had made a prediction— that came true—that Davis would be dead by the next day: “there ain’t gonna be a tomorrow for Mitch.”
Neither Elliot nor Spainhour gave a reason as to why they failed to call Funk as a witness, and neither could remember if they investigated using Funk as a witness. As mentioned earlier, failure to complete a thorough investigation has been a ground for establishing ineffective assistance of counsel. See, e.g., State v. Sanford, 24 Kan. App. 2d 518, 522-23, 948 P.2d 1135, rev. denied 262 Kan. 967 (1997). Elliot’s and Spainhour’s inability to remember if they investigated Funk supports Shumway’s claim that he received ineffective assistance of counsel.
A similar analysis applies to Treiber’s testimony. Elliot could not remember if he interviewed Treiber, and Spainhour could not remember discussing Treiber, at all. Although Shane Lynn allegedly told police that he thought Love had killed Davis over drugs, there was no evidence presented similar to Treiber’s potential testimony. Treiber’s testimony was essential to Shumway’s defense because it established a strong motive for Love to have committed the crime. Treiber’s testimony would have shown that Love was angry at Davis because of the bad drug deal.
Certainly, Treiber’s testimony would have helped the defense show that Shumway did not commit the crime. Contrary to the trial court’s assertion, Treiber did not have to show that Love actually acted on his threat. Treiber’s testimony merely had to plant reasonable doubt in the minds of the jurors, i.e., it had to show that Love, instead of Shumway, could have committed the crime. Thus, Elliot’s failure to call Treiber as a witness was unreasonable, which satisfies the first prong under Strickland. See 466 U.S. at 688-94.
Prejudice
Under the second prong of the ineffective assistance of counsel analysis, Shumway must show that there is a reasonable probability that the proceeding would have produced a different result if not for Elliot’s deficient performance. See Phillips, 282 Kan. 154, Syl. ¶ 2.
As discussed earlier, Angela Kendall’s testimony would have contradicted the accounts, sworn to under oath, of John and Mary Finney. Moreover, John and Maiy Finney learned details of the crime from police, testified for benefits, and their claims were not corroborated by any physical evidence Unking Shumway to the crime or the crime scene. Trial counsel offered no tactical reason for failing to interview Kendall or use her as a witness. Counsel’s failure to investigate a disinterested witness, with no reason to lie for Shumway, who would have testified that the victim was with her, alive and well, both during and well past the time John Finney claimed that Davis was beaten to death by Shumway, was unreasonable. This satisfies the first prong of Strickland.
Next, we must determine whether there was a reasonable probability that, but for trial counsel’s errors, the result of the trial would have been, different. In this case, the time when Davis was beaten to death was a critical factor in determining Shumway’s innocence or guilt. Earlier we discussed trial counsel’s failure to call either Angela Dennis or Catherine Dennis as an alibi witness. The testimony of either Angela or Catherine might have established Shumway’s alibi to Davis’ murder and would have further eroded the credibility of John and Mary Finney.
Moreover, if Davis had been killed before midnight, according to John Finney’s testimony, the testimony of Angela Kendall that she was with Davis until 1 a.m. to 2 a.m. would have shown that Davis was not lulled when John Finney claimed. As a result, Kendall’s testimony would have furnished Shumway with a defense to Davis’ murder. Also, Kendall’s testimony would have corroborated the alibi testimony of Angela Dennis and Catherine Dennis.
Finally Treiber’s testimony that Love had threatened Davis’ life just hours before he was found murdered would have furnished strong support to Shumway s “theory of innocence,” that Love was Davis’ killer. Because Treiber’s evidence, standing alone, could have caused reasonable doubt in the minds of tire jurors, the failure to present this evidence was prejudicial to Shumway’s theory of defense.
The inconsistent statements and credibility problems of the State’s key witnesses coupled with the possible favorable testimony from uncalled witnesses would have cast doubt on the State’s case. Furthermore, there was no physical evidence: no fingerprints, no fibers, no blood, tying Shumway to this crime. As a result, we determine that the trial counsel’s deficient performance prejudiced the defense so as to deprive Shumway of a fair trial.
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|
The opinion of the court was delivered by
Larson, J.:
This K.S.A. 60-1507 appeal raises the question of whether a criminal defendant who has had the opportunity to challenge his felony-murder charge but knowingly waived that right and pled guilty to felony murder and other charges in order to obtain a favorable plea agreement is entitled to collaterally attack his convictions to benefit from a favorable ruling in a later appeal by a different party on the precise legal issue which he willingly waived.
We hold the defendant is bound by his plea agreement and receives no benefit from the later ruling which we do not apply retroactively, and we affirm the trial court.
We first set forth in detail the factual background, procedural history, and timing of the events which bring this question before our court.
In late November 1995, LeVoi D. Easterwood, and his cousin, Anthony Birch, entered an Oseo store in Kansas City, Kansas, late in the evening. Both were armed with guns. They hid in the back of the store until closing. When the store closed, they came out from their hiding place and proceeded to rob the store.
They forced the store manager to open the safe and hand over approximately $1,500. They held five other employees captive and moved the parties toward the back of the store in order to complete the robbery. One of the employees later gave a statement identifying Easterwood as saying to Birch that they should kill all the witnesses.
At Birch’s request, tire store manager opened the back door where they were confronted by Kansas City police officers. Easterwood ran to the front of the store where he found three more police officers. He dropped his gun.
Birch shot at the police officers near the back of the store, who returned fire killing Birch. Easterwood ran to a nearby cemeteiy, where he was captured and arrested.
Easterwood was charged in December 1995 with felony murder, K.S.A. 21-3401 (off-grid person felony), aggravated robbeiy, K.S.A. 21-3427 (severity level 3 person felony), and six counts of kidnapping, K.S.A. 21-3420 (severity level 3 person felony). Attorney James F. Foster was appointed to defend Easterwood.
A preliminary hearing was held. A motion to suppress a confession was filed and argued. A motion to dismiss contended the felony-murder statute was unconstitutionally vague. Plea negotiations were held. During the selection of the jury to try the case, a plea agreement was reached.
Easterwood executed a Petition to Enter a Plea of Guilty, in which he stated:
A. He was 25 years of age and had completed 14 years of schooling.
B. He acknowledged he was not under any limitation, understood the charges against him, had fully informed his lawyer of all facts and had been counseled on all possible defenses.
C. He stated he had been informed of the maximum sentence that could be entered. He agreed to plead guilty to felony murder, aggravated robbery and one count of kidnapping. The State and defendant agreed to request 20 years’ sentence of Life with parole eligibility after 15 years plus 5 years. It was stated in paragraph 12 that “no additional charges filed in Wy. Co. in relation to statement given.”
D. In printed language, paragraph 14, which was agreed to by Easterwood, stated:
“14.1 know that the court will not permit anyone to plead ‘Guilty’ who maintains he/she is innocent, and with that in mind, and because I am ‘Guilty’ and not innocent, I wish to plead ‘Guilty’ and respectfully request the court to accept my plea.”
A guilty-plea hearing was held after the plea agreement was reached. The facts as previously stated herein were recited by counsel and Easterwood. A detailed plea colloquy was held, five kidnapping charges were dismissed, and Easterwood pled guilty to felony murder, aggravated robbery, and one count of kidnapping. The trial court said:
“Mr. Easteiwood, I am gonna accept your plea of guilty to those three charges because I find that your plea was freely, voluntarily and because you are, in fact, guilty as charged, not out of ignorance, fear, inadvertence or coercion and with full understanding of its consequences. I further find you have admitted the essential elements of the crime charged and that you are mentally competent here in open court this April 22nd, 1996.”
The sentencing hearing was held on June 6, 1996. The parties asked the sentencing court to sentence Easterwood as agreed to in the plea agreement. The judge stated that he assumed a hard 40 sentence was not involved. Easterwood’s counsel responded that because the plea was to felony murder, there would be a life sentence and his client would be eligible for parole after serving 15 years but the plea agreement required a 5-year sentence in addition to that. Easterwood was asked if he wished to address the court, and he said:
“Yes. I am fully aware of the crimes that I committed and I’m prepared to pay for those crimes. I apologize to the victims and also my family for what I’ve done. I’m not an ignorant man. I’m well educated so I understand the circumstances, everything that happened, and I would just hope that the court would agree to the pre-ordained sentence and stick to that.
“That’s pretty much all I have to say, Your Honor.”
The sentencing judge followed the plea agreement and sentenced Easterwood to life with eligibility for parole after 15 years on the felony-murder conviction and consecutive sentences of 51 months for the aggravated robbery conviction and a downward departure to 9 months for the kidnapping conviction. Easterwood began serving his sentence, and no appeal was taken.
Nothing further occurred until February 3, 2000, when Easter-wood challenged his convictions by filing a K.S.A. 60-1507 action in which he alleged ineffective assistance of counsel, he was improperly informed of the potential penalties, insufficient evidence to support a finding of guilt of felony murder, violations of K.S.A. 22-3210 by accepting his pleas without specifically finding that he knew the elements of the crimes charged, and various constitutional violations.
The judge who had sentenced Easterwood appointed counsel to represent him and held a 60-1507 hearing in which Easterwood and his trial counsel, James Foster, both testified.
In response to questions asked about the plea negotiations, Foster stated:
“Q. Okay. The felony murder in this case, was it somewhat unusual because of the factual — the facts in this case?
“A. It was, Judge, because the — the individual — the deceased I think was a relative of Mr. Easterwood’s, and he was also involved in a robbery — in a — in an aggravated robbery charge a Oseo Drug Store. He was killed by he police when they went to investigate. I think a large number of police officers arrived at Oseo and, during the I guess trying to capture the relative, ended up shoot — die police ended up shooting him. So it wasn’t a typical felony murder type case in which an innocent bystander might have been killed during the commission of a robbery or something on those lines.
“Q. And had you done any research into the case law into this matter in your defense of Mr. Easterwood?
“A. Yes, I did, and I gave — I don’t recall if I actually gave Mr. Easterwood a copy of a case that I got from the Kansas Reports. I know I discussed it with him if I didn’t and I gave the name, and the cite, and — and a — I can’t remember if I asked him if they had access to law books, but I think I actually gave him a copy of the case on felony murder in which Justice Lockett wrote a dissenting opinion, and it was the closest type of case that I could find that — it was a difficult case. In my mind, it was difficult pleading someone to the felony murder, because I did not believe that that was the purpose of the felony murder rule —
“Q. Di—
“A. — but I found a case and — that — that I think was as close as possible. Justice Lockett was — wrote a dissenting opinion, even though they found a person guilty of felony murder in the — in the most similar situation that with Mr. Easterwood, the possibility if he were convicted, he’d have a right to appeal, and there was several judges who had dissented in the opinion, so he might have a chance on appeal on that issue. But the problem was, he was — in a fairly — fairly strong case against him on all the other charges, so that even if he won the felony murder case — he was in front of Dexter — Judge Dexter Burdette. You were going to a--the prosecution was asking for consecutive sentences. It w- — he was just in a no-win situation.
"Q. Okay, so up to the plea, were — were you and Mr. Easterwood talking about that if — even if he was convicted, that you would have an appeal right at least to whether the facts in this case supported a conviction for felony murder?
“A. That’s correct.
“Q. And had you conveyed that or spoke — had you and Mr. Easterwood discussed this during this entire time?
“A. Yes.
“Q. And what was his feelings as to what you should do —
“A. Uh —
“Q. — if you recall?
“A. I mean, he — he didn’t — like any — any person charged with a crime and not sure — he didn’t want — necessarily want to plead to felony murder and — and the other charge; but there weren’t any alternatives, other than going to trial and maybe getting all charges run consecutive, getting a larger sentence —”
Foster, in later questions, explained his concern regarding consecutive sentences being entered and the difficulty of the case:
“Q. Okay. What — you had indicated that — that you felt this was a difficult case of felony murder to plead because of the circumstances, and you’ve also indicated, you know, you hoped the jury may disregard it. In your experience, do you think that this would also have been a difficult case for the jury to convict on?
“A. I don’t think so, and — and the reason I — one of the main reasons I was concerned about it is, one of the witnesses had given a statement that — i-identifying Mr. Easterwood as stating to the other — the deceased that they should Mil all the witnesses —
“Q. Uh-huh.
“A. — which, in my opinion, if they heard that, the Court was going to do everything in their power to run the sentences consecutive —
“Q. Uh-huh. Okay.
“A. — if he’s convicted.”
As to other crimes with which Easterwood was charged, Foster testified as follows:
“Q. Okay. Was Mr. Easterwood charged in any other cases besides the one we’re here talking about today, the 95CR2297?
“A. Originally, he was charged with two other aggravated robberies.”
Foster and Easterwood offered conflicting testimony on the movant’s claim that he was told a “hard 40” could be assessed. Foster stated he had told Easterwood that his sentence would exceed 40 years if he was found guilty of all charges and all sentences were run consecutively. Easterwood said Foster had told him he could be subject to a hard 40 sentence.
There were questions by Easterwood’s counsel about whether the double-double rule in guideline sentencing would apply. It was argued this might have limited the time served to 32 years.
When asked why he changed his mind during jury selection and decided to plead, Easterwood stated that he believed he could be sentenced to as much as 49 years as opposed to the offered 20 years. He admitted that the “the state’s evidence was pretty strong. And I — I figured that I was going to get convicted of felony murder as well — regardless of the defense —.” He admitted that while Foster recommended the plea, Foster did not coerce him in any manner. Easterwood admitted that he made the decision that day to accept the plea.
The court questioned Easterwood’s appointed counsel as to whether Easterwood understood the risk that if his requested relief was granted and all the charges were placed back against him and he was allowed to go to trial that he could be sentenced to a longer term than what he had already been sentenced to. Counsel stated that had been explained to Easterwood several times and that he was willing to take that risk. Easterwood confirmed this statement.
In ruling on the K.S.A. 60-1507 motion, the court stated there was a very strong factual statement to support guilty findings on the charges of aggravated robbery and kidnapping of six people. As to the charge of felony murder, the defense that both felons were trying to surrender might have been an arguable point to the jury but was not a legal defense upon which the court could direct a verdict. The court did mention that “there’s probably a strong likelihood that — that a jury would convict [Easterwood]” on the charge of felony murder.
The court found that Easterwood had ample time to consider the plea, that it was properly agreed to, that the trial court and his counsel had told Easterwood he was possibly facing a longer sentence than under the plea agreement, and that Easterwood knowingly elected to “take the plea.”
The court found that counsel’s stating the sentence could have exceeded 40 years was not ineffective assistance, even though the court believed the minimum sentence would have been 32 years if run consecutively. The court found that Easterwood determined on his own to accept the plea agreement rather than submit his defense to the jury. The court said:
“You had the right to do so. You elected not to do it, and you elected not to do it when you knew what the possible sentences were that were — going to be recommended; and for that reason, I am going to deny your petition at this time.”
A journal entiy of this order was filed October 4, 2000, and a notice of appeal was filed on October 13, 2000.
Easterwood’s 60-1507 court-appointed counsel was allowed to withdraw and the appellate defender’s office was appointed to take the appeal. The issues for appeal are tiróse raised by the 60-1507 motion, the evidence presented at the hearing, and the rulings of the trial judge.
The issues changed shortly thereafter because on March 9,2001, this court filed its opinions in State v. Sophophone 270 Kan. 703, 19 P.3d 70 (2001), and State v. Murphy, 270 Kan. 804, 19 P.3d 80 (2001). The facts in Sophophone were almost identical to Easter- wood’s situation, with the exception that Sophophone had been in custody for some time when his co-felon was killed by the lawful act of a police officer returning fire. Easterwood was in the process of fleeing from the aggravated robbery when his co-felon Branch was shot. This was a factual difference, but the deaths in both cases resulted from the lawful act of a law enforcement officer. Our precise holding in Sophophone was:
“A felon may not be convicted of felony murder pursuant to K.S.A. 21-3401(b) for the killing of his co-felon, caused not by his acts or actions but by the lawful acts of a law enforcement officer acting in self-defense in the course and scope of his duties in apprehending the co-felon, who was fleeing from an aggravated burglary in which both felons had participated.” 270 Kan. 703, Syl. ¶ 6.
The decision in Murphy was similar, but there the death of the co-felon resulted from returned gunfire of a victim, not from the actions of a law enforcement officer. We held:
“[A] felon may not be-convicted of felony murder pursuant to K.S.A. 21-3401(b) for the killing of his co-felon caused not by his acts or actions but by the lawful acts of a victim of aggravated robbery and kidnapping acting in self-defense for the protection of his residence and the occupants thereof.” 270 Kan. 804, Syl. ¶ 2.
There was a strong dissent in the Sophophone case by Justice Abbott, which was joined by Chief Justice McFarland and Justice Davis. The same three justices dissented in the Murphy case.
The majority’s reasoning adopted the agency approach rather than the proximate cause line of eases and construed the felony-murder statute strictly in favor of the accused. It distinguished and held that its ruling was not inconsistent with State v. Hoang, 243 Kan. 40, 755 P.2d 7 (1988) (the case obviously referred to in attorney Foster’s testimony, where Justice Lockett dissented and two other justices joined), or State v. Lamae, 268 Kan. 544, 998 P.2d 106 (2000).
The Sophophone dissent argued that the acts should constitute felony murder — a result dictated by following Hoang, that the statutory language of K.S.A. 21-3401 should control, and that the cases cited from other jurisdictions more logically followed the proximate cause approach.
With these decisions now available, Easterwood’s arguments on appeal, when his brief was filed in August 2001, changed and became:
“(1) Under the Kansas Supreme Court’s interpretation of the felony murder statute, Le-Voi D. Easterwood did not commit felony murder, so his conviction should be vacated or his guilly plea withdrawn,
“(2) The trial court erred when it denied Mr. Easterwood’s motion to withdraw his plea because the record did not establish a factual basis for a plea of guilty to felony murder,
“(3) The trial court erred when it denied Mr. Easterwood’s motion to withdraw his plea because Mr'. Easterwood was misinformed abut the possible penalties he faced.”
Diligent appellate counsel now argue that the Sophophone and Murphy decisions must be applied retroactively to allow Easter-wood to attack his conviction on collateral review because of the decision of the United States Supreme Court in Bousley v. United States, 523 U.S. 614, 140 L. Ed. 2d 828, 118 S. Ct. 1604 (1998). In Bousley, the defendant, who was convicted of using a firearm under 18 U.S.C. § 924(c) (1988), was allowed to challenge that conviction in a collateral proceeding as the result of the Court’s ruling in Bailey v. United States, 516 U.S. 137, 144, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995), which construed 18 U.S.C. §924(c)(l) in a manner which might have had the effect of not covering Boust ley’s actions.
The State argues that Easterwood’s plea of guilty was valid because at the time it was made, Hoang would logically be interpreted to justify Easterwood’s felony-murder conviction; language; in State v. Branch & Bussey, 223 Kan. 381, 383-84, 573 P.2d 1041 (1978), pointed to a rule that felony murder existed if the participants could “reasonably foresee or expect that a life might be taken”; Easterwood received a beneficial plea agreement with a lesser sentence than he might otherwise have received; and Kansas has recognized that a court can accept a plea in which the evidence does not support the charge, citing State v Reed, 254 Kan. 52, 865 P.2d 191 (1993). The State further argues these issues were not properly raised in the trial court and may not be raised for the first time on appeal. Finally, the State argues the transcript of the plea hearing clearly shows that Easterwood was fully apprised of the maximum sentences that might be entered for the crimes for which he was charged.
We initially consider the State’s argument that the primary issue on which Easterwood now relies was not presented to the trial court and may not be considered for the first time on appeal. See State v. Ninci, 262 Kan. 21, Syl. ¶ 8, 936 P.2d 1364 (1997). We stated in State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998), that there are three exceptions to this general rule in cases where:
“(1) the newly asserted theory involves only a question of law arising on proved or admitted facts which is finally determinative of the case; (2) questions are raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of a trial court may be upheld on appeal although that court may have relied on the wrong ground or assigned a wrong reason for its decision. State v. Bell, 258 Kan. 123, 126, 899 P.2d 1000 (1995); see Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. ¶ 3, 434 P.2d 858 (1967).”
Because the Sophophone and Murphy decisions were not filed until after Easterwood’s 60-1507 hearing was held, the issues were admittedly not raised below. But, Easterwood has raised contentions of denial of his fundamental rights, the facts surrounding the plea agreement and the reasons therefore were fully developed below, and questions of law appear to exist which will be finally determinative of this case. No good reason appears to us to not consider and resolve the issues that have been raised on appeal, despite the fact that all were not considered by the trial court.
Our standard of review of the trial court’s findings of fact is to determine if they are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999). Our review of conclusions of law is unlimited. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
As to questions involving alleged ineffective assistance of counsel, the performance and prejudice prongs are mixed questions of law and fact requiring de novo review. State v Sperry, 267 Kan. 287, 297, 978 P.2d 933 (1999). See Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting the holdings of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 [1984]). The appropriate standard of review on the question of whether a plea after sentencing should be allowed to be withdrawn “to correct manifest injustice,” see K.S.A. 2001 Supp. 22-3210(d), is whether the trial court abused its discretion. State v. Shears, 260 Kan. 823, 829, 925 P.2d 1136 (1996).
We begin our analysis of the issues raised by providing a bit of historical background on how courts have applied civil decisions involving criminal issues retroactively, by noting that K.S.A. 60-1507 proceedings were held in State v. Richardson, 194 Kan. 471, 472-73, 399 P.2d 799 (1965), to be a civil action (citing Heflin v. United States, 358 U.S. 415, 3 L. Ed. 2d 407, 79 S. Ct. 451 [1959]). Richardson teaches that K.S.A. 60-1507 follows the language of a federal statute, see 28 U.S.C. § 2255 (1994), and the body of law developed thereunder should be given great weight in construing K.S.A. 60-1507. 194 Kan. at 472. This is important in Easterwood’s appeal, as it is clearly before us on collateral review involving what we believe is a new decision of substantive criminal law which Easterwood declined to challenge when he had the opportunity to do so.
It is also important to point out that the appeal we face does not involve a constitutional rule of criminal procedure, such as this court recently faced in Whisler v. State, 272 Kan. 864, 36 P.3d 290 (2001), and earlier in State v. Neer, 247 Kan. 137, 795 P.2d 362 (1990). The Whisler opinion involved the question of whether Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), which our court followed in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), was required to be applied retroactively. Justice Allegrucci, speaking for our unanimous court, reviewed Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), which held a new rule of constitutional criminal procedure is not to be applied retroactively on collateral review unless (1) it places certain kinds of primary, private individual conduct beyond the power of the criminal law — making authority to proscribe, or (2) it is a watershed requiring the observance of those procedures that are implicit in the concept of ordered liberty. Whisler, 272 Kan. 864, Syl. ¶ 1. Our opinion in Neer, which we will discuss in detail later, had previously recognized and applied Teague shortly after it was decided. See 247 Kan. at 141-43. The reasoning and decisions behind this now-existing rule involving constitutional rules of criminal procedures are set out in Tribe, American Constitutional Law, § 3-3, pp, 227-35 (3d ed. 2001); 1 LaFave, Israel, and King, Criminal Procedure, § 2.10, pp. 684-702 (2d ed. 1999).
While the foregoing rules apply to situations involving procedural rules, a different rule applies where substantive law is in issue. “[A]s related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefore; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is tried and punished.” State v. Nunn, 244 Kan. 207, Syl. ¶ 9, 768 P.2d 268 (1989); State v. Hutchinson, 228 Kan. 279, Syl. ¶ 8, 615 P.2d 138 (1980). The most common situation where this distinction is in issue relates to statutory changes. See, e.g., State v. Moon, 15 Kan. App. 2d 4, Syl. ¶ 3, 801 P.2d 59 (1990), rev. denied 248 Kan. 998 (1991), where the court stated the general rule that “a statute operates prospectively unless its language clearly indicates a contrary legislative intent. The general rule is modified and the statute is given retroactive effect where the statutory language is merely procedural or remedial in nature.”
When an appellate court issues a new rule relating to whether the death of a co-felon at the hands of a lawful act of a law enforcement officer during the commission of an aggravated robbeiy subjects the surviving co-felon to prosecution for felony murder, that rule involves a question of substantive law and must be so treated in considering its retroactive effect.
Several recent decisions of the United States Supreme Court discuss the precise issue we face: collateral review as to the retro-activity of a decision in one case on the outcome of others. 6 LaFave, Israel, and King, Criminal Procedure § 28.9, p. 133 (2d ed. 1999), after discussing Teague under 28 U.S.C. § 2255, states:
“Even if claims of error based upon new procedural rulings may be Teaguebarred, claims based on new substantive rulings are not. Specifically, a court may not refuse to hear an applicant’s claim that he is entitled to the benefit of a decision the Supreme Court, delivered following his conviction, that the federal criminal statute under which he was convicted does not reach his conduct. In Bousley v. United States, the Court considered whether Teague should be applied to bar relief under § 2255 for a prisoner who, relying on a decision of the Supreme Court holding that the crime he was charged with violating did not reach his conduct, claimed that he was misinformed about the elements of his offense, and as a result, pleaded guilty to a crime he did not commit. The Court rejected the application of Teague to this issue of ‘substance’ rather than procedure, and concluded that ‘it would be inconsistent with the doctrinal underpinnings of habeas review to preclude petitioner from relying on our decision * * 0 in support of his claims that his guilty plea was constitutionally invalid.’ ” (Emphasis added.)
With Bousley now being the centerpiece of Easterwood’s arguments and his contention that his circumstances fit under its decision, we examine Bousley in more detail. Bousley pled guilty to “knowingly and intentionally us[ing] . . . firearms during and in relation to a drug trafficking crime” in violation of 18 U.S.C. § 924(c). He did not directly appeal the validity of his guilty plea. Several years later, he challenged the factual basis of his plea in a habeas corpus (28 U.S.C. § 2255) motion. The federal district court found the factual basis to be sufficient because at the time of the crime, there were guns in the defendant’s bedroom in close proximity to the illegal drugs. The trial court denied the motion, but during the pendency of defendant’s appeal, a United States Supreme Court decision was rendered that clarified the phrase “use . . . firearms” to mean “active employment of the firearm.” Bailey v. United States, 516 U.S. at 144. Mere placement of a firearm next to drugs was not enough. 516 U.S. at 149. Bousley argued that Bailey should be applied retroactively; however, the Eight Circuit Court of Appeals refused to do so and affirmed the district court. Bousley v. Brooks, 97 F.3d 284, (8th Cir. 1996).
The Supreme Court reversed and remanded. Bousley v. United States, 523 U.S. at 618, 624. The Court first recited the well-accepted rule that “[a] plea of guilty is constitutionally valid only to the extent it is Voluntary’ and ‘intelligent.’ Brady v. United States, 397 U.S. 742, 748[, 25 L. Ed. 2d 747, 90 S. Ct. 1463] (1970).” 523 U.S. at 618. The Court refused to limit the retroactive application of Bailey, and set forth the following test for determining whether defendant’s plea was valid:
“Petitioner nonetheless maintains that his guilty plea was unintelligent because the District Court subsequently misinformed him as to the elements of a § 924(c)(1) offense. In other words, petitioner contends that the record reveals that neither he, nor his counsel, nor tire court correctly understood the essential elements of the crime with which he was charged. Were this contention proven, petitioner’s plea would be, contrary to the view expressed by tire Court of Appeals, constitutionally invalid.” (Emphasis added.) 523 U.S. 618-19.
The Bousley opinion explained the justification and necessity of applying Bailey even on collateral review, distinguished Teague as applying only to procedural rules, and stated:
“By contrast, decisions of this Court holding that a substantive federal criminal statute does not reach certain conduct, like decisions placing conduct ‘ “beyond the power of the criminal lawmaking authority to proscribe,’ ” [Teague] at 311 (quoting Mackey [v. United States, 401 U.S. 667,] 692[, 28 L. Ed. 2d 404, 91 S. Ct. 1160]), necessarily carry a significant risk that a defendant stands convicted of ‘an act that the law does not make criminal.’ Davis v. United States, 417 U.S. 333, 346[, 41 L. Ed. 2d 109, 94 S. Ct. 2298] (1974).” 523 U.S. at 620.
The Court then stated that because only Congress and not the courts can make conduct criminal, “[ajccordingly, it would be inconsistent with the doctrinal underpinnings of habeas review to preclude petitioner from relying on our decision in Bailey in support of his claim that his guilty plea was constitutionally invalid.” 523 U.S. 620-21.
Bousley continued with a procedural discussion relating to limitations on allowing collateral attacks where pleas were voluntarily made and not challenged on direct appeal (which neither Bousley nor Easterwood did). The desirability of finality was stated to have “ 'special force with respect to convictions based on guilty pleas.’ United States v. Timmreck, 441 U.S. 780, 784, 60 L. Ed. 2d 634, 99 S. Ct. 2085 (1979).” 523 U.S. at 621.
Finally, the Bousley opinion stated that the failure to raise the issue on direct appeal allowed it only to be raised on habeas where there is “cause,” actual “prejudice,” or that he is “actually innocent.” 523 U.S. at 622. Bousley attempted explanations for his default was deemed insufficient, but his case was remanded to permit him to attempt to make a showing of “actual innocence,” not mere legal insufficiency, with this direction:
“See Sawyer v. Whitley, 505 U.S. 333, 339, 120 L. Ed. 2d 269, 112 S. Ct. 2514 (1992). In other words, the Government is not limited to the existing record to rebut any showing that petitioner might make. Rather, on remand, the Government should be permitted to present any admissible evidence of petitioner s guilt even if that evidence was not presented during petitioner’s plea colloquy and would not normally have been offered before our decision in Bailey. In cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.” 523 U.S. at 624.
We have no Kansas decisions applying Bousley but, as we have previously stated in citing Richardson, the reliance on 28 U.S.C. § 2255 in enacting K.S.A. 60-1507 would appear to require us to give great weight to Bousley. See Coffman, Habeas Corpus in Kansas: The Great Writ Affords Postconviction Relief at KS. A. 60-1507, 67 J.K.B.A. 16, 17 (1998). Bousley has been applied several times by the Tenth Circuit Court of Appeals, but so far only in the context of 18 U.S.C. 924(c). See, e.g., United States v. Leopard, 170 F.3d 1013, 1016 (10th Cir. 1999); United States v. Powell, 159 F.3d 500, 501-02 (10th Cir. 1998).
A split appears to already exist between the circuit courts on that portion of the Bousley opinion relating to the necessity of showing actual innocence of more serious charges which the government has forgone in the course of plea bargaining. See Latorre v. United States, 193 F.3d 1035 (8th Cir. 1999). There is a disagreement whether a “more serious charge” is measured by the statutory maximum or by the recommended sentence under sentencing guidelines. Compare the majority and dissenting opinion in United States v. Halter, 217 F.3d 551 (8th Cir. 2000). See King and Klein, Aprs Apprendi, 12 Fed. Sent. Rep. 331, 342 n.50 (2000).
Easterwood argues that his guilty plea was not constitutionally knowingly entered. The United States Supreme Court recently held that an accused’s Pennsylvania state court conviction violated due process when he was convicted of violating a state statute prohibiting the operation of a hazardous waste facility without a permit when the State ultimately conceded that the accused in fact had a permit. Fiore v. White, 531 U.S. 225, 148 L. Ed. 2d 629, 121 S. Ct. 712 (2001).
The facts of Fiore differ from ours (as do Bousley’s), but the underpinning of its decision appears to rest on whether a Pennsylvania Supreme Court interpretation announced a “new rule of law” or merely clarified the plain language of the statute. The Fiore case is summarized as follows: Fiore was convicted of violating a Pennsylvania statute which prohibited the operation of a hazardous waste facility without a permit. The State conceded that Fiore in fact had a permit, but argued that Fiore had deviated so dramatically from the permit’s terms that he nonetheless had violated the statute. Fiore’s conviction became final in 1990 after further review was declined. However, in 1993, the Pennsylvania Supreme Court reversed the conviction of a codefendant for the same crime. The court interpreted the state statute for the first time and said that a person who deviated from a permit’s terms was not a person without a permit and, hence, did not violate the statute. See Com. v. Scarpone, 535 Pa. 273, 634 A.2d 1109 (1993).
Fiore then sought collateral relief in the Pennsylvania state courts. When he was again unsuccessful, he brought a habeas corpus action in federal district court, which granted the writ. However, the United States Court of Appeals for the Third Circuit reversed, expressing the view that the Pennsylvania Supreme Court’s 1993 decision had announced a new rule of law and the state courts were under federal constitutional obligation to apply their own decisions retroactively. See Fiore v. White, 149 F.3d 221 (3d Cir. 1998). The United States Supreme Court then granted certiorari to determine whether the accused’s conviction was inconsistent with the Due Process Clause of the Fourteenth Amendment to the United States Constitution and certified to the Pennsylvania Supreme Court the question whether that court’s 1993 interpretation of the statute stated the correct interpretation of Pennsylvania law at the date when the accused’s conviction became final.
The United States Supreme Court’s Fiore opinion was per curiam and unanimous. It was centered on the reply of the Pennsylvania Supreme Court to the certified question as to the interpre tation of state law in Scarpone, 535 Pa. at 279, which replied that “ ‘Scarpone did not announce a new rule of law. Our ruling merely clarified the plain language of the statute.’ ” 531 U.S. at 228. The Fiore court then stated:
“Because Scarpone was not new law, this case presents no issue of retroactivity. Rather, the question is simply whether Pennsylvania can, consistently with the Federal Due Process Clause, convict Fiore for conduct that its criminal statute, as properly interpreted, does not prohibit.
“This Court’s precedents make clear that Fiore’s conviction and continued incarceration on this charge violate due process. We have held that the Due Process Clause of the Fourteenth Amendment forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt. See Jackson [v. Virginia, 443 U.S. 307,] 316[, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979)]; In re Winship, 397 U.S. 358, 364[, 25 L. Ed. 2d 368, 90 S. Ct. 1068] (1970). In this case, failure to possess a permit in a basic element of die crime of which Fiore was convicted. Scarpone, supra, at 279, 634 A.2d, at 1112. And the parties agree that the Commonwealth presented no evidence whatsoever to prove that basic element. To the contrary, the Commonwealth, conceding that Fiore did possess a permit, see Brief for Respondents 1, necessarily concedes that it did not prove he failed to possess one.
“The simple, inevitable conclusion is that Fiore’s conviction fails to satisfy the Federal Constitution’s demands. We therefore reverse the contrary judgment of the Third Circuit and remand this case for proceedings consistent with this opinion.” 531 U.S. at 229.
It is interesting that the Supreme Court opinion did not disapprove of or comment on any of the following language of Judge Alito’s Third Circuit Court of Appeals’ Fiore opinion:
“The district court held, and Fiore maintains on appeal, that the Due Process and Equal Protection Clauses of the Fourteenth Amendment require retroactive application of Scarpone. This conclusion, however, is at odds with the Supreme Court’s longstanding position that ‘the federal constitution has no voice upon the subject’ of retroactivity. Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 77 L. Ed. 360 (1932). See Solem v. Stumes, 465 U.S. 638, 642, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984); United States v. Johnson, 457 U.S. 537, 542, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). While the Court has concluded that some federal criminal decisions should apply retroactively, see Davis v. United States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); United States v. United States Coin & Currency, 401 U.S. 715, 724, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), it has made clear that state courts are under no constitutional obligation to apply their own criminal decisions retroactively. Wainwright v. Stone, 414 U.S. 21, 23-24, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973). Thus, just as the Supreme Court has fashioned retroactivity rules for the federal courts based on principles of judicial integrity, fairness, and finality, see Teague v. Lane, 489 U.S. 288, 304-310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the state courts are free to adopt their own retroactivity rules after independent consideration of diese and other relevant principles. As the Supreme Court explained in Sunburst Oil:
‘A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward . . . The alternative is the same whether the subject of the new decision is common law or statute. The choice for any state may be determined by the juristic philosophy of the judges of her courts, their conceptions of law, its origin and nature. We review not the wisdom of their philosophies, but the legality of their acts. . . . [W]e are not at liberty, for anything contained in the constitution of the United States, to thrust upon those courts a different conception of the binding force of precedent or of the meaning of judicial process.’ 287 U.S. at 364-66, 53 S.Ct. 145 (emphasis added) (citations omitted).” 149 F.3d at 224-25.
Nor was there any mention in the Supreme Court’s Fiore opinion of Bousley, which the Circuit Court’s Fiore opinion had made note of in footnote 4, as follows:
“In holding that the Davis retroactivity rule is not required by the Due Process Clause, we join two other circuits. See Young v. United States, 124 F.3d 794, 799 (7th Cir.1997); Brennan v. United States, 867 F.2d 111, 121 (2d Cir.1989).
‘We note that the Supreme Court recently reaffirmed Davis in Bousley v. United States, [523] U.S. [614, 620], 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828 (1998). Bousley involved a federal prisoner who filed a motion under 28 U.S.C. § 2255 seeking retroactive application of the Supreme Court’s interpretation of 18 U.S.C. §924(c)(1) in Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The Bousley Court held that Bailey’s interpretation of § 924(c)(1) was fully retroactive, explaining that ‘under our federal system it is only Congress, and not the courts, which can make conduct criminal.’ Bousley, [523] U.S. at [620-21], 118 S.Ct. at 1610. See also id. at 1612 (Stevens, J., concurring) (Bailey ‘did not change the law. It merely explained what § 924(c) had meant ever since the statute had been enacted.’). Because the Bousley decision rested on the Supreme Court’s understanding of the balance of power in the federal system, it differs critically from the current case, which involves a state court’s refusal to give retroactive effect to a judicial interpretation of a state statute.” 149 F.3d at 226.
The result of tire United States Supreme Court’s Fiore decision is compelling, as Fiore had challenged his conviction in every manner possible, as did his codefendant. The reasoning appears to be primarily based on the answer to the certified question and the fact the absence of a permit was a clear element of the crime.
The Ohio Supreme Court in Agee v. Russell, 92 Ohio St. 3d 540, 543-44, 751 N.E.2d 1043 (2001), mentioned both Bousley and Fiore but held it had no retroactively issue because it did not announce a new rule of law in a related case but rather what the statute in issue had meant since its enactment. The court relied on other grounds to affirm Agee’s conviction.
We do have several Kansas cases which must be considered. In Alires v. State, 21 Kan. App. 2d 676, 906 P.2d 172 (1995), the petitioner attempted to challenge the propriety of a potentially race-based peremptory strike of a minority juror. Subsequent to Alires’ conviction and expiration of his appeals, the decision of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), was expanded in Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991), to prohibit striking minority jurors who were a different race or ethnicity than the accused. The Court of Appeals first agreed that “an intervening change in the law between the time of direct appeal and a collateral attack can excuse the failure to raise a constitutional question on direct appeal. Lassley v. State, 2 Kan. App.2d 158, 159, 576 P.2d 1094, rev. denied 225 Kan. 844 (1978).” Alires, 21 Kan. App. 2d at 677. The court found that Powers constituted a significant departure from prior case law and, therefore, permitted Alires’ argument to be considered under that exception even though not raised below. The court then considered “whether the holding in Powers ought to be applied retroactively.” 21 Kan. App. 2d at 678. The court quickly dismissed application of the rule in Powers based on this court’s holding in State v. Neer, 247 Kan. 137, Syl. ¶ 3, 795 P.2d 362 (1990): “ ‘A new constitutional rule of criminal procedure generally will not be applied retroactively to cases on collateral review.’ ” Alires, 21 Kan. App. 2d at 679.
We have previously mentioned Neer, but now consider it in more detail, for it directly relates to our history as to retroactivity. In Neer, we considered the Teague decision, which had then recently been filed. Neer was convicted of two counts of aggravated sodomy. Like Easterwood, he did not challenge the sufficiency of the evidence on direct appeal. After his appeal time had expired, he moved to modify his sentence. That motion was denied, but during the pendency of that appeal, State v. Moppin, 245 Kan. 639, 783 P.2d 878 (1989), was decided. In Moppin, we determined that cunnilingus was not included in the statutory definition of criminal sodomy under K.S.A. 21-3501(2). On appeal, Neer claimed that under this standard the evidence in his case was insufficient to support his convictions of aggravated criminal sodomy.
Neer conceded that he did not raise the issue in the lower court, but he claimed that as a matter of fundamental fairness, under Teague, he should be permitted to raise the issue. Justice Lockett, speaking for our unanimous court, performed a thorough analysis of Teague, stated the standard for reaching the two exceptions was high, and found that Neer’s claim met neither. We held that Neer’s claim failed because he did not challenge the sufficiency of the evidence on his direct appeal. 247 Kan. at 143-44.
Analyzing Neer in the concept of this appeal is instructive. We did not limit the scope of Teague to new rules of criminal procedure, although the issue in Neer clearly related to the interpretation of a substantive criminal law statute. The proper construction of Neer is that a prior conviction of felony murder could not be challenged for sufficiency of evidence using the Sophophone standard unless Easterwood had raised the issue on direct appeal or made either of the two showings of the exceptions set forth in Teague. This analysis would justify a refusal to apply Sophophone retroactively. However, Neer did not contain a discussion of the difference between procedural rules and substantive decisions in the arena of collateral attacks.
We have discussed in detail the claims Easterwood has made and the ramifications thereof. We must also consider the State’s arguments, although its response to Easterwood’s Bousley argument was limited to “don’t consider it for it was not raised to the trial court.”
The most convincing argument that is made for the State’s contentions was highlighted by attorney James Foster’s testimony at the K.S.A. 60-1507 hearing, which we have previously set forth in detail. There was a great risk of the applicability of felony murder to the facts of the case, which would have been the centerpiece of the trial and appeal. The parties clearly knew about Hoang. And, it undoubtedly appeared likely that, on appeal; the same majority which had found those facts to constitute felony murder in Hoang, would likewise find Easterwood’s actions to have been the proximate cause of the death of Birch.
Easterwood ultimately was unwilling to gamble on the outcome of a jury trial, a sentencing before a judge who would not have been impressed with his alleged statement about killing all of the witnesses, and the additional challenge of obtaining a favorable result from an appellate court. Easterwood took.the safer, more conservative approach and entered into a plea agreement, a contract between himself and the State, whereby he received the dismissal of five counts of kidnapping as well as all other criminal charges pending against him or that could be filed.
Easterwood clearly knew the sentencing judge did not have to follow the recommendation as to the sentencing, but we now know that such agreement was followed and became the sentence in this case.
Arguments that a plea agreement is violated most often come before us on a defendant’s claim that the State failed to live up to its obligations as to the sentence recommendations. See, e.g., State v. Willis, 244 Kan. 62, 64-70, 765 P.2d 1114 (1988). The Willis opinion cites cases which state that “a plea agreement is, in law, just another contract” and that the parties are free to contract subject to the same legal principles that apply in a commercial law setting but once the defendant enters into a plea of guilty, due process mandates the State perform as it promised. 244 Kan. at 67-68. The plea agreement was fully followed. The State performed exactly as it promised. Easterwood received the exact sentence he expected.
It is troubling to believe the result in this case should turn on whether Easterwood pled guilty to a nonexistent crime as he now contends. At the time of his plea agreement, his competent counsel clearly told him felony murder might or might not fit the facts of his case. This was the precise issue he chose to waive, to ignore, or whatever one might call his action, in order to obtain what he believed to be a favorable plea agreement. This appears to be consistent with North Carolina v. Alford, 400 U.S. 25, 38, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970), where the United States Supreme Court ruled that it was constitutionally permissible to accept a guilty plea from a defendant who claimed to be innocent if there was a “strong factual basis for the plea.” See, Barbara, Kansas Criminal Law § 9.18 (1997).
In State v. Reed, 254 Kan. 52, 865 P.2d 191 (1993), after probation was revoked, the defendant contended the court lacked jurisdiction to accept her plea because she was illegally charged under the generaltheft statute, K.S.A. 21-3701, instead of the welfare fraud statute, K.S.A. 39-720. In rejecting this contention, we stated:
“Reed was represented by counsel. She understood the nature of the charges, tlie effect of the guilty plea, and the sentence that could be imposed. The fact that the evidence does not support the charge to which the defendant pled guilty does not require that the plea later be vacated.” 254 Kan. at 59.
The Reed decision was not cited by the Court of Appeals in Spencer v. State, 24 Kan. App. 2d 125, 942 P.2d 646 (1997), aff'd on other grounds 264 Kan. 4, 954 P.2d 1088 (1998), where it was held that a party may plead guilty to a nonexistence crime if knowingly doing so in order to obtain a beneficial plea agreement. The Court of Appeals’ Spencer opinion further held that if a defendant enters into a plea agreement voluntarily and intelligently, he or she forfeits the right to attack the underlying infirmity in the charge to which he or she pled. 24 Kan. App. 2d at 129. Easterwood argues in his reply brief that the complaint against him failed to allege an essential element of felony murder.
The New York and Delaware cases relied upon by the Court of Appeals in Spencer appear to support its opinion, although there are also arguments that such a plea is jurisdictionally defective. We did not consider the issue when we granted Spencer’s petition for review, as we found that the crime the Court of Appeals had deemed to be nonexistent did in fact exist and affirmed on that basis. See 264 Kan. at 5-6, 8.
Felony murder clearly existed when Easterwood pled. A death had occurred during a covered felony. Easterwood was a primary actor in the aggravated robbery and kidnapping, which was necessary to invoke the felony-murder doctrine. He admitted in his plea colloquy that he .was guilty. He asked the court to accept the plea agreement. He failed to appeal or challenge the court’s acceptance of his plea. We will not now retroactively decide that his plea is void because of a later favorable ruling on the precise issue he voluntarily declined to challenge.
We hold that Sophophone should not be retroactively applied as a matter of public policy under all the facts of this case. Our facts are totally different from Bousley, and we hold that Bousley does not require relief under K.S.A. 60-1507 to be granted to Easter-wood.
Likewise, the holding of Fiore is not applicable here because Fiore challenged his conviction at every level and it was only when his codefendant received relief that the finding of a due process violation could be justified. This is not the case under our facts. Further, our Sophophone holding was a new decision and rule of law and not a clarification of the plain language of the felony-murder statute. Fiore does not require that Easterwood’s conviction violate federal constitutional demands.
There clearly was a factual basis for the trial court to accept Easterwood’s plea. K.S.A. 22-3210(a)(4) was not violated. Easter-wood may not invite error to obtain a favorable plea bargain and subsequendy benefit from such an invitation.
The 60-1507 court heard sufficient evidence from attorney Foster’s testimony to uphold the trial court’s findings that Easterwood was sufficiently advised of the potential penalties that he faced at the time of his plea. The holding of State v. Solomon, 257 Kan. 212, 223, 891 P.2d 402 (1995), that “[djefense counsel has the obligation to advise a defendant as to the range of permissible penalties and to discuss the possible choices available to the defendant” was clearly not violated.
The 60-1507 court properly found that Easterwood did not receive ineffective assistance of counsel. The record reflects attorney Foster properly and competently represented Easterwood at all times. Easterwood knowingly decided to take advantage of the favorable plea agreement. He was not coerced or pushed into doing so. He made the best of what was not a good situation that had every possibility of becoming much worse.
For all the reasons we have discussed, we affirm all of the rulings of the district court and deny the additional contentions made by Easterwood on appeal.
Affirmed.
Davis, J., not participating.
Brazil, S.J., assigned. | [
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The opinion of the court was delivered by
McFarland, C.J.:
Milda Sandstrom, a/k/a Jo M. Jackson, appeals from the district court’s denial of her petition to expunge her 1977 first-degree murder conviction.
THE CRIME
In 1977 Sandstrom was convicted of the first-degree murder of her husband. The basic facts were summarized in the opinion affirming her conviction as follows:
“The factual circumstances surrounding the homicide are not directly involved in the appeal and need not be stated in great detail. Suffice it to say, the evidence presented in the case was undisputed that the defendant and her husband, Thad M. Sandstrom, had an unsatisfactory and rather stormy marriage for several'years. Mr. Sandstrom decided to file suit for divorce and did so while the defendant was visiting friends in Oklahoma. The defendant, receiving notice of the suit, returned to Topeka. While en route she purchased a .32-caliber pistol and ammunition at Paul’s Valley, Oklahoma. When she returned to her home in Topeka, she entered the house and shot her husband while he was in bed. At the time of the trial, the evidence was undisputed that the defendant had shot and killed her husband. The only defense presented to the charge was that the defendant was legally insane at the time the homicide occurred. The issue of the defendant’s sanity was hotly contested. The jury rejected the defense of insanity and found the defendant guilty of murder in the first degree. The defendant was sentenced to life imprisonment.” State v. Sandstrom, 225 Kan. 717, 718, 595 P.2d 324 (1979).
EXPUNGEMENT HEARING
Sandstrom called six witnesses plus herself. The State called no witnesses and cross-examined only Sandstrom. The State filed a written argument against expungement. The evidence maybe summarized as follows. Sandstrom was 53 years old at the time she killed her husband. While in prison, Sandstrom established herself as a model prisoner who resided on the honor floor. She occupied various positions of trust. Her work included audio recording of books for the blind, the prison inmate rule book, and various vocational books. She worked outside the walls at times and organized the prison law library. Sandstrom served 15 years of her life sentence and was paroled in 1992.
After her release from prison, Sandstrom moved to Arizona where she lived and gained employment with the assistance of friends she had met through her prison activities. Between 1992 and 2000, under the new name of Jo Jackson, Sandstrom worked at six increasingly responsible jobs. Sandstrom is a Marine Corps veteran with a master’s degree. While living in Arizona, she has engaged in many volunteer activities. Clearly Sandstrom has done very well for an individual leaving prison destitute at age 68 after serving 15 years. She is now 78 years of age and is seeking expungement of her murder conviction.
Sandstrom testified her conviction has caused her difficulty in renting apartments and in securing a bonded job. She has passed an examination to become a substance abuse counselor, but her conviction precludes board certification. On a personal level she is seeking expungement for her own self respect and the respect of her friends and supporters.
The State called no witnesses at trial. In its written response to the petition filed in connection with the hearing the State argued, inter alia-.
“The memory of this community will never be shed of the remembrance of Thad Sandstrom and his wife Milda. His public life, his death, her trial, and her release on parole 15 years later are not matters which will be erased from memory. No amount of judicial creativity or legislative license will eradicate that. The crime, conviction, sentence and parole are parts of the recent history of Topeka and its denizens. Both the victim and the Petitioner were highly visible public figures whose living and dying occurred on the Ten O’clock News for all to see. The figures in this case were larger than fife. Thad Sandstrom was a molder and shaper of public opinion, a civic leader with a wide audience, a man whom Governors called friend. The Petitioner was an active Topekan whose position was not merely a reflection of her husband but one created and fostered independently by her own thoughts and deeds. The fife and death of Thad Sandstrom have their analog in Greek tragedy. Even the gods on high have their frailties and must suffer their own fates irrespective of the heights they have achieved. And like Greek tragedy, the facts of the Sandstrom homicide will survive time and expungement.”
APPLICABLE STATUTE
The parties have stipulated that the applicable form of the expungement statute is K.S.A. 1977 Supp. 21-4617, which provides:
“Every offender who was twenty-one (21) years of age or older at the time of the commission of the crime for which he or she was [convicted] and who has served the sentence imposed or who has fulfilled the conditions of his or her probation, suspension of sentence, conditional release or parole for the entire period thereof, or who shall have been discharged from probation, conditional release or parole prior .to the termination of the period thereof, may petition the court five (5) years after the end of such sentence, the fulfilling of such conditions of probation, suspension of sentence, conditional release or parole or such discharge from probation, conditional release or parole and may request that his or her record be expunged of such conviction if during such five (5) year period such person has exhibited good moral character and has not been convicted of a felony. In considering any such request for expungement, the court shall have access to any records or reports relating to such offender, including records or reports of a confidential nature, on file with the secretary of corrections or the Kansas adult authority.”
The present expungement statute is K.S.A. 2001 Supp. 21-4619. Said statute expressly excludes first-degree murder from consideration for possible expungement, an exclusion not found in the statute before us.
DISTRICT COURT DECISION
The district court’s decision in denying the petition for expungement is set forth, in pertinent part, as follows:
“Although there exists no Kansas case law on point, courts, when deciding whether to grant such a petition, typically employ a balancing test, weighing the benefit the petitioner would gain from expungement against the public’s interests in maintaining the petitioner’s criminal record. See State of Minnesota v. Ambaye, 616 N.W.2d 256 (2000); see also Commonwealth of Pennsylvania v. Butler, 672 A.2d 806 (1996).
“Petitioner first contends expungement would benefit her by allowing her to obtain employment with greater ease. However, ‘[ejmployers, sometimes pursuant to law and sometimes voluntarily, have required background checks in order to “assess any potential risk involved with hiring certain individuals.’ ” Ambaye, 616 N.W.2d at 261. Therefore, ‘the benefit [Petitioner stands] to gain from expungement, if granted, would override the very purpose of the background check.’ In addition, the fact that Petitioner is presently gainfully employed, earning $28,265 annually, further weighs against expungement.
“Petitioner also believes expungement would allow her to gain self-respect. However, the Court is of the opinion that Petitioner’s actions in the community are what will allow her to regain her self-respect. The Court does not have the power, by granting Petitioner’s expungement request, to erase the past and make it as though Petitioner did not commit the crime for which she has been convicted.
“The Court has reviewed the voluminous trial, motion, and sentencing transcripts of the Sandstrom trial. Based upon these documents, the Court has ascertained that Petitioner exerted a lot of thought and time in purchasing the gun and ammunition, and in preparing for the killing. The murder itself was committed in a very surreptitious manner. The American Heritage Dictionary, Second College Edition, Houghton Mifflin Company, defines the term expunge as T. To erase or strike out. 2. To obliterate completely; annihilate . . . .’
“It is undisputed that Petitioner is guilty of the crime of murder in the first degree. In light of this certainty, and in light of the gravity of Petitioner’s crime, the Court finds and concludes that the public’s interest in maintaining Petitioner’s record of murder is exceptionally compelling, and the Court will not grant annulment or expungement of the conviction. Consequently, upon balancing the benefits Petitioner alleges she would gain from expungement against the public’s interest in maintaining Petitioner’s criminal record, the Court concludes that the public’s interests prevail.
“For the reasons set forth above, the Court hereby denies the Petition for Expungement.”
The parties agree the applicable standard of review is that of abuse of discretion. State v. Miller, 214 Kan. 538, Syl. ¶ 2, 520 P.2d 1248 (1974). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991).
ANALYSIS
Sandstrom argues that because of her postconviction exemplary record, she is entitled to have her conviction expunged. The State argues that the district court made a reasoned decision that the public interest in maintaining the record of the murder conviction outweighed the benefits Sandstrom sought to gain from the expungement. Further, the State argues that the district court decision is not arbitrary and, accordingly, must be affirmed.
Both parties rely on Miller, 214 Kan. 538, in support of their respective positions. There is language in Miller which supports each of these opposing views. It is appropriate to spend some time analyzing Miller. The old saying about harsh facts making for bad law finds a home in Miller. The law did not do very well by Miller and our opinion sought to undo some of the harm.
Miller was caught stealing items from construction sites when he was 17 years old. He pled guilty to burglary and grand larceny and was sentenced to 1 to 5 years in the reformatory. The court suspended execution of his sentence and placed Miller on probation. When his fiancee became pregnant, Miller and his mother approached his probation officer for permission for Miller to get married. Instead of receiving the requested permission, proceedings commenced to revoke Miller s probation for the sole reason that he had impregnated his fiancee and wanted to many her. After revoking his probation, the court sentenced Miller to serve 1 year in the reformatory. While on parole, Miller demonstrated his ability to be a law-abiding citizen, and his parole officer recommended early release as a reward for Miller s efforts.
At the expungement hearing the foregoing facts were established. Additionally, it was shown Miller had married his fiancee and was a good husband and provided for his family. Miller was shown to have matured into a responsible citizen who was being and would be stigmatized for his youthful conviction. Other than this conviction, Millers record showed one traffic ticket. Despite Miller’s good record, the district court, in denying expungement, seemed to focus on the pregnancy. Without any specific factual findings, the district court held that “the record shows it [the conviction] should not be expunged(Emphasis added.) 214 Kan. 541.
With obvious disapproval of the district court’s actions herein, this court held:
“We hold that the filing of a simple request with supporting evidence to show compliance with the statutory requirements should constitute prima facie entitlement to the annulment of a conviction. Annulment of conviction should be granted unless the court finds some strong affirmative cause to deny it. In other words the norm should be the granting of relief under 21-4616 unless the state shows some good compelling reason not to grant it. The district court might well be justified in denying the relief where the evidence shows that the defendant has some marked propensity toward continuing criminal conduct or that he remains a clear and present danger to the public. Annulment of conviction should not, however, be denied for some frivolous reason.” 214 Kan. at 546.
Clearly the facts in Miller show him to be a poster boy for everything expungement was created to accomplish. The Miller court went on to hold that the record was all in Miller’s favor and supported expungement. The Miller court concluded with a determination that denial of expungement was an arbitraiy act and summarily reversed the district court.
Sandstrom argues she, too, has made the prima facie showing of entitlement to expungement and its denial was arbitrary. The State, on the other hand, points to the fact that the statute in Miller applied only to youthful offenders (under age 21). Syllabus ¶ 1 specifically states:
“K.S.A. 1972 Supp. 21-4616 providing for the annulment of convictions was enacted to reheve youthful offenders from the social and economic stigma resulting from criminal convictions and to offer them an added incentive to conform to social norms and to participate in our society without the added burden of a criminal conviction.”
Miller’s youthful indiscretion is highly distinguishable from the facts herein. Miller, despite its expansive language giving rise to the inference of entitlement, specifically holds:
“Likewise the granting or denial of an application for annulment of a conviction is a judicial function. Such power contemplates a judicial inquiry and the exercise of judicial discretion in the same way that a court exercises its discretion in the granting of probation, in setting conditions of probation, and in deciding whether or not probation should be revoked. The granting or denial of an application for the annulment of a conviction rests within the district court’s sound discretion.” Miller, 214 Kan. at 545.
See also, State v. Underwood 228 Kan. 294, 298, 615 P.2d 153 (1980) (citing same language with approval and holding that annulment is not automatic).
For reasons of vindication, closure, self esteem, ease of employment advancement, and the like, Sandstrom wants her first-degree murder conviction erased. The district court weighed Sandstrom’s claimed benefits against the public’s interest in keeping the conviction on the record. The district court held in favor of the public interest. We find no abuse of discretion in that determination.
The judgment is affirmed. | [
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator against respondent Byron J. Moore, of Wichita, an attorney admitted to the practice of law in the state of Kansas.
The formal complaint filed against the respondent alleges violations of KRPC 1.3 (2001 Kan. Ct. R. Annot. 323) (diligence and promptness); KRPC 1.4 (2001 Kan. Ct. R. Annot. 334) (communication); KRPC 1.15 (2001 Kan. Ct. R. Annot. 376) (safekeeping property); KRPC 1.16 (2001 Kan. Ct. R. Annot. 387) (terminating representation); and KRPC 8.4 (2001 Kan. Ct. R. Annot. 437) (misconduct).
A hearing was held before a panel of the Kansas Board for Discipline of Attorneys on July 17, 2001, in the hearing room of the Disciplinary Administrator. The office of the Disciplinary Administrator appeared by its administrator, Stanton A. Hazlett. The respondent appeared in person pro se.
The answer filed by the respondent admitted the majority of the allegations of the formal complaint. Exhibits were admitted and the Disciplinary Administrator called Bobbi Foss, Wallace R. Johnson, and the respondent to testify as to the merits of the complaint as well as to factors in aggravation and mitigation. After hearing the arguments of counsel, reviewing the exhibits admitted into evidence, and considering the evidence, the panel found by clear and convincing evidence the following:
“FINDINGS OF FACT
“1. Byron J. Moore (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 08175. His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Wichita, Kansas . . . Although the Respondent was admitted to the practice of law in 1973, he did not actively practice law until 1996.
“2. On March 2,1999, the Respondent entered the professional visitation area of the Sedgwick County Adult Detention Facility to meet with Pamela F. Dirks. The Respondent represented to the jail personnel that Ms. Dirks was a client of his, although he was not entered as attorney of record in any pending case at that time. While the Respondent was meeting with Ms. Dirks, a Sedgwick County Deputy checked the visitation room. At that time, the deputy observed that the top part of Ms. Dirks jumpsuit was raised, that the bottom part of her jumpsuit was lowered, and that Ms. Dirks was masturbating. Additionally, the deputy saw that the Respondent was watching Ms. Dirks masturbate.
“3. On April 29,1999, the Respondent was charged in a two count complaint in the Sedgwick County District Court. Count one of the complaint alleged that the Respondent violated K.S.A. 21-3826 (traffic in contraband in a correctional institution), a level 6 nonperson felony. Count two of the complaint alleged that the Respondent violated K.S.A. 21-4301 (promoting obscenity), a class A nonperson misdemeanor.
“4. At the hearing on this matter, the Respondent testified that during the summer months of 1999, he began regularly using cocaine.
“5. On November 4,1999, the Respondent’s criminal case went before a jury. The jury found the Respondent not guilty of trafficking contraband in a correctional institution, but guilty of promoting obscenity. The Respondent was sentenced to serve six months in the county jail. The jail sentence was suspended and the Respondent was placed on probation for twenty-four months.
“6. On December 23,1999, Wallace R. Johnson retained the Respondent to represent Bobbi Foss on charges of driving after having been declared a habitual violator and driving without liability insurance. The Respondent told Mr. Johnson that his attorney fee for the representation would be $750. At that time, Mr. Johnson paid $500 of the fee.
“7. On January 25, 2000, immediately prior to Ms. Foss’ first appearance on the charges, the Respondent met with Mr. Johnson and Ms. Foss. The Respondent told Mr. Johnson and Ms. Foss that in order to make the appearance with Ms. Foss that day, the remaining $250 had to be paid. Mr. Johnson paid the Respondent $250. The Respondent appeared with Ms. Foss at the first appearance.
“8. After Ms. Foss’ first appearance, Ms. Foss and Mr. Johnson attempted to contact the Respondent on many occasions. The Respondent failed to return the telephone calls. At some point, Ms. Foss ran into the Respondent at a mutual friend’s house. The Respondent assured Ms. Foss that he was working on her case. However, the Respondent’s failure to maintain communication with Ms. Foss continued.
“9. After being placed on probation, the Respondent was arrested for driving while his license was suspended, possession of drug paraphernalia, and possession of cocaine. As a result of his arrest, a probation violation warrant was issued. On March 21, 2000, the Respondent was arrested on the probation violation warrant. On that same day, the Respondent began having chest pains. The Respondent was transported to the Wesley Medical Center in Wichita. While at the hospital, a blood test was performed on the Respondent. The blood test indicated that the Respondent had used cocaine.
“10. Because she could not get into contact with the Respondent, shortly before the date set for trial, Ms. Foss contacted the District Court of Sedgwick County. Ms. Foss was informed by a judge that the Respondent was incarcerated, and would be unable to represent her.
Tl. At the time of trial, Ms. Foss appeared as ordered. The Respondent did not appear. The Respondent failed to withdraw from the representation of Ms. Foss. The Respondent failed to refund the fee paid by Mr. Johnson.
“12. Ms. Foss obtained new counsel and Mr. Johnson paid the new attorney a retainer of $1,000. Subsequently, Mr. Johnson was reimbursed a portion of the fee paid to the Respondent by the Client Protection Fund.
“13. After having served approximately two and a half months in jail, the Respondent was again placed on probation. At some point, the Respondent requested that his probation be revoked so that he could be placed in jail to complete his sentence. On December 23, 2000, the Respondent was released from jail, after completing the six month jail sentence for his conviction of promoting obscenity.
“14. At the hearing on this matter, the Respondent testified that he has not used cocaine since his arrest on March 21, 2000. However, the Respondent failed to provide any medical evidence to substantiate the treatment received. Additionally, the Respondent testified that he is currently under treatment for depression, but no records were provided to the Disciplinary Administrator’s Office or to the Hearing Panel regarding that treatment.
“15. The Respondent testified at the hearing held on his matter that he does not have an office for his law practice. The Respondent is currently living with his son in an apartment in Wichita, Kansas. The Respondent practices law from his son’s apartment. The Respondent testified that he has never employed a secretary to assist him in the practice of law. The Respondent maintains communication with his clients by use of a cellular telephone and an answering machine.
“CONCLUSIONS OF LAW
“Based upon the above findings of fact, the Hearing Panel malees the following conclusions of law:
“1. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. After the Respondent appeared with Ms. Foss, the Respondent failed to perform any additional legal services for Ms. Foss. Accordingly, the Respondent failed to act with reasonable diligence and promptness in representing Ms. l oss and, therefore, violated KRPG 1.3.
“2. KRPC 1.4(a) provides:
‘A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’
Id. The Respondent failed to return telephone calls made by Ms. Foss. Because the Respondent failed to even attempt to keep Ms. Foss informed about the status of her case, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“3. KRPC 1.15(b) provides as follows:
‘Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds of other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.’
Id. In this case, the Respondent violated this subsection by failing to return the unearned fee paid by Mr. Johnson. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.15(b).
“4. KRPC 1.16(d) provides:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
Id. In this case, the Respondent failed to give reasonable notice to Ms. Foss that the Respondent would no longer be providing representation. Additionally, the Respondent failed to return the unearned fees paid by Mr. Johnson. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.16(d).
“5. KRPC 8.4(g) provides that ‘[i]t is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ Id. The Hearing Panel concludes that the Respondent engaged in conduct that adversely reflects on his fitness to practice law, in violation of KRPC 8.4(g), by violating K.S.A. 21-4301, by regularly using cocaine from the summer of 1999 through March, 2000, and by committing multiple additional criminal violations.
“RECOMMENDATION
“In making tins recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by tire lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his client to provide adequate communication and diligent representation. Additionally, the Respondent violated his duty to the public to maintain personal integrity.
“Mental State. The Respondent negligently violated his duty to his client to provide adequate communication and diligent representation to his client. The Respondent knowingly and intentionally violated his duty to the public to maintain personal integrity.
“Injury. Ms. Foss suffered actual injury by the Respondent’s misconduct. Ms. Foss appeared at the time of her trial without counsel, and was forced to endure the anger of the presiding judge. Additionally, Ms. Foss was required to obtain new counsel. Ms. Foss incurred additional attorney fees charged by that counsel. The injury caused by the Respondent’s failure to maintain personal integrity is difficult to quantify. But, it is, without doubt, that the profession suffered an injury as a result of the Respondent’s criminal violations, both prosecuted and not prosecuted.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Pattern of Misconduct. The Respondent engaged in a pattern of misconduct, according to his own testimony, by repeatedly violating the laws of Kansas. The Respondent testified that he used cocaine regularly over a period of nine or ten months, beginning in summer of 1999 and continuing through his arrest in March, 2000. Repeatedly violating the law establishes a pattern of misconduct.
“Multiple Offenses. By violating KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 1.16, and KRPC 8.4, the Respondent engaged in multiple offenses.
“Vulnerability of Victim. Ms. Foss was charged with one felony crime and one misdemeanor crime. Individuals facing criminal charges are particularly vulnerable to attorney misconduct.
“Indifference to Making Restitution. Although the Respondent testified that he has been financially unable to make restitution in this case, he also testified that he purchased an advertisement in die telephone book for his law practice. As such, the Hearing Panel concludes that the Respondent chose not [to] make restitution.
“Illegal Conduct. The Respondent was convicted by a jury of promoting obscenity, in violation of K.S.A. 21-4301, a class A misdemeanor. Additionally, the Respondent was convicted of possession of drag paraphernalia. Finally, the Respondent used cocaine on a regular basis from the summer of 1999, through March, 2000.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following factor in mitigation present in this case:
“Absence of Prior Disciplinary Record. The Respondent has not previously been disciplined.
“In addition, the Hearing Panel considered whether chemical dependency, the imposition of other penalties, and remorse were factors in mitigation:
“Chemical Dependency. Chemical dependency is a factor in mitigation in certain circumstances. In order for chemical dependency to be a mitigating factor, there must be (1) medical evidence that the Respondent was affected by a chemical dependency, (2) evidence that die chemical dependence caused the misconduct, (3) evidence that the Respondent’s recovery from the chemical dependency is demonstrated by a meaningful and sustained period of successful rehabilitation, and (4) evidence that the recovery arrested the misconduct and recurrence of that misconduct is unlikely. In this case, the Respondent failed to present the evidence necessary to establish that chemical dependency is a factor in mitigation. Accordingly, the Hearing Panel concludes that chemical dependence is not a factor in mitigation.
“Imposition of Other Penalties or Sanctions. The Hearing Panel recognizes that the Respondent served 183 days in jail for his conviction of promoting obscenity. However, the Hearing Panel does not conclude that this, in any way, mitigates the misconduct committed by the Respondent.
“Remorse. The Respondent failed to express any remorse for his misconduct. At one point, the Respondent acknowledged that his criminal acts were ‘stupid.’ However, the Respondent never apologized for his misconduct nor did he appear to appreciate the damage done to the profession as a whole by his conduct. As such, tire Hearing Panel concludes that the remorse is not a factor in mitigation in this case.
“The Hearing Panel also thoroughly examined and considered Standards 4.42(b) and 5.12. Standard 4.42(b) provides:
'Suspension is generally appropriate when a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.’
Id. Standard 5.12 provides:
‘Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.’
Id.
“Based upon the above findings of fact, conclusions of law, and standards, the Hearing Panel unanimously recommends that Respondent be suspended from the practice of law for a period of two years. Additionally, the Hearing Panel recommends that the Respondent be required to undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219. At the reinstatement hearing, the Respondent should be required to establish that he has received the appropriate treatment to enable him to prevent a repeat of the misconduct present in this case.”
Respondent did not take exceptions to the final hearing report which, pursuant to Supreme Court Rule 212(d) (2001 Kan. Ct. R. Annot. 263), is deemed to be admitted. Respondent reserved the right to submit evidence in mitigation of discipline, including evidence of direct causation between respondent’s chemical dependency and the complained-of conduct.
Two days prior to the hearing before our court, respondent moved to supplement his response and filed a discharge summary from Positive Adjustments dated April 1, 2001, a statement from Atishwin Institute that he had been a resident of its halfway house from June 21, 2000, until September 4, 2000, a statement of On Guard Court Services that it would handle drug screening of respondent, and a proposed probation plan stating:
“Probation Plan
“1. Monitoring contract with On Guard Court Services for random UAs.
“2. Supervision by practicing attorney in Wichita, Kansas.
“3. Abstention from use of illegal drugs.
“4. Regularly attend CA or NA meeting and report attendance to Disciplinary Administrator of not less than on a quarterly basis.
“5 Attend a minimum of 3 hours of CLE law office management each year.”
Respondent appeared before us requesting a lesser sanction because of his abstinence from narcotics since March 2000, stated that his remorse was inartfully stated, suggested he was inexperienced in the practice of law, and requested his probation plan be considered.
The court, having considered the record herein and the report of the hearing panel, concurs in the findings, conclusions, and recommendation of the panel.
The court specifically finds the probation plan submitted is inadequate to protect the public and fails to comply with the internal operating rules of the Kansas Board for Discipline of Attorneys. See In re Long, 266 Kan. 664, 667, 972 P.2d 773 (1999).
It Is Therefore Ordered that Byron J. Moore be suspended from the practice of law in the State of Kansas for a period of 2 years, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2001 Kan. Ct. R. Annot. 224).
It Is Further Ordered that in the event respondent should seek reinstatement, he shall be subject to all reinstatement requirements of Supreme Court Rule 219 (2001 Kan. Ct. R. Annot. 285), including establishing that he has received appropriate treatment to enable him to prevent a repeat of the misconduct present in this case.
It Is Further Ordered that respondent make restitution to the Kansas Lawyer s Fund for client protection in the sum of $750.
It Is Further Ordered that respondent comply with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276), that the costs of these proceedings be assessed to the respondent, and that this opinion be published in the official Kansas Reports.
Davis, J., not participating.
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The opinion of the court was delivered by
Abbott, J.:
Each of the six cases consolidated for review involves a claim by a successor conservator or curator against a former conservator or curator (principal) unable to adequately account for the ward’s assets and the former conservator’s or curator’s surety. At issue is the sureties’ liability for interest and costs in excess of the penal sum of the bonds, and the sureties’ liability for interest assessed from the date of each conversion, rather than from the date of notice or demand on each surety.
In each of these cases, the successor conservator or curator filed suit against the principal and the surety as a result of the principal’s conversion or theft of funds. In each case, the probate court found that the principals had converted assets and subsequently entered judgment against them and their sureties for the amount of the loss to each ward, plus interest from the dates of conversion, and conservator and attorneys fees incurred during the prosecution. In all but one case, judgment exceeded the limit of liability, or penal sum, of the bonds of the sureties as a result of the addition of prejudgment interest and successor conservator or curator fees.
I. SURETIES’ LIABILITY FOR AMOUNTS IN EXCESS OF THE PENAL SUM OF THE BOND
These cases raise issues with respect to the extent of the sureties’ liability in regard to their fidelity bonds. For their first assertion of error, St. Paul Fire & Marine Insurance Company, United States Fidelity & Guaranty Company, and Old Republic Surety Company (sureties) contend that the probate court erred by awarding judgments to the injured wards in excess of the penal sum stated on the bonds.
“Where a trial court has fashioned a remedy to make the injured party whole, the test on appellate review is not whether the remedy is the best remedy that could have been deyised, but whether the remedy so fashioned is erroneous as a matter of law or constitutes a breach of trial court discretion.” Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 10, 823 P.2d 782 (1991).
The sureties present two reasons for limiting their liability to the stated bond amount. We will consider each in its turn.
1. Kansas case law.
First, the sureties argue that case law in Kansas limits the liability of the surety to the amount of the bond. In support of this contention, the sureties cite Koch v. Merchants Mutual Bonding Co,, 211 Kan. 397, 507 P.2d 189 (1973); School District v. Delano, 96 Kan. 499, 152 Pac. 668 (1915); McMullen v. Loan Association, 64 Kan. 298, 67 Pac. 892 (1902); and Burchfield v. Haffey, 34 Kan. 42, 7 Pac. 548 (1885).
The curators for Raymond Williams, Phillip Weidman, Roger Hughes, Adjui Lane, and Roland Moore dispute the sureties’ contention, characterizing it as an attempt to overturn well-settled law in Kansas. The curators state that Kansas follows the majority rule: While the penalty sum stated on the face of the bond may not be enlarged, a surety may be required to pay prejudgment interest and costs of litigation exceeding the penal sum of the bond. The curators contend that three Kansas cases have allowed the assessment of prejudgment interest against the surety: McMullen, Burchfield, and Delano.
Therefore, we turn to the case law cited by the parties in support of their respective positions. We examine these cases beginning with the earliest.
Burchfield, 34 Kan. 42, decided in 1885, is a case where this court considered the proper measure of damages in connection with a fidelity bond. The case arose from a subcontractual arrangement. H.B. Gumsey signed a contract with C.J. Haffey in which Gumsey agreed to transport mail from Elk Falls to Howard, Kansas, from May 19, 1880, to June 30, 1882. Gumsey procured a fidelity bond in the sum of $300 to be paid to Haffey in the event that Gumsey failed to “fully and faithfully perform the mail service ... .” 34 Kan. at 43-44. Gumsey did carry the mail for a short time, but then declined to comply further with the terms of the contract. The post office canceled its contract with Haffey, and Haffey filed suit against Gumsey and the sureties to recover damages of $300 for his loss of contract rights, plus interest from the date of the breach.
On appeal, the defendants complained that the court erred in instructing the jury as to the proper measure of damages. The trial court described Haffey s damages as
“the amount he would have received from the United States during the time Gumsey was to carry the mail, according to the terms of his contract, from the time he ceased to carry the same, less the amount he was [to] pay Gumsey for said service, not to exceed the sum of three hundred dollars with interest thereon at the rate of seven per cent, per annum from the time Haffey made demand of the defendants therefor.” 34 Kan. at 44-45.
In Burchfield, this court noted that conflicting authority existed on the issue of allowing interest as damages beyond the penalty of the bond, but found the weight of American authority allowed the assessment of interest:
“The weight of American authority, however, is in favor of allowing interest. Sutherland, in his work on Damages, says:
“ ‘The penalty is the limit of liability at the time of the breach. Interest is afterward given, not on the ground of contract, but as damages for its violation, for delay of payment after the duty to pay damages for breach of the condition to the amount of the penalty had attached.’ [Citation omitted.]
“In the notes to Sedgwick on Damages, it is stated:
“ ‘In the case of debt on bonds for the payment of money only, it seems now settled that interest may be recovered after default, even though it exceeds the penalty, and whether the action be against principal or surety.’ [Citation omitted.]
“The penalty of the bond covers the misconduct of the principal; but the interest allowed on the penalty is for the misconduct of the sureties — for the delay in payment. If the damages were paid when due, they would have earned interest.” 34 Kan. 45.
The Burchfield court ultimately affirmed the trial court, approving the assessment of interest as damages beyond the penalty of the bond. 34 Kan. at 46.
In 1902, this court considered another case involving the assessment of prejudgment interest against a surety. In McMullen, 64 Kan. 298, J.F. McMullen had been elected the secretary of the Winfield Building and Loan Association from its inception in January 1881 and was reelected for several years thereafter. Following J.F.’s reelection on January 13, 1885, he procured a bond in the sum of $2,000 signed by J.C. McMullen as surety. The bond was executed and accepted on Februaiy 6, 1885. In 1892, the Loan Association brought suit against J.F. and his surety, alleging that from January 1, 1885, to December 31, 1885, J.F. had wrongfully converted its funds.
The trial court found that J.F. owed the association $2,035.87, and that on February 6, 1886, he had paid $197.46 of the debt. The trial court awarded judgment against both the principal and surety for the unpaid loss of $1,838.41, plus interest from January 31, 1886, for a total judgment of $3,725.84.
On appeal, the surety contested the trial court’s assessment of interest damages in excess of the amount named in the bond. This court stated:
“When the secretary [J.F.] converted and wrongfully withheld the moneys of the association the condition of the bond was broken, and a liability arose against both principal and surety. Interest is recoverable against both of them from the time of the default, not as a part of die penalty, but for the detention of the money after the same became due. During die continuance of the default, interest was due from die secretary, just the same as in cases where money is not paid when the creditor becomes entitied to it, and the surety who bound himself against the defaults of the secretary and became hable for diem when they occurred can claim no exemption from the rule.” 64 Kan. at 304.
Once again, this court affirmed the trial court’s assessment of interest in excess of the amount stated in the bond against a surety. 64 Kan. at 309.
In DeLano, 96 Kan. 499, the school board signed a contract with DeLano in 1909 to build an eight-room school building for $15,000 in Spearville, Kansas. Although DeLano began the work as planned, he abandoned the job on July 1,1910. The board notified the surety of DeLano’s abandonment, but the surety did not respond. Finally, the board engaged an architect to oversee the completion of the building. The board filed suit and the case was tried to the court. The district court entered judgment against DeLano in the amount of $1,594.35 for liquidated damages for the delay. The court also entered judgment against the surety for $5,868.08, a sum in excess of the $5,000 bond, and the surety appealed. This court stated:
“The penalty of the bond is $5000, and that, of course, is the limit of defendant’s obligation. It was the amount due which the company agreed to pay upon the contractor’s noncompliance with the contract. It became liable for these claims up to the amount of the penalty at the time they accrued and should have been paid by it, and it is chargeable with interest on these claims after that time. . . .
“ “While the debt for which the surety can be held hable is limited by the penalty named in the bond, yet interest may be collected on such debt from the time when it became the surety’s duty to pay it, even though the aggregate of principal and interest is more than the penal sum.’ (Lumber Co. v. Peterson & Sampson, 124 Iowa 599, 607, 100 N.W. 550.)” 96 Kan. at 506.
In Delano, this court determined that the total principal debt of the contractor was $5,011.46, but that the surety was only liable for $5,000 of the principal debt. To that amount this court added the interest that accrued “since it became the duty of the company to pay the debt.” 96 Kan. at 507. Once again, this court affirmed the district court’s award of interest in excess of the stated bond amount. 96 Kan. at 507.
Factually, the 1973 Koch case is similar to the consolidated cases on review. In Koch, 211 Kan. 397, Milford Magee was appointed guardian of the person and estate of E. Sydney Smith, a minor, on June 23, 1965. Magee procured a surety bond from Merchants Mutual Bonding Company in the sum of $17,500, as required by K.S.A. 59-1101. The bond was conditioned on Magee’s faithful discharge of all duties of his trust. Magee failed to inventory the assets of his ward’s estate as required, however, and on March 16, 1966, a petition was filed with the probate court for Magee’s removal.
Despite the factual similarities, however, the primary issue in Koch was not the assessment of interest in excess of the penal sum of the bond, but rather whether the surety was obligated to pay double the amount converted by its principal under K.S.A. 59-1704. The bonding company tendered payments to the ward totaling $16,917.86, which included interest on the funds converted.
The sureties note that in dicta found in the Koch case, this court restated the principles of law found in McMullen, 64 Kan. at 304- 05, regarding the measure of damages in connection with a bond; however, the sureties state that this court did not “rule on the continued applicability of McMullen.” We disagree. There would be no reason to restate the rule of law found in McMullen if this court did not believe in its continued viability. Thus, in Koch, this court reaffirmed McMullen, stating:
“Under principles of general law tire obligation of a bond is to be measured by the bond itself and may not be extended by implication or enlarged by construction beyond the terms of the executed contract. [Citations omitted.] . . .
“This is not to say that the rule may never be subject to limited exceptions. By way of illustration, in McMullen v. Loan Association, [64 Kan. 298], this court held:
‘While the penalty of the bond fixes the limit of liability of the surety at the time the liability arises, yet if the principal or surety fail to discharge that liability when it matures, interest maybe allowed on the amount from the time the liability arises, even if the amount of recovery shall exceed the penalty. (Syl. ¶ 4.)’
“The rationale of this holding is explained in this fashion:
“ ‘. . . Interest is recoverable against both [principal and surety] . . . from the time of the default, not as a part of the penalty, but for the detention of the money after the same became due. . . .’ (p. 304.)” Koch, 211 Kan. at 400.
In Koch, this court affirmed the judgment of the court below, which included interest on the assets converted by Magee from the date of their conversion. We note, however, that in Koch, the total judgment against the surety did not exceed the penal sum of the bond. 211 Kan. at 402-05.
Our review of Kansas case law convinces us that a lower court may impose a judgment of interest against a surety in excess of the penal sum of the bond. Not only is this allowed, but the rule of law in this area has not changed in Kansas since 1885. Moreover, Kansas case law comports with the majority view.
“In actions for conversion it is generally recognized that interest, or the equivalent of interest, on the value of the property converted, may be recovered. While interest has usually been accepted as a proper measure of damages to be added to the value of the property from the date of conversion to the date of trial, the purpose of the award is to compensate the plaintiff for the loss sustained because of the taking of property.” 18 Am. Jur. 2d, Conversion § 121, p. 233.
“In an action for breach of a penal bond, interest on the amount of the recovery is generally recoverable as an element of damages for delay upon the part of the surety in making payment after he should have paid, even though the total sum is thus made to exceed the stated amount of the penalty of the bond. Judgment may be had for the whole penalty of the bond, and in addition thereto interest and costs, and need not be so limited that the whole recovery, including interest and costs, does not exceed the penalty. Nor does an allowance of reasonable costs and legal expenses violate the general rule which limits liability on a bond to the penal sum named in the bond.” 12 Am. Jur. 2d, Bonds § 48, p. 401.
The sureties’ argument that the law in Kansas limits the liability of the surety to the amount of the bond fails.
2. Kansas statutory law.
Second, the sureties maintain that limiting the total recovery against a surety to the bond amount is not an “unfair” interpretation of Kansas statutory law.
“A trial court’s interpretation of a statute is a question of law, and this court’s scope of review is unlimited.” In re Marriage of Killman, 264 Kan. 33, 41, 955 P.2d 1228 (1997).
The sureties suggest that since K.S.A. 59-1101 does not specifically require a surety to pay all losses, interest, costs, and damages in the event of a conservator or curator’s breach, and since K.S.A. 2001 Supp. 60-2103(d) requires supersedeas bond sureties to do so, under statutory rules of construction, the lack of a specific mandate from the legislature in K.S.A. 59-1101 requires this court to limit liability to the stated amount of the bond. In support, the sureties point to K.S.A. 59-1101, K.S.A. 59-1102, K.S.A. 59-1106, and Hartford Cas. Ins. Co. v. Credit Union 1 of Kansas, 268 Kan. 121, 992 P.2d 800 (1999).
In opposition, Huerta’s successor conservator maintains that the fact that interest is not mentioned in K.S.A. 59-1101 does not compel the conclusion that it was the legislature’s intent to override existing case law, but rather reinforces the strong general rule that interest is recoverable.
We have previously stated:
“The fundamental rule to be applied when interpreting a statute is that the intent of the legislature governs, where that intent can be ascertained. [Citation omitted.] Where a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should be. [Citation omitted.] Where, however, the face of the statute leaves its construction uncertain, the court is not limited to a mere consideration of the language used, but may consider the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citation omitted.]” Hartford Cas. Ins. Co., 268 Kan. at 124-25.
“Where a statute requires a bond to be given, the bond which is given in conformity with the statute must be interpreted in light of the statute and any provision at variance with the statute is to be disregarded. Statutory terms will be read into the bond in determining liability, and conditions not required by the statute will be stricken from the bond as suiplusage.” 268 Kan. 121, Syl. ¶ 4.
We turn to the applicable statutes. K.S.A. 59-1101 states:
“Every fiduciary, except as otherwise provided in this act, before entering upon the duties of his or her trust shall execute and file a bond, with sufficient sureties, in such amount as the court directs, which amount shall not be less than 125 percent of the valué of the personal property and the probable annual income from real estate which shall come into his or her possession, conditioned upon the faithful discharge of all the duties of the trust according to law.”
K.S.A. 59-1102 states:
“All such bonds shall run to tire state of Kansas. They shall be subject to the approval of the district court and shall not be approved until the court is fully satisfied as to the sufficiency of the sureties. In case of breach of any condition thereof, an action on any such bond may be prosecuted in the name and for the benefit of any person interested.”
A conservator is defined by statute as “an individual or a corporation who is appointed by the court to act on behalf of a conservatee . . . .” K.S.A. 2001 Supp. 59-3002. The requirements concerning curators for veterans are set forth in the provisions of K.S.A. 73-501 et seq. As used in that chapter, the term “curator” means “any person acting as a fiduciary for a pensioner.” K.S.A. 73-501. Fiduciaries are held to the highest standards of conduct by the law.
“The term ‘fiduciary relationship’ refers to any relationship of blood, business, friendship, or association in which one of the parties places special trust and confidence in the other. It exists in cases where there has been a special confidence placed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interest of the one placing the confidence. A fiduciary has the duly to act in good faith and with due regard to the interests of the party placing confidence in the fiduciary.” Hawkinson v. Bennett, 265 Kan. 564, Syl. ¶ 4, 962 P.2d 445 (1998).
In Hartford Cas. Ins. Co., this court approved the concept that a statute requiring vehicle dealers to be bonded was “remedial for the protection of persons injured by a bonded party,” and that the statute “should be liberally construed to accomplish its purpose.” 268 Kan. at 126. Here, the purpose of the bond requirement for conservators and curators is also remedial for the purpose of protecting persons injured by the bonded party.
The sureties declare that K.S.A. 59-1101, 59-1102, and 59-1106 supersede early case law and contend that although “statutory bonds may impose some additional liability on parties . . . they cannot be extended beyond the fair import of the statutory terms.” However, we note: “[T]he legislature is presumed to act with knowledge of relevant judicial decisions.” Junction City Education Ass'n v. U.S.D. No. 475, 264 Kan. 212, 220, 955 P.2d 1266 (1998).
The central purpose of K.S.A. 59-1101 is to mandate that every fiduciary execute a bond sufficient to protect the assets of the fiduciary’s ward; the statute does not concern itself with assessment of liability. “[W]hen a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute.” In re Marriage of Killman, 264 Kan. at 43. Here, the legislature’s enactment of the statute in 1939 did not preempt or revise existing case law. To interpret the statute as the sureties would have us do would result in a loss to the wards which would defeat the purpose of the bond requirement. Thus, we find the sureties’ interpretation of K.S.A. 59-1101 unconvincing. Absent a clear indication that the legislature intended to depart from case law, we decline to deviate from established precedent.
II. DATE OF SURETIES’ LIABILITY FOR INTEREST
The sureties insist that while an award of interest from the date of each defalcation appears correct against the conservator or curator based on In re Conservatorship of Marcotte, 243 Kan. 190, 756 P.2d 1091 (1988), there was no discussion in Marcotte that mandates the application of that rule to a surely. In addition, the sureties read the Burchfield and Delano decisions to mean that interest is allowed against the surety only after notice to the surety of the loss, and the surety’s failure to take action. The sureties also allege that under the language of McMullen, the award of interest is proper from the time the duty to discharge the liability “matures.” Therefore, the sureties argue that in the consolidated cases before this court, since there is no requirement that assets be delivered to the ward until the conservatorship or curatorship is terminated or the conservator or curator is removed, the duty to discharge any liability to the conservatorship or curatorship is not triggered until the time of the settlement of the account.
The curators disagree and cite to McMullen as authority for the proposition that tire liability of the surety arises at the time of the default rather than at the time demand for payment is made on the surety.
The successor conservator for Huerta argues that it is “absolutely clear that the principal who converts funds is liable for interest from the date of conversion.” He further states that “Kansas follows the rule that the liability of the surety accrues at the same time as that of the principal and that the surety is as much hable for the interest as tire principal.” He asserts that in McMullen, this court held that both the principal and surety are hable for interest from the date of the conversion. In addition, he cites the authority of Marcotte and Aetna Casualty and Surety Co. v. Hepler State Bank, 6 Kan. App. 2d 543, 630 P.2d 721 (1981).
In Burchfield, this court upheld a damage award in the amount of the loss that did not exceed the penal sum of the bond, “with interest thereon at the rate of seven per cent, per annum from the time Haffey made demand of the defendants therefor.” 34 Kan. at 44-45. Significantly, the time of demand for the principal and surety was affixed on the same date in Burchfield, not at the time of notice to the surety of the loss and the surety’s failure to take action, as the sureties here assert.
Likewise, in Delano this court held that the surety was “hable for the principal debt which arises from the nonperformance of the contract to the amount of the penalty named in its obligation, and in addition to that it may be held for interest on such debt from the time it should have been paid . . . .” 96 Kan. at 499, Syl. ¶ 4. This court generally approved the lower court’s assessment of interest and confirmed that interest should be charged “since it became the duty of the company to pay the debt.” 96 Kan. at 507. There was no mention of liability from the date of conversion in Delano because it was a case of default on a contract, not a case involving a conversion. Again, however, we observe that there is no language in the case that supports the sureties’ contention that interest was due at the time of notice to the surety.
In McMullen, this court assessed interest beginning on January 31, 1886; however, the trial court found that J.F. McMullen was indebted to the association as of January 1,1886. We note that the date of January 1 coincides with the statement that “the surety [was] liable for all the funds received by [J.F. McMullen] during the year 1885 and for which he had not accounted.” 64 Kan. at 300. The sureties would have us believe that January 31,1886, was the date the trial court found that the liability “matured.” We note, however, that J.F. made a payment of $197.46 toward his indebtedness on February 6, 1886. Because the trial court could have applied that payment toward the total principal loss or interest owed by J.F., we are not at all confident of the veracity of the assertion made by the sureties.
Moreover, in McMullen, this court stated:
“Where there are successive terms and bonds, there is considerable difficulty in fixing the time of misappropriation and the liability of sureties, but when money is traced to the hands of an officer or trustee, and is not accounted for, the burden of proof is upon the principal or surety upon the bond to show what became of the money. The officer has knowledge at the time of misapplication, and by reason of die relations existing between principal and surety the latter is deemed to have knowledge of the fact, while the information would not be accessible to the parties indemnified.” (Emphasis added.) 64 Kan. at 303.
The McMullen court clearly looked to the time of the principal’s misappropriation when determining the date of liability in regard to assessing interest. In addition, the McMullen court recognized a special relationship between the principal and surety and imputed the knowledge of the principal concerning the conversion to the surety. “We think the liability of the surety depends upon the liability of the principal.” 64 Kan. at 308. The McMullen decision, published 100 years ago, comports with current law allowing a sur ety to “step into the shoes” of a conservator and to perform his or her required duties in the event that the conservator fails to do so. See K.S.A. 2001 Supp. 59-3029.
In the Marcotte case, 77-year-old Fred Marcotte filed a voluntary petition for conservatorship due to physical incapacity to properly manage his property. The district court appointed a nephew and niece as co-conservators in 1980. Marcotte died testate in 1983, and the provisions of his will passed the bulk of his estate to eight beneficiaries in equal proportions. After the co-conservators filed their inventory of Marcotte’s estate, five of the eight beneficiaries filed a petition alleging that the inventory failed to present an accurate, full, and final accounting. The beneficiaries challenged a series of gifts made by the co-conservators from 1980 to 1983 totaling $146,000. Of that amount, $92,000 was given to the co-conservators, their spouses, or their children.
The district court ruled that the gifts made by Marcotte after May 27, 1983, when he was mentally incapacitated, were void, but those gifts made prior to that date were valid. This court reviewed the propriety of the gifts made to the co-conservators prior to Marcotte’s mental incapacity and held the co-conservators liable for the diminution to the estate. 243 Kan. at 198-99. In addition to requiring the co-conservators to return the gifts, this court approved the assessment of “interest on that amount from the date of payment as provided by K.S.A. 16-201.” 243 Kan. at 199.
Under K.S.A. 16-201,
“[c]reditors shall be allowed to receive interest at the rate of ten percent per annum ... for any money after it becomes due; for money lent or money due on settlement of account, from the day of liquidating the account and ascertaining the balance; for money received for the use of another and retained without the owner’s knowledge of the receipt; for money due and withheld by an unreasonable and vexatious delay of payment or settlement of accounts; [and] for all other money due and to become due for the forbearance of payment whereof an express promise to pay interest has been made . . . .”
We take note that in an action for conversion, recoveiy of interest from the time of the conversion is the general rule of law. “Under the rule permitting the recovery of interest, or the equivalent of interest, in an action for conversion, such recovery is gen erally permitted from the time of the conversion.” 18 Am. Jur. 2d, Conversion § 122, p. 234.
In Aetna Casualty and Surety Co., our Court of Appeals stated: “In actions in the nature of trover for the conversion of personal property, the measure of damages is ordinarily the value of the property at the time of the conversion, with interest thereon to the date of the verdict.” 6 Kan. App. 2d 543, Syl. ¶ 10.
The sureties’ argument that the duty to discharge any liability to the conservatorship or curatorship is not triggered until the time of the settlement of the account fails. Here, because assets were wrongfully converted from the conservatorships and curatorships, it follows that such assets were due to the wards on the date of conversion. To hold otherwise would mean that the sureties could continue to earn interest on their reserves while the wards and conservatees suffer the loss of interest that would have been earned on monies rightfully belonging to the conservatorship or curator-ship. K.S.A. 16-201 allows creditors to recover interest “for any money after it becomes due.” We reaffirm our previous statement in McMullen that the liability of the surety depends upon the liability of the principal; thus, we hold that the district court did not err when it assessed interest against the sureties from the date of each conversion.
We note that Huerta’s successor conservator invites this court to find that bonds issued pursuant to K.S.A. 59-1101 are “fidelity bonds,” defined previously by this court in Ronnau v. Caravan International Corporation, 205 Kan. 154, 159, 468 P.2d 118 (1970), as a type of indemnity insurance contract. He argues that if these bonds are considered to be insurance contracts, this court should strictly construe them against the surety or insurer.
“A fidelity bond is an indemnity insurance contract whereby one for consideration agrees to indemnify the insured against loss arising from the want of integrity, fidelity or honesty of employees or other persons holding positions of trust. Such a contract is considered to be one on which the insurer is liable only in the event of a loss sustained by the insured.” 205 Kan. 154, Syl. ¶ 2.
“There is a well-recognized difference between contracts of indemnity against loss and contracts of indemnity against liability. In the former, the insurance company does not become hable until the insured has suffered a proven loss, whereas in the latter, the obligation of the insurance company becomes fixed when the liability attaches to the insured. [Citations omitted.]” 205 Kan. at 160.
Affirmed.
Davis, J., not participating.
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In a letter dated January 24, 2002, to the Clerk of the Appellate Courts, respondent, Shawn E. Degraff, of Shawnee, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice in Kansas, pursuant to Supreme Court Rule 217 (2001 Kan. Ct. R. Annot. 272).
At the time the respondent surrendered his license, a disciplinary hearing was set for March 12, 2002, in which there were allegations of lack of diligence and communication. Three additional complaints were being investigated by the Disciplinary Administrator’s office at the time that he surrendered his license.
This court, having examined the file of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Shawn E. DeGraff be and 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 Shawn E. DeGraff 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 therein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276). | [
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The opinion of the court was delivered by
Davis, J.:
Howard Banks petitions this court for review of the Court of Appeals’ decision affirming his jury convictions of two counts of aggravated indecent liberties with a child. Banks argues: (1) The trial court erred in failing to instruct the jury it must unanimously agree which act or acts it believed Banks committed, (2) the trial court erred in admitting the victim’s hearsay statement, (3) the trial court erred in instructing the jury on the lesser included offenses of battery and attempted aggravated indecent liberties with a child, and (4) the prosecutor committed prosecutorial misconduct. We affirm.
The State charged Banks with two counts of aggravated indecent liberties with a child after two girls reported Banks touched them on June 22, 1998. The case proceeded to trial, wherein the jury reached a unanimous guilty verdict on both counts. The Court of Appeals, with one panel member dissenting, affirmed Banks’ conviction. State v. Banks, 28 Kan. App. 2d 829, 22 P.3d 1069 (2001). This court granted Banks’ petition for review.
The State’s theory at trial was that Banks touched one of the victims in front of a laundiy and the other victim in front of Banks’ house. The State’s case relied on the victims’ trial testimony and the victims’ prior accounts of the incident. Banks denied any involvement and argued the victims’ stories were too unreasonable to believe.
Facts
T.N. testified at trial that she and L.H. were walking to L.H.’s house. The girls stopped at a laundry to get out of the rain. While at the laundry, the girls spotted a dog outside. T.N. and L.H. called the dog in to protect it from the rain. Once the rain ceased, the girls went outside the laundry and encountered a man identified later as Banks. The girls asked Banks if the dog was his. Banks denied ownership of the dog but said he would take care of it.
T.N.’s Testimony Regarding Laundry Incident
T.N. testified that while she was outside the laundry Banks pulled her down and touched her crotch area on the outside of her clothes. T.N. testified that Banks also touched L.H. there in front of the laundry:
“Q. Right when you were outside of the laundromat, is that when he touched you, or when he touched [L.H.]?
“A. That’s when he touched [L.H.] and me.”
Later, T.N. said, in reference to the incident in front of the laundry, “He started touching [L.H.] and she got away, and she called me, but he wouldn’t let me up.”
T.N.’s Testimony Regarding Incident Near Banks’ House
After T.N. and L.H. had freed themselves from Banks, they started running, but Banks followed. T.N. said Banks called them both over to his house, where Banks again touched both of them. T.N. testified:
“Q. What happened next?
“A. We started walking and he followed us, and we gave him the dog, and he, we started walking to her house again, and he called us over there, and we really didn’t want to go, but [L.H.] insisted that we find out where he was keeping the dog so she called us [sic], she pulled me over there with her so she wouldn’t be alone, and then he started touching her and me again, and then we got away because she elbowed him in the side, and we started running.
“Q. How was he touching the both of you at that point?
“A. He was still touching her up on the top of her chest and the breasts, and me down in the vagina.”
On cross-examination, T.N. confirmed that Banks had touched both girls at the laundiy and at Banks’ house. Thus, T.N.’s testimony established two incidents of touching near Banks’ house and two incidents of touching at the laundry.
L.H.’s Testimony Regarding Laundry Incident
L.H.’s testimony only described two touching incidents; one at the laundry and one near Banks’ house. L.H. confirmed the girls were walking to L.H.’s house. L.H.’s testimony generally confirmed T.N.’s story about entering the laundry to seek shelter from the rain. When the girls encountered Banks outside, they asked him if the dog belonged to him. Banks said he would take care of the dog. L.H. testified she went back into the laundry, leaving T.N. and Banks outside to talk. L.H. testified Banks touched T.N., “[a]nd we were getting ready to go, and he pulled her down to the ground and I said, [T.N.] let’s go, and then he tried touching her in the private part, and then we started walking, and we were walking .. . .”
L.H.’s Testimony Regarding Incident Near Banks’ House
After getting away from Banks at the laundry, the girls walked by Banks’ house, where he tried to grab L.H., touching her on her breasts. L.H. testified: “Well, [T.N.] was ahead of me and I was walking behind her, and he grabbed me and he tried touching my private area up above, and I took my arm and I hit him in the chest as hard as I could.” On cross-examination, L.H. confirmed that Banks did not touch T.N. at Banks’ house, in contradiction to T.N.’s testimony. While not explicitly saying so, L.H. strongly implied further on cross-examination that Banks did not touch her at the laundiy.
Other Testimony
T.N.’s mother also testified. Both T.N. and L.H. told T.N.’s mother about the incident. According to T.N.’s mother, both girls reported that Banks had touched T.N. at the laundry and L.H. at Banks’ house.
Jeremy Couch, a deputy with the sheriff s department, testified he took L.H.’s statement. According to Deputy Couch, L.H. said Banks “took the dog and shoved it in the crotch area of the girls and, and also stuck his hands down in the crotch area of [T.N.].” Deputy Couch’s testimony began to describe the' girls’ collective story. He said the girls reported that Banks “smelled his fingers and also had licked his fingers after doing them, touching them there.” Deputy Couch then confirmed that Banks had touched L.H. near Banks’ house.
Judy Trujillo, a detective with the sheriff s department, testified she met with and took the statements of both girls. According to Detective Trujillo, T.N. reported Banks “put the dog, the nose of the dog between her legs.” T.N. also told Detective Trujillo that Banks rubbed the outside of her clothing between her legs. T.N. said Banks then smelled and licked his fingers. L.H. reported to the detective that Banks touched “the outside of her legs on the thigh area,” but did not “reach between her legs.” L.H. told Detective Trujillo that Banks “put his arm around her and had touched her on the outside of her clothing on her breasts.”
The State also presented the testimony of Pat Peters and John Theis, both social workers. Both Peters and Theis performed sexual abuse evaluations. Peters, who evaluated T.N., testified about T.N.’s statements describing the incident, which supported the State’s theory that Banks had touched T.N. at the laundry and L.H. in front of Banks’ house. Theis, who interviewed L.H., testified regarding L.H.’s description of the incident, which also generally supported the theory that Banks had touched T.N. at the laundry and L.H. at his house. However, Theis’ testimony at one point also suggested that Banks had attempted to touch L.H. at the laundry.
Banks did not present any testimony in his defense, relying instead on his statements of denial made to Detective Trujillo.
Court of Appeals’ Decision
The majority opinion of the Court of Appeals panel which reviewed this case concluded that the testimony of the victims did not establish separate acts because the “touching outside the laundromat and the touching near Banks’ house occurred in a relative proximity to one another” and involved “a continuing course of conduct — a single unbroken chain of events.” 28 Kan. App. 2d at 832. Based upon this conclusion, the majority held that Banks was not deprived of a unanimous verdict in that “the compatible evidence showed that each girl had been molested at least once” and further demonstrated that no real possibility of juror confusion existed. 28 Kan. App. 2d at 834.
The dissent, relying on the time difference between the touching incidents and the distance separating those incidents, concluded that the evidence based on the testimony of T.N. and L.H. could have resulted in two or four separate counts. “With no further guidance than they were given here, the members of the jury were free to cobble together their ultimate result from varying versions of the evidence. Confusion and lack of unanimity were genuine and practical hazards, not merely remote or purely academic risks.” 28 Kan. App. 2d at 837. The dissent, therefore, concluded that the error was structural requiring reversal of Banks’ convictions. 28 Kan. App. 2d at 838.
Shortly after the Court of Appeals’ opinion in this case, this court filed its decision in State v. Hill, 271 Kan. 929, Syl. ¶ 3(b), 26 P.3d 1267 (2001). Hill rejected the structural error approach, which according to several Court of Appeals decisions required reversal once it was determined that there were multiple acts and the trial court had failed to give a unanimity instruction whether or not requested. See Crutcher v. State, 27 Kan. App. 2d 674, 675-76, 8 P.3d 1, rev. denied 268 Kan. 885 (1999); State v Wellborn, 27 Kan. App. 2d 393, 394, 4 P.3d 1178, rev. denied 269 Kan. 940 (2000); State v. Kinmon, 26 Kan. App. 2d 677, 678-79, 995 P. 2d 876 (1999); State v. Barber, 26 Kan. App. 2d 330, 331, 988 P. 2d 250 (1999).
Instead of the structural error approach, Hill provides for a “two-step harmless error analysis to . . . [the] contention that a unanimity instruction should have been given.” 271 Kan. at 939. Further, we stated:
“In applying a harmless error analysis, the first step is to determine whether there is a possibility of jury confusion from the record or if the evidence showed either legally or factually separate incidents. Incidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court’s instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents. Incidents are factually separate when independent crfininal acts have occurred at different times or when a later criminal act is motived by ‘a fresh impulse.’ When jury confusion is not shown under the first step, the second step is to determine if the error in failing to give an unanimity instruction was harmless beyond a reasonable doubt with respect to all acts.” Hill, 271 Kan. at 939.
Banks, like Hill, failed to request a unanimity instruction. Banks argued before the Court of Appeals and now before this court that the trial court erred in failing to instruct the jury to unanimously agree on the act supporting its verdict. We note that
“[n]o party may assign as error the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give the instruction is clearly erroneous.” K.S.A. 2001 Supp. 22-3414(3).
Banks did not request a unanimity instruction and did not object to the lack of such an instruction. “Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997). As indicated in Hill, the appropriate analysis is one of harmless error.
There is a striking similarity between the facts of the case we now consider and Hill. Hill was convicted of rape, aggravated indecent liberties with a child, and aggravated indecent solicitation of a child. Evidence at trial indicated that Hill penetrated the victim in the bathroom, followed by penetration of the victim in the kitchen just off the bathroom. However, until the day before trial, the State was unaware that an alleged penetration had occurred in the kitchen and Hill was only charged with one count of rape. This court noted that “materially identical evidence was presented with respect to both acts of rape. Hill did not present a separate defense or offer materially distinct evidence of impeachment regarding any particular act. The defense presented a general denial of participation in any wrongful conduct.” 271 Kan. at 940.
In adopting the harmless error approach, this court relied in part on a quote from the Chief Judge of the Washington Court of Appeals analyzing cases of multiple acts where the defense is one of general denial:
“ ‘In those cases in which the defense to charges based on multiple acts is a general denial, differentiation among a number of events is not required of the jury and therefore is not an issue in controversy. The jury either accepts the victim’s testimony as to all and convicts, or it accepts the defendant’s denial and acquits on all charges. The failure to give a unanimity instruction in those instances is harmless error; it does not relate to an issue in controversy.’ Sweeney, An Analysis of Harmless Error in Washington: A Principled Process, 31 Gonz. L. Rev. 277, p. 302 (1996).” Hill, 271 Kan. at 938-39.
Hill affirmed the defendant’s conviction of rape based upon the conclusion that there was no confusion on the part of the jury:
“We agree with the Court of Appeals’ conclusion that jury confusion was not shown here. In applying a harmless error review, since there was no extrinsic evidence to support the charges, the sole issue was the credibility of the victim’s account of the two alleged penetrations. The evidence offered no possibility of jury disagreement regarding Hill’s commission of either of these acts. By the jury’s rejection of Hill’s general denial, we can unequivocally say there was no rational basis by which the jury could have found that Hill committed one rape but did not commit the other.” 271 Kan. at 940.
Discussion
The facts in the present case are more distinct in time and space than the facts in Hitt, yet the Hitt court concluded the incidents were factually separate. In Hitt, the first incident occurred in the bathroom and the second occurred in the kitchen in the same house. In the present case, the first incidents occurred at the laundry and the second incidents occurred near Banks’ house, a greater distinction in both time and space. Under the test set forth in Hill, we conclude that the majority opinion of the Court of Appeals that the acts of touching were not separate incidents but a continuing course of conduct was in error. This case is a multiple acts case and the harmless error analysis set forth in Hitt applies.
The first step in the Hill analysis is to determine whether the jury could have been confused as to which acts the State alleged occurred. As the Hitt court points out, confusion stems from legally or factually separate incidents. We have determined that the incidents in this case are factually separate incidents. Such a determination does not necessarily cause confusion nor does it preclude application of a harmless error analysis. However, under the test set forth in Hitt, the incidents in this case are not legally separate. Hitt states:
“Incidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court’s instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents.” 271 Kan. at 939.
Banks did not present different defenses to separate sets of facts but relied on the testimony of Detective Trujillo, who described her interview with Banks as follows:
“Q. Did he talk about having contact with the girls any other place?
“A. He knew [T.N.] and family and had seen them in town, but I don’t recall any other specific contact.
“Q. Okay. And Mr. Banks denied having touched the girls in any inappropriate way?
“A. That is correct.
“Q. Did Mr. Banks have any idea why [T.N.] or [L.H.] would say these things if nothing happened?
“A. He really didn’t have any idea of why they would make any kind of a report against him.
“Q. Okay. And was that pretty much the extent of your interview with Mr. Banks?
“A. Yes.”
Banks’ attorney made it clear in his closing arguments that Banks’ version of the events was supplied by Detective Trujillo. Moreover, the jury instructions were not ambiguous and there was no tendency to shift the legal theory from a single incident to two separate incidents.
Thus, based on the same legal defense to the crimes, there is no reason for this court to believe the jury would have believed some of the incidents but not the others. Banks’ response to Detective Trujillo that he had no idea why T.N. or L.H. would say those things if nothing had happened suggests that the issue for resolution by the jury was one of whom they believed, T.N. and L.H. or Banks. Just as in Hill, there was no extrinsic evidence to support the charges. The juiy rejected Banks’ general denial and unequivocally demonstrated it believed in the credibility of the victims with its verdict. We do not believe that the difference in testimony of the victims concerning the number of times they were touched at each location is determinative. The question for the jury based upon the general denial of Banks was one of credibility and jury confusion. Here, there was no confusion. The jury either believed the victims or the defendant.
While there was evidence of factually separate acts, Banks presented a unified defense to all acts. Because there was no extrinsic evidence other than the credibility of the victims, we can unequivocally determine that the jury would not have disagreed as to the commission of any of these acts. Thus, the Court of Appeals may be affirmed on this point, for the reasons given are immaterial if the ruling is correct for any. reason. State v. Jones, 267 Kan. 627, 634, 984 P. 2d 132 (1999). We conclude that the failure to give a unanimity instruction under the facts of this case was harmless error.
In conclusion, it is important that we repeat the caveat expressed by the Court of Appeals and adopted in our Hill decision:
“ ‘This holding should not be interpreted to give prosecutors carte blanche to rely on harmless error review, and it is strongly encouraged that prosecutors elect a specific act or the trial court issue a specific unanimity instruction. In many cases involving several acts, the requirement that an appellate court conclude beyond a reasonable doubt as to all acts will not be found harmless.
“ ‘It should be acknowledged that a prior Kansas Supreme Court case leaves open the possible interpretation that in multiple acts cases a general unanimity instruction followed by polling the jury is an effective cure to the lack of a specific unanimity instruction. See State v. Smith, 268 Kan. 222, 230, 993 P.2d 1213 (1999). Polling the jury is insufficient to cure a multiple acts problem unless the jurors are polled specifically to their agreement on the same incident.’ ” Hill, 271 Kan. at 940 (quoting State v. Hill, 28 Kan. App. 2d 28, 36, 11 P.3d 506 [2000]).
Hearsay Evidence
Banks argues the trial court erred in admitting in evidence the victims’ hearsay statements. Banks admits he failed to object to the hearsay statements at trial. Therefore, this issue is not properly before this court, and the error, if indeed there was one, should be deemed waived. See State v. Carr, 265 Kan. 608, 619-20, 963 P.2d 421 (1998). The Court of Appeals reached the same conclusion in this case but further noted that the hearsay statements were admissible as a previous statement of a person present. Banks, 28 Kan. App. 2d at 835. See K.S.A. 2001 Supp. 60-460(a).
Lesser Included Offenses
Banks argues the trial court erred in failing to instruct the jury on the lesser included offense of batteiy and attempted aggravated indecent liberties with a child. Banks requested an instruction on the lesser included offense of battery, but the trial court refused to so instruct. Whether a crime is a lesser included offense is a question of law over which an appellate court exercises unlimited review. State v. Belcher, 269 Kan. 2, 4, 4 P.3d 1137 (2000).
Battery
The Court of Appeals rejected Banks’ argument, concluding that battery was not a lesser included offense. We agree and adopt the analysis of the Court of Appeals:
“Battery is defined in K.S.A. 21-3412(a) as ‘[(Intentionally or recklessly causing bodily harm to another person’ or (b) ‘intentionally causing physical contact with another person when done in a rude, insulting or angry manner.’ In its instructions, the trial court gave the following definition of lewd fondling or touching as provided in PIK Crim.'3d 53:00:
‘[L]ewd fondling or touching may be defined as a fondling or touching in a manner which tends to undermine the morals of the child, which is so clearly offensive as to outrage the moral senses of a reasonable person, and which is done with the specific intent to arouse or satisfy the sexual desires of either the child or the offender or both.’
“Clearly, the word ‘lewd’ is not equivalent to ‘rude or insulting’ as Banks contends. The evidence required to prove aggravated indecent liberties with a child would not prove this form of battery. Hence, battery is not a lesser included offense, and the court did not err in failing to give such an instruction.” Banks, 28 Kan. App. 2d at 835-36.
Attempted Aggravated Indecent Liberties With a Child
We also agree with the Court of Appeals’ rejection of Banks’ contention that an instruction should have been given on attempted aggravated indecent liberties with a child, even though Banks did not request such an instruction. The Court of Appeals concluded:
“As to the failure of the court to instruct on the offense of attempted aggravated indecent liberties with a child, it is important to note that Banks did not request such an instruction. The law is clear that in the absence of an objection, a party cannot complain of the failure to give an instruction unless that failure is clearly erroneous. [K.S.A. 2001 Supp. 22-3414(3)]. Both of the girls testified that Banks actually did touch them in a lewd manner. Banks did not claim he only attempted to touch the girls in a lewd manner. We hold that the trial court did not commit error on this issue because the evidence did not support a mere attempt.” 28 Kan. App. 2d at 836.
See State v. Robinson, 261 Kan. 865, 882-83, 934 P. 2d 38 (1997).
Prosecutorial Misconduct
Banks’ final argument is that he was denied a fair trial because of prosecutorial misconduct in closing argument. We have reviewed the record and determined that the decision of the Court of Appeals correctly disposes of Banks’ argument:
“Banks’ last claim of error is that the State committed prosecutorial misconduct in its closing argument rendering this trial fundamentally unfair. Banks admits that he failed to object to statements made by the prosecutor in closing argument. [See State v. McCorkendale, 267 Kan. 263, 278-79, 979 P. 2d 1239 (1999) (setting forth test for alleged prosecutorial misconduct where defendant has failed to object).] We have considered the record and find there were no prosecutoijal statements so gross and flagrant as to prejudice the jury against the defendant; even if there were, the evidence against the defendant was so overwhelming the prosecutor’s remarks would not have changed the result of the trial. [267 Kan. at 279.] When viewed in their entirety, the prosecutor’s statements made during the trial and during closing argument did not prejudice Banks and were at the most harmless error.” 28 Kan. App. 2d at 836.
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The opinion of the court was delivered by
Six, J.:
We earlier reversed and remanded defendant Tod Alan Pabst’s conviction for first-degree premeditated murder of his fiancee. The prosecutor’s remarks during closing arguments were so prejudicial that a new trial was required. See State v. Pabst, 268 Kan. 501, 502, 996 P.2d 321 (2000) (Pabst I). On retrial, Pabst was again convicted of first-degree premeditated murder. The district court imposed a sentence of life imprisonment with the possibility of parole in 25 years. See K.S.A. 2001 Supp. 22-3717. Pabst appeals his conviction and sentence.
Our jurisdiction is under K.S.A. 22-3601(b)(l) (an appeal of a conviction for an off-grid crime receives review by this court).
The issues are whether; (1) the district court erred by failing to provide an additional instruction on the definition of premeditation, (2) the prosecutor’s closing argument requires reversal, (3) the first-degree premeditated murder conviction was supported by sufficient evidence, (4) the district court erred in admitting Pabst’s testimony from his first trial into evidence, and (5) the district court erred by refusing to provide an additional instruction on the definition of voluntary intoxication.
We find no reversible error and affirm.
DISCUSSION
The facts are set out in Pabst I, 268 Kan. at 503. The initial trial was in Colby, Kansas, Thomas County. On retrial, the district court granted Pabst’s motion for a change of venue. The second trial, from which Pabst now appeals, was held in Hays, Kansas, Ellis County. Pabst did not take the stand at the second trial.
Instruction on Premeditation
Pabst claims the district court erred by failing to provide an additional instruction on the definition of premeditation. The district court instructed the jury that “[premeditation means to have thought over the matter beforehand,” in conformity with Pattern Instructions for Kansas (PIK) Crim. 3d 56.04(b) (premeditation). During the instructions conference, Pabst’s counsel cited the concurring opinion in State v. Saleem, 267 Kan. 100, 977 P.2d 921 (1999), and requested the following additional language: “Premeditation means something more than the instantaneous intentional act of taking another’s life. To have thought the matter over beforehand means to form a design or intent to kill before the act.” The district court denied counsel’s request, citing State v. Jamison, 269 Kan. 564, 7 P.3d 1204 (2000). Saleem held: “Premeditation as an element of first-degree murder means to have thought over the matter beforehand.” 267 Kan. 100, Syl. ¶ 2. Our standard of review is whether the instruction given properly and fairly stated the law as applied to the facts of the case and whether the instruction reasonably could have misled the jury. See State v. Carr, 265 Kan. 608, 617, 963 P.2d 421 (1998).
The State argues that there was no “objection” by Pabst to the failure to give his requested instruction. The State concludes that the clearly erroneous standard of review should be applied. This conclusion lacks merit. We have said: “It is well established that this court reviews a trial court’s failure to give an instruction by a clearly erroneous standard where the party neither requested the instruction nor objected to its omission.” (Emphasis added.) State v. Sperry, 267 Kan. 287, 294, 978 P.2d 933 (1999). Here, Pabst requested tire additional instruction.
In Jamison, we expressly approved the PIK Crim. 3d 56.04(b) definition of “premeditation” given here. We recognized that in Saleem, the concurring opinion expressed disagreement with PIK Crim. 3d 56.04(b) and our statement that the definition of premeditation is “to have thought over the matter beforehand.” 269 Kan. at 573. We found that the PIK definition “adequately conveys the concept that premeditation’ means something more than the instantaneous, intentional act of taking another’s life.” 269 Kan. at 573. The district court did not err in refusing to provide the requested additional instruction regarding premeditation.
Prosecutor’s Closing Argument
Pabst argues that the prosecutor committed misconduct during closing argument, requiring a reversal of his conviction. This contention lacks merit. First, Pabst asserts that the prosecutor made statements that did not accurately define premeditation. Pabst’s counsel objected to the statements and was overruled.
The analysis of the effect of a prosecutor’s alleged improper remarks in closing argument is a two-step process. First, we must decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, we must decide whether the remarks are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial. State v. Campbell, 268 Kan. 529, 539, 997 P.2d 726, cert. denied 531 U.S. 832 (2000) (citing State v. Lumley, 266 Kan. 939, Syl. ¶ 12, 976 P.2d 486 [1999] ).
Here, the prosecutor said:
“Now ladies and gentlemen, as we all know, science has not yet evolved to the point where we can read minds. We don’t have a machine where we can plug it in and say we know what was in a person’s mind. So what we have to do is, as prosecutors and jurors, is look at the surrounding circumstances of the crime itself, and the law allows for you to look at that, to look at what surrounds the crime to see if evidence of premeditation exists.
“Now, before we get to those factors, there’s no amount of time that’s required.
“You notice that there’s no time element in premeditation. There’s no interval that’s required. There’s no plan. You don’t have to think about it for weeks.
“You don’t have to think about it for weeks, days, hours, 50 minutes, ten minutes. It means to have thought over the matter beforehand. It’s the conscious act of a person. The only way that such matter can be proved is by looking at the circumstances.” (Emphasis added.)
Pabst asserts that the prosecutor misstated the law when he said there was “no amount of time that’s required.” According to Pabst, State v. Kingsley, 252 Kan. 761, 851 P.2d 370 (1993), and State v. Patterson, 243 Kan. 262, 755 P.2d 551 (1988), are distinguishable from this case. In both Kingsley and Patterson, we found no error where the district court instructed the jury that “[t]here is no specific time element required to establish premeditation.” Kingsley, 252 Kan. at 771-72; Patterson, 243 Kan. at 268. In Kingsley, we noted that such an instruction correctly stated the law. 252 Kan. at 772.
Pabst argues that the prosecutor’s use here of “no amount of time required” is different from “no specific time element required.” He contends that the statement “no amount of time required” means that no time is required and, thus, we should reverse Pabst’s conviction. His reasoning is not persuasive. According to the State, the prosecutor was explaining that no specified amount of time was required for premeditation. We find the State’s explanation a dubious distinction. However, the law clearly does not require a particular time period for premeditation. State v. Moncla, 262 Kan. 58, 72, 936 P.2d 727 (1997). We find no reversible error here.
Prosecutors are admonished to read State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001), where we found the prosecutor’s deliberate misstatement of the law regarding premeditation was reversible error. In closing argument, the prosecutor in Holmes said that “premeditation can occur in an instant. That’s the law in the State of Kansas.” 272 Kan. at 497. This was a deliberate misstatement, as evidenced by the prosecutor’s statements to the district judge during the jury instructions conference. 272 Kan. at 497.
A discussion of PIK Crim. 3d 56.04(b) in closing argument should avoid any temptation to use a synonym to convey the suggestion of “an instant” without using the actual phrase.
Next, Pabst contends that the prosecutor committed misconduct when he said that premeditation is the “conscious act of a person” and that “[t]here’s no plan.” He argues that describing premeditation as the “conscious act of a person” does away with the need for the element of premeditation and implies that only “intent” is required. He also asserts that by saying “[tjhere’s no plan,” the prosecutor contradicted State v. Thompkins, 263 Kan. 602, 609, 952 P.2d 1332 (1998), where we said: “Premeditation means that there was a design or intent before the act; that is, the accused planned, contrived, and schemed before killing the victim.”
The State argues that in context, the prosecutor’s statements are not erroneous. It notes that in State v. Scott, 271 Kan. 103, 108, 21 P.3d 516, cert denied 151 L. Ed. 2d 550 (2001), we said: “Premeditation is the time of reflection or deliberation. Premeditation does not necessarily mean that an act is planned, contrived, or schemed beforehand.” In Scott, we found that the defendant had his hand on the victim’s neck until she became unconscious. We concluded that Scott’s continued application of pressure over a period of time was sufficient for a jury to find that victim’s death was premeditated. 271 Kan. at 108.
In State v. Doyle, 272 Kan. 1157, 1163, 38 P.3d 650 (2002), we discussed the prosecutor’s statement that “[sjomething can be premeditated as soon as it happens.” This was a misstatement of the law. See 272 Kan. at 1165. We noted that in Moncla, we disapproved a juiy instruction that included a phrase that premeditation “may arise in an instant.” However, the error was not reversible in Monda because the record contained abundant evidence of premeditation and deliberation, and the jury was not misled by the instruction. Moncla, 262 Kan. at 73.
Here, the prosecutor’s statements that “[ijt’s the conscious act of a person” and “[tjhere’s no plan” are questionable. Pabst argues that the prosecutor’s misstatements clearly prejudiced the jury in that the jury requested a reading of the prosecutor s closing argument on premeditation. However, the record shows that the district court referred the jury to the instruction regarding premeditation and the instruction regarding statements of counsel. The jury was instructed in conformity with PIK Crim. 3d 56.04(b). The jury was also instructed that the statements and arguments of counsel are not evidence. We see no indication from the record that the prosecutor purposefully misstated the law. Finally, as noted later in our opinion, the record contains evidence of premeditation. Any error here by the prosecution regarding premeditation was harmless.
Pabst also contends that the prosecutor committed misconduct by stating facts not in evidence. We disagree. Generally, reversible error cannot be predicated upon a complaint of prosecutorial misconduct during closing arguments where no contemporaneous objection is lodged. State v. Finley, 268 Kan. 557, 571, 998 P.2d 95 (2000). We have no objection here. The prosecutor’s statements did not rise to the level of violating either Pabst’s right to a fair trial or the Fourteenth Amendment right to due process. See State v. Diggs, 272 Kan. 349, 362-63, 34 P.3d 63 (2001).
Pabst complains that twice the prosecutor said that Pabst “ambushed” Harkins. While the prosecution is given wide latitude in the language and presentation of closing arguments in a criminal trial, counsel is required to confine remarks to matters in evidence. State v. Hooker, 271 Kan. 52, 67, 21 P.3d 964 (2001).
Pabst notes that an issue for the jury to decide was whether the shooting was intentional or accidental. He argues that the prosecutor’s comments were prejudicial because they went directly to the issue. As the State points out, the word “ambush” connotes a sudden attack. Such an intentional act is consistent with the evidence and the State’s theory of premeditated first-degree murder. The prosecutor’s comments were not improper. We close this portion of our opinion with a caveat. Prosecutors, in discussing PIK Crim. 3d 56.04(b) with the jury during closing argument, are to follow the teaching of Pabst I:
“A prosecutor is a servant of the law and a representative of the people. The prosecutor represents a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” 268 Kan. 501, Syl. ¶ 6.
Sufficiency of the Evidence
Next, Pabst argues that his conviction was not supported by sufficient evidence of premeditation. Again, we disagree. The question is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found Pabst guilty beyond a reasonable doubt. See State v. Evans, 270 Kan. 585, 590, 17 P.3d 340 (2001).
Pabst contends that there was no direct evidence of premeditation. His argument was raised and rejected in Pabst I. 268 Kan. at 512. Here, he contends that the State only presented evidence of intent, not premeditation. Unless a person communicates his or her reasons for taking another’s life, premeditation must be proved by circumstantial evidence. Premeditation may be inferred from various circumstances, including: (1) the nature of the weapon used; (2) the lack of provocation; (3) the defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; or (5) the dealing of lethal blows after the deceased was felled and rendered helpless. State v. White, 263 Kan. 283, 294, 950 P.2d 1316 (1997). Premeditation cannot be inferred from the use of a deadly weapon alone, but it may be inferred where other circumstances also exist. Doyle, 272 Kan. at 1162.
Pabst notes that the State presented evidence that it was anatomically impossible for Harkins to have had her hands on the gun when she was shot. The State also presented evidence that the gun was at least 1 foot away from Harkins when she was shot and that she was seated during the shooting. Pabst contends that this evidence merely goes toward the element of intent. We disagree.
Pabst also argues that there was no evidence of a plan or scheme to kill Harkins because he had lunched with her earlier that day and “was in a great mood when he got home.” He seems to ignore the fact that premeditation does not require a specific time frame. See Jamison, 269 Kan. at 572-73. Although this record on appeal did not include photographs of the crime scene, testimony suggested that Harkins was found sitting on the couch with her legs crossed. There were no visible signs of a struggle. Viewing the evidence in a light most favorable to the prosecution, there was sufficient evidence for a rational factfinder to have found Pabst guilty of premeditated first-degree murder.
Pabst’s Prior Trial Testimony
Pabst did not testify at his second trial. He argues that the district court erred in admitting his Pabst I testimony. We disagree. The admission or exclusion of evidence lies within the sound discretion of the district court. On appellate review, we examine whether the district court abused its discretion. State v. Hooker, 271 Kan. at 63. We have held that the voluntary testimony of a defendant given at a prior trial is admissible at retrial. There is an exception to this rule when the prior testimony was compelled by the introduction of illegally obtained evidence. State v. Willcox, 240 Kan. 310, 313-14, 729 P.2d 451 (1986). The exception does not apply here.
Pabst contends that the testimony from his first trial was not voluntarily given. He reasons that he “would not have needed to testify” had the district court admitted his former wife’s testimony. His contention is not persuasive.
First, he did not argue in the district court that his prior trial testimony was involuntary or that his Fifth Amendment right against self-incrimination was violated. Where constitutional grounds are raised for the first time on appeal, they are not properly before us. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). The exceptions to our general rule recognized in State v. Conley, 270 Kan. 18, 30-31, 11 P.3d 1147 (2000), do not apply here.
Second, this case does not fall within the exception to the rule for admitting prior testimony in a retrial. There was no illegally obtained evidence introduced by the State in the first trial. See, e.g., Harrison v. United States, 392 U.S. 219, 222, 20 L. Ed. 2d 1047, 88 S. Ct. 2008 (1968) (establishing an exception where the defendant’s testimony is compelled as result of introduction of illegally obtained evidence).
Third, in this retrial, Pabst withdrew his motion to allow the testimony of his former wife. The State pointed out to the district court after interviewing the former wife that she “will not testify to what the defense first proffered in this trial the first time around .... So the proffer is different, or the actual testimony is going to be different from the proffer.” Dauge did not testify at the second trial. We find no abuse of discretion in allowing Pabst’s prior testimony to be admitted into evidence.
Voluntary Intoxication
The district court gave tire PIK Crim. 3d 54.12-A (1996 Supp.) voluntary intoxication instruction to the jury:
“Voluntary intoxication may be a defense to the charge of premeditated first-degree murder, where the evidence indicates that such intoxication impaired a Defendant’s mental faculties to the extent that he was incapable of forming the necessary intent to commit intentional murder with premeditation.”
Pabst argues that the district court erred by refusing to give an additional instruction on the definition of voluntary intoxication. Pabst requested such an instruction. Thus, our standard of review is whether the instruction given without the additional requested language properly and fairly stated the law as applied to the facts of the case and whether the instruction given reasonably could have misled the jury. See State v. Carr, 265 Kan. 608, 617, 963 P.2d 421 (1998).
Pabst requested the following instruction with supplemental language:
“Voluntary intoxication may be a defense to the charge of premeditated first-degree murder, where the evidence indicates such intoxication impaired a defendant’s mental faculties to the extent that he was incapable of forming the necessary intent or other state of mind to commit intentional murder with premeditation.” (Emphasis added.)
PIK Crim. 3d 54.12-A the instruction not given here, involves voluntary intoxication and “state of mind.” Pabst argues that Kansas law requires the additional “state of mind” language to be given to the jury. He notes that K.S.A. 21-3208(2) provides:
“An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.” (Emphasis added.)
The Comment to PIK Crim 3d 54.12-A says: “Where a defendant relies on evidence of voluntary intoxication to show lack of a required state of mind, the instruction on voluntary intoxication should include reference to the state of mind.”
Pabst advances State v. Ludlow, 256 Kan. 139, 883 P.2d 1144 (1994), to lend credence to his argument. In Ludlow, the issue involved PIK Crim. 3d 54.12-A and the instruction’s omission of “or other state of mind” in light of K.S.A. 21-3208(2). Ludlow complained that premeditation was an “other state of mind.” See 256 Kan. at 144-45. We agreed that the PIK instruction does not fully reflect the statutory provision. 256 Kan. at 145. We also agreed that premeditation is a “state of mind.” 256 Kan. at 147. We held that the use of PIK Crim. 3d 54.12-A absent the phrase “or other state of mind” was error where the defendant was charged with premeditated murder. 256 Kan. 139, Syl. ¶ 4. However, we found no reversible error in that case. 256 Kan. at 148.
The State argues that Ludlow is distinguishable because in Ludlow, the jury instruction did not include the word “premeditation.” See 256 Kan. at 143. We agree. Here, the jury was told that it could determine whether Pabst was “incapable of forming the necessary intent to commit intentional murder with premeditation.” (Emphasis added.)
We conclude that the instruction could not have reasonably misled the jury. | [
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The opinion of the court was delivered by
Larson, J.:
This appeal raises questions of standing, waiver, construction of contracts, and contract negotiations between an education association and a unified school district.
During a period of contract negotiations between the 312 Education Association (312 E.A.), a professional association of teachers employed at Unified School District No. 312 (U.S.D. 312 or District), which ultimately went to impasse, 312 E.A. filed grievances against the District for improperly placing a beginning teacher on the second rather than the first step of the District’s pay scale.
The first grievance filed by 312 E.A. was heard by the Superintendent of Schools, denied, and not further pursued. A second grievance raising the same contention was filed by 312 E.A, denied by the Superintendent, and then denied by the District’s school board. From this denial, 312 E.A. appealed to the district court, pursuant to K.S.A. 60-2101(d).
The district court granted U.S.D. 312’s motion to dismiss for lack of standing. 312 E.A. appeals. Our jurisdiction is pursuant to K.S.A. 20-3018(c) (transfer on our own motion).
Factual and procedural background
We first detail the actions of the parties and the pertinent parts of the various documents which we are called on to construe.
312 E.A. and U.S.D. 312 were negotiating the terms of the 2000-01 contract in June 2000, when 312 E.A filed a grievance with U.S.D. 312, contending Article IV(B)(2) of the 1999-2000 negotiated agreement had been violated. 312 E.A. alleged a “beginning teacher for the school year 1999-2000 was placed on Step 2 instead of Step 1 as defined specifically in the contract.” It was indicated to be a level 2 grievance and the remedy sought was: “All teachers new to the district will be placed on the salary schedule according to the terms of the contract.”
The grievance was signed by the chief negotiator and president of 312 E.A. The remedy sought could be construed as asking that the beginning teacher referred to be reduced one step on the salaiy schedule.
The response from the Superintendent of U.S.D. 312 stated (1) both parties were discussing the step placement issue, (2) the agreement allows “teachers,” not 312 E.A., to file grievances but also stated: “However, this time, it will be dealt with as though properly filed,” (3) the agreement was not violated as the person involved had relevant educational experiences, (4) the association had proposed a more lenient placement policy in its latest negotiating proposal, and (5) if further discussion was desired, he was available at a stated date and time 1 week later.
The 312 E.A. did not appear at the time offered and neither party did anything further of record as to this first exchange.
On September 29, 2000, 312 E.A. filed another grievance with the District. This was indicated to be a level 3 grievance with the same claim based on the same contract provision (Article IV B [2]) (improper step placement of a beginning teacher), but the remedy sought was materially different:
“All teachers under contract for the 1999-2000 school year will be advanced one step with the exception of the individual previously advanced for that school year, OR, alternately, beginning first year teachers who were placed on step one for the contract years 1999-2000 and 2000-2001 will be advanced one step. Both of these remedies would be retroactive to each teacher’s hire date, plus interest.”
The October 10, 2000, response from the Superintendent reiterated that the complaint was not filed by a “teacher” or within the time specified in the contract, but the Board, “in a continuing effort to demonstrate, yet another, good faith effort to deal constructively with teacher complaints,” agreed to “formally hear the complaint on October 16, 2000, at 7:30 p.m. in the Board Room at the District office in Haven.”
The letter concluded:
“It must be clearly understood that the Board’s decision to hear this complaint, which does not comply with negotiated agreement procedures, may not be construed as a waiver of the Board’s right to insist upon compliance with the negotiated contract’s provisions in the future.”
The Board considered the grievance and affirmed “the placement of the teacher on the salary schedule and that such placement is in accordance with the negotiated agreement and that the board has the authority to determine the placement of teachers on the salary schedule.” The Board informed 312 E.A of its decision by a letter dated October 26, 2000, stating:
“In reaching it’s decision, the Board considered your written grievance and your statements to the Board, the statements of Mr. Chadwick, the District’s superintendent, and copies of written materials relating to the subject of your grievance appeal. On the basis of such information, the Board determined the actions and previous decisions of the District superintendent should be confirmed.”
The record reflects that 312 E.A. next filed on November 3, 2000, a complaint against U.S.D. 312 with the Kansas Department of Human Resources (Labor Relations Section), wherein it was alleged U.S.D. 312 had engaged in prohibited practices within the meaning of K.S.A. 72-5430(b)(5) (essentially, a claim of refusal to negotiate in good faith) by the placement of the teacher in step 2 instead of step 1 as required by the contract language.
The relief sought was identical to that requested from U.S.D. 312 in the second grievance, with an additional request for an order requiring U.S.D. 312 to negotiate in good faith and posting for 30 days in a conspicuous place the District’s acknowledgment that it committed the prohibited practice.
On November 21,2000,312 E.A. filed an appeal in district court pursuant to K.S.A. 60-2101(d) from the Board’s rejection of its September 29, 2000, grievance.
U.S.D. 312 filed a motion to dismiss, contending (1) 312 E.A. lacked standing to pursue the grievance under the provisions of the Negotiated Agreement for 1999-2000, (2) 312 E.A., as a voluntary association, had no standing to assert a grievance or claim for the interest of one class of the employees it represents at the expense or contraiy to the best interests of one or more other professional employees, (3) the grievance procedures under the negotiated agreement were available to individual teachers and made no reference to rights of 312 E.A. to initiate a grievance, (4) the appeal constituted an improper attempt to interfere with, restrain, or coerce U.S.D. 312 with respect to pending contract negotiations under K.S.A. 72-5413 et seq., where one of the issues being negotiated is the placement of professional personnel on the District salary schedule, and (5) the 312 E.A. had failed to exhaust its administrative remedies when it filed on November 3, 2000, a complaint before the Kansas Department of Human Resources, requesting the same relief it had requested in the grievance filing.
312 E.A.’s response contended (1) the District’s improper placement of the teacher on the salary schedule allowed 312 E.A., as the statutory professional employees’ organization charged with improving employees rights, the right and obligation to file the grievance, citing NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 387, 996 P.2d 821 (2000), and Seaman Dist. Teachers’ Ass’n v. Board of Education, 217 Kan. 233, 535 P.2d 889 (1997), (2) the District, by acceptance of the grievance and agreement to hear the grievance, waived any claim of procedural defects in this instance, (3) the association met the representation test because it had the right and duty to seek enforcement of the negotiated agreement, (4) the negotiation process was not an issue in the present case as it involved a yet to be agreed upon agreement, and (5) it was not obligated to exhaust administrative remedies, as a prohibited practice allegation under K.S.A. 72-5430 differs from an appeal mandated under K.S.A. 60-2101(d) for the several reasons it had enumerated.
312 E.A. also referred to an earlier Reno County District Court case involving the Hutchinson Community College and its faculty association where a grievance was allowed to be filed by a professional association. U.S.D. 312’s response pointed out the language of the negotiated agreement therein involved was materially different and this case does not seem to have been further considered.
After the submission of briefs and oral arguments, the trial court rendered its memorandum decision in which it granted the motion to dismiss on the grounds that 312 E.A. failed the third prong of the association representation test. The trial court’s conclusions of law recognized that the appeal was one made under K.S.A. 60-2101(d), recognized that teachers are professional employees who may be represented by an appropriate negotiating unit, and recited language found in K.S.A. 72-5415(a). The decision continued:
“6. The Plaintiff, pursuant to 5415(a), supra, is the exclusive representative of all the teachers (or professional employees) employed by the Defendant Board for the purpose of professional negotiations in matters concerning the contracts of teachers.
“7. Article V of the Parties’ Negotiated Agreement for 1999-00 is entitled, ‘Teachers Recourses.’ Section B of that article deals with the grievance procedure. It is noted by the Court that the entire Section B mentions only the right of a teacher to file a grievance, not the professional association of teachers.
“8. The Plaintiff, in this case, does not have standing to pursue this appeal. See: Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333; NEA-Coffeyville v. Unified School District No. 445, 268 Kan. 384; Warth v. Seldin, 422 U.S. 490. Under the three-pronged test in Hunt, supra, and followed by our Kansas Supreme Court, the Plaintiff fails number three:
‘An association has standing to sue on behalf of its members when: (1) the members have standing to sue individually; (2) the interests the association seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested require participation of individual members.’
Here, the relief requested requires the participation of individual members or a member.
“9. The Plaintiff has a conflict of interest in this case in that it has a contractual duty to represent the interests of all the teachers. At least one teacher’s interests in this case would be adverse to the stated purpose of the lawsuit.
“10. The Plaintiff, of course, has the right to balance and even disregard individual teachers’ interests when the parties are negotiating a contract.
“11. The Court does not need to discuss other arguments by the parties in view of this ruling.”
It is from this decision that 312 E.A. appeals.
Under Article IV(B)(2), regarding compensation, the agreement states: “Placement on a Step: Step placement may not correspond with actual years of experience. Beginning teachers will be placed on the first step. Experienced teachers will be placed on the appropriate step based [sic] years of experience.”
Article V(B) defines the grievance procedure. Subsection (B)(1) states that “[i]t is the declared policy of the U.S.D. 312 to encourage the prompt and informal resolution of teacher’s complaints, and to provide recourse to orderly procedure for adjustments of complaints.” Subsections (B)(2)(a) and (b) define a grievance and a teacher:
“a. A grievance is an alleged misinterpretation, misapplication, or a violation of the provisions of the Agreement, of the rules, regulations, or policies of the school board or a violation of the law.
“b. A ‘teacher’ is one or more teachers in the bargaining unit.”
The grievance procedure consists of three steps. First, a teacher presents a complaint in writing to the head administrator over his or her section within 30 days of acquiring knowledge of the complained-of action. The two confer and a written decision with supporting reasons is issued. Second, if the grievance is not yet resolved, the teacher may appeal to the Superintendent, who also is required to hear the matter and issue a written decision. The written opinion must be issued within 10 days of conferencing the matter. Third, assuming the matter is still unresolved, the teacher may appeal to the Board of Education. The' Board must meet within 20 days of receipt of the appeal and issue an opinion within 10 days of the hearing. Time limits may be extended by mutual agreement.
The negotiated agreement does not include 312 E.A. as a party to the grievance procedures. The only references to 312 E.A. are found in the last section of the contract, under the heading “CONTRACT DURATION.” The two subsections under that Article read in part:
“A. Reopener Clause: By mutual agreement, negotiations between the Board and 312 Educational Association may be reopened to permit amendment to sections of this agreement prior to the fulfillment of the contract year.
“B. Items Ratified: All items ratified by the Board of Education and 312 Education Association shall become a part of the teacher’s contract and be attached thereto.”
Standards of review
This matter is before us as an appeal from the trial court’s granting of a motion to dismiss. We recently summarized our standard of review of such a ruling in Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 10, 20 P.3d 39 (2001), as follows:
“The manner in which motions to dismiss should be reviewed was recently set forth in Ripley v. Tolbert, 260 Kan. 491, Syl. ¶¶ 1, 2, 921 P.2d 1210 (1996), where we said:
‘Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff s favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.
‘In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiffs description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.’
“In Noel v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 230-233, 805 P.2d 1244, rev. denied 248 Kan. 996 (1991), which relied on Bruggeman v. Schimke, 239 Kan. 245, 247-48, 718 P.2d 635 (1986), the court applied the general rule for reviewing motions to dismiss for failure of a party to state a claim for relief:
‘[I]t is our duty to determine whether those pleaded facts and inferences state a claim, not only on the theory which may be espoused by the plaintiffs, but on any possible theory we can divine.
‘There are sound reasons for exercising judicial skepticism towards dismissal of a petition for failure to state a claim prior to the completion of discovery.’ 15 Kan. App. 2d at 231.”
With the lower court’s dismissal of 312 E.A.’s appeal based on lack of standing and specifically due to its failure of die association representation test, we review the issue of whether a party has standing to sue as a question of law subject to unlimited review. State ex rel. Board of Healing Arts v. Beyrle, 269 Kan. 616, 624, 7 P.3d 1194 (2000); Robinson v. Kansas State High School Activities Ass’n, 260 Kan. 136, 139, 917 P.2d 836 (1996).
Analysis
Although we have recendy considered questions of standing to sue under numerous circumstances, see Kansas Bar Ass’n v. Judges of the Third Judicial District, 270 Kan. 489, 496, 14 P.3d 1154 (2000); Families Against Corporate Takeover v. Mitchell, 268 Kan. 803, 810, 1 P.3d 884 (2000); NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 387, 996 P.2d 821 (2000); see also Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333, 343, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977); Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975), our comments in Harrison v. Long, 241 Kan. 174, 176, 734 P.2d 1155 (1987), well summarize the difficulty this issue raises where Justice Lockett, speaking for a unanimous court, said:
“Standing has been called one of the most amorphous concepts in the entire domain of public law. Annot., 50 L. Ed. 2d 902, 904. The United States Supreme Court has stated that, in its constitutional dimension, standing imparts justiciability: whether the plaintiff has made out a case or controversy between himself and the defendant within the meaning of Article III of the U.S. Constitution. The court has emphasized that this is the threshold question in every federal case determining the power of the court to entertain the suit. Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975).
“Standing is a question of whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of jurisdiction and to justify exercise of the court’s remedial powers on his behalf. Worth v. Seldin, 422 U.S. at 498-99. ‘Standing to sue’ means that a party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Dutoit v. Board of Johnson County Comm’rs, 233 Kan. 995, 1003, 667 P.2d 879 (1983).”
The cases relied on by 312 E.A. to claim standing, NEA-Coffeyville and Seaman Dist. Teachers’ Ass’n, do not support its position as well as it indicates.
Seaman Dist. Teachers’ Ass’n primarily involved the Collective Negotiations Act (K.S.A. 72-5413 though 72-5425) and proceedings thereunder and we do not believe it is authority for 312 E.A.’s standing under these facts.
The holding and result in NEA-Coffeyville, while based on substantially different facts, must be considered as it is closer to our situation than Seaman. In NEA-Coffeyville, the battle was over a Blue Cross Blue Shield health insurance refund. We held that under the facts, the grievance procedure, although administrative, was not an adequate one and we allowed NEA-Coffeyville to sue the school board directly. As to standing we said:
“NEA-C, as the exclusive bargaining agent for the District’s teachers, has standing to sue where the protection of teachers’ rights is at issue. See K.S.A. 72-5414.
“The United States Supreme Court has held that an association has standing to sue on behalf of its members when: (1) the members have standing to sue individually; (2) the interests the association seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested require participation of individual members. Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 343, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1997).
“NEA-C satisfies the requirements of the above test. Its members are identified as beneficiaries of the District’s BCBS contract. As such, the members have standing to sue individually under a third-party beneficiary theory. See Fasse v. Lower Heating & Air Conditioning, Inc., 241 Kan. 387, Syl. ¶ 1, 736 P.2d 930 (1987). Moreover, the interest NEA-C seeks to protect is the monetary refund from insurance contracts made for the members’ benefit and generated by their conduct. Finally, none of the individual member’s participation is necessary. We conclude that NEA-C is a proper party plaintiff.” 268 Kan. at 387.
Our case is materially different, as here the District considered 312 E.A.’s appeal as one from a sufficient administrative body, which is directly opposite from our court’s conclusion in NEA-Coffeyville. If, in fact, 312 E.A.’s present appeal is to be treated as one made on behalf of the membership of the association, the associational test of Hunt as previously articulated in our cases would apply. We will therefore consider, as 312 E.A. appears to concede, that the three-part test set out in Hunt must be satisfied.
We have said several times that “an association has standing to sue on behalf of its members when: (1) the members have standing to sue individually; (2) the interests the association seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested require participation of individual members.” NEA-Coffeyville, 268 Kan. at 387; accord, Families Against Corporate Takeover v. Mitchell, 268 Kan. at 810 (both relying on Hunt, 432 U.S. at 343).
Both parties agree that the first two elements are met. Individual members of the 312 E.A. could and possibly should have filed the grievance. The interest sought to be protected appears to be germane to 312 E.A.’s organizational purpose. Thus, the question remains, does the claim asserted and the relief requested require participation of individual members?
The trial court’s ruling that 312 E.A. “has a conflict of interest in this case in that it has a contractual duty to represent the interests of all the teachers. At least one teacher’s interests in this case would be adverse to the stated purpose of the lawsuit” has a nice ring to it, but if the requested remedy were granted (a result we assume for purposes of the motion to dismiss but which we do not concede), it would not necessarily be adverse to the one teacher who might well be entitled to remain on the step in the salary schedule which he negotiated with the District. The requested relief was advancement of one step for either all teachers or, alternatively, beginning first-year teachers. Assuming such relief should be granted (which we do only for our consideration of a motion to dismiss based on standing), it does not appear the requested relief is contrary to the interests of any of the 312 E.A.’s members.
This does not mean, however, that standing exists under the facts of our case. The District makes additional arguments that 312 E.A. has alleged neither monetary damages to itself nor assignment of damages from its members and thus the claim requires the participation of individual members. In addition, the District argues 312 E.A. lacks standing because the claim for damages is not common to all of the teacher members of 312 E.A., nor are the damages shared by all members in equal degree. These arguments rely on Warth v. Seldin, 422 U.S. 490, which we do not believe supports the District’s contentions.
In Warth, several claimants including a home builder association claimed monetary damages against a town and some of its officials for zoning restrictions which the association alleged caused its members to loose business. In holding the association lacked standing, the Supreme Court opinion stated:
“As noted above, to justify any relief the association must show that it has suffered harm, or that one or more of its members are injured. E.g., Sierra Club v. Morton, 405 U.S. 727[, 31 L. Ed. 2d 636, 92 S. Ct. 1361] (1972). But, apart from this, whether an association has standing to invoke the court’s remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind. E.g., National Motor Freight Assn. v. United States, 372 U.S. 246[, 9 L. Ed. 2d 709, 83 S. Ct. 688] (1963). See Data Processing Service v. Camp, 397 U.S. 150[, 25 L. Ed. 2d 184, 90 S. Ct. 827] (1970). Cf. Fed. Rule Civ. Proc. 23(b)(2).
"The present case, however, differs significantly as here an association seeks relief in damages for alleged injuries to its members. Home Builders alleges no monetary injury to itself, nor any assignment of the damages claims of its members. No award therefore can be made to the association as such.” 422 U.S. at 515.
Warth appears to make the crucial standing test to be whether the relief requested inures to the benefit of the members of the association actually injured. 312 E.A. is not seeking monetary damages for itself but rather is seeking an increased salary step for all teachers or, alternatively, for all other beginning teachers. The home builders association in Warth was seeking a monetary damage award in its own name, not for damages caused to itself but to its members and, according to the Warth opinion, was doing so without assignment from the damaged members of any of their claims.
There is language in the section of the Worth opinion referred to above which gives comfort to U.S.D. 312 in its arguments regarding the failure of the damage claims to be of an equal degree. The Worth opinion said:
“Moreover, in the circumstances of this case the damage claims are not common to the entire membership, nor shared in equal degree. To the contrary, whatever injury may have been suffered is peculiar to the individual member concerned, and both the fact and extent of injury would require individualized proof. Thus, to obtain relief in damages, each member of Home Builders who claims injury as a result of respondents’ practices must be a party to the suit, and Home Builders has no standing to claim damages on his behalf.” 422 U.S. at 515-16.
In our case, the damages claimed, although made alternatively, are the same for each class member. Although we have doubts as to such claim being a proper remedy even if a breach did occur, for purposes of considering standing under a motion to dismiss, we resolve this doubt in 312 E.A.’s favor. We do not believe that each association member must be entitled to identical relief in order for association standing to exist. We appear to have held to the contrary in NEA-Coffeyville where different amounts appeared to be owing to different teachers based on their services for different portions of the years for which the insurance refunds were issued.
This analysis still does not show that 312 E.A. satisfies the association representation test for, as we have previously stated, the third prong of Hunt requires that “neither the claim asserted nor the relief requested, may require participation of individual members.” NEA-Coffeyville, 268 Kan. at 387. The claim asserted portion of the third Hunt prong was considered and applied in Kansas Health Care v. Kansas DSRS, 958 F.2d 1018 (10th Cir. 1992).
In the 10th Circuit case, it was held that association members who were health care service providers lacked association standing to challenge medical reimbursement rates set by SRS because proof and resolution of claims would unavoidably require individual participation of the associations’ members. The unanimous opinion written by Judge Tacha reasoned that “in order to resolve plaintiffs’ claims, we will be required to examine evidence particular to individual providers.” 958 F.2d at 1022. The opinion, as does ours, did not focus on the merits of the plaintiffs’ claims, but was directed to the “claim asserted” portion of'the Hunt third prong.
Our previous analysis has been of the relief requested, and when we move to a claim asserted analysis we must examine the claim or claims of 312 E.A. in order to determine if participation by individual members would be required. There is no question but that the teacher who it is contended was improperly placed on the wrong salary step would of necessity be individually involved as U.S.D. 312’s defense to the claim, as stated in the Superintendent’s correspondence, was that the teacher placed on step 2 had relevant experience which would justify his placement. This appears to be specifically allowed by the contract, which states: “Step placement may not correspond with actual years of experience. Beginning teachers will be placed on the first step. Experienced teachers will be placed on the appropriate step based [sic] years of experience.”
Furthermore, as to the claim asserted for beginning teachers, it appears necessary to determine their experience level to see if they had been properly placed on the salary schedule. Evidence relating to each of such teachers may have to be separately examined. In order to properly litigate 312 E.A.’s claim, participation of individual members from the association would appear to be required in order to resolve the claim asserted portion of the association representation test.
An examination of the negotiated agreement in its totality also appears to prevent 312 E.A. from having standing. This is a question of law subject to plenary review, and we are not bound by the construction given by the trial court. See First Financial Ins. Co. v. Bigg, 265 Kan. 690, 694, 962 P.2d 515 (1998).
There is neither exclusion nor inclusion of 312 E.A. in the grievance procedure. The agreement says only that “[a]ny teacher may . . . present a formal grievance.” (Emphasis added.) “Teacher” is defined as “one or more teachers in the bargaining unit.”
The policy of the grievance procedure may be for the “prompt and informed resolution of teacher’s complaints,” but this gives 312 E.A. no greater stature than provided for in the negotiated agreement.
Neither NEA-Cojfeyville nor Seaman involved grievances under negotiated agreements but rather lawsuits separate and distinct from the rights conveyed in the agreement. We did say in NEACojfeyville that “[w]e are not at liberty to revise an agreement to implement an unexpressed intention.” 268 Kan. at 405. Clearly, the parties could have made 312 E.A. a party to the grievance procedure had they intended to do so, but, having not done so, this supports the conclusion that 312 E.A. was not to be a party to the grievance proceedings.
The only mention of 312 E.A. has been previously quoted and falls under the broad heading in the agreement of “CONTRACT DURATION.” The most reasonable reading of the entire contract is that 312 E.A. is not a proper party to the grievance procedure.
This position appears to have been articulated by U.S.D. 312 through its Superintendent in both the letter responses dated June 14,2000, and October 10,2000. We thus agree with the trial court’s ruling that standing does not exist, although not for the same reasons the trial court did. Unfortunately, this does not resolve the case, for 312 E.A. has a claim of waiver that must be considered.
The question is, did the District waive the standing defense by its actions and the language of its letters, principally when it said in the October 10, 2000, response:
“It must be clearly understood that the Board’s decision to hear this complaint, which does not comply with negotiated agreement procedures, may not be construed as a waiver of the Board’s right to insist upon compliance with the negotiated contract’s provisions in the future.”
We express no opinion as to the meaning and effect of this language or the actions of the District, but hold this is an issue to be resolved by the trial court. In the event the language is deemed ambiguous and parol evidence allowed (an issue again on which we express no opinion), the trial court and not an appellate court would be the place where these issues should be decided.
There are also numerous additional issues that would have to be resolved even if waiver of standing was found to exist.
The trial court would need to determine the status of the 312 E.A. claim before the Department of Human Resources. The trial court would be required to find the teacher placed on step 2 was improperly placed. This would appear to require taking of evidence. If a breach was ultimately found, the trial court may have to examine at least the experience of beginning teachers to determine if they have properly asserted a claim and the larger and more difficult question of whether any damages would be owing even if the one teacher was improperly placed.
We hold that all of these questions, and surely others which may arise if this matter continues, should be resolved by the trial court, beginning with consideration of the waiver question.
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|
The opinion of the court was delivered by
Davis, J.:
American Trust Administrators, Inc. (ATA) appeals the district court’s decision affirming the final decision of the Commissioner of Insurance (Commissioner) to withdraw approval of ATA’s stop-loss insurance policy.
ATA argues: (1) The Commissioner does not have jurisdiction to regulate stop-loss policies; (2) the Commissioner’s regulation fails to comply with the Kansas statutoiy rules governing regulatoiy procedure; (3) the regulation is an unconstitutional delegation of legislative power; and (4) federal law preempts the Commissioner’s regulation of the policy. The Commissioner cross-appeals, contending that ATA is collaterally estopped from asserting the preemption issue.
We hold: (1) The Commissioner has statutoiy authority under K.S.A. 40-2201(b) to require minimum attachment points for stop-loss insurance policies; and (2) the Commissioner’s attempt to reg ulate stop-loss policies is void for failure to comply with K.S.A. 77-415 et seq.
FACTS
The facts are undisputed, but procedurally involved. The case involves the authority, both constitutional and statutory, of the Commissioner to regulate stop-loss insurance offered to “self-funded” employer health plans. ATA presently appeals for the second time from litigation against the Commissioner. See American Trust Administrators, Inc. v. Sebelius, 267 Kan. 480, 981 P.2d 248 (1999) (American Trust I). American Trust I provides useful background information on the nature of the insurance being regulated and the underlying substantive dispute between the parties.
ATA seeks to gain the Commissioner’s approval of its stop-loss insurance policy. ATA’s policy has an attachment point of zero. The Commissioner, in her July 6,1995, letter, refused to approve ATA’s policy. She based her refusal on bulletins “1993-12” and “1993-12 Addendum.” The bulletin 1993-12 contains the following criteria for the sale of stop-loss insurance:
“1. The stop loss or excess loss policy shall be issued to and insure the plan or plan sponsor, not the individual participants.
“2. Payment by the insurer shall be made to the plan sponsor or the plan itself, not the employees, members, participants, or providers.
“3. The threshold for specific stop loss coverage shall be no less than $10,000 per individual participant.
“4. The threshold for aggregate stop loss coverage shall be no less than 120% of expected claims.
“5. The stop loss policy shall contain a provision that the plan’s or the plan sponsor’s bankruptcy or insolvency will not relieve the stop loss insurer from its obligation pay claims under the stop loss policy.
“6. The claim settlement period may be no less favorable than a 12/i3 (incurred in 12/paid in 13).”
American Trust I and the present appeal represent two separate actions for judicial review of an administrative action. In American Trust I, ATA petitioned the Shawnee District Court following ATA’s failure to reverse by administrative means the Commissioner’s disapproval of its policy. ATA argued to the Shawnee District Court that (1) the federal Employee Retirement Income Se curity Act of 1974 (ERISA) preempted the Commissioner’s ability to regulate stop-loss insurance; (2) the Commissioner did not have statutoiy authority to regulate stop-loss insurance; and (3) the Commissioner’s regulation was arbitrary and capricious. The district court disagreed, holding that the Commissioner was not preempted from regulation of stop-loss insurance; however, she lacked statutoiy authority to do so. Thus, ultimately, the court held, the Commissioner was precluded from regulating ATA’s stop-loss insurance. The Shawnee District Court did not reach the issue of whether the regulation was arbitrary and capricious.
Months after the Shawnee District Court’s decision, the legislature adopted L. 1997, ch. 190, sec. 24, presumably to grant the Commissioner authority to regulate stop-loss insurance — a matter disputed in the present appeal. The amended statute, with the amended language represented by italics, reads as follows:
“K.S.A. 40-2201 is hereby amended to read as follows: 40-2201. (a) The term ‘policy of accident and sickness insurance’ as used herein includes any policy or contract issuing against loss resulting from sickness or bodily injuiy or death by accident, or both, issued by a stock, or mutual company or association or any other insurer.
“(b) The term ‘policy of stop loss or excess loss insurance coverage’ means a policy, contract, endorsement, attachments, amendments or other modifications that insure against losses of the policyholder issued by a stock, or mutual company or association or any other insurer.” L. 1997, ch. 190, § 24.
Following the legislature’s amendment, the Commissioner proceeded to regulate ATA’s stop-loss insurance, believing the amendment granted her the necessaiy authority. 267 Kan. at 484.
ATA responded to the Commissioner’s further attempts at regulation in two ways. First, ATA initiated a new administrative hearing. This new administrative hearing, eventually put on hold pending the appeal in American Trust I, proceeded to the Johnson District Court, forming the basis for the appeal here. Second, ATA responded to the Commissioner’s further attempts at regulation of stop-loss insurance by moving the Shawnee District Court to hold the Commissioner in contempt for continuing to regulate stop-loss insurance in violation of the district court’s earlier ruling. The Shawnee District Court denied the motion to hold the Commis sioner in contempt, implying the amendment granted the Commissioner authority to regulate stop-loss insurance. ATA appealed, resulting in American Trust I.
In American Trust I, ATA argued that (1) the Commissioner did not have statutory authority to regulate stop-loss insurance; and (2) the district court erred in failing to find ERISA preempted the Commissioner’s attempts to regulate. American Trust I did not reach either of these issues, which are now advanced by ATA in the present appeal. Instead, American Trust I held ATA failed to timely appeal from the district court’s decision regarding the preemption argument, and therefore we had no jurisdiction to consider whether ERISA preempted the Commissioner’s regulation of stop-loss insurance. American Trust I also considered whether the district court was correct in not holding the Commissioner in contempt for continuing to regulate stop-loss insurance following the first judgment. In reaching the contempt issue, the majority, to the extent necessary under the abuse of discretion standard of review appropriate for reviewing contempt decisions, determined whether the lower court’s statutory interpretation of K.S.A. 40-2201 was reasonable. We affirmed the district court’s failure to hold the Commissioner in contempt. We held the district court’s “well-reasoned opinion,” which interpreted the Commissioner’s statutory authority, was correct for contempt purposes. 267 Kan. at 490.
The Johnson County Case
With American Trust I resolved, ATA continued prosecuting its second administrative action, which had been halted pending resolution of the appeal in American Trust 1. The Commissioner, in her initial order, concluded (1) ATA was barred by the res judicata doctrine from asserting the preemption argument; (2) the Commissioner’s bulletins were not void for failing to comply with K.S.A. 77-415 et seq.; and (3) the Commissioner has statutory authority under the amended statutes to regulate stop-loss insurance. The Commissioner issued her final order on June 8, 2000, summarily affirming the initial order.
ATA appealed the final order with a petition for judicial review. ATA argued (1) the Commissioner lacked statutory authority to regulate stop-loss insurance; (2) the Commissioner failed to follow the procedure in K.S.A. 77-415 et seq. for the promulgation of administrative rules and regulations; (3) ATA was not collaterally estopped from asserting the preemption issue; and (4) the Commissioner s regulation of stop-loss insurance was preempted by ERISA. The district court rejected all of ATA’s arguments, except the collateral estoppel argument. ATA appealed, raising the issues presently before us. The Commissioner cross-appealed on the collateral estoppel issue.
DISCUSSION
Statutory Authority to Regulate Stop-Loss Insurance
ATA argues the Commissioner is without statutory authority to regulate stop-loss insurance. As head of an agency, the Commissioner’s authority is limited by law: “Administrative agencies are creatures of statute and their power is dependent upon authorizing statutes, therefore any exercise of authority claimed by the agency must come from within the statutes. There is no general or common law power that can be exercised by an administrative agency.” Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 378, 673 P.2d 1126 (1983).
ATA argues Kansas statutes, including the 1997 amendment to K.S.A. 40-2201 (Furse 1993), do not grant the Commissioner the authority to regulate stop-loss insurance. ATA explains the amendment to K.S.A. 40-2201 (Furse 1993) merely defines stop-loss insurance without bringing that definition within the realm of the Commissioner’s control. The Commissioner responds to ATA’s argument by asserting three distinct arguments: (1) Kansas statutes generally grant the Commissioner authority to regulate stop-loss insurance; (2) the amendment to K.S.A. 40-2201 (Furse 1993) specifically grants the Commissioner authority to regulate stop-loss insurance; and (3) the stop-loss insurance at issue is in substance insurance as defined in K.S.A. 40-2201(a), over which the legislature has given the Commissioner clear authority to regulate.
The interpretation of statute is a question of law over which this court exercises unlimited review. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000). The Commissioner relies on K.S.A. 40-102 and K.S.A. 40-103 to argue the legislature has generally conferred the authority necessary to regulate stop-loss insurance. This argument is not persuasive.
Highly summarized, K.S.A. 40-102 merely requires to Commissioner to be responsible for the “administration of all laws relating to insurance, . . . and all other duties which are or may be imposed ... by law.” Implicit in this grant of authority is the existence of “laws” and “other duties,” which are presumably to be found elsewhere in the statutes. In looking for the legislature’s grant of authority to the Commissioner to regulate stop-loss insurance, K.S.A. 40-102 sends the reader looking elsewhere. K.S.A. 40-102 by itself does not give the Commissioner specific authority.
The Commissioner also asserts K.S.A. 40-103 grants the authority to regulate stop-loss insurance. True, K.S.A. 40-103 gives the Commissioner powers of “supervision, control and regulation of corporations . . . authorized to transact the business of insurance,” but that power is qualified by the phrase, “necessary to enforce the laws of this state relating thereto.” Therefore, the reader of K.S.A. 40-103 must also look elsewhere to discern the substance of what powers the Commissioner is given. This view was also taken by the Court of Appeals in Durrett v. Bryan, 14 Kan. App. 2d 723, 728, 799 P.2d 110 (1990) (“[K.S.A. 40-103] expressly provides, however, only the power to make regulations necessary to enforce the laws relating to supervision of insurance, i.e., some other statute must first provide more specific basis for authority before this statute comes into play.”).
The real issue here involves the amendment to K.S.A. 40-2201 (Furse 1993), which added subsection (b). See L. 1997, ch. 190, sec. 24. K.S.A. 40-2201 now contains the following definitions:
“(a) The term ‘policy of accident and sickness insurance’ as used herein includes any policy or contract insuring against loss resulting from sickness or bodily injury or death by accident, or both, issued by a stock, or mutual company or association or any other insurer.
“(b) The term ‘policy of stop loss or excess loss insurance coverage’ means a policy, contract, endorsement, attachments, amendments or other modifications that insure against losses of the policyholder issued by a stock, or mutual company or association or any other insurer.”
The Commissioner argues the amendment clearly grants authority to regulate stop-loss insurance. Furthermore, the Commissioner argues any other interpretation would render the statute meaningless. ATA, on the other hand, asserts the alternative interpretation that the legislature defined stop-loss insurance in order to exclude such insurance from the Commissioner s reach and that such interpretation is at best just as likely as the Commissioner’s.
Thus, the proper interpretation of K.S.A. 40-2201(a) and (b) is, on its face, uncertain. If the meaning of the statute cannot be determined by looking at the plain and unambiguous language, then we may “look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.” Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000).
As Robinett instructs, the current analysis should consider the historical background of the legislative amendment. At the time of the amendment, the Shawnee District Court had ruled the Commissioner did not have authority under Kansas statutes to regulate stop-loss insurance. It is logical to conclude the legislature amended 40-2201 in response to the Shawnee District Court order. Further, it is logical to conclude the purpose of the amendment was to give the authority to the Commissioner that the district court had said did not exist. The session law in issue, L. 1997, ch. 190, sec. 24, was also known as Senate Bill 204. The language in the session law containing the amendment to 40-2201 did not appear until after the Shawnee District Court’s April 25,1997, memorandum decision. For example, the form of the Senate Bill 204 as reported on March 24, 1998, only contained 15 sections but did not yet contain § 24. House J., 1997, pp. 539-40. The next time Senate Bill 204 appears in either the House or Senate Journals with the amendment affecting 40-2201 was the report of the conference committee on May 3, 1997. House J., 1997, pp. 958-68.
ATA argues that if the legislature’s amendment was in response to the Shawnee District Court’s decision, it does not follow that the legislature responded intending to change the law, i.e. the legislature might have intended to memorialize what the district court had established. When a legislature revises an existing law, it is presumed that the legislature intended to change the law. Board of Sedgwick County Comm’rs v. Action Rent to Own, Inc., 266 Kan. 293, 304, 969 P.2d 844 (1998). However, this presumption may be weak according to the circumstances and may be wanting altogether. 266 Kan. at 304. “The presumption is fairly strong in the case of an isolated, independent amendment, but is of little force in the case of amendments adopted in a general revision or codification of the law.” Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982).
Assuming the presumption applies here, and there is no reason to believe it does not given the amendment is “isolated and independent,” the amendment is interpreted as granting the Commissioner authority to regulate stop-loss insurance. Assuming the opposite conclusion, i.e. the legislature intended for the Commissioner not to have such authority, would render the amendment meaningless. There is a presumption the legislature does not enact meaningless legislation. KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997). At the time of the amendment, the district court had already ruled, issuing an injunction barring the Commissioner from regulating the insurance. As a practical matter, there was nothing for the legislature to do if the Shawnee District Court’s decision was the outcome it desired.
The legislature’s amendment to 40-2201 gives the Commissioner the authority to regulate stop-loss insurance.
Definition of “Rule” and “Regulation”
Next, ATA argues the regulation of stop-loss insurance is void because the bulletins fail to comply with K.S.A. 77-415 etseq. The Commissioner responds to ATA’s argument by pointing out how K.S.A. 77-415 et seq. does not apply to the bulletins. The Commissioner also argues her decision refusing to approve ATA’s stop- loss policy is based on statute, rather than the bulletins; thus, if the bulletins are void for failure to comply with K.S.A. 77-415 et seq., the disapproval of the policy is still valid because it was based on statute. We disagree.
K.S.A. 77-415 et seq. governs the procedures for state agencies in promulgating regulations. K.S.A. 77-425 provides:
“Every rule and regulation other than a temporary rule and regulation which is filed by a state agency in the office of the secretary of state as provided in this act shall have the force and effect of law on and after the date prescribed in K.S.A. 77-426, and amendments thereto, until amended or revoked as provided by law and such amendment or revocation shall have become effective. Any rule and regulation not filed and published as required by this act shall be of no force or effect, except that any error or irregularity in form or any clerical error or omission of the secretary of state in the filing of such regulation not affecting substantial rights shall not invalidate the same.” (Emphasis added.)
The terms “rule” and “regulation” are statutorily defined as
“a standard, statement of policy or general order, including amendments or revocations thereof, of general application and having the effect of law, issued or adopted by a state agency to implement or interpret legislation enforced or administered by such state agency or to govern the organization or procedure of such state agency. Every rule and regulation adopted by a state agency to govern its enforcement or administration of legislation shall be adopted by the state agency and filed as a rule and regulation as provided in this act.” K.S.A. 77-415(4).
In Bruns v. Kansas State Bd. of Technical Professions, 255 Kan. 728, 877 P.2d 391 (1994), we considered when the statute required a written administrative agency policy to be filed and published. In agreeing that a “rule or regulation” within the definition of K.S.A. 77-415 was at issue, the Bruns opinion relied on the following factors: (1) The agency did not exercise any discretion in applying the written policy; (2) the rule had general application to those having to do business with the agency; and (3) the agency treats its internal policy as “having the effect of law.” 255 Kan. at 733-34.
Discretion in Applying the Written Policy
In its initial order in response to ATA’s administrative challenge, the Commissioner relied on the emphasized phrase in the following sentence from its bulletin 1993-12: “A policy which fails to satisfy the above criteria will be considered a group health insurance policy subject to insurance laws and regulations of this state unless specifically approved by the commissioner.” (Emphasis added.)
An issue here is whether that phrase really means the Commissioner will exercise discretion. The record does not indicate whether the Commissioner will exercise any discretion in approving stop-loss policies not meeting the requirements in the bulletins. As discussed below, the Commissioner s July 6,1995, letter to ATA refused the approval of ATA’s policy because the policy failed to meet the criteria contained in the bulletin. The letter fails to mention whether the Commissioner considered exercising her discretion to approve the policy despite its failure to meet the bulletin criteria. Furthermore, there is no indication what criteria the Commissioner would use in exercising discretion to approve a policy not otherwise meeting the criteria contained in the bulletin. In summary, it appears fair to conclude the Commissioner does not in fact exercise any discretion in the application of the bulletin criteria.
General Application
The record shows bulletin 1993-12 has general application. Indeed, the bulletin is addressed to “All Insurance Companies Writing Stop Loss or Excess Loss Insurance; Registered Third Party Administrators; and Other Addressees.” Thus, the bulletin applies broadly to all stop-loss insurance.
Effect of Law
As alluded to above, the language initially used by the Commissioner to deny approval of ATA’s policy in the Commissioner’s July 6, 1995, letter shows the bulletins have the effect of law:
“Since it is clear from the aforementioned statement that your company will not comply with the criteria outlined in Bulletin 1993-12, this department does not consider your policy as a form of stop loss insurance, thus we are not in a position to approve the captioned policy for issuance in the state of Kansas.” (Emphasis added.)
In arguing the applicability of Bruns, the Commissioner stresses how the “rule or regulation” here is not a secret internal document. True, in Bruns we were concerned with the public policy rational of the statute, i.e. the desire to make information available to the public to guide the public through the maze of state governmental regulation. While we recognize the widely distributed nature of the bulletins here, we do not believe a widely distributed bulletin is a valid substitute for a properly promulgated rule or regulation under K.S.A. 77-415 et seq. The fact remains the Commissioner has failed to follow the prescribed steps of promulgating policy. The Commissioner would have us adopt an exception to K.S.A. 77-415 for rules and regulations that are otherwise widely distributed. There is no authority for such an exception. Furthermore, to create one now would require courts to decide in future cases the standard for the exception, whereas now there is clear statutory guidance on how to promulgate rules and regulations. The Commissioner s argument is rejected.
Statutory Authority
Next, the Commissioner argues that whether the bulletins are void is irrelevant because the regulation is prescribed in K.S.A. 40-2201(b), not the bulletins. This argument confuses a grant of authority with the specific regulation at issue. Here, it is clear the rule or regulation that will govern how the Commissioner treats stop-loss insurance policies is contained in the bulletin, not the statutes. The Commissioner cites no authority for the proposition that a general grant of authority to regulate is an exception to the requirements contained at K.S.A. 77-415 et seq., and its argument is therefore rejected.
Delegation of Power
ATA also argues the regulation of stop-loss insurance is an unconstitutional delegation of power. The record shows that ATA failed to raise the improper delegation of power argument it its petition for review. “Issues not raised before the trial court cannot be raised for the first time on appeal. A new legal theory may not be asserted for the first time on appeal or raised in a reply brief.” Wood v. Groh, 269 Kan. 420, 433-34, 7 P.3d 1163 (2000). We decline to address an issue for the first time on appeal.
ERISA
Our resolution of the K.S.A. 77-415 issue results in bulletin 1993-12 having no force, in effect leaving no regulation to be preempted by ERISA. Therefore, the ERISA preemption issue is not properly before us. Our reversal is based on the Commissioner s use of a general bulletin rather than a K.S.A. 77-415(4) rule or regulation. We remand with instructions to enter judgment in favor of ATA. | [
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|
ATCHESON, J.;
This case presents a confounding question on the scope of the invited error doctrine: Should the doctrine extinguish a criminal defendant’s appeal of a conviction when that challenge rests on a constitutional defect arising from actions the defendant’s lawyer asked the district court to take? In this case, the lawyer for Defendant Sean Amell Hargrove requested and the Johnson County District Court gave a jury instruction that omitted substantive and contested elements of the charged offense—an error compromising the constitutional right to trial by juiy. On balance, policy considerations and the weight of authority favor applying invited error to bar Hargrove’s point in this direct appeal because the record fails to establish whether the request was tactical or inadvertent. We come to that conclusion with the understanding that Hargrove ought to be able to secure judicial review of the lawyer’s actions in a motion for habeas corpus relief.
On appeal, Hargrove also contends the State failed to present sufficient evidence to support his conviction for attempted aggravated burglary. The record evidence, though something less than overwhelming, furnishes a legally adequate basis for the verdict. We, therefore, affirm Hargrove’s conviction.
Facts and Procedural History
After a late morning workout on April 26, 2010, John Geither was showering at his home on a relatively secluded residential street in Shawnee when the doorbell rang about 10 times. Geither toweled off, set the home’s alarm system, and looked out an upstairs front window. He saw a stranger walking away from the front door toward a car parked on the street. The stranger turned out to be Hargrove.' Geither assumed the individual was leaving, so he finished getting ready for his day.
Almost immediately, Geither heard the doorbell ring again and the front door handle turn. He called 911 to report a possible break-in. While Geither was on the phone with .the 911 dispatcher, he heard pounding or thumping sounds at the side of the house near the telephone and security alarm box. Geither remained on the line with the dispatcher.
Shawnee Police Sergeant Ben Mendoza arrived about 8 minutes after Geither placed tire call. Officer Thomas Rhomberg got there at almost the same time. Mendoza saw Hargrove getting into a sedan, so he pulled up and activated the emergency lights on his patrol car. Rhomberg then positioned his patrol car to block Har-grove’s vehicle. After doing so, Rhomberg spoke with Hargrove. Hargrove said he did not know who lived in the house but had stopped to ask for directions. Rhomberg looked in the sedan and saw a pair of white cotton gloves and a Phillip’s-head screwdriver. At some point, the officers formally arrested Hargrove, although the trial transcript is less than clear as to when.
Rhomberg walked around Geither’s house and saw the telephone box had been pulled away from the outside wall, the mounting brackets broken, and several wires jerked loose. He also noticed a partial shoeprint in the dirt beneath the telephone box. The shoe-print was preserved and later compared to Hargrove’s footwear. At trial, a forensic examiner from the Kansas Bureau of Investigation testified the shoeprint was consistent with Hargrove’s boots in terms of size and general characteristics. But the examiner told the jury the print lacked sufficient detail to conclude-it matched Har-grove’s boots.
Rhomberg also saw piy marks on a- sliding glass door at the rear of Geither’s house. He then unsuccessfully looked for a tool that could have been used to make the marks. At trial; a detective testified that the screwdriver found in Hargrove’s car was inconsistent with the piy marks and was not used to jimmy the door.
Geither testified that neither the telephone box nor the back door had any damage the day before he saw Hargrove and called the police.
A Shawnee detective interviewed Hargrove at the police station. Hargrove told the detective he lived in Kansas City, Missouri, and had a job interview at a warehouse there. But he could not remember the name of the company. Hargrove explained that he drove to tire Kansas side for another job interview, although he could not remember the name of that company either. The trial evidence showed that the corporate offices of Deffenbaugh Disposal Services, a business that has a large unskilled workforce, is in tire general vicinity of Geither’s home. Hargrove repeated that he had become lost in the residential area and went to Geither’s house to get directions. In response to the detective’s questions, Hargrove acknowledged he saw nothing indicating anyone might be in Geither’s house, such as a car in the driveway. He also agreed he had not gone to the neighboring house in search of directions after getting no response at Geither’s home. Hargrove explained to tire detective that he had decided he could find his way out of the residential area. Hargrove told the detective he had stopped for about 3 minutes and did not go to the side or back of Geither’s house.
The State charged Hargrove with one count of attempted aggravated burglary, in violation of K.S.A. 31-3301 and K.S.A. 21-3716, and misdemeanor criminal damage to property, in violation of K.S.A. 21-3720. At trial, the prosecutor presented Hargrove’s statements to the detective as part of the State’s case. Mendoza and Rhomberg recounted the circumstances of their encounter with Hargrove. Both testified that Hargrove did not ask them for directions when they first approached him. Hargrove chose not to testify and presented no evidence.
The district court gave the following instruction to the jury as setting forth the elements of attempted aggravated burglary:
“JURY INSTRUCTION NO. 10
“The defendant is charged in count I with the crime of an attempt to commit aggravated burglary. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant performed an overt act toward the commission of the crime of aggravated burglary;
2. That die defendant did so widi the intent to commit the crime of aggravated burglary;
3. That the defendant failed to complete commission of the crime of aggravated burglary; and
4. That this act occurred on or about the 26th day of April, 2010, in Johnson County, Kansas.
“An overt act necessarily must extend beyond mere preparations made by the accused and must sufficiently approach consummation of the offense to stand eidier as the first or subsequent step in a direct movement toward the completed offense. Mere preparation is insufficient to constitute an overt act.
“The elements of the completed crime of aggravated burglary are as follows:
1. That the defendant knowingly entered or remained in a residence;
2. That the defendant did so without authority;
3. That die defendant did so with the intent to commit a theft;
4. That at the time there was a human being in the residence; and
5. That this act occurred on or about the 26th day of April, 2010, in Johnson County, Kansas.”
The State requested an instruction that substantively matched the one the district court used. So did Hargrove. The instruction Hargrove requested had slightly different introductory wording, but the operative legal language was identical. The proposed instructions and the instruction given the jury omitted the elements of theft.
The jury convicted Hargrove of attempted aggravated burglary and acquitted him of criminal damage to property. Based on his extensive criminal history, Hargrove faced presumptive imprisonment. The district court imposed an aggravated guidelines sentence of 31 months in prison on Hargrove. Hargrove has timely appealed on grounds that the jury instruction on attempted aggravated burglary omitted essential elements of the offense, thereby depriving him of a fair trial, and that the evidence failed to support the jury’s verdict of guilty on that charge.
Invited Error Supplants Constitutional Defect in Jury Instruction
For his first issue on appeal, Hargrove submits the jury instruction on attempted aggravated burglaiy omitted contested elements of the offense, creating a constitutional error infecting his right to juiy trial. He correctly assesses the problem with the instruction— the elements of theft are missing. But Hargrove, through his counsel, invited the error because he requested the deficient instruction. The procedural posture of this case creates a tension between remedying a trial mistake eroding a criminal defendant’s fundamental rights and enforcing the invited error doctrine preventing a party from crying foul based on his or her deliberate manipulation of that trial process. We have found no controlling authority from either the United States Supreme Court or the Kansas Supreme Court directly addressing and resolving the tension. There may not be a single rule suited to tire task. We do not endeavor to fashion one applicable to every situation. Rather, we draw from the available precedent and reach a conclusion tailored to the factual circumstances of this case.
In managing that task, we first look at the nature of the instructional flaw and how it ordinarily would be evaluated in the absence of invited error. We then consider the scope and purpose of the invited error doctrine. Those efforts follow settled paths in the law. Given the gravity of tire insult to Hargrove’s constitutional rights, the task of reconciling them does not.
The reconciliation we reach in this direct appeal properly elevates the invitation of the error to preeminence notwithstanding the undeniable significance of the right compromised through the error. To do otherwise here would permit Hargrove to attack his conviction based on a mistake of the district court that his lawyer plainly helped induce, perhaps with a deliberate tactical purpose. The record on appeal sheds no light on why Hargrove’s lawyer asked for a truncated instruction leaving out elements of attempted aggravated burglary. If the decision were one of colorable trial strategy, then Hargrove should be denied relief. Parties ought not be permitted to speculate on strategic decisions that compromise their rights in hopes of attaining victory from a jury and then seek vindication on appeal based on those decisions after they have failed to yield the desired success.
1. The Nature of the Instructional Error
In this case, the district court should have included the elements of theft in the instruction outlining what the State had to prove to convict Hargrove of attempted aggravated burglary. That’s because burglary and aggravated burglary require the perpetrator enter the premises, in this case a house, with the intent to commit certain specified crimes inside. See K.S.A. 21-3715; K.S.A. 21-3716. Here, tire State alleged Hargrove harbored the intent to steal property from the house, so the elements instruction refers to theft. But the instruction then omits the particular elements of theft, leaving the jury without any legal measuring stick for determining that aspect of the attempted aggravated burglary charge. The omission is error. See State v. Rush, 255 Kan. 672, Syl. ¶ 5, 877 P.2d 386 (1994); State v. Linn, 251 Kan. 797, 802, 840 P.2d 1133 (1992). In both Rush and Linn, the Kansas Supreme Court held a burglary instruction to be erroneous where it failed to include for the jury’s consideration the elements of tire offense the defendant intended to commit upon entering the premises. The Kansas Supreme Court recently reaffirmed that principle in a prosecution for a different felony, holding: “When a statute makes the commission of a crime or the intent to commit a crime an element of another crime, the jury instructions must set out the statutory elements of the underlying offense.” State v. Richardson, 290 Kan. 176, 182-83, 224 P.3d 553 (2010) (citing Rush, 255 Kan. at 679; Linn, 251 Kan. at 801-02). The pattern jury instructions for burglary, PIK Crim. 3d 59.17, and aggravated burglary, PIK Crim. 3d 59.18, indicate the elements of the intended offense must be included. See PIK Crim. 4th 58.120; PIK Crim. 4th 58.130. The rule would be no different for an attempt, and neither side suggests otherwise.
The omission of an element of a charged offense from an instruction compromises -the defendant’s -right to trial by jury pro tected in the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. See Neder v. United States, 527 U.S. 1, 18, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999); Linn, 251 Kan. at 802. It, therefore, erodes a fundamental right. The failure to instruct a jury on an element of a criminal offense may amount to harmless error in some limited circumstances. The United States Supreme Court determined the omission could be treated that way if the element were “uncontested and supported by overwhelming evidence.” Neder, 527 U.S. at 17. The Kansas Supreme Court adopted that standard in Richardson, 290 Kan. at 182-83.
The test for harmlessness is twofold. Not only must the evidence bearing on the omitted element approach the irrefutable, a defendant effectively has to concede that component of the charged crime. Such a concession might be inferred from the absence of contrary evidence or explanation developed in challenging the government’s case or offered as part of the defense case. The standard is particularly rigorous. A lesser measure would permit a court to impermissibly supplant tire jury’s fact-finding duty in a criminal case by substituting its assessment of the evidence on a contested issue. That would be akin to, though less destructive than, directing a verdict for the government in a criminal case—a clear Sixth Amendment violation. See Neder, 527 U.S. at 31-33 (Scalia, J., concurring in part and dissenting in part); Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993); Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986).
In this case, we are not prepared to say the omission of all the elements of theft from tire attempted aggravated burglary instruction could be dismissed as harmless. First, of course, Hargrove contested the notion that he intended to steal from Geither’s home. The statements he made to the law enforcement officers about wanting directions put his intent in play. We are, likewise, unwilling to say the evidence was overwhelming, although, as we explain later, it was sufficient to support the conviction, a far less demanding standard.
Hargrove, dien, has demonstrated a degradation of his right to jury trial drat cannot be set aside as harmless. But the determination of prejudicial error does not end the matter because Hargrove, through his counsel, bore substantial responsibility for the defective jury instruction.
2. The Invited Error Doctrine/Rule
In broad terms, a party may not invite or prompt error in a case and then complain of that error as a ground for reversing an adverse judgment. State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011). The long-standing rule reflects the common-sense notion that parties cannot complain to an appellate court about their own conduct at trial—or that of their lawyers—or about rulings they have asked (or invited) a judge to make. If parties get what they ask for from district court judges, appellate courts will not reverse judgments against them even though they may think better of their requests on appeal. The invited error rule applies in civil and criminal cases. See State v. Angelo, 287 Kan. 262, 279-80, 197 P.3d 337 (2008) (criminal); Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003) (civil). The Kansas Supreme Court described the doctrine in State v. Smith, 232 Kan. 128, Syl. ¶ 2, 652 P.2d 703 (1982), this way: “Where a party procures a court to proceed in a particular way and invites a particular ruling, he is precluded from assailing such proceeding and ruling on appellate review.”
Invited error crops up occasionally with jury instructions. Parties request legally infelicitous instructions that district courts then give, and when the cases turn out badly, they complain on appeal about the instructional error. See State v. Bailey, 292 Kan. 449, 459, 255 P.3d 19 (2011); State v. Schreiner, 46 Kan. App. 2d 778, 788-89, 264 P.3d 1033 (2011), petition for rev. filed December 5, 2011; State v. McCoy, 34 Kan. App. 2d 185, 189-90, 116 P.3d 48 (citing cases), rev. denied 280 Kan. 988 (2005). In Bailey, 292 Kan. at 459, the court recently reiterated the doctrine specifically regarding jury instructions: “When defendant’s requested instruction is given to the jury, the defendant cannot complain the requested instruction was error on appeal.”
The invited error rule effectively binds trial counsel to strategic decisions inducing judicial rulings with the purpose of obtaining favorable judgments for their clients—not guilty verdicts or, in some cases, convictions on lesser charges for criminal defendants. See, e.g., Angelo, 287 Kan. at 279-80. The rule also defeats a disreputable strategy aimed at requesting that a judge act in a particular way to salt the record with error as an end in itself, thereby providing potential grounds for reversal of an adverse judgment. See Schreiner, 46 Kan. App. 2d at 791.
The Kansas Supreme Court has held that invited error will vitiate a criminal defendant’s statutory right to receive jury instructions on lesser included offenses as provided in K.S.A. 22-3414(3). See, e.g., Angelo, 287 Kan. at 279-80. In that.case, Angelo specifically asked that the district court instruct only on first-degree murder, although the evidence would have supported lesser included offenses; he intended to force on the jurors an all-or-nothing determination to convict or acquit. Defense counsel candidly divulged the reason at the instruction conference. The district court obliged Angelo. The juiy did not. On appeal, Angelo argued that the lack of lesser included offense instructions violated K.S.A. 22-3414 and required the conviction be reversed. The Kansas Supreme Court turned away tire argument because Angelo had invited the error. 287 Kan. at 279-80. Similarly, this court has held that a criminal defendant could not complain on appeal that his or her right to a unanimous verdict—also a statutory right-—-had been compromised because of a jury instruction he or she requested and the trial judge gave. See Schreiner, 46 Kan. App. 2d at 788-89.
Here, however, Hargrove asserts an error of constitutional dimension and, thus, of greater magnitude than the loss of a statutory right. The Schreiner decision acknowledged that difference and declined to consider how the invited error doctrine might be applied to. an asserted constitutional violation. 46 Kan. App. 2d at 791. This case presents the question, and the time has come to provide an answer.
3. Inviting Constitutional Error in Jury Instructions: A Study in Conflict
Multiple considerations bear on how best to reconcile the invited error rule and the degradation of a criminal defendant’s constitutional rights, especially when they arise from a defective jury instruction. Before turning to that assessment, we offer some accepted principles, common observations, and a survey of persuasive authority.
A. General Principles
Persons may relinquish their constitutional rights if they do so knowingly and voluntarily. Criminal defendants are no exception. Maryland v. Shatzer, 559 U.S. 98, 104, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010) (self-incrimination); New York v. Hill, 528 U.S. 110, 114-15, 120 S. Ct. 659, 145 L. Ed. 2d 560 (2000) (acknowledging criminal defendant may waive even fundamental rights); Faretta v. California, 422 U.S. 806, 807, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (right to counsel). For example, an individual, having been advised in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), may give up the right against self-incrimination and submit to a custodial police interrogation. Shatzer, 130 S. Ct. at 1219. And criminal defendants may forgo their constitutional right to counsel to represent themselves. Faretta, 422 U.S. at 807, 835. But they may not later complain about adverse consequences resulting from their own conduct in waiving those rights. Faretta, 422 U.S. at 834-35 & n.46 (“[Wjhatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ”); Illinois v. Allen, 397 U.S. 337, 342-43, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970) (criminal defendant may lose Sixth Amendment right to be present at trial by continuing disruptive conduct despite trial judge’s warning that persistence will result in removal). That didn’t happen here, since Har-grove did not personally request the deficient jury instruction. Those cases also really don’t involve error—invited or otherwise— because the district courts made no mistakes. They correctly followed the law by giving effect to valid, enforceable waivers.
Criminal defendants are generally bound by the actions of their lawyers, save for decisions on whedier to go to trial, to testify, or to appeal. Hill, 528 U.S. at 114-15 (noting rights personal to a criminal defendant and identifying decisions exemplifying those a lawyer properly may make in the course of representation); see Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000) (If a criminal defendant requests a notice of appeal be filed, counsel’s failure to comply must be treated as “professionally unreasonable.”); Faretta, 422 U.S. at 820 (“[W]hen a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to malee binding decisions of trial strategy in many areas.”); Flynn v. State, 281 Kan. 1154, 1163, 136 P.3d 909 (2006); State v. Carter, 270 Kan. 426, 438-39, 14 P.3d 1138 (2000) (“[T]actical decisions” such as filing motions, selecting jurors, calling and examining witnesses are the sole province of the lawyer exercising “professional skill and judgment.”); 270 Kan. at 439 (In consultation with counsel, a criminal defendant must personally decide whether to plead guilty or go to trial before a judge or jury and whether to testify in his or her own defense.). Selection and phrasing of proposed jury instructions come within those decisions entrusted to lawyers exercising their professional judgment. United States v. Perez, 116 F.3d 840, 845 n.7 (9th Cir. 1997); see Tinsley v. Million, 399 F.3d 796, 808 (6th Cir. 2005) (recognizing decision on requested jury instructions to be matter for lawyer as part of trial strategy); Fitzgerald v. Thompson, 943 F.2d 463, 469-70 (4th Cir. 1991) (same). Lawyers may compromise their clients’ constitutional rights. See, e.g., Taylor v. Illinois, 484 U.S. 400, 409, 418, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988) (criminal defendant bound by his lawyer’s actions adversely affecting Sixth Amendment right to compulsoiy process and to present witnesses); Yakus v. United States, 321 U.S. 414, 444, 64 S. Ct. 660, 88 L. Ed. 834 (1944) (“[A] constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right.”); United States v. Holmes, 620 F.3d 836, 843 (8th Cir. 2010) (counsel may waive defendant’s Sixth Amendment confrontation rights for “valid, tactical purposes”). Here, trial counsel impaired Hargrove’s Sixth Amendment right to have a jury decide all of the elements of attempted aggravated burglary by tendering the instruction and then by failing to object when the district court actually gave that instruction. We must decide whether the lawyer’s conduct forecloses relief for Hargrove on direct appeal.
Because the error arose from a juiy instruction, the answer is less straightforward than it otherwise might be. Most decisions a lawyer makes in trying a case are unilateral. That is, they are made without input from opposing counsel or the trial judge. The lawyer determines, for example, the witnesses to call, the questions to ask, and whether to interpose objections to what his or her counterpart does. While the trial judge must rule on objections, his or her function does not include consulting with counsel for either side about the choice of evidence to present or objections to lodge.
Jury instructions, however, don’t come about that way in a given case. The process is collaborative rather than unilateral, and the trial judge ultimately controls the decision on how to instruct a juiy. Each side may suggest instructions to the trial judge, as happened here. But a trial judge is not bound to give either side’s suggested instructions and has an independent duty to fashion a set of instructions that correctly informs the jurors of the relevant law. As with much else in the adversary process, if the parties agree on a point, a trial judge commonly hasn’t much cause or inclination to disregard their common position. See Perez, 116 F.3d at 844. So it was on the elements instruction in this case. Both the prosecutor and Hargrove’s lawyer submitted proposed instructions that omitted the elements of theft from what the jurors had to find the State proved to convict. The trial judge accepted their communal position and gave that constitutionally infirm instruction.
Blame for the foul-up could be apportioned in various ways. Our conclusion that the elements instruction as proposed and given was erroneous breaks no new ground. Long before Hargrove’s trial, the Kansas Supreme Court settled how juries should be instructed on the elements of burglary related offenses. See Linn, 251 Kan. at 802. The State, therefore, arguably bears some responsibility be cause its representative both proposed and acquiesced in the use of a recognizably defective instruction. See United States v. Barrow, 118 F.3d 482, 491 (6th Cir. 1997) (government bears some responsibility for defective elements instruction submitted jointly with defendant). Given the paramount duty imposed on prosecutors to see that die adjudicatoiy process serves the ends of justice even above securing convictions, the State ought not promote instructions that impair a defendant’s fundamental rights. See State v. Pabst, 268 Kan. 501, Syl. ¶ 6, 996 P.2d 321 (2000). In short, the State should have done better here. Defense counsel also asked for the defective instruction and must be accountable in some significant fashion for the request. The request may have been tactical or simply inadvertent. We don’t know. And, as we discuss later, the reason looms large in analyzing how the erroneous instruction should be treated. The district court exercises final authority over instructing a jury and the content of the instructions. See K.S.A. 22-3414(3) (The district court “shall instruct the jury” and, in doing so, may refuse to give requested instructions or may give them in a modified form.); e.g., State v. Dozier, 163 W. Va. 192, 196, 255 S.E.2d 552 (1979) (“The ultimate responsibility in criminal cases to ensure the jury is instructed according to constitutional requirements must be placed on the trial court.”). So a district court could head off use of a bad instruction. Finally, unless this is a most unusual case, we may infer Hargrove played no role in fashioning the jury instructions and, therefore, would be personally blameless for the error. Nothing at the instruction conference even hints otherwise. Compare Angelo, 287 Kan. at 287 (At the instruction conference, the district court secured defendant’s personal consent to his lawyer’s request that no lesser included offenses be submitted to the juiy in a first-degree murder prosecution.).
The Kansas Code of Criminal Procedure addresses instruction of the jury in considerable detail in K.S.A. 22-3414(3), governing the order of a trial. The statute provides that a party may not assert error in a jury instruction without having precisely objected to the instruction before it is given, unless the instruction is clearly erroneous. The statute does not explicitly account for a party requesting an instruction and then complaining on appeal because it was given to the jury. Arguably, those circumstances come within the rule for clearly erroneous instructions to which no objection has been lodged, since defendants typically would not object to instructions they had earlier requested. But the Kansas appellate courts have consistently applied the invited error doctrine to bar any review of an instruction a party has successfully asked the trial judge give. See, e.g., Angelo, 287 Kan. at 279-80; Schreiner, 46 Kan. App. 2d at 788-89.
B. Considering the Caselaw
Having outlined those principles, we return to the question of how to assess the invited error of Hargrove’s counsel in soliciting a constitutionally defective elements instruction. One approach would unconditionally bind Hargrove by the actions of his lawyer despite the constitutional dimension of the resulting error and his own lack of responsibility. The counterpoint would wholly untether him from the error precisely because of those considerations. Neither extreme provides a satisfactory response. The parties have supplied no controlling caselaw from either the United States Supreme Court or the Kansas Supreme Court, and we have uncovered none. We discuss some Kansas appellate decisions that consider peripheral points but ultimately do not lend themselves to resolving this issue. A representative sampling of persuasive authority from elsewhere provides some direction, though far from unanimous guidance.
i. Kansas law
In State v. Folley, No. 89,368, 2004 WL 1714918, at *1 (Kan. App. 2004) (unpublished opinion), a panel of this court stated in dicta that “invited error cannot trump a defendant’s constitutional rights,” including a due process requirement that the jury find guilt beyond a reasonable doubt on each element of a charged-offense. The court, however, acknowledged the case before it did not present an invited error issue and declined to elaborate on its terse observation or cite any directly applicable authority. The decision mentions In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), a case that recognized a defendant’s right to have the State prove the elements of an offense beyond a reasonable doubt but does not concern invited error at all. The decision also cites State v. Gadelkarim, 256 Kan. 671, 685, 887 P.2d 88 (1994), in which tire court declined to apply the invited error rule to a defendant’s claimed Doyle violation. See Doyle v. Ohio, 426 U.S. 610, 617-19, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976) (prosecutor violates defendant’s right to due process by eliciting evidence defendant chose to remain silent after law enforcement officers had provided Miranda warnings); State v. Parks, 294 Kan. 785, 793-94, 280 P.3d 766 (2012) (outlining nature of a Doyle violation). But the Gadelkarim decision lends no support to the assertion in Folley.
In response to a question from Gadelkarim’s lawyer, a law enforcement officer testified that Gadelkarim asserted his right to remain silent after receiving the Miranda warnings. Without explaining why it sidestepped invited error, the Gadelkarim court simply determined on the merits that the testimony amounted to harmless error. 256 Kan. at 685-86. During a hearing on Gadel-karim’s motion for a mistrial, the State argued defense counsel knew or should have known the question would elicit tire impermissible testimony based on the officer’s report. But defense counsel pointed to other portions of the report to suggest he was surprised by the officer’s answer. Perhaps given that wrangling and in the absence of a fully developed evidentiary record on defense counsel’s thinking, the court pragmatically passed over invited error to reach the merits of the point. But nothing in Gadelkarim suggests tire invited error rule customarily ought to be disregarded in the face of a constitutional defect in a criminal proceeding. As an unpublished opinion, Folley is not precedential, and its collateral, undeveloped comment is not persuasive. Neither Winship nor Gadelkarim speaks to the issue at hand.
In State v. Murray, 285 Kan. 503, 521-28, 174 P.3d 407 (2008), the court in fact recognized drat invited error principles had been and could be applied “in a very narrow context” of Doyle violations when the defense attorney effectively has opened the door. In that case, Murray’s lawyer asked investigating officers if they had questioned Murray about circumstances they considered potentially in criminating. The officers responded they had not, thereby fostering the defense theory that investigators failed to fairly look at alternative explanations for those circumstances. But the officers didn’t ask Murray because they couldn’t—he had invoked his right against self-incrimination and declined to speak with them. The court found the trial judge properly allowed tire prosecutor to briefly examine the lead detective about why those questions weren’t put to Murray during the investigation. The examination necessarily revealed Murray’s assertion of his constitutional right not to answer the questions. The court affirmed the ruling “in light of tire specific facts” because defense counsel’s questioning of the lead detective “provided a sufficient justification” for the prosecutor to ask the detective to explain the reason. 285 Kan. at 526. The court found: “[T]he detective’s testimony on redirect examination merely responded to defense counsel’s implications during cross-examination and thus was invited error and cannot be the basis for reversal.” 285 Kan. at 526. A broadly phrased rule drawn from Murray could be stated recognizing that a violation of a defendant’s constitutional rights should be excused as invited error. But teasing out that sort of proposition would exceed any judicious reading of the decision.
The Murray opinion is almost certainly confined to Doyle violations and could not fairly be extended to other constitutional rights. Nothing in the opinion suggests the court intended a broader application, and a good deal of the language points to the veiy opposite. In that case, as the court described the trial proceedings, Murray’s lawyer deceptively portrayed material facts, raising Doyle as an invisible shield against tire prosecutor in an effort to keep out otherwise relevant information that would have fully informed the jury. In effect, the court held that Doyle could not be used to mislead jurors, so the prosecutor’s examination was proper. Looked at that way, there simply was no error. Many other courts have expressly recognized a limited fair-reply exception to Doyle. See Cook v. Schriro, 538 F.3d 1000, 1022 (9th Cir. 2008) (“We have interpreted Doyle to allow prosecutors to comment on post-Miranda silence in response to defense arguments.”); United States v. Martinez-Larraga, 517 F.3d 258, 268 (5th Cir. 2008) (not ing continued recognition of fair-reply exception); United States v. Matthews, 20 F.3d 538, 552 (2d Cir. 1994) (“[Wjhile comment on a defendant’s silence is usually improper, such comment may be permissible when the defendant, by the impression he has sought to create, has opened the door.”); United States v. Shue, 766 F.2d 1122, 1129 (7th Cir. 1985) (The rule of Doyle may yield because “[a] defendant should not be permitted to twist his Miranda protection to shield lies or false impressions from government attack.”). The exception allows a surgical rebuttal confined to countering a cultivated and deceptive depiction of tire evidence rather than a wide open use of the defendant’s silence to prove guilt— the vice Doyle intended to eliminate. See Murray, 285 Kan. at 526 (prosecutor engaged in “limited questioning” of the detective about Murray’s decision to remain silent and did not mention it in closing argument); State v. Higgins, 243 Kan. 48, 49-52, 755 P.2d 12 (1988) (reversible error for prosecutor to dwell on defendant’s exercise of right to remain silent in questioning witnesses and in closing argument even though issue first arose in response to question posed by defense counsel on cross-examination).
The door-opening scenario of Murray does not come into play with jury instructions. A defendant’s proposed jury instruction opens no door in front of the jury thereby “inviting” or necessitating some response from tire prosecutor to rebalance an impermis-sibly shaded evidentiary presentation that may also tread upon constitutional protections. The lawyers propose, object to, and sort out jury instructions with the trial judge, so the jury only becomes aware of instructions after they have been fully vetted through that process. The error invited is that of the trial judge in giving a defective instruction at tire defendant’s behest—something that does not directly implicate or flow from the prosecutor’s actions at all. Accordingly, Murray offers no directly applicable rule either supporting or rejecting use of the invited error doctrine to discard constitutionally based claims rooted in deficient jury instructions.
ii. Lato in other jurisdictions
Other courts have struggled with this issue over the years with disarmingly varied results. And more than a few courts have split in addressing the circumstances of a single case. The authority we discuss offers an illustrative sampling reflecting both the array of responses reconciling invited error and constitutional right and the intractability of the issue.
For example, the Colorado Supreme Court concluded that invited error precluded appellate review of a jury instruction defense counsel requested and the trial court used that seemed to allow the jurors to convict even though the prosecution failed to prove identity beyond a reasonable doubt. People v. Zapata, 779 P.2d 1307, 1308-09 (Colo. 1989). The court held: “The allegation of constitutional error in the juiy instruction does not require us to abandon the strict preclusion of review of invited error.” 779 P.2d at 1309. But two concurring justices rejected an unyielding application of invited error in the face of a constitutional defect. See 779 P.2d at 1310 (Quinn, C.J., concurring) (“I would not apply the rule in such a manner as to preclude meaningful appellate review of invited errors that raise a substantial question as to the underlying fairness and integrity of the factfinding process.”); 779 P.2d at 1312 (Lohr, J., concurring) (“The circumstances ... are so many and varied, and the potential consequences . . . are so severe, that we would be best advised to address the issue of whether invited error requires reversal on a case by case basis.”). Neither concurring opinion discussed how to treat a defective instruction sought as part of a defense strategy.
A unanimous Connecticut Supreme Court more recently took the same position as the Zapata majority. See State v. Madigosky, 291 Conn. 28, 35 n.7, 966 A.2d 730 (2009). And other appellate courts apply the invited error doctrine to bar review of even constitutionally defective jury instructions defense lawyers have requested. See State v. Perdue, 813 P.2d 1201, 1206 (Utah App. 1991) (“Here, we do not reach an evaluation of the correctness of the submitted instruction because if there was error, it was invited by the defendant, and where invited error butts up against manifest injustice, the invited error rule prevails.”); State v. Henderson, 114 Wash. 2d 867, 868-70, 792 P.2d 514 (1990). In a decision that did not involve jury instructions, the United States Court of Appeals for the Seventh Circuit held last year that defense counsel invited an arguably erroneous ruling from the trial judge, thereby preventing review of a claimed Sixth Amendment violation on direct appeal. The court framed its holding as categorical and, thus, without exception despite the constitutional character of the right. United States v. Gaya, 647 F.3d 634, 639-40 (7th Cir. 2011).
The majority opinion from a deeply divided Washington Supreme Court in Henderson typifies those that implacably apply the invited error doctrine, even to constitutionally defective jury instructions. Henderson’s lawyer requested the bad instruction, and the error replicated exactly the one presented here. In a prosecution for attempted burglary, the trial court, contrary to then-existing requirements of Washington law, failed to inform the jury of die elements of the offense Henderson intended to commit had he successfully broken into a home. The factual identity of the error really gives the decision no more persuasive heft dran cases involving otiier constitutionally infirm instructions. Nodiing about a burglary offense makes the omission of some of its elements from a jury instruction any more or less pernicious.
The Henderson majority, in a 5-4 decision, recognized the instruction compromised a criminal defendant’s constitutional right to have the jury decide every element of the charged offense. Henderson, 114 Wash. 2d at 870-71. But the court held the long-standing invited error doctrine precluded review because Henderson’s lawyer proposed the instruction: “[Ejven jf error was committed, of whatever land, it was at the defendant’s invitation and he is therefore precluded from claiming on appeal that it is reversible error.” 114 Wash. 2d at 870. Otherwise, the majority reasoned, the court would reward defendants for misleading trial judges. 114 Wash. 2d at 868.
The dissenters in Henderson acknowledged that the invited error doctrine had the primary purpose of discouraging “ 'a party from setting up an error at trial and then complaining of it on appeal' [because] ‘the adversary system cannot countenance such maneuvers.’ ” 114 Wash. 2d at 873 (Utter, J., dissenting) (quoting State v. Pam, 101 Wash. 2d 507, 511, 680 P.2d 762 [1984]). But they would not have applied the doctrine as an impregnable barrier, thereby allowing “more flexibility when the error is unintentional.” 114 Wash. 2d at 873. The bar of invited error “should . . . give way when constitutional rights are involved and the flawed instruction was not proposed to deliberately create error.” 114 Wash. 2d at 876. The dissenters assumed, without explanation, that defense counsel proposed the defective instruction through inadvertence and, therefore, would have reversed Henderson’s conviction. See 114 Wash. 2d at 878-79.
Other courts align with the Henderson dissenters to permit review of invited errors to correct “manifest injustice,” unless they result from a waiver—“the intentional relinquishment of a known right.” United States v. Rodriguez, 602 F.3d 346, 350-51 (5th Cir. 2010); see Barrow, 118 F.3d at 491 (court recognizes exception to invited error rule “when tire interests of justice demand otherwise” and applies exception to review defective jury instruction jointly submitted by prosecution and defense); Zapata, 779 P.2d at 1310 (Quinn, C.J., concurring) (The invited error doctrine should be discounted to reach trial defects, including instructions, going to “the underlying fairness and integrity” of the proceedings.); Dozier, 163 W. Va. at 196. Waiver renders an asserted error unreviewable. See United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) (considering waiver and forfeiture under Federal Rule of Criminal Procedure 52); United States v. Laurienti, 611 F.3d 530, 543 (9th Cir. 2010) (If a defendant invites an error and, in doing so, relinquishes a known right, the error has been waived and becomes unreviewable.); Rodriguez, 602 F.3d at 350-51; Perez, 116 F.3d at 845. The Ninth Circuit Court of Appeals declined to find invited error or waiver based on defense counsel’s endorsement of the trial court’s defective elements instruction as a “ ‘complete and accurate’ ” statement of what the government had to prove because the trial record “clearly indicate[d]” both the judge and the lawyer misunderstood the applicable law. United States v. Alferahin, 433 F.3d 1148, 1154 n.2 (9th Cir. 2006).
The West Virginia Supreme Court, in a prototypical decision, declined to apply invited error when defense counsel offered and the trial judge used an instruction containing an unconstitutional presumption as to the elements of murder—contrary to a controlling decision handed down a year before the trial. Dozier, 163 W. Va. at 194-97. The court held that barring review on that basis “would be a travesty of justice” given the “fundamental constitutional right” compromised in the requested instruction. 163 W. Va. at 196. The court found it “extremely unlikely” that the defendant understood a constitutionally defective instruction had been tendered on her behalf or that she had made any informed waiver of her rights. 163 W. Va. at 196. The court similarly concluded defense counsel had entertained no “deliberate trial strategy or tactic” in requesting the instruction. Rather, the instruction reflected “an unfortunate mistake.” 163 W. Va. at 197. The court, however, suggested, ever so gently, that the decision might have been different if “defense counsel deliberately created error at trial to get a reversal in the event of a conviction.” 163 W. Va. at 197.
In two cases, the United States Court of Appeals for the Sixth Circuit entertained challenges to allegedly erroneous jury instructions defining tire charged crimes when the prosecution and defense counsel jointly submitted the instructions. United States v. Savoires, 430 F.3d 376, 381 (6th Cir. 2005); Barrow, 118 F.3d at 491. The courts excused rigorous application of the invited error doctrine because the government bore essentially equal fault for the defective instructions. Savoires, 430 F.3d at 381; Barrow, 118 F.3d at 491. In neither case did tire court consider whether the defendant’s lawyer knew of the defect or consented to the bad instruction for tactical reasons. Nor did the decisions draw any legal distinction between invited error and waiver, as have some courts. In Savoires, the panel found the instruction substantially misstated what the jury had to find to convict of a federal firearms offense, largely conflating two separate offenses and, thus, disadvantaging the defendant. The panel concluded that “the interests of justice” required review of the error and reversal of the conviction. Savoires, 430 F.3d at 381. In Barrow, an earlier panel similarly concluded invited error would not bar review of a jointly submitted, defective elements instruction. Barrow, 118 F.3d at 491. But anticipating the United States Supreme Court’s position in Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), the panel found no negative effect on the defendant’s rights because the omitted element was “not seriously contested at trial” and embraced an “obviously technical” aspect of the banking fraud charge. Barrow, 118 F.3d at 492-93. In each of those cases, the instructional error afforded the defendant no apparent tactical advantage and, more likely, aided the government to some extent.
The Illinois Supreme Court staked out a similar position in People v. Bender, 20 Ill. 2d 45, 54, 169 N.E.2d 328 (1960), relaxing the invited error bar to consider a constitutional defect in an instruction defense counsel requested because he, the prosecutor, and the trial judge proceeded on the mistaken understanding the instruction correctly described the burden of proof on insanity. In that circumstance, the court held the doctrine yields to a mistake making it “impossible for the defendant to receive a fair and impartial trial.” 20 Ill. 2d at 54.
Much of the federal caselaw has been shaped around Federal Rule of Criminal Procedure 52(b), permitting correction of “plain error that affects substantial rights” even when it has not been called to the attention of the trial court, and the United States Supreme Court’s interpretation of that rule in Olano, 507 U.S. at 731-37. Neither Rule 52(b) nor Olano specifically addresses invited error, but Olano recognizes that waiver of a right precludes appellate review of any claimed error. 507 U.S. at 733. In that respect, Rule 52(b) appears roughly comparable to K.S.A. 22-3414 with regard to juiy instructions, and Olano’s treatment of waiver is similar to the Kansas appellate court’s approach to invited error. At the very least, the federal authority helps illuminate the multiple legal facets of the issue.
Various courts, however, only loosely define waiver and invited error. Some essentially equate the terms and find either imposes a near absolute bar to appellate review. See Gaya, 647 F.3d at 640 (invited error “is an a fortiori case of waiver”); United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997). Others draw a distinction finding that waiver results from an intentional relinquishment of a known right. 116 F.3d at 845. An invited error may be a waiver if the lawyer or party asking the court to act in a certain way understands that the action will impair or extinguish a right. United States v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007) (“true waiver applies” when defendant “actively solicited” and received jury instruction “to procure a perceived . . . benefit”). But the lawyer or party may ask without having that understanding. The error is still invited, although some appellate courts will treat it as something short of an impregnable waiver. See United States v. Barrow, 118 F.3d 482, 490-91 (6th Cir. 1997) (Invited error “is a branch of tire doctrine of waiver” that may yield to “the interests of justice,” as where both the government and the defense jointly requested a defective jury instruction.); Perez, 116 F.3d at 845. The Kansas appellate courts often have drawn no particular distinction between waiver and invited error and treat them both as precluding appellate review of claims based on statutory rights. See State v. Dunlap, 46 Kan. App. 2d 924, 934-35, 266 P.3d 1242 (2011), petition for rev. filed December 30, 2011; State v. Romero, No. 105,158, 2012 WL 2924537, at *3-4 (Kan. App. 2012) (unpublished opinion), petition for rev. filed August 13, 2012; State v. Rivera, No. 92,569, 2005 WL 3527001, at *3 (Kan. App. 2005) (unpublished opinion), rev. denied 281 Kan. 1381 (2006).
Judge Harold Leventhal, of the District of Columbia Circuit Court of Appeals, once described judicial consideration of legislative history as akin to “ looking over a crowd and picking out your friends.’ ” Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983); see Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 568, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005). The same might be said about the persuasive authority balancing invited error with constitutional defects in jury instructions. There are cases supportive of about any outcome. Some opinions offer little more than rote. Others rest on more developed discussions, though occasionally neglecting to account for the purpose behind the invited error rule. So from diem, we take what we need and leave die rest. See Robertson, “The Night They Drove Old Dixie Down,” The Band (1969).
4. Forging Reconciliation
In reconciling invited error and resulting constitutional defects in juiy instructions adversely affecting criminal defendants, we balance competing considerations bound up in fairness—individual fairness for the person standing as the accused and institutional fairness for the system as an adjudicatoiy process. See Neder, 527 U.S. at 18-19. If the lawyer representing a criminal defendant makes a calculated decision to sacrifice certain constitutionally protected interests of his or her client for tactical advantage in attaining an acquittal and in doing so induces the district court to act or rule in particular' ways, then those actions or rulings generally cannot be asserted as points of error on direct appeal of a conviction. To hold otherwise would invite game-playing and manipulation incompatible with a fair adjudicatoiy process. See Henderson, 114 Wash. 2d at 868 (Less than strict application of the invited error rule to jury instructions “would put a premium on defendants misleading the court; this we decline to encourage.”). At the same time, however, an invited error of constitutional import in a jury instruction should not be immune from review on direct appeal if defense counsel requested the instruction through inadvertence and without strategic designs. To hold otherwise would deprive an accused of individual fairness.
The adversary system embodied in this nation’s courts operates on the assumption that justice may best be harnessed when the disputants test each other’s legal theories and factual portrayals before detached observers—judges or jurors—charged with resolving those disputes. See United States v. Cronic, 466 U.S. 648, 655, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (“ ‘The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.’ ”) (quoting Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 45 L. Ed. 2d 593 [1975]); GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 382-83, 100 S. Ct. 1194, 63 L. Ed. 2d 467 (1980) (“The clash of adverse parties ‘ “sharpens tire presentation of issues upon which die court so largely depends for illumination of difficult. . . questions.” ’ ”); State v. Bellinger, 47 Kan. App. 2d 776, 787, 278 P.3d 975 (2012) (Atcheson, J., dissenting) (“The judicial process treats an appearance on the witness stand, with the taking of an oath and the rigor of cross-examination, as perhaps the most discerning crucible for separating honesty and accuracy from mendacity and misstatement.”), petition for rev. filed July 23, 2012. But the process is far from a free-for-all. There are distinct rules of engagement designed to promote orderliness and, more importantly, basic fairness. Procedural and evidentiary codes set forth many of those rules; others reflect judge-made requirements born of practical experience. Some—particularly those insuring fairness for the accused—derive from constitutional guarantees, notably in the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and their counterparts in the Kansas Constitution Bill of Rights.
For example, in criminal cases, the prosecution must disclose exculpatory information to a defendant in advance of trial because the process would otherwise be unfairly skewed. See Giglio v. United States, 405 U.S. 150, 153-54, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). A defendant must formally identify a limited number of defenses that particularly lend themselves to testing through further investigation. E.g., K.S.A. 22-3218 (alibi); K.S.A. 22-3219 (mental disease or defect). The failure to abide by tiróse obligations has consequences. For the State, convictions may be reversed; for defendants, defenses may be lost.
The doctrine of judicial estoppel similarly advances notions of fair play by precluding a party from inducing judicial action by talcing one legal position and then taking a contrary position later to achieve further advantage over the same adverse party. See Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 262-63, 261 P.3d 943 (2011). The United States Supreme Court recognized that the doctrine “ 'generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contra-dictoiy argument to prevail in another phase.’ ” New Hampshire v. Maine, 532 U.S. 742, 749, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001) (quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8, 120 S. Ct. 2143, 147 L. Ed. 2d 164 [2000]). A court may apply judicial estoppel in its discretion as necessary to preserve “ 'the essential integrity of the judicial process.’ ” New Hampshire, 532 U.S. at 750.
Those statutory rules and common-law doctrines advance a process designed to discourage unfair manipulation for tactical advantage and to minimize any effects when it happens. They tend to impose penalties or counterbalances to accomplish that objective. The fair-reply exception engrafted on to Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), and the parallel holding in State v. Murray, 285 Kan. 503, 526, 174 P.3d 407 (2008), similarly operate to preserve a fair adjudicatoiy process. They are all of a kind in that service. The invited error doctrine is part and parcel of those safeguards. And it has central attributes comparable to judicial estoppel. See Key Pharmaceuticals v. Hercon Laboratories Corp., 161 F.3d 709, 715 & n.1 (Fed. Cir. 1998) (noting similarity in operation and purpose of invited error and judicial estoppel in “prohibit[ing] a party from asserting as 'error’ a position that it had advocated at the trial”). Both are premised on one party trying to shift legal arguments on an issue during a case, and both seek to protect the fairness of the process by requiring an advocate to adhere to an argument that has caused the court to act in a particular way. Judicial estoppel simply imposes consistency of position on an advocate who has persuaded the court in conformity with that position. The invited error doctrine prevents a more destructive practice—a party claiming the trial court committed reversible error by acting in the very manner that the party advocated.
If Hargrove’s lawyer made a tactical decision to request a jury instruction on attempted aggravated burglary that omitted the el ements of theft, then the invited error doctrine should be applied on direct appeal to bar a claim that the conviction be reversed based on that omission. Lawyers may deploy strategies compromising certain of their client’s rights in pursuit of an ultimate advantage, but they cannot then bank any judicial action they request as a deposit against reversible error when that advantage fails to materialize. A contrary rule would permit manipulation of the adversary process in a way that inflicts a deep wound on the systemic fairness vital to that process. The danger is no less when the rights compromised for strategic purposes rise to a constitutional level.
In short, the system depends upon holding advocates to their strategic choices and representations. See State v. Schreiner, 46 Kan. App. 2d 778, 791, 264 P.3d 1033 (2011) (The criminal justice system ought to discourage at every opportunity unprofessional and destructive game-playing.), petition for rev. filed December 5, 2011; State v. Kitchens, 299 Conn. 447, 470, 10 A.3d 942 (2011) (In considering invited error based on a requested and defective jury instruction, the court, using the bracketed language, observed: “ ‘[T]o allow [a] defendant to seek reversal [after] ... his trial strategy has failed would amount to allowing him to ambush the state [and the trial court] with that claim on appeal/ ”)• Giving full play to the invited error rule in those circumstances comports with tire settled principles that a criminal defense lawyers strategic determinations bind his or her client and that the lawyer may relinquish the client’s constitutional rights, including having a jury decide each element of a charged offense.
The record in this case is silent on why Hargrove’s lawyer requested the defective elements instruction the district court wound up giving the jury. Nothing really points toward a tactical decision to leave out the theft elements over an inadvertent omission of them or the other way around. In some cases, tire record plainly reveals a strategic call. See State v. Angelo, 287 Kan. 262, 279, 197 P.3d 337 (2008) (Defense counsel requested no lesser included offense instructions be given specifically to force tire jurors into a choice between convicting tire defendant of first-degree murder or acquitting him.); Quinones, 511 F.3d at 320-21. Here, however, tire district court seemingly failed to recognize die error, something not entirely surprising, since both the State and Hargrove requested virtually the same flawed instruction. At the instruction conference, the district court neither remarked on the instruction nor asked the lawyers if they intentionally left out the elements of theft. Had the district court realized the irregularity, such an inquiry likely would have helped clear up matters. If we were to assume the omission lacked a tactical basis, then Hargrove’s lawyer would have had an opportunity to reconsider and tender a complete elements instruction. We presumably would not now be addressing this issue. Conversely, if Hargrove’s lawyer considered the abbreviated instruction tactically superior, he would have said as much—at least giving us a plain statement on the record.
Although we fail to see any overt tactical advantage to Hargrove in the elements instruction his lawyer tendered and the district court gave, we cannot say the instruction must have been the product of inadvertence or inattention. There may be factors informing the choice that are obscure or wholly invisible in the appellate record. See Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (“There are countless ways to provide effective assistance in a given case.”). Byway of contrast, some instructional errors could not possibly reflect reasonable strategic choices. See, e.g., State v. Carson, 1 Hawaii App. 214, 215-16, 617 P.2d 573 (1980). In Carson, the trial court gave an instruction defense counsel tendered stating that the defendant had to prove self-defense by a preponderance of the evidence when tire State actually bore the burden of negating that evidence in proving the defendant guilty beyond a reasonable doubt. No sound strategy could warrant a defendant assuming a heavier burden of proof than required under the law in establishing a defense. This is not such a case. The elements instruction here contains no comparable error incontestably devoid of strategic worth. Because the instruction might have been part of Hargrove’s defense strategy and the dis trict court honored Hargrove’s request it be used, we find that the invited error doctrine precludes direct appellate review premised on the constitutional defect in the instruction. See State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008) (A criminal defendant has the obligation to designate a record sufficient to support a claim of reviewable error on appeal.).
In most cases, civil or criminal, the district court record contains little or no evidence about the advocates’ thought processes shaping their respective legal arguments and factual presentations. In turn, appellate courts typically cannot and do not entertain issues on direct appeal requiring an exploration of a criminal defense lawyer’s tactical decisions or preparation of the case. See Rowland v. State, 289 Kan. 1076, 1083-84, 219 P.3d 1212 (2009) (Claims based on counsel’s ineffectiveness and, thus, his or her trial strategies are seldom amenable to review on direct appeal because there has been “no chance to develop facts and present evidence in support of or in derogation of tire quality of the trial representation.”); State v. Van Cleave, 239 Kan. 117, Syl. ¶¶ 1, 2, 716 P.2d 580 (1986) (An appellate court typically will not hear an ineffective assistance claim on direct appeal, but counsel may seek remand to the district court for a hearing to develop the claim.). This appeal falls in that category. Hargrove’s appellate counsel did not request remand to the district court for a hearing to develop that evidence. See Rowland, 289 Kan. at 1084 (appellate counsel may ask for remand to hold Van Cleave hearing).
Some courts treat a silent record—one failing to disclose that the faulty juiy instruction resulted from a tactical decision of counsel—as insufficient to interpose a waiver or invited error on the assumption that the mistake may as likely have been inadvertent. See Perez, 116 F.3d at 842, 844-46. Those courts reason that the record does not affirmatively demonstrate that the defense lawyer knowingly invited the diminution of his or her client’s rights. See 116 F.3d at 844-47. And they then apply a clear or plain error standard of review, commonly used when a lawyer simply fails to object to an instruction the trial court has proposed. See 116 F.3d at 842, 846-47. Their approach seems flawed in several respects. First, it imputes meaning to a silent record that cannot be inferred and should not be presumed on any logical basis. Second, it rewards a lawyer for dehberate but stealtby manipulation of the process. If the lawyer can get by without having to acknowledge that he or she has proposed an otherwise defective instruction for strategic advantage, he or she both achieves that advantage, having induced the trial court to use the erroneous instruction, and avoids being bound by the strategy after it has failed. So a rule treating a silent record that way ultimately discourages candor between counsel and the trial court in fashioning jury instructions.
The more pragmatic approach we adopt would defer review of the flawed instruction until the ambiguity of a silent record has been resolved through an appropriate evidentiary hearing. The review would then be based on facts rather than artificial presumptions. In the absence of a developed record, we have declined to take up the merits of Hargrove’s challenge to the elements instruction on this appeal.
If die record here had established that the defect in the elements instruction were the product of inadvertence or negligence, we recognize a compelling argument could be made for reaching the merits on direct appeal notwithstanding invited error principles. Were our view otherwise, much of the discussion to this point would have been superfluous. A simple, unqualified application of invited error would have sufficed to affirm. But invited error is a judge-made doctrine aimed at curtailing manipulative tactics inducing trial courts to make mistakes that otherwise might require reversal of an adverse verdict. As a judicially created rule, it should be tailored as necessary to serve its particular purpose without unnecessarily thwarting the ends of justice.
Those dual goals are best served in applying invited error to bar review of defective instructions requested for strategic objectives, thereby removing incentives for conduct deliberately destructive of the systemic fairness of the adjudicatory process. The need to maintain the integrity of the process supersedes calculated strategies that gamble for tactical advantage rights securing individual fairness. That sort of gamble amounts to a true waiver. We decline to presume the absence of a tactical motive or purpose from an ambiguous record.
But when the record shows that an instructional defect results from a defense lawyer s negligence or inadvertence and compromises a constitutional right, the reason for invoking the invited error rule has considerably less force. Lawyers have no incentive to act negligently or inadvertently in ways that impair their clients’ constitutional protections. Those actions fall short of a waiver, since carelessness does not amount to a knowing relinquishment. Applying the invited error rule to them has only limited deterrent value, although lawyers might be prompted to craft jury instructions with more care. The defendant, however, loses direct appellate review of unintended errors impairing his or her fundamental rights. And extending the rule to negligent or inadvertent mistakes makes the rule no more effective in preventing deliberate injection of error for tactical advantage, its principal purpose. The outcome, at best, only marginally advances systemic fairness and does so by exacting a heavy price in individual fairness.
Even if the invited error rule might be appropriately applied to common trial decisions that unintentionally compromise a given defendant’s constitutional rights, it ought to be relaxed for those deficiencies in juiy instructions. Absent tactical intent on counsel’s part, the shared responsibility for preparing final jury instructions weighs against rigid application of invited error to deflect a constitutional challenge. In any particular case, the circumstance still might call for applying invited error to bar review of a defective instruction. The myriad rights at stake and the fact-specific determination of the reasons for and harm caused by the error defy formulaic assessment through generic criteria or some preset mul-tifactor test.
We do not consider the intersection of invited error and structural error. It represents quite another place on the judicial map. Although the same general policies and considerations likely inform-that issue, they might well be balanced differently for some or all structural errors. Among constitutional defects, structural errors stand apart because, by definition, they undermine the integrity of the adjudicatory process and, therefore, cannot be excused even if a defendant may be unable to demonstrate actual harm. See Neder, 527 U.S. at 8-9 (Structural errors “infect the entire trial process” and “deprive defendants of ‘basic protections’ ” essential to the reliable functioning of the criminal justice process; as such, they “defy harmless-error review.”) (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 [1986]). Invited structural errors exist, see State v. Banks, No. 105,953, 2012 WL 6061553, at *3-5 (Kan. App. 2012) (unpublished opinion), but they are rare birds. The constitutional error in this case is not structural, rendering our analysis plainly distinguishable on that basis. See 2012 WL 6061553, at *3-5 (panel declines to apply invited error rule and reviews defective reasonable doubt instruction that effectively permits State to convict by proving one element of the charged offense rather than all of them, thereby creating structural error).
By the same token, what we have decided today does not change the ironclad application of the invited error rule to preclude direct appellate review of points premised on statutory rights. Because those rights lack the fundamental qualities of constitutional protections, they may be irretrievably lost on direct appeal to invited error. As we have said, that is settled law. See Angelo, 287 Kan. at 279-80; Schreiner, 46 Kan. App. 2d at 789-91. The loss, whether prompted by tactics or inadvertence, sufficiently promotes systemic fairness and some measure of lawyer diligence so as to outweigh the diminution of statutory protections.
5. Hargrove Retains Postconviction Remedies
Although we have rejected Hargrove’s asserted instructional error because the present record fails to show that his lawyer lacked a tactical objective, Hargrove has a way to raise the issue. After concluding his direct appeal, Hargrove may file a motion for habeas corpus relief, under K.S.A. 60-1507, based on any denial of his constitutional rights, including the effective assistance of trial or appellate counsel. In that proceeding, Hargrove would have the opportunity to develop a record regarding his trial lawyer’s strategic decision, if any, regarding the elements instruction and other aspects of his district court representation. See Kitchens, 299 Conn. at 496-97 (noting availability of habeas corpus relief and likely superiority of that vehicle for determining if trial counsel’s position on a disputed jury instruction arose from “strategy” or “incompetence”); but see People v. Zapata, 779 P.2d 1307, 1311 & n.2 (Colo. 1989) (Quinn, C.J., concurring) (noting most invited errors are the product of inadvertence and suggesting habeas corpus relief, therefore, comes late for an incarcerated defendant denied review on direct appeal).
To obtain K.S.A. 60-1507 relief, Hargrove would have to show that trial counsel’s performance, based on the totality of circumstances, “fell below an objective standard of reasonableness.” Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). If so, Hargrove would then have to demonstrate prejudice resulting from the substandard representation to the extent that he would have had “a reasonable probability” of success at trial had he been adequately represented, meaning judicial “confidence in the outcome” has been “undermine[d].” See 283 Kan. at 90. The measure of the lawyer’s representation outlined in Bledsoe mirrors tire standard in Strickland, 466 U.S. at 687-88, 694. See Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 2-4, 694 P.2d 468 (1985) (adopting and stating Strickland test for ineffective assistance); see also Holmes v. State, 292 Kan. 271, 274-75, 252 P.3d 573 (2011) (noting standard and applying it to appellate representation on direct appeal). The Kansas Supreme Court recently reiterated the standard in Edgar v. State, 294 Kan. 828, 837-38, 283 P.3d 152 (2012).
As both the United States Supreme Court and the Kansas Supreme Court have noted, review of the representation should be deferential and hindsight criticism tempered lest the evaluation of a lawyer’s performance be unduly colored by lack of success notwithstanding demonstrable competence. Strickland, 466 U.S. at 689-90; Holmes, 292 Kan. at 275. Rarely should counsel’s representation be treated as substandard when he or she investigates the client’s circumstances and then makes a deliberate strategic choice among multiple options. Strickland, 466 U.S. at 690-91. But that is not invariably so. A defendant may show that trial counsel’s “representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986); see Phoenix v. Matesanz, 233 F.3d 77, 82 n.2 (1st Cir. 2000) (decision of trial counsel not strategic within scope of Strickland if “ ‘the choice was so patently unreasonable that no competent counsel would have made if ”); Hart v. Gomez, 174 F.3d 1067, 1071 (9th Cir. 1999) (ineffectiveness portion of Strickland test satisfied where “no reasonable strategy. . . could account for defense counsel’s failure to introduce this [readily available] corroborating evidence”).
If Hargrove’s counsel had no plausible strategy for requesting the defective instruction or he simply proposed the instruction without recognizing or considering the omission of the elements of theft, tire ineffectiveness portion of Strickland typically would be satisfied. Hargrove then could obtain habeas corpus relief by showing the defect in the instruction undermined the trial process, costing him a reasonable probability of an acquittal. As the Edgar court explained, a defendant has demonstrated adequate prejudice if he or she has been “deprive[d] ... of a fair trial.” 294 Kan. at 837. The “ ‘ “benchmark” ’ ” becomes “ ‘ “whether counsel’s conduct so undermined the proper functioning of the adversarial process that die trial cannot be relied on as having produced a just result.” ’ ” 294 Kan. at 837.
The particular test laid out in Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), and State v. Richardson, 290 Kan. 176, 182-83, 224 P.3d 553 (2010), for prejudice to a criminal defendant when an element of the charged offense has been omitted from the jury instructions would provide an initial measurement. A showing of prejudice based on those criteria would not invariably establish that the trial process had sufficiently misfired to call into question the justness of the result. But when the omitted element has been contested and some evidence offered upon which a jury might find reasonable doubt, little more might be necessary on habeas review. The Heder decision at least suggests as much. See 527 U.S. at 19. The Court pointed out that calibrating the impact of an omitted element may be difficult when the defendant has offered evidence tending to negate it. 527 U.S. at 18. So the decision seems to say that a court reviewing the record could properly conclude “the purposes of the jury trial guarantee” had been scuttled “where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding”—that is, a reasonable doubt as to guilt. 527 U.S. at 19.
We do not mean to imply bow a habeas corpus motion ought to be argued or resolved, especially in the absence of any evidentiary record on trial counsel’s handling of the elements instruction. Our discussion merely points up Hargrove’s avenue for review of the constitutional defect in the instruction, since the very existence of that route figures materially in affording the invited error doctrine primacy over taclding the issue on direct appeal.
Sufficient Evidence Supported Jury Verdict
Hargrove contends the State presented insufficient evidence at trial to support his conviction for attempted aggravated burglary. We disagree and reject that contention.
In reviewing a sufficiency challenge in a criminal case, an appellate court construes the evidence in a light most favorable to the party prevailing below, here tire State, and in support of the jury’s verdict. The court will neither reweigh the evidence generally nor make credibility determinations specifically. State v. Raskie, 293 Kan. 906, 919-20, 269 P.3d 1268 (2012); State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for review is simply whether rational jurors could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). Circumstantial evidence alone may yield a conviction if each element of the offense can be supported. State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009).
As outlined in the jury instruction, tire State had to prove that Hargrove undertook an overt act aimed at committing an aggravated burglary and did so with tire particular intent to carry out the burglary but then failed to complete the offense. The instruction correctly informed the jury that overt acts exceed “mere preparation[s]” for a criminal offense and entail “stepfs] in a direct movement toward” perpetrating dre crime. See State v. Martinez, 290 Kan. 992, 1003, 236 P.3d 481 (2010). In turn, the instruction listed the elements of the completed offense of aggravated burglary applicable to Hargrove’s prosecution: (1) knowingly entering or remaining in a residence; (2) Without authority; (3) with the intent to commit a theft; and (4) while a human being was in the building. As we have discussed, the instruction improperly omitted the elements of theft as the underlying crime the State alleged Hargrove intended to commit inside Geither s home. Those elements would have required tire jury to find Hargrove intended to permanently deprive Geither of his property by “exerting unauthorized control” over that property. See K.S.A. 21-3701(a)(1). The value of any property Hargrove intended to take would have been immaterial, since either a felony theft or a misdemeanor theft supports an aggravated burglary charge.
Hargrove seizes on the split verdict the jury returned to contend evidence indicating he tampered with the telephone box or started prying open the back door cannot be considered in support of the attempted aggravated burglary because he was acquitted of the criminal damage to property charge. But the argument misconstrues tire law. This court may consider evidence relevant to both charges in deciding whether the record supports the jury s guilty verdict on attempted aggravated burglaiy irrespective of the not guilty verdict on the criminal damage to property charge. See State v. Beach, 275 Kan. 603, 614-20, 622, 67 P.3d 121 (2003) (court reviews sufficiency of the evidence challenge to felony-murder conviction based on all of the record evidence even though jury acquitted defendant of predicate crime of aggravated robbery); State v. Chaffee, 36 Kan. App. 2d 132, 136-38, 137 P.3d 1070 (2006). The United States Supreme Court addressed the same issue in United States v. Powell, 469 U.S. 57, 67, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984), and came to tire same conclusion. The Court largely relied on reasoning Justice Holmes set forth half a century earlier in Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932). Powell, 469 U.S. at 62-65. Hargrove points to nothing suggesting the law has taken some turn away from Dunn or Powell in the last 30 years. The Beach decision supports their continued vitality. 275 Kan. at 617-20.
In Powell, a unanimous Supreme Court acknowledged that a jury's not guilty verdict on one charge may appear inconsistent with its guilty verdict on another charge against the same defendant. But a reviewing court typically should not try to look behind the verdicts to discern a particular motive, purpose, or meaning in the jury’s actions. See 469 U.S. at 64-65. The jurors might have been confused about how to perform their duty, resulting in seemingly discordant verdicts. Or they may have chosen to show lenity toward the defendant by returning a not guilty verdict on one or more charges despite the evidence and tire instructions—exercising the absolute, if unsanctioned, power of nullification afforded juries in criminal cases. A court, however, cannot insightfully analyze the basis for the.result and, therefore, ought not impute a particularized meaning to it. 469 U.S. at 65-67. Delving into a jury’s verdicts to accurately discern what may have prompted them insinuates the court into processes that have typically and traditionally been treated as nearly sacrosanct. 469 U.S. at 67.
In turn, the Powell Court recognized that inconsistent verdicts should not influence the review of a defendant’s challenge to the sufficiency of the evidence supporting the offense on which a jury brought back a guilty verdict. The Court stated: “Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. [Citations omitted.] This review should be independent of the juiy’s determination that evidence on another count was insufficient.” 469 U.S. at 67. The Kansas Supreme Court embraced the reasoning of Powell and drew heavily from that decision in Beach, 275 Kan. at 618-20.
Those cases necessarily guide our determination of what evidence we may consider in weighing Hargrove’s sufficiency challenge. In those cases, the juries brought back not guilty verdicts on charges that entailed predicate conduct directly tied, to the charges on which they returned guilty verdicts. The not guilty verdicts were truly inconsistent with the guilty verdicts. But the inconsistency did not curtail the scope of evidence properly considered in deciding a defendant’s claim that insufficient evidence supported his or her conviction.
If anything, that approach should be more readily applied to a case such as this because the criminal damage to properly charge is not a legally necessary predicate for the attempted aggravated burglary charge. That is, the State may charge and convict of aggravated burglary without showing the defendant criminally damaged property as well. The two charges are linked only in the sense that the evidence used to prove the criminal damage charge—the tampering with the telephone box and the piying of the back door—also provided circumstantial evidence for the attempted aggravated burglaiy charge bearing on Hargrove’s intent and purpose. This court may consider those circumstances in evaluating the sufficiency of the evidence on the burglary charge even though the juiy found Hargrove not guilty of criminal damage. The not guilty verdict creates no legal or practical bar to considering the evidence to the extent it supports the attempted aggravated bur-glaiy.
The State, of course, could have chosen not to charge Hargrove with criminal damage, and there would have been no jury verdict at all on that offense. Under those circumstances, the evidence regarding the telephone box and the back door obviously could have been taken into account in assessing the sufficiency of the State’s proof of the attempted aggravated burglary. As the Powell Court recognized, the interposition of a not guilty verdict doesn’t alter those considerations. 469 U.S. at 67; see Beach, 275 Kan. at 619-20 (quoting Powell, 469 U.S. at 67).
Even if we indulged in an unwarranted assumption that the jury brought back a not gúilty verdict because it was unconvinced beyond a reasonable doubt that Hargrove tampered with the telephone box and pried the back door—the premise of his argument on appeal—our approach would be no different. Jurors need not weigh each piece of evidence and find it true beyond a reasonable doubt to consider it along with the rest of the evidence. Rather, the jurors may assess what weight or credit to give testimony or physical evidence. Jurors may accord great persuasiveness to consistent, corroborating testimony from a series of disinterested witnesses or to unrebutted DNA evidence showing a defendant to have been involved in a crime. By the same token, jurors may extend only limited value to the testimony of a purported accomplice cutting a deal with the State. But the jurors need not discount entirely the accomplice testimony because they are unconvinced it is correct beyond a reasonable doubt. Ultimately, jurors in a criminal case must be convinced the evidence collectively establishes beyond a reasonable doubt die elements die State is required to prove for the charged offense. Particular evidence might be afforded considerable credit in satisfying that standard, while other evidence could be viewed as less reliable but still indicative of guilt, and some could be rejected outright as unworthy of belief.
The not guilty verdict on the criminal damage to property charge cannot be treated as a rejection of the evidence as wholly unreliable or a conclusive determination that Hargrove did not do those acts. The verdict may have been die product of jury confusion or of jury lenity toward Hargrove, as Powell and Beach recognize. Maybe the jurors truly entertained a reasonable doubt that Hargrove ripped open the telephone box and tried to jimmy die back door. We don’t know and can’t speculate in the way Hargrove wants us to. But even if the jurors had a reasonable doubt Hargrove did diose acts and found him not guilty for that reason, diey still could consider that evidence as part of the collective body of evidence on the attempted aggravated burglary charge so long as they deemed it worthy of some credit. There is no legal inconsistency in affording tiiat evidence some weight, along witii the rest of the circumstances, in deciding to convict Hargrove of attempted aggravated burglary but finding it insufficient to prove beyond a reasonable doubt that he damaged the property.
Turning to the sufficiency of the evidence, the trial record, taken most favorably to the State as the prevailing party, supports the conviction for attempted aggravated burglary. Identity is not at issue in that Hargrove indisputably went to Geither’s front door and admitted as much to the police, although he denied some of the activity. Nor does Hargrove contest that Geither was in the house at the time. On appeal, Hargrove contends the evidence fails to show both an overt act taken in commission of burglaiy and an intent to commit a theft. As we have noted, Hargrove contends that the tampering with the telephone box and tire prying of the back door cannot be considered for those purposes. But Powell and Beach reject that argument, since the not guilty verdict may have resulted from lenity or nullification. If we were to ignore the holdings in those cases and then to treat that verdict as establishing a reasonable doubt that Hargrove damaged tire telephone box or the back door, we would have to reject those circumstances as overt acts. That’s because an overt act is an element of an attempt— something the State specifically must prove beyond a reasonable doubt—and not merely evidence to be weighed in support of one or more elements of the crime. Ultimately, however, Hargrove comes up short whichever way we look at the evidence.
Tampering with the alarm system or jimmying of the back door would amount to distinct overt acts in the commission of a burglary. One is a direct step to avoid detection while carrying out the crime, and the other is a direct step in entering tire premises to commit the crime. The divide between an overt act and mere preparation isn’t always well marked; it often depends upon the facts of the case and the nature of the crime. State v. Garner, 237 Kan. 227, 238, 699 P.2d 468 (1985) (“no definitive rule as to what constitutes an overt act for purposes of attempt”; “[ejach case must depend largely on its particular facts and the inferences which a jury may reasonably draw”). Here, a jury reasonably could conclude drose actions exceeded mere preparation. See State v. Chism, 243 Kan. 484, 490, 759 P.2d 105 (1988) (jury could find defendant’s entiy into backyard overt act in commission of attempted burglary); State v. Cory, 211 Kan. 528, 531, 506 P.2d 1115 (1973) (attempted entrance sufficient to support attempted burglary).
Apart from that conduct, a jury could reasonably find Hargrove engaged in an overt act when he rang the doorbell about 10 times, went to his car, and returned to ring the bell again and to try the door handle. Those efforts could be logically and readily construed as a means to determine if the house were unoccupied, making it a suitable target for a break-in and theft. And Hargrove might well have tried the front door to see if it were unlocked so he could avoid forcing his way in after disabling the alarm. Again, that activity goes well beyond mere preparation, such as placing the gloves, screwdriver, or other burglary tools in tire car.
Hargrove attempts to defuse that evidence based on Geither’s testimony that he “thought” he made eye contact with Hargrove when he looked out the upstairs front window. On appeal, Har-grove contends the conduct attributed to him in attempting to break into the house knowing it to be occupied would have been nonsensical. And, he says, the return to the front door would have been consistent with an effort to contact the occupant to get directions. But the argument requires this court to reweigh the evidence in a manner contrary to the verdict—something this court cannot do. See Raskie, 293 Kan. at 919-20. The jury certainly could have discounted Geither’s surmise that he and Hargrove made eye contact. The jury also had reason to reject the explanation Har-grove offered the police about trying to get directions. He never asked the uniformed officers on the scene about directions, and he suggested he had been at the house only a couple of minutes when tire actual time was considerably longer—enough of a variance that the jury could conclude the statement amounted to a prevarication and not just a mistake.
In short, a reasonable jury could find Hargrove took one or more overt acts toward the commission of a burglary.
Hargrove also argues the evidence fails to show he had an intent to commit a theft when he approached the house. Gauging intent is often an imprecise task. Jurors must determine what is going on inside a person’s head, and criminals routinely disavow any bad purpose. Jurors are left to survey the circumstances to discern a defendant’s actual intent. So it is in ferreting out whether someone has the requisite intent to commit a theft, thereby supporting a conviction for burglary, aggravated burglary, or, in this case, an attempt. See State v. Harper, 235 Kan. 825, Syl. ¶ 2, 685 P.2d 850 (1984); State v. Wilson, 45 Kan. App. 2d 282, 288, 246 P.3d 1008, rev. denied 292 Kan. 969 (2011). The jurors may consider “the totality of the surrounding circumstances,” in a burglary prosecu tion, including “the manner of the entry, tire time of day, the character and contents of the building, the person’s actions after entry . . ., and tire intruder’s explanation, if he or she decides to give one.” Harper, 235 Kan. 825, Syl. ¶ 2.
In Harper, the court found sufficient evidence to support an intent to commit a theft where the defendant broke into a school in the middle of tire night, headed toward the secretary’s office where valuable property was kept, attempted to enter that inner office, and then fled as police arrived. 235 Kan. at 832-33. After he was caught, the defendant offered a story that failed to reasonably explain his presence in the school or to dispel guilt.
The circumstances here are comparable, although Hargrove was thwarted before he actually entered the house. Hargrove was on a secluded residential street at midday, when most homes likely would be empty/ His conduct in ringing the doorbell repeatedly for two extended periods squares with making sure the house was, in fact, unoccupied. The jury could consider the evidence that the alarm system had been tampered with and the back door jimmied—again, conduct consistent with an intent to enter the house without being detected. Hargrove’s possession of a screwdriver and cotton gloves falls in line with housebreaking. Finally, as we have noted, Hargrove’s explanation of his purpose had aspects that didn’t square with his conduct and, thus, suggested a lack of candor.
From those circumstances, the jurors could have reasonably concluded Hargrove meant to enter Geither’s home believing it to be empty and to do so for a nefarious purpose. Consistent with Harper, those jurors fairly could have inferred Hargrove intended to steal valuable (and portable) property from the house. Nothing suggested some other bad intent or purpose. For example, Har-grove did not have the tools of an arsonist—an accelerant and rags—or a vandal—spray paint and a sledgehammer. Reasoned inferences drawn from circumstantial evidence will support a jury verdict requiring proof of criminal intent, including commission of a theft. See Harper, 235 Kan. 825, Syl. ¶ 2 (The criminal intent necessary to support a burglary conviction “is rarely susceptible of direct proof; it is usually inferred from the surrounding facts and circumstances.). Sufficient evidence supported the verdict convicting Hargrove of attempted aggravated burglary.
Affirmed.
Washington no longer requires that sort of instruction in burglary cases. See State v. Bergeron, 105 Wash. 2d 1, 4, 711 P.2d 1000 (1985). In State v. Johnson, 100 Wash. 2d 607, 625, 674 P.2d 145 (1983), the Washington Supreme Court ruled that jury instructions had to specify die elements of die intended offense making an unlawful entry a burglary and made them part of the prosecution’s required proof to convict. The ruling bears similarities to Kansas law. See State v. Rush, 255 Kan. 672, Syl. ¶ 5, 877 P.2d 386 (1994). But the Washington Supreme Court overruled diat position in Bergeron, 105 Wash. 2d at 4, given die broad definition of second-degree burglary requiring that the perpetrator intend to commit any crime against a person or property upon entering the premises. See Wash. Rev. Code § 9A.52.030 (2009). Henderson committed his offense during die 2-year window between Johnson and Bergeron, and, therefore, everyone agreed he was entitled to the benefit of Johnson.
The district court would not have had to do any more than secure tire lawyer s acknowledgement that he tendered the instruction to confer some advantage on Hargrove. And the district court probably would have intruded unduly into work-product and possibly attorney-client privileges to require the lawyer to divulge the particular strategic attributes he imputed to the instruction.
The crime of aggravated burglary is not limited to residences and extends to other occupied structures or vehicles. See K.S.A. 21-3716. The underlying crime need not be a theft. Many other offenses, including any felony, will elevate an unlawful entry into a burglary or aggravated burglary. See K.S.A. 21-3715; K.S.A. 21-3716. And a defendant need not know that tire building is occupied to commit an aggravated burglary. State v. Watson, 256 Kan. 396, 400-01, 885 P.2d 1226 (1994). The State would also have to prove the offense happened in Johnson County, Kansas, within tire statute of limitations period. Venue and timeliness were undisputed. | [
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|
Larson, J.:
This appeal raises the narrow question of whether Charles Richard Dinneen “used” a deadly weapon as set forth in K.S.A. 2010 Supp. 22-4902(a)(7) in a manner that requires him to register as an “offender” under the Kansas Offender Registration Act (KORA) during his violation of fleeing or attempting to elude a police officer, a severity level 9 person felony in violation of K.S.A. 8-1568(b)(1) and (c)(4).
Dinneen appeals tire district court’s finding that he is required to register as an offender under the KORA.
Factual Findings and Procedural History
The district court made the following factual findings when ruling on Dinneen’s motion to reconsider its earlier ruling that he had used a firearm during his commission of the felony charge of fleeing and eluding a police officer:
“2. At the preliminary hearing, Nikole Kiser testified that she and the defendant had dated for approximately six years. They had recently broken up, but the defendant continued to contact her and come to her residence. On March 19, 2010 the defendant came to her residence and pulled her into the bedroom where he showed her a 9mm gun he removed from a gym bag. He told her to hold it which she refused to do. He told her she could have it when he was done with it. She understood this to mean that he was probably going to kill himself. He did not threaten her. She left the residence with her children. The children were taken to a friend’s home as Nikole had plans to go. That night when she was leaving a bar with friends the defendant pulled up and questioned her as to whether a vehicle there belonged to her boyfriend. That night Nikole stayed at a friend’s house.
“The following morning when Nikole went to her vehicle the defendant pulled up beside her. Nikole then attempted to return to the house but the door was locked so she returned to her vehicle. Defendant came to Nikole’s van and began questioning her as to who she had been with. Defendant forcibly removed Nikole’s cell phone from her so he could determine the number for her boyfriend. Defendant then told Nikole that she wasn’t worthy of living and he was going to fell her in die front yard in front of her Mds and everyone. He then told her to either give him her van keys while he went to his car to get the gun or follow him to his car. At that point, Nikole began honking her horn and yelling. The defendant dien forcibly removed Nikole from her car and forced her into his car. As defendant went to get into die driver’s side, Nikole grabbed the keys from the ignition and ran to the house yelling and pounding on the door. The defendant then forced Nikole to his car, and she saw him grab the bag on die floor she knew die gun was in from the night before. Nikole did not see the gun but saw clips witii bullets in die bag. The defendant let Nikole go after her friend’s husband yelled from the house. The defendant had told Nikole he was going to lull her and dien himself.
“On March 20, 2010 at approximately 9:00 a.m. Deputy James Fletcher received a report from dispatch of a domestic disturbance in the city of Salina. Deputy Fletcher was sent to the defendant’s residence to see if he was diere. After arriving and locating die defendant’s vehicle, he watched die residence from a block away while waiting for assistance to arrive. He dien observed a subject jump out of the upstairs window onto the porch and leave in a green Ford Escort. The roads were icy and snow packed at diat time. Deputy Fletcher followed die vehicle while waiting for assistance to arrive. Kansas Highway Troopers arrived and attempted to stop the defendant’s vehicle. Trooper Alex Taylor had received a report diat die defendant had gotten onto the roof displaying a gun and left in a green Ford Escort. The call was paged out with an alert tone tiiat diere was a suicidal subject with a 9 millimeter handgun. The officers had been told the defendant may take his life. The defendant refused to stop his vehicle and die pursuit ended when die defendant stopped at Emmanuel Christian Center in Salina. The defendant exited his vehicle witii the gun in his right hand. The video recording of the chase and stop of the defendant’s vehicle clearly shows defendant displayed a gun in his hand as he exited his vehicle and ran into die church. Troopers dien followed the defendant into die church where he refused to surrender the gun. After defendant was instructed a number of times to hand over die gun, a trooper deployed a taser gun which had no effect. The defendant was then shot in die leg when he began to raise his gun. The defendant’s gun was found to be loaded, and officers found another loaded magazine in defendant’s coat pocket.”
Dinneen was ultimately charged with 22 different counts which included robbery, 2 counts of kidnapping, criminal threat, domestic battery, aggravated assault on a law enforcement officer, 2 counts of fleeing and eluding, and 14 traffic infractions resulting from the events which occurred on March 20, 2010.
After a preliminary hearing and plea negotiations, Dinneen pled guilty to attempted kidnapping in violation of K.S.A. 21-3420 and K.S.A. 21-3301, criminal threat in violation of K.S.A. 21-3419(a)(1), and fleeing and eluding a police officer in violation of K.S.A. 8-1568(b)(1). All the other charges were dismissed.
At the sentencing hearing, Dinneen’s motion for dispositional departure was denied by the court. He was sentenced to 36 months’ incarceration for the attempted kidnapping conviction, 6 months’ incarceration for the criminal threat conviction, and 6 months’ incarceration for the fleeing and eluding conviction. All the sentences were ordered to be served consecutively.
In a November 2010 registration hearing, after listening to counsels’ arguments, the district court ruled that as defined by K.S.A. 2010 Supp. 22-4902(a)(7), Dinneen conducted the crimes of attempted kidnapping and criminal threat without the use of a deadly weapon but conducted the crime of fleeing and eluding with the use of a deadly weapon. As such, Dinneen was ordered to register as an “offender” under K.S.A. 22-4904 through 4907.
Dinneen filed a timely motion for reconsideration of the later ruling. He argued that in order for the district court to find that he used a firearm in the commission of fleeing and eluding, it must find that the firearm was an actual instrumentality of the crime and not merely in his possession at the time the crime was committed.
The motion to reconsider was argued in January 2011. The parties asked the court to review the preliminary hearing testimony, a 911 call from Dinneen’s sister, and Trooper Taylor’s video of the police chase.
The district court on April 19, 2011, issued its decision making the factual findings which we have previously set forth in their entirety and denied Dinneen’s motion to reconsider. Dinneen has timely appealed.
Issues Presented and Analysis
As first stated, the precise issue on appeal is whether a deadly weapon was used in such a manner during the commission of the crime of fleeing and eluding as to require Dinneen to register as an offender under the KORA.
The relevant statute is K.S.A. 2010 Supp. 22-4902(a)(7) which reads as follows:
“(a) ‘offender means:
(7) any person who ... is convicted of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony.” (Emphasis added.)
Standards of review
Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
In a recent case involving the KORA, State v. Coman, 294 Kan. 84, 96, 273 P.3d 701 (2012), Justice Johnson opined:
“As a general rule, criminal statutes must be strictly construed in favor of the defendant. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008). Any reasonable doubt as to the meaning of the statute is decided in favor of the accused, subject to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Jackson, 291 Kan. 34, 40, 238 P.3d 246 (2010). See also State v. Bonner, 290 Kan. 290, 296, 227 P.3d 1 (2010) (stating that strict construction ‘simply means that the court reads words with their ordinary meaning,’ and then decides any reasonable doubt in favor of the accused).”
The Coman opinion went on to discuss the rule of lenity and stated:
“[T]he statutory interpretation favoring the accused cannot be unreasonable or nonsensical. In other words, diere must be a reasonable doubt as to a criminal statute’s meaning before the rule of lenity comes into play. ... If, as here, there are two reasonable and sensible interpretations of a criminal statute, the rule of lenity requires the court to interpret its meaning in favor of the accused.” 294 Kan. at 97.
For K.S A. 2010 Supp. 22-4902(a)(7) to require offender registration, Dinneen must have (a) committed a person felony and during the commission of such felony he must have (b) used a deadly weapon. We consider these two requirements in the order stated above.
Over what time period did the commission of the felony of fleeing and eluding occur?
When Dinneen pled guilty to the person felony of fleeing and eluding, he agreed he had violated the following statutory provisions:
“(a) Any driver of a motor vehicle who willfully fails or refuses to bring such driver's vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop, shall be guilty as provided by subsection (c)(1), (2) or (3).
“(b) Any driver who violates the provisions of subsection (a) and who: (1) Commits arty of the following during a police pursuit: (A) Fails to stop for a police road block; (B) drives around tire deflating devices placed by a police officer; (C) engages irt reckless driving as defined by K.S.A. 8-1566 and amendments thereto; (D) is involved in any motor vehicle accident or intentionally causes damage to property; or (E) commits five or more moving violations; or
“(c)(4) Every person convicted of violating subsection (b) shall be guilty of a severity level 9,. person felony.” K.S.A. 8-1568(a), (b) and (c)(4).
In discussing fleeing and eluding, our Supreme Court in State v. Russell, 229 Kan. 124, 126, 622 P.2d 658 (1981), said: “The gist of the proscribed conduct is a driver’s failure to stop his motor vehicle after having been signaled by a police vehicle or attempting to elude a police vehicle.” Fleeing and eluding “is merely a traffic violation.” Russell, 229 Kan. at 127.
Once the violation of K.S.A. 8-1568 is established, the question then becomes, when did the commission of the crime of fleeing and eluding begin and when did it end?
There does not appear to be any Kansas caselaw directly on point. But, as we stated above, fleeing and eluding is a vehicular crime—a traffic violation. Russell, 229 Kan. at 127. The statute falls within chapter 8 which concerns “automobiles and other vehicles.” Interpretation of 8-1568 in a previous case was so vehicle focused that in order for a defendant to be properly convicted of the crime, a uniformed law enforcement officer “must be occupying an ap propriately marked police vehicle or police bicycle when the visual or audible signal to stop is given to a motor vehicle driver.” State v. Beeney, 34 Kan. App. 2d 77, 82, 114 P.3d 996 (2005).
Dinneen convincingly argues that once he was no longer driving his vehicle and when he exited his car, his “commission” of the crime of fleeing and eluding ceased because he was no longer committing any essential element of the crime. Thus, any involvement with a weapon prior to or after the driving stopped would not be relevant and could not be considered in resolving whether the gun was used in the commission of the fleeing and eluding person felony.
The State points to cases involving the mandatory sentencing statutes, K.S.A. 21-4704 and K.S.A. 21-4618 but does not offer any convincing argument to Dinneen’s position that the crime of fleeing and eluding requires him to be inside a vehicle during its commission.
Therefore, the commission of the crime of fleeing and eluding began the moment Dinneen failed to stop his vehicle after being signaled to do so by Trooper Taylor and ended the instant he exited his vehicle in front of the Emmanuel Church. As such, for Dinneen to be required to register as an offender under K.S.A. 2010 Supp. 22-4902(a)(7), his use of a deadly weapon must have occurred during this time period.
Did Dinneen use a deadly weapon during the commission of fleeing and eluding?
With the timeframe within which the commission of the person felony of fleeing and eluding established, the ultimate and controlling question is reached. Did Dinneen use a deadly weapon at any time while in his vehicle during the police chase or prior to his leaving his vehicle at the Emmanuel Church?
Absolutely no evidence has been presented to show Dinneen touched, held, or in any manner manipulated the handgun while he was inside his vehicle. Trooper Taylor testified Dinneen exited his vehicle with the gun in his left hand and moved it to his right hand as he entered the church. The troopers did know Dinneen was armed and suicidal, but that by itself, is not evidence of usage of a deadly weapon.
We have not located any Kansas cases which have directly determined how a deadly weapon must be used in the commission of a crime in order to rise to the level to be a violation of K.S.A. 2010 Supp. 22-4902(a)(7) sufficient to require registration under the KORA.
However, the definition of use of deadly weapons has been examined for purposes of other Kansas statutes. In State v. George, 20 Kan. App. 2d 648, 657, 891 P.2d 1118, rev. denied 257 Kan. 1094 (1995), the court examined an incident where the defendant used a pistol to strike the victim and found the use of a gun in an aggravated battery is not limited to firing it for purposes of the sentencing statute, K.S.A. 1993 Supp. 21-4704(h). The court held that as applied to the statute that mandated imprisonment for the use of firearms in the crime; the “concept of‘use’ should be broadly construed” as to be consistent with the legislative intent in Kansas “to address public concern over the increased number of crimes involving firearms and with our Supreme Court’s conclusion that enhancement of a sentence where a firearm is used is a legitimate effort to deter the use of a firearm.” 20 Kan. App. 2d at 658 (citing State v. Coley, 236 Kan. 672, 674, 694 P.2d 479 [1985]).
In State v. Smith, 232 Kan. 284, 654 P.2d 929 (1982), the court held that the defendant’s use of a rifle to push the victim off a balcony was sufficient to support an aggravated battery conviction. In State v. DeCourcy, 224 Kan. 278, Syl. ¶ 4, 580 P.2d 86 (1978), the court found that use for purposes of armed robbery meant that the firearm “was used as an instrument of force to overcome the will of the victim.”
In the recent case of State v. Nambo, 42 Kan. App. 2d 731, 216 P.3d 186 (2009), aff'd 295 Kan. 1, 281 P.3d 525 (2012), an attempt was made to determine who was an offender under the K.S.A. 2010 Supp. 22-4902(a)(7) language by applying the definitions and holdings from the earlier sentencing statutes, K.S.A. 21-4618(a) (in effect from 1976 to July 1, 1993) and K.S.A. 21-4704(h). Nambo, an unarmed accomplice to an aggravated robbery where a carjacking was accomplished at gunpoint, asked our courts to apply an earlier ruling that K.S.A. 21-4618(a) which denied probation, parole, or suspension of sentence to any defendant convicted of an article 34 crime in which “the defendant used any firearm in the commission thereof’ only applied to tire defendant personally armed with the firearm at the time the crime was committed. See State v. Stuart and Jones, 223 Kan. 600, 607, 575 P.2d 559 (1978).
The Nambo court disagreed, ruling the language in the sentencing statute was “active”—relating to the specific defendant that used the weapon—but, the K.S.A. 22-4902(a)(7) wording was “passive” and “focuses on the act itself (the use of the deadly weapon) without considering whether the actor personally used the weapon.” Nambo, 295 Kan. at 4.
Nambo’s final argument was a request to find the word “use” to be ambiguous and suggested it was inconsistent to construe use in the KORA different than use of a firearm in the sentencing statute. The Nambo court held the inquiiy was not whether a firearm had been used to commit the offense as one had clearly been used. The Nambo opinion then cited State v. George as “(collecting cases and concluding that firearm use under K.S.A. 21-4618 includes brandishing, discharging, or using it as a club)” 295 Kan. at 7, but held the inquiry was whether Nambo had to personally use the firearm. The opinion concluded “[w]e have ruled ‘no.’ So an unarmed accomplice is required to register as an offender under K.S.A. 22-4902(a)(7).” 295 Kan. at 7.
The Nambo opinion focuses on who may be obligated to register as an offender under the KORA and discusses the differences between K.S.A. 22-4902(a)(7) and the sentencing statutes. But, Nambo does not resolve the use issue we face.
The unanimous United States Supreme Court decision in Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995) (superseded by statute as stated in Abbott v. United States, 562 U.S. 8, 131 S. Ct. 18, 178 L. Ed. 2d 348 [2010]), was argued below and on appeal by Dinneen as substantiating that use should be interpreted to require “active employment” of the deadly weapon before it can be considered to have been used as required by the applicable statute.
In Bailey, the petitioners had been convicted of a federal statute criminalizing the use or carrying of a firearm during a crime of drug trafficking; one petitioner was found by the district court to have violated the statute by virtue of having a loaded pistol inside his locked car trunk when he was arrested for possession of cocaine, while the other petitioner was found to have violated the statute when a loaded pistol was found inside a trunk located in her bedroom closet after she was arrested for drug-related offenses. After examining the history and language of the statute, the Court overturned the petitioners’ convictions, holding that there must be an “active employment of the firearm by the defendant” in order for the statute to apply. 516 U.S. at 143.
To clarify its ruling, the Bailey Court illustrated activities that would fall within its active employment definition:
“The active-employment understanding of use’ certainly includes brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm. We note that this reading compels the conclusion that even an offender’s reference to a firearm in his possession could satisfy [the statute]. Thus, a reference to a firearm calculated to bring about a change in the circumstances of tlie predicate offense is a use,’ just as the silent but obvious and forceful presence of a gun on a table can be a ‘use.’ ” 516 U.S. at 148.
However, “[i]f the gun is not disclosed or mentioned by the offender, it is not actively employed, and it is not ‘used.’ ” 516 U.S. at 149.
Dinneen argues that for him to be found to have violated K.S.A. 2010 Supp. 22-4902(a)(7), the officer’s knowledge that Dinneen was armed and suicidal must rise to the level of use required by the statute. Dinneen contends that by simply possessing and carrying the weapon in his vehicle, he did not use the weapon to the necessary degree. Dinneen applies Bailey, arguing that the United States Supreme Court’s active employment definition of use eliminates any possibility that he used the weapon while fleeing and eluding as no evidence was presented that the gun was anywhere but on the floor of his vehicle. 516 U.S. at 148. Dinneen concedes the State may have had a colorable argument had it prosecuted and convicted him with other crimes, such as obstructing a police officer, which would have covered the events that occurred after he exited his vehicle, gun in hand. But instead, Dinneen states the State convicted him of fleeing and eluding, the commission of which ceased the moment he stepped out of his vehicle.
The State argues that Bailey is factually distinguishable from our case because while both the defendants in Bailey made no use or mention of their weapons at any time before their arrests, Dinneen threatened to ldll his estranged girlfriend and had tire gun and ammunition on the floor of the car at that time. The State reminds us that Dinneen was carrying the gun when he jumped out of the second story of his home and into his car, a fact the police were aware of when they instigated the pursuit. The State contends all the circumstances of Dinneen’s actions are to be considered and it is critical that “[l]aw enforcement was aware the defendant had a gun and was ready to use it.”
The problem with the State’s argument is that incidents that happened prior to or after Dinneen’s fleeing and eluding conviction are by definition, incidents that do not occur “in the commission” of the crime as the K.S.A. 2010 Supp. 22-4902(a)(7) language specifies. Regardless of the reason for the police chase, once the commission of fleeing and eluding began, Dinneen never actively employed, “referred” to, or otherwise utilized the gun to somehow change the circumstances of the chase. See Bailey, 516 U.S. at 148. For the State’s argument to prevail, it would have to be shown that the law enforcement’s awareness of a gun in Dinneen’s vehicle during the chase is a use of the gun by Dinneen, but there simply is no caselaw to support it, and any reading of the statute as such, would “read into the statute something not readily found in it.” State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
A common characteristic of several of the previous decisions, either examining K.S.A. 22-4902(a)(7) or defining use or using a weapon as it pertains to another statute, is the deliberate utilization (active employment) either directly, indirectly, or in some manner using a weapon that results in a change of circumstances of the crime being committed, such as facilitating commission of the offense. See George, 20 Kan. App. 2d at 657 (defendant used a pistol to strike victim); Smith, 232 Kan. at 284 (defendant used a rifle to push the victim off a balcony); Nambo, 295 Kan. 1, Syl. ¶ 2 (un armed accomplice required to register after principal utilizes a handgun in the commission of a crime).
We conclude that under the specific circumstances of this case, Dinneen did not actively employ or use a weapon in the commission of the person felony of fleeing and eluding. K.S.A. 2010 Supp. 22-4902(a)(7) was not violated, and Dinneen is not required to register under the KORA once he concludes his prison sentence.
The State has asserted on appeal a fallback argument that even if the district court erred in finding Dinneen used a deadly weapon in the commission of fleeing and eluding, the court’s decision should be upheld as the correct result because the firearm was clearly used in the other offenses.
If a district court reaches the correct result, its decision may be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. See State v. May, 293 Kan. 858, 870, 269 P.3d 1260 (2012). However, there is a clear difference between an argument previously rejected by the district court and an alternate, unaddressed rationale for a district court’s judgment. The previously rejected argument may not be briefed by a party as grounds to support a district court’s decision for an alternative reason without a timely filed cross-appeal. Cooke v. Gillespie, 285 Kan. 748, 755-57, 176 P.3d 144 (2008).
The State contends here that the other crimes for which Din-neen was convicted—attempted kidnapping and criminal threat— plainly involved the use of a deadly weapon during their commission. As such, Dinneen should be required to register as an offender no matter the person felony to which the registration statute is applied.
But, in this case, at the registration hearing, the State argued in favor of applying K.S.A. 2010 Supp. 22-4902(a)(7) to all three convictions. The court rejected this argument and held it did not apply to either attempted kidnapping or criminal threat, but instead applied the registration statute and the KORA only to the crime of fleeing and eluding.
At the motion to reconsider hearing, the State again argued the registration statute should apply to all counts. This argument was again rejected as tire court’s ruling was limited to denying Din-neen’s motion to reconsider.
Since the State did not file a timely cross-appeal to the district court’s April 19, 2011, decision, the argument may not now be made on appeal to support its contention that tire district court achieved the right result for an alternative reason. Cooke, 285 Kan. at 755-57; see Oliver, Education of Attorneys on Appeal and/or Cross Appeal, 78 J.K.B.A. 20, 20-26 (March 2009).
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Hebert, J.:
M.S., the father of the minor child A.E.S., appeals from an order entered by the District Court of Douglas County granting temporary custody of A.E.S. to Social and Rehabilitation Services (SRS). M.S. argues that K.S.A. 2011 Supp. 38-2243(f)(3), which allows a court to enter an order of temporary custody in a child in need of care (CINC) case, is unconstitutionally vague and overbroad. M.S. also argues that the evidence was insufficient to support the district court’s findings and orders. The State argues that the appeal should be dismissed as moot. The guardian ad litem (GAL) argues that this court should retain the appeal to consider the constitutional arguments.
For the reasons hereinafter set forth, we find that M.S.’s appeal is moot, since the temporary order has been superseded by subsequent orders of adjudication and disposition. However, pursuant to an exception to tire mootness doctrine, we retain the appeal to consider the constitutional issues raised and find that K.S.A. 2011 Supp. 38-2243(f)(3) is neither unconstitutionally vague nor over-broad.
Procedural Background
On Februaiy 22, 2012, SRS filed an application pursuant to K.S.A. 2011 Supp. 38-2242 for an ex parte order of protective custody for A.E.S., a minor child born in 1998. On February 24,2012, the district court conducted a temporary custody hearing. The court found probable cause existed to believe the health and welfare of A.E.S. may be endangered without further care pending a formal CINC hearing. Pursuant to K.S.A. 2011 Supp. 38-2243, the court placed A.E.S. in the temporary custody of SRS pending a formal CINC hearing which was scheduled for April 24, 2012.
M.S. filed a timely appeal from tire order of temporary custody.
The formal CINC hearing was convened on June 11, 2012, and after an intervening continuance, was concluded on July 17, 2012. A.E.S. was adjudicated as a CINC and was specifically ordered to remain in the custody of SRS. The court took some dispositional evidence and continued the dispositional hearing to September 28, 2012, due to time constraints.
On September 28, 2012, the parents of A.E.S., their attorneys, the GAL, and the assistant district attorney appeared and requested the court approve an agreed order of disposition. The court’s approval was memorialized in a “Combined Journal Entry of Disposition” filed on October 25, 2010. The agreed order sets forth that the father, M.S., supports the agreement and participated in its development through his attorney. The agreed order provided that custody of A.E.S. “shall remain vested with the Secretary [of SRS],” and further determined that “[rjeturning the child to a parental home on a full-time basis is contrary to the child’s welfare.” The detailed journal entry set forth the terms and conditions that the parents would have to meet in order to reintegrate the family. A permanency hearing was scheduled for February 11, 2013.
Upon motion of the State, the combined journal entry of disposition was added to the record on appeal pursuant to Supreme Court Rule 3.02(d)(3) (2012 Kan. Ct. R. Annot. 18). M.S. conceded the propriety of the addition.
M.S.’s Appeal of the Temporary Custody Order Is Moot
An order of temporary custody is an order from which a party may take an appeal. K.S.A. 2011 Supp. 38-2273(a); In re D.I.G., 34 Kan. App. 2d 34, 114 P.3d 173 (2005). The State does not suggest otherwise but argues that the temporary custody issue is moot because of the subsequent adjudication and disposition orders.
A case is moot when a justiciable controversy no longer exists. See State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455 (2009). “A justiciable controversy has definite and concrete issues between the parties and ‘adverse legal interests that are immediate, real, and amenable to conclusive relief.’ ” State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012).
Our Supreme Court recently addressed the mootness doctrine in State v. Hilton, 295 Kan. 845, 848-49, 286 P.3d 871 (2012):
“Generally, Kansas appellate courts do not decide moot questions or render advisory opinions. State v. McKnight, 292 Kan. 776, 778, 257 P.3d 339 (2011). That doctrine, however, is not a question of jurisdiction. Rather, this court has previously described the mootness doctrine as a court policy, which recognizes that the role of a court is to ‘ “determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.” ’ State v. Bennett, 288 Kan. . . . [at] 89 . . . (quoting Board of Johnson County Comm’rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 [1996]).
“A court policy necessarily comes about through prior opinions of the court, i.e., tire mootness doctrine developed through court precedent. Accordingly, our review is unlimited. See State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012) (‘To the extent our decision involves . . . the interpretation and application of . . . court precedent, we are resolving questions of law and, thus, exercising unlimited review. Johnson v. Brooks Plumbing, 281 Kan. 1212, 1213, 135 P.3d 1203 [2006].’).”
Under K.S.A. 2011 Supp. 38-2243, the terms “order of temporary custody,” “adjudication,” and “disposition” are terms of art each carrying its own meaning. See In re D.M.M., 38 Kan. App. 2d 394, 398, 166 P.3d 431 (2007). The “order of temporary custody” is the first step in a sequence, wherein the court identifies tire person or agency that will have temporary custody of a child determined to be in need of protection. See In re C.E., 47 Kan. App. 2d 442, 448, 275 P.3d 67 (2012). Such order covers the period of time until an “adjudication” which is the next step in the sequence where the court determines if the child is a CINC. If the child is found not to be a CINC, the proceedings are dismissed. K.S.A. 2011 Supp. 38-2251(a). If, however, the child is found to be a CINC the court enters an “adjudication order” and proceeds to a “disposition.” K.S.A. 2011 Supp. 38-2251(b). The temporary custody order may remain in effect until disposition, or the court may modify the order of custody at adjudication.
In this case, the court issued a temporary order placing A.E.S. in the temporary custody of SRS. Although M.S. filed an appeal from this temporary order, there is no provision to stay the CINC proceeding pending such an appeal. The court subsequently adjudicated A.E.S. as a CINC and specifically ordered that she remain in SRS custody pending disposition. An order of adjudication is also an appealable order under K.S.A. 2011 Supp. 38-2273(a). The specific reference to continuation of custody with SRS would supersede the temporary custody order and would eliminate any remaining justiciable controversy regarding custody arising from the temporary order.
But our consideration need not stop here. The district court proceeded to the next step of the CINC process and entered the combined journal entry of disposition as proposed by all parties on September 28, 2012. M.S. concedes that this journal entry is properly added to the record on appeal pursuant to Supreme Court Rule 3.02, and thus, is properly within our review.
As noted above, the combined journal entry explicitly establishes that M.S. agrees that custody of A.E.S. shall remain vested with SRS and that “[rjetuming the child to a parental home on a full-time basis is contrary to the child’s welfare.” This agreement ef fectively concedes the issue raised by M.S. and concludes any controversy regarding sufficiency of evidence to support the court’s findings in the temporaiy custody order that A.E.S. was in need of protection. Because there is no longer any real, immediate, adverse legal interest before this court which is amenable to conclusive relief, M.S.’s appeal should be dismissed as moot, unless an exception to the mootness doctrine applies.
Exceptions to the Mootness Doctrine
Because the mootness doctrine is not jurisdictional, it is subject to exceptions. See Hilton, 295 Kan. at 848-50. “One commonly applied exception to the rule that appellate courts will not review moot issues is where the moot issue Is capable of repetition and raises concerns of public importance.’ ” Montgomery, 295 Kan. at 841; Hilton, 295 Kan. at 850. Public importance means “ ‘ “ ‘something more than that the individual members of the public are interested in the decision of the appeal from motives of curiosity or because it may bear upon their individual rights or serve as a guide for their future conduct as individuals.’ ” [Citations omitted.]’ ” Montgomery, 295 Kan. at 841; Hilton, 295 Kan. at 851.
Since the mootness doctrine is a court policy which has developed through court precedent, this court’s review is unlimited. Montgomery, 295 Kan. at 841. Whether to retain a moot case in order to determine a question of public importance lies in the discretion of the reviewing court. See State ex rel. Stephan v. Johnson, 248 Kan. 286, 290, 807 P.2d 664 (1991).
M.S.’s arguments regarding sufficiency of evidence have been determined to be moot because the order of disposition concludes the evidentiary issues. Any further consideration of such issues would be case specific and would not implicate any exception to the mootness doctrine. Such consideration would simply result in an advisory opinion which we decline to render.
M.S.’s arguments regarding the constitutionality of the statute— K.S.A. 2011 Supp. 38-2243(f)(3)—which governs the temporary orders procedure, does raise an issue which is capable of repetition and concerns a matter of public importance. It is highly unlikely that anyone in his circumstances could have obtained relief from any error in the temporary order proceeding before the case became moot. See Hilton, 295 Kan. at 851; see also McKnight, 292 Kan. at 778-79. Here, although K.S.A. 2011 Supp. 38-2273(a) specifically allows for appeals from a temporary order, there is no provision for an expedited appeal or stay of further CINC proceedings. K.S.A. 2011 Supp. 38-2251(c) provides that an adjudication order is to be entered within 60 days after a petition is filed, and disposition is to be rendered promptly thereafter. Thus, by the time tire appeal of a temporary order reaches this court, it would likely be moot. Since the constitutionality of the temporary order statute is a matter of public importance, we may retain this issue on appeal.
Constitutional Issues Not Raised in the District Court
M.S.’s constitutional challenge must overcome one further procedural obstacle. M.S. concedes that he did not challenge tire constitutionality of the statute before the district court. Generally, “[cjonstitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review.” State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009). However, under one of the recognized exceptions to this general rule, an appellate court may consider a constitutional question raised for the first time on appeal if consideration of the claim is necessary to serve the ends of justice or to prevent a denial of fundamental rights. State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).
In Troxel v. Granville, 530 U.S. 57, 63, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the United States Supreme Court noted: “The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this court.” In light of this pronouncement, we will consider M.S.’s constitutional issues.
Standard of Review
“The constitutionality of a statute is a question of law to which this court applies a de novo standard of review.” Dissmeyer v. State, 292 Kan. 37, 39, 249 P.3d 444 (2011); State v. Wilson, 267 Kan. 550, 555, 987 P.2d 1060 (1999). However, “ ‘a statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down/ [Citations omitted.]” Kansas Judicial Review v. Stout, 287 Kan. 450, 460, 196 P.3d 1162 (2008).
Analysis
K.S.A. 2011 Supp. 38-2243, the statute under which A.E.S. was placed in temporary custody of SRS, states in pertinent part:
“(a) Upon notice and hearing, the court may issue an order directing who shall have temporary custody and may modify the order during the pendency of tire proceedings as will best serve the child’s welfare.
“(f) The court may enter an order of temporary custody after determining there is probable cause to believe that the-. (1) Child is dangerous to self or to others; (2) child is not likely to be available within the jurisdiction of the court for future proceedings; or (3) health or welfare of the child may be endangered without further care.
(i)(l) The court shall not enter the initial order removing a child from tire custody of a parent pursuant to this section unless the court first finds probable cause that: (A)(i) tire child is likely to sustain harm if not immediately removed from the home;
(ii) allowing the child to remain in home is contrary to tire welfare of the child; or
(iii) immediate placement of the child is in the best interest of the child; and
(B) reasonable efforts have been made to maintain the family unit and prevent the unnecessary removal of the child from the child’s home or that an emergency exists which threatens the safety to the child.” (Emphasis added.)
M.S. challenges section (f)(3) of the statute as being unconstitutionally vague and overbroad. He does not separate his arguments in his brief, but our Supreme Court, in Wilson, discussed and distinguished the concepts:
“Vagueness and overbreadth are often confused. The difference between the two concepts was discussed in State ex rel. Murray v. Palmgren, 231 Kan. 524, 533, 646 P.2d 1091 (1982):
‘While a vague statute leaves persons of comnroir intelligence to guess at its meaning, an overbroad statute makes conduct punishable which under some cir cumstances is constitutionally protected. [Citations omitted.] Obviously, almost every law is potentially applicable to constitutionally protected acts. A successful overbreadth challenge can thus be made only when 1) the protected activity is a significant part of the law’s target, and 2) there exists no satisfactory method of severing the law’s constitutional from its unconstitutional applications. [Citation omitted.]’
‘ “The distinction between the doctrines of overbreadth and vagueness is that the overbreadth doctrine is applicable primarily in the First Amendment area and may render void legislation which is lacking neither in clarity nor precision, whereas the vagueness doctrine is rested on the due process clauses of the Fifth and Fourteenth Amendments and is applicable solely to legislation which is lacking in clarity and precision.” ’ ” Wilson, 267 Kan. at 556-57.
Vagueness
Our Supreme Court has held that “[a] statute that either requires or forbids the doing of an act in language that is so vague the persons of common intelligence must guess at its meaning and will differ as to its application violates the 14th Amendment to the United States Constitution and is thus void for vagueness.” Dissmeyer, 292 Kan. at 39.
In determining whether the statute is unconstitutionally vague, we first look at whether the statute gives sufficient warning of the prohibited conduct under common understanding. Then we consider whether the statute adequately guards against arbitrary enforcement. In re Comfort, 284 Kan. 183, 199, 159 P.3d 1011 (2007); In re A.F., 38 Kan. App. 2d 773, 778, 172 P.3d 66 (2007). The standards for vagueness with regard to CINC cases have been held to be somewhere between the tighter standard applied to criminal statutes and the looser standards applied to business regulation statutes. In re Brooks, 228 Kan. 541, 544, 618 P.2d 814 (1980); In re A.F., 38 Kan. App. 2d at 777.
M.S. focuses his vagueness challenge on the phraseology of K.S.A. 2011 Supp. 38-2243(f)(3) which allows a court to enter a temporary custody order based on “probable cause to believe that the: ... (3) health or welfare of the child may be endangered without further care.” (Emphasis added.) He argues that this standard is unreasonably low, but he fails to support his argument by citation of pertinent authority or other showing why his argument is sound despite a lack of authority. We note however, that in State v. Fisher, 230 Kan. 192, 194-95, 631 P.2d 239 (1981), our Supreme Court discussed tire meaning of the word “may” in the context of the criminal endangerment statute, K.S.A. 21-3608(a). The court concluded that the word “may” as used in that statute means some-tiring “more than a faint or remote possibility; it means that there is a reasonable probability, a likelihood that harm to the child will result.” Fisher, 230 Kan. at 195; see also State v. Sharp, 28 Kan. App. 2d 128, 135, 13 P.3d 29 (2000). In Wilson, the court reiterated its ruling that the endangerment statute was not unconstitutionally vague. 267 Kan. at 556. We find this definition of “may” to be appropriate in the context of K.S.A. 2011 Supp. 38-2243.
In rationale pertinent to our present inquiry, the court in Fisher pointed out that the purpose of the endangering statute is “to protect children and to prevent their being placed where it is reasonably certain that injury will result.” 230 Kan. at 199. Similarly, K.S.A. 2011 Supp. 38-2201(b)(1) provides that the Code for Care of Children “shall be liberally construed to carry out the policies of the State” which include considering “the safety and welfare of a child to be paramount in all proceedings under the code.”
The State or an individual perceiving that a child may be in danger faces two options: (1) They can do nothing and risk the possible perpetuation of the threat to the child’s health or welfare; or (2) they can seek a temporary custody order and a CINC determination. The second option protects the child from the perceived danger until a more formal CINC hearing can be held while ensuring that the facts will be reviewed by a neutral officer before a child is removed from parental custody, thereby also protecting die parent’s fundamental rights. In re A.B., No. 102,946, 2010 WL 348295, at *4 (Kan. App. 2010) (unpublished opinion).
We also point out that K.S.A. 2011 Supp. 38-2243(i) specifically provides tíiat a child shall not be removed from the custody of the parent unless the court finds that “[rjeasonable efforts have been made to maintain the family unit and prevent the unnecessary removal of die child from die child’s home or that an. emergency exists which threatens the safety [of] the child.” This mandate, together with the sequence [of] hearings from temporary orders, through adjudication, disposition, and permanency hearings, protects the parties from arbitrary enforcement of the statute.
In line with this court’s duty to resolve all doubts in favor of statutory validity, we find that K.S.A. 2011 Supp. 38-2243(f)(3) is not unconstitutionally vague. The statute gives sufficient warning of prohibited conduct under common understanding and provides an adequate safeguard against arbitrary enforcement.
Overbreadth
To succeed in challenging the statute as overly broad, it must be shown that (1) tire protected activity is a significant part of the law’s target, and (2) there exists no satisfactory method of severing the law’s constitutional from its unconstitutional applications. Dissmeyer, 292 Kan. at 40-41. The overbreadth doctrine should be applied sparingly and only as a last resort. Smith v. Martens, 279 Kan. 242, 253, 106 P.3d 28 (2005); State v. Teter, 47 Kan. App. 2d 608, 615, 278 P.3d 968 (2012).
M.S. argues that this statute is overly broad because almost any child in Kansas would meet the criteria of section (f)(3). He notes that if a child otherwise lives lawfully with his or her parents in an area with geographic dangers, the child’s health or welfare may still be endangered. He even suggests that the statute would cover children who were permitted by their parents to play football despite the likelihood of injury.
In Wilson, the Supreme Court considered nearly identical arguments that the criminal endangerment statute prohibited conduct and activities which were lawful, including the football example cited by M.S. herein. In finding the arguments to be without merit, the court reasoned that “courts will not give strained meanings to legislative language through a process of imaginative hypothesizing; a common-sense interpretation of the statute is the guiding principle..” 267 Kan. at 557.
The GAL focuses the overbreath challenge on the statutory language “without further care.” It is first asserted that “without further care” does not require a showing of imminence or particular gravity to the element of endangerment. It is further suggested that “without further care” is overly broad because all children, by their veiy nature, require continuous care to maintain their health and welfare.
While the statute could incidentally impact a fit parent’s right to raise his or her child, protected activity is not a “significant part of the law’s target.” See Smith v. Martens, 279 Kan. at 253. The target of the law is parents who may have unreasonably endangered or neglected the health and welfare of a child.
The “overbreadth” arguments once again overlook the safeguards built into section (i), requiring reasonable efforts to maintain the family unit or the existence of an emergency prior to entiy of an order removing a child from parental custody.
Adopting the common-sense guiding principle of Wilson, we reject the overbreadth challenges raised by M.S. and the GAL.
Conclusion
We conclude and determine that K.S.A. 2011 Supp. 38-2243(f)(3), when read as a whole, is neither unconstitutionally vague, nor overbroad, and does not violate the due process guarantees of the 14th Amendment to the United States Constitution.
Affirmed. | [
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Hill, J.:
A panel of this court held there were sufficient facts in the record on appeal to support the district court’s conclusion that Ananstacio Deleon Gallardo’s crime was sexually motivated in State v. Gallardo, 43 Kan. App. 2d 346, 224 P.3d 1192 (2010). Gallardo appealed that ruling to our Supreme Court. Ultimately, that court remanded this case to us for reconsideration in light of their recent ruling in State v. Coman, 294 Kan. 84, Syl. ¶ 6, 273 P.3d 701 (2012).
Case history.
On June 19, 2008, Gallardo was convicted of unlawful sexual relations in violation of K.S.A. 21-3520(a)(1). The district court required Gallardo to register as a sex offender after finding the crime of conviction fell under K.S.A. 22-4902(c)(14), as it was a “sexually motivated” crime. Gallardo, 43 Kan. App. 2d at 347-48.
Gallardo appealed to this court, arguing the district court erred in requiring him to register as a sex offender. Gallardo claimed the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., was not applicable to the crime of unlawful sexual relations as it pertains to two consenting adults. Gallardo also argued the district court erred in determining his crime fell under the “catch-all provision” of K.S.A. 22-4902(c)(14) because (1) his crime was not sexually violent; (2) there was no evidence his crime was sexually motivated; and (3) where the statute specifically provided that unlawful sexual relations requires registration if one of the parties is less than 18 years old, a finding that he must register under the catch-all provision renders the age requirement superfluous.
Court of Appeals ruling.
This court rejected Gallardo’s claim. In doing so, the court first noted that Gallardo’s crime is not among those specifically listed at K.S.A. 22-4902(c)(1)-(13)—a list of crimes deemed “ ‘sexually violent.’ ” The court then concluded:
“The Kansas Legislature’s specific failure to include unlawful sexual relations under subsections (c)(1) through (c)(13) does not indicate an intent to exclude all other convictions from registration requirements, but only an intent to exclude such convictions from per se inclusion. In fact, the legislature did not intend the listing to be exclusive given tire addition of subsection (c)(14), which serves as a general ‘catch all’ for crimes meeting the criteria set forth therein. If the failure of the legislature to list specific offenses within subsections (c)(1) through (c)(13) were to insulate all other crimes from being considered sexually violent, the general categoiy defined by subsection (c)(14) would be rendered meaningless. Therefore, the only question is whether unlawful sexual relations meets the criteria of subsection (c)(14).” Gallardo, 43 Kan. App. 2d at 350.
The court went on to note that panels of this court have “consistently construed” the applicable statutes to mean that “any act meeting the requirement of the general definitional subsection for sexually motivated crime ([c] [14]) will implicate registration without regard to inclusion or exclusion of die crime of conviction within the specific listing provided by other subsections.” 43 Kan. App. 2d at 351. The court concluded:
“If unlawful sexual relations is found beyond a reasonable doubt to have been committed with sexual motivation pursuant to subsection (c)(14), the person so convicted is an ‘offender.’ We are convinced that any reasonable scrutiny of the entire legislative scheme set forth in 22-4902 manifests a strong legislative intent to broadly include within the statutoiy ambit virtually any crime committed with sexual gratification as its motivation.” 43 Kan. App. 2d at 351.
The panel went on to conclude there were sufficient findings to support the district court’s determination that Gallardo’s crime was sexually motivated. 43 Kan. App. 2d at 351-52.
Gallardo sought review by our Supreme Court. The Supreme Court ultimately granted review in Gallardo’s case and remanded it to this court for reconsideration in light of Coman, 294 Kan. 84—a case decided in March 2012. This court must now consider Gallardo’s challenge to his sentence in light of Coman.
Supreme Court’s ruling in Coman.
In Coman, die court considered whether a defendant convicted of misdemeanor criminal sodomy was required to register as a sex offender under the catch-all provision at K.S.A. 22-4902(c)(14). Aldiough Coman’s crime of conviction was not a crime listed in K.S.A. 22-4902(c)(1)-(13), the crime offelony criminal sodomy mas included in this list. 294 Kan. at 85; see K.S.A. 22-4902(c)(4).
The Coman court ultimately held the district court erred in requiring Coman to register as a sex offender under the catch-all provision. 294 Kan. at 97.
In doing so, the court first noted that when the legislature included criminal sodomy in its list of sexually violent crimes at K.S.A. 22-4902(c)(l)-(13), it specifically included the felony version of the crime, but not the misdemeanor. The court concluded there was no “doubt” the legislature intentionally omitted the misdemeanor from the list of sexually violent crimes. See 294 Kan. at 92-93. The court rejected this court’s conclusion that the omission of the misdemeanor merely reflects a belief that not every act of misdemeanor criminal sodomy should be considered sexually violent—but that a particular violation may be considered sexually violent if the facts indicate the act was sexually motivated, as contemplated by the catch-all provision. 294 Kan. at 94. In rejecting this analysis, the Supreme Court reasoned it was “counterintuitive” to think the legislature went to the trouble of omitting the misdemeanor crime from the list simply to eliminate the registration requirement for the “rare, if not nonexistent” circumstance in which a person commits the crime without sexual motivation. 294 Kan. at 94. The court stated this court’s interpretation rendered the omission of misdemeanor criminal sodomy from the list “virtually meaningless and useless, because the very act of committing tire omitted crime brings the actor within the broadly cast net” of the catch-all provision. 294 Kan. at 94.
The Supreme Court also pointed out that the legislature specifically included misdemeanor criminal sodomy as a crime requiring registration where one party is under age 18. See K.S.A. 22-4902(a)(5); 294 Kan. at 94-95. The court said this court’s interpretation rendered this section of the statute superfluous, stating: “Why carve out a registration requirement where the victim is age 16 or 17, if the catch-all provision is intended to pull in all sexually motivated defendants anyway?” 294 Kan. at 95.
The court went on to opine that the catch-all provision “remains viable and useful for unlisted, nonsex crimes.” 294 Kan. at 94. The court cited discussion from Judge Leben’s dissenting opinion in State v. Coman, 42 Kan. App. 2d 592, 604-07, 214 P.3d 1198 (2009), where he noted the extensive histoiy of the registration statute suggested the catch-all provision may be meant to apply to nonsex crimes. See 294 Kan. at 88, 95. The court concluded the catch-all provision could be intended to apply to nonsex crimes or could be intended to apply to misdemeanors, pointing to more legislative histoiy for the latter. The court concluded that because tire legislative histoiy with regard to the interaction between the listed crimes and the catch-all provision was not informative, the court must turn to the rule of lenity and construe the statutes in favor of the defendant. 294 Kan. at 96. The court ultimately held that a person who commits misdemeanor criminal sodomy is not required to register as a sex offender under either the list or the catch-all provision. 294 Kan. at 97; see K.S.A. 22-4902(c)(4), (c)(14).
Application of Coman to this case.
We turn now to the facts of Gallardo’s case. Based on the holding in Coman, this court must hold the district court erred in requiring Gallardo to register as a sex offender under the catch-all provision at K.S.A. 22-4902(c)(14).
Here, Gallardo was convicted of unlawful sexual relations in violation of K.S.A. 21-3520(a)(1). At that time, K.S.A. 22-4902(a)(5)(F) defined any person convicted of unlawful sexual relations (as defined in K.S.A. 21-3520) as a sex offender as long as one of the parties involved was less than 18 years of age. It is undisputed that neither of the parties involved in Gallardo’s case was under age 18. Furthermore, K.S.A. 22-4902(c) did not include the crime of unlawful sexual relations in its list of sexually violent crimes. Under Coman, then, the district court erred in determining Gallardo’s crime fell under the catch-all provision of the statute and requiring him to register as a sex offender. See In re D.R., No. 106, 719, 2012 WL 2149896, at *2-4 (Kan. App. 2012) (unpublished opinion), where the court held that the district court erred in requiring the defendant to register as a sex offender under the catchall provision where the crime of conviction (lewd and lascivious behavior) is already addressed at K.S.A. 2010 Supp. 22-4902(a)(5)(E).
Following the directions established by the Kansas Supreme Court in Coman, we reverse the district court’s finding that Gal-lardo must register as a sex offender under K.S.A. 22-4902(c)(14) and vacate that portion of his sentence. | [
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Malone, C.J.:
Roy Hannebohn appeals the district court’s denial of his motion to file an appeal out of time. Hannebohn was convicted of criminal threat following a guilty plea. At the initial sentencing hearing, the district court ordered restitution but left the amount to be determined at a later time. The district court also notified Hannebohn of his statutory appeal rights and the deadline for filing an appeal. At a subsequent hearing, the district court determined tire amount of restitution but did not advise Hanneb-ohn of his right to appeal. Hannebohn later filed a motion to file an appeal out of time, claiming that he mistakenly believed that his court-appointed attorney was pursuing an appeal. The district court denied the motion without hearing evidence on the ground that tire court had informed Hannebohn of his appeal rights at the initial sentencing hearing. We conclude the district court erred by summarily denying Iiannebohn’s motion to file an appeal out of time, and we remand with directions for the district court to hold a hearing and make findings pursuant to State v. Ortiz, 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982).
Facts
On July 9, 2010, the State charged Hannebohn with one count of aggravated assault and one count of criminal damage to property. Because Hannebohn was indigent, the district court appointed the public defender to represent him. On March 31, 2011, following plea negotiations, Hannebohn pled guilty to an amended charge of criminal threat. At the plea hearing, the district court accepted Hannebohn’s plea and advised him of his right to appeal any sentence imposed.
The district court held a sentencing hearing on April 29, 2011. Pursuant to the plea agreement, the district court sentenced Han-nebohn to 7 months’ imprisonment and placed him on probation for 12 months. At the hearing, Hannebohn objected to the amount of restitution being requested by the victim. The district court ordered restitution but left the amount to be determined at a later time. The district court also informed Hannebohn of his right to appeal his sentence by filing a written notice of appeal within 14 days.
The district court held a restitution hearing on September 29, 2011. Both the crime victim and Hannebohn testified at the hearing. After hearing the evidence, the district court ordered restitution in the amount of $2,776.64. But at the conclusion of the hearing, the district court did not advise Hannebohn of his right to appeal.
Several montíis later, Hannebohn’s court services officer informed Hannebohn’s counsel that Hannebohn was under the impression that his case was on appeal. Based on this information, counsel followed up with Hannebohn and advised him that, in fact, his case was not on appeal. On February 2, 2012, Hannebohn’s counsel filed a motion to file an appeal out of time. The motion stated there was no record at the restitution hearing that either the district court or defense counsel had advised Hannebohn of his right to appeal and that Hannebohn erroneously believed that his case was on appeal.
On February 3, 2012, the district court held a nonevidentiary hearing on the motion. At the hearing, Hannebohn’s counsel advised the court that she thought she needed to withdraw in order to be a witness because based upon her notes there was no record that she advised Hannebohn of his right to appeal after the September 29, 2011, restitution hearing. Counsel also noted that the record of the restitution hearing reflected that the district court did not inform Hannebohn of his right to appeal. The district court found that because it had informed Hannebohn of his appeal rights at tire plea hearing and at the initial sentencing heating, the court was not required to inform Hannebohn of his appeal rights for a third time at the restitution hearing. The district court also found that it was unnecessary to determine whether Hannebohn’s appeal deadline began to run after the initial sentencing hearing or after the restitution hearing because “by either count he’s out of time so the motion is denied.” Hannebohn timely appealed the denial of his motion to file an appeal out of time.
Analysis
On appeal, Hannebohn claims the district court erred in denying his motion to file an appeal out of time. Specifically, Hannebohn argues that the district court should have informed him of his appeal rights and the deadline- for filing an appeal at the conclusion of the restitution hearing and the district court’s failure to do so falls under the first Ortiz exception for allowing an appeal to be filed out of time. Hannebohn also argues that he was furnished an attorney to file an appeal but the attorney failed to perfect and complete the. appeal, and this failure falls under the third Ortiz exception. The State simply notes that the district court advised Hannebohn of his appeal rights at the plea hearing and at the initial sentencing hearing and it was unnecessaiy for the district court to notify Hannebohn of his appeal rights a third time at the restitution hearing.
“The facts underlying an Ortiz exception ruling should be examined on appeal under a substantial competent evidence standard of review. The ultimate legal determination of whether those facts fit the exception should be reviewed under a de novo standard.” State v. Phinney, 280 Kan. 394, 404, 122 P.3d 356 (2005).
The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to cextain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. State v. Gill, 287 Kan. 289, 293-94, 196 P.3d 369 (2008). K.S.A. 2012 Supp. 22-3608(c) provides that for crimes committed on or after July 1, 1993, the defendant shall have 14 days after the judgment of the district court to appeal. Hannebohn failed to file a notice of appeal within 14 days after either the original sentencing hearing on April 29, 2011, or the restitution hearing on September 29, 2011.
The filing of a timely notice of appeal is jurisdictional, and any appeal not taken within the statutory deadline must be dismissed. A limited exception to this general rule is recognized in those cases where an indigent defendant either (1) was not informed of the right to appeal, including the appeal filing deadline; (2) was not furnished an attorney to perfect an appeal; or (3) was furnished an attorney for that purpose who failed to perfect and complete an appeal. State v. Patton, 287 Kan. 200, Syl. ¶ 3, 195 P.3d 753 (2008); Phinney, 280 Kan. at 401 (citing Ortiz, 230 Kan. at 735-36). But if any of these narrow exceptional circumstances are met, a court must allow an appeal out of time. Phinney, 280 Kan. at 401-02.
Here, the district court did not expressly address the three Ortiz exceptions in denying Hannebohn’s motion to file an appeal out of time. Instead, the district court simply found that because it had informed Hannebohn of his appeal rights at the plea hearing and at the initial sentencing hearing, the court was not required to inform Hannebohn of his appeal rights for a third time at the restitution hearing. The district court also found that it was unnec-essaiy to determine whether Hannebohn’s appeal deadline began to run after the initial sentencing hearing or after the restitution hearing because he was out of time in either case.
Before addressing whether the district court erred in denying Hannebohn’s motion to file an appeal out of time, we will review some general principles of criminal procedure concerning a defendant’s right to appeal from a final judgment in district court. K.S.A. 2012 Supp. 22-3424 sets forth the procedure for the district court to render judgment and impose sentence, including the assessment of restitution as part of the sentence. K.S.A. 2012 Supp. 22-3424(d) provides:
“If the verdict or finding is guilty, upon request of the victim or the victim’s family and before imposing sentence, the court shall hold a hearing to establish restitution. The defendant may waive the right to the hearing and accept the amount of restitution as established by the court. If the court orders restitution to be paid to the victim or the victim’s family, the order shall be enforced as a judgment of restitution pursuant to K.S.A. 60-4301 through 60-4304.”
The Kansas Supreme Court has held that under this statute a district court is permitted to hold a hearing to determine the amount of restitution after the initial sentencing hearing, provided restitution was ordered at the initial sentencing hearing. In State v. Cooper, 267 Kan. 15, 977 P.2d 960 (1999), the defendant pled no contest to aggravated battery, and the district court sentenced the defendant to 2 years’ presumptive probation. At the sentencing hearing, the State informed the district court that it would request restitution, but it did not have the necessary documentation at that time to provide tire specific amount of restitution. The district court ordered die defendant to pay restitution, with the amount “ To be determined widiin 30 days.’ ” 267 Kan. at 16. Nearly 6 months later, the State filed a motion to determine the appropriate amount of restitution. Over the defendant’s objection, the district court held a hearing and ordered restitution in the amount of $2,500.
On appeal, the defendant argued that the restitution order constituted an illegal sentence because the district court had lost jurisdiction to order restitution beyond 30 days after the initial sentencing. The Supi'eme Court held the sentence was not illegal, because the district court had put the defendant on notice at the sentencing hearing that she would be required to pay an undetermined amount of restitution. 267 Kan. at 18. The Supreme Court further held that tire district court did not abuse its discretion by holding the restitution hearing beyond the initial 30-day deadline. 267 Kan. at 18-19.
In State v. McDaniel, 292 Kan. 443, 254 P.3d 534 (2011), the defendant pled guilty to one count of aggravated battery. Shortly before the sentencing hearing, a presentence investigation report was filed, which included a restitution amount of $21,269.06. At the sentencing hearing, the district court pronounced a sentence of 34 months’ imprisonment. But when the defendant objected to the restitution amount, the district court ordered restitution to be determined at a later date. At the close of the sentencing hearing, the district court informed the defendant that if he wished to appeal, he was required to file a notice of appeal within 10 days (under the then-applicable version of K.S.A. 22-3608[c]) after the sentencing hearing. Several weeks later, the district court held a restitution hearing and ordered restitution in the amount of $7,744.26 based on the stipulation of the parties.
On appeal, the defendant challenged the district court’s jurisdiction to set the restitution amount. The defendant first argued that 22-3424(d) required the district court to hold the restitution hearing before tire sentence was imposed and not at a later hearing. The defendant also argued that the restitution ordered at the original sentencing hearing was zero and that the amount was later changed at the restitution hearing to $7,744.26, in violation of the rule that a court may not alter a sentence after pronouncement. See State v. Anthony, 274 Kan. 998, 1002, 58 P.3d 742 (2002) (district court has no authority to modify sentence).
In rejecting the defendant’s argument, the Supreme Court first noted that restitution constitutes part of a criminal defendant’s sentence. McDaniel, 292 Kan. at 446. The Supreme Court also determined that the language in 22-3424(d) stating that the court shall hold a restitution hearing before imposing sentence is directory rather than mandatory. 292 Kan. at 446-47. The Supreme Court further determined that the district court did not impermissibly modify the defendant’s sentence by ordering restitution at the later restitution hearing; rather, the restitution order completed the sentence. 292 Kan. at 448. The Supreme Court went on to state:
“Although it may have been better practice for tire district judge to wait until the later [restitution] hearing to conclude his usual sentencing colloquy, and he erred in reciting a deadline for notice of appeal that fell between the first and second hearings, we see no prejudice to [the defendant’s] rights.” (Emphasis added.) 292 Kan. at 448.
The Supreme Court’s statement that the district court erred in reciting a deadline for the notice of appeal that fell between the initial sentencing hearing and the subsequent restitution hearing is dicta because it was not central to the holding that the defendant’s sentence was not impermissibly modified. Nevertheless, the McDaniel dicta clearly supports the proposition that a district court should inform the defendant of his or her appeal filing deadline at the time sentencing is completed, and not at any earlier time.
When the district court imposes a sentence but orders the amount of restitution to be determined at a later time, confusion often arises as to when the defendant should attempt to appeal the sentence, especially when the district court advises the defendant of an appeal deadline at the initial sentencing hearing. Because criminal defendants understandably want to ensure they do not lose any appeal rights, they often file a notice of appeal after the initial sentencing hearing but before the district court determines the amount of restitution. But such a notice of appeal is premature because it is filed before the sentence has been completed and before the judgment is final in district court.
McDaniel makes it clear that restitution is part of a defendant’s sentence and a restitution hearing conducted by the district court after a sentencing term is imposed “complete[s]” the defendant’s sentence. 292 Kan. at 446, 448. Generally, an appellate court’s jurisdiction is limited to a final judgment. K.S.A. 2012 Supp. 22-3601(a). To have a final judgment in a criminal case, the defendant must be convicted and sentenced. State v. Howard, 44 Kan. App. 2d 508, 511, 238 P.3d 752 (2010). Because the restitution hearing completes the defendant’s sentence and renders the judgment final, no appeal can be filed in a criminal case when the amount of restitution has been held open until the district court determines the proper amount of restitution and the judgment becomes final. See Gates v. Goodyear, 37 Kan. App. 2d 623, 627, 155 P.3d 1196, rev. denied 284 Kan. 945 (2007) (notice of appeal must specify judgment being appealed).
Likewise, a defendant may not file a notice of appeal after the district court imposes a partial sentence and then file a subsequent notice of appeal after the district court later determines the amount of restitution. The district court’s judgment is not final until the amount of restitution has been determined. There is one, and only one, deadline to file a notice of appeal from the district court’s final judgment. Kansas has a clear policy against piecemeal appeals. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 616, 244 P.3d 642 (2010); State v. Neer, 247 Kan. 137, 140, 795 P.2d 362 (1990).
To sum up, Kansas district courts should follow the proper procedure when sentencing a criminal defendant in a felony case and ordering restitution to be determined at a later hearing. First, because the sentencing is not complete until the district court determines the amount of restitution, the district court should refrain from notifying the defendant of his or her deadline to file an appeal at the initial sentencing hearing. As our Supreme Court stated in McDaniel, the district court errs in reciting a deadline for a notice of appeal that falls between tire initial sentencing hearing and the subsequent restitution hearing. 292 Kan. at 448.
Next, the district court should hold the restitution hearing as soon as possible so that the defendant’s sentence can become a final judgment. Because restitution is part of a defendant’s sentence, the amount of restitution must be determined and imposed in open court in the defendant’s presence, unless the defendant voluntarily waives his or her presence. See K.S.A. 22-3405. Even if the parties ultimately stipulate to the amount of restitution, the better practice is for the parties to return to court so the district court can impose die restitution and complete the sentencing.
Finally, at die completion of the restitution hearing, the district court should notify the defendant of his or her appeal rights, including the deadline for filing the appeal. See K.S.A. 2012 Supp. 22-3608(c). To avoid confusion, the better practice would be for the parties to delay filing the journal entry of judgment until after the restitution hearing is completed and the district court’s judgment is final.
We will now turn to whether the district court erred in denying Hannebolm’s motion to file an appeal out of time. Hannebohn argues that the district court should have informed him of his appeal rights and- the deadline for filing an appeal at the conclusion of the restitution hearing and the district court’s failure to do so falls under- the first Ortiz exception for allowing an appeal to be filed out of time. Hannebohn also argues that he was furnished an attorney to file an appeal but the attorney failed to perfect and complete the appeal and this failure falls under the third Ortiz exception. Hannebohn does not argue that the second Ortiz exception applies to his case.
First Ortiz exception
On appeal, Hannebohn argues that the district court erred in failing to grant his motion under tire first Ortiz exception. Relying on McDaniel, Hannebohn contends that restitution is a part of the sentence and therefore the district court was required to inform him of his right to appeal his sentence when the amount of tire restitution was determined. Because it is undisputed that the district court failed to do so, Hannebohn contends that he has raised a colorable claim under the first Ortiz exception.
We agree that the better practice would have been for the district court to advise Hannebohn of his appeal rights at tire restitution hearing and tire district court’s statement,at the initial sentencing hearing that the deadline for filing an appeal was 14 days from that hearing was an error that implicates the first Ortiz exception. The district court’s sentencing order was completed and became a final judgment when the specific amount of restitution was ordered on September 29, 2011. Hannebohn had one, and only one, deadline to file a notice of appeal from the district court’s final judgment, and that deadline was 14 days after the restitution hearing was completed on September 29, 2011.
In Patton, our Supreme Court laid out the framework for evaluating claims under the first Ortiz exception. First, the defendant bears the burden of showing that the district court failed to inform the defendant of his or her right to appeal at sentencing. Second, if the record reveals that the district court did not adequately inform the defendant, the State may still prevent an untimely appeal by showing that the defendant possessed actual knowledge of the required information. Third, if tiie State cannot meet this burden, the defendant must prove that if he or she had been properly informed, a timely appeal would have been sought. Patton, 287 Kan. at 220-22.
Here, it is undisputed that the district court failed to inform Hannebohn of his appeal rights and the deadline for filing an appeal at the restitution hearing, when the sentencing order was com pleted. But there is no evidence upon which the district court could determine whether Hannebohn had adequate independent knowledge of his appeal rights or whether he would have timely appealed had he known of his appeal rights. Thus, we must remand this case for the district court to hold a hearing and make findings of fact and conclusions of law, consistent with Patton, as to whether Han-nebohn should be permitted to file an out-of-time appeal under the first Ortiz exception.
Third Ortiz exception
Hannebohn also argues that the district court erred in denying his motion to file an appeal out of time without addressing the third Ortiz exception or making the relevant factual findings. The third Ortiz exception is implicated when the defendant is furnished counsel for the purpose of filing an appeal and counsel fails to perfect and complete an appeal. When this occurs, Ortiz relief will be granted if the defendant demonstrates that, but for counsel’s failure, he or she would have taken a timely appeal. Patton, 287 Kan. at 225.
Here, it is undisputed that Hannebohn was furnished counsel who failed to file a direct appeal, either after the original sentencing hearing or the later restitution hearing. Once again, there is no evidence upon which the district court could determine whether Hannebohn would have timely appealed but for counsel’s failure to file an appeal. Thus, we conclude that upon remand the district court also must make findings of fact and conclusions of law, consistent with Patton, as to whether Hannebohn should be permitted to file an out-of-time appeal under the third Ortiz exception.
Reversed and remanded with directions. | [
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The opinion of the court was delivered by
DawsoN, J.:
The plaintiffs brought this action to quiet their title to a town lot in Coffeyville and for statutory damages and attorney’s fees for defendant’s failure to release a mortgage on that property in compliance with plaintiff’s demand.
It appears that some ten years ago the record holder of the fee title, John D. Wright, permitted the taxes on the property to become delinquent; that the county foreclosed its tax liens thereon; and that pursuant thereto a sheriff’s deed, dated and filed December 14, 1916, was issued to plaintiffs’ predecessors in title. Plaintiffs entered into possession at some date not shown, but it is conceded that they were in possession when this action was begun.
On May 13, 1918, one Ola Wolf filed of record a warranty deed executed by John D. Wright, dated March 27, 1911, conveying the lot to her. On June 13, 1918, this woman mortgaged the- property to Fred Etchen, the defendant, and he recorded it the following day. Because of the recording of this mortgage and because of defendant’s refusal to discharge it on timely demand of plaintiffs, this action was begun.
The trial court found generally for plaintiffs; that the defendant’s mortgage so far as it affected the plaintiffs should be canceled and removed as a cloud on their title; and judgment quieting title and for statutory damages and attorney’s fees was entered for plaintiffs.
Defendant appeals, urging an infirmity in the foreclosure case and a consequent defect in the sheriff's deed, because Ola Wolf was not served with summons and that she had gone “into possession of the property at the time it was conveyed to her.” The service of summons was duly made on the record title holder, which made the judgment good against Ola Wolf unless she was in possession. Nor is it clear what defense Ola Wolf could have made to the suit in foreclosure even if it were true that she had been in possession. The foreclosure of the tax liens and sale of the property pursuant thereto were prerogative acts of sovereignty whereby a new and independent title issued from the public to a new grantee, and all rights dependent on the old fee title were swept away. But be that as it may, there is no showing in the record submitted to us that Ola Wolf ever had been in possession of this property. That matter rests merely on an aliunde statement of her counsel and no significance can be given to it. The answer admits that plaintiffs were in possession at the time they brought this action.
It is next argued that the damages and attorney’s fees allowed by section 6471 of the General Statutes of 1915 for the mortgagee’s failure to enter satisfaction of a mortgage on demand of the mortgagor or his heirs or assigns do not apply to this case, because the mortgage has not been satisfied, and the plaintiffs are not the mortgagors nor do they hold under such mortgagors. That section is part of the original mortgage statute of 1868 (Gen. Stat. 1868, ch. 8, § 8) as amended by section 1 of chapter 175 of the laws of 1889, and as amended by section 1 of chapter 253 of the Laws of 1915. The statute now reads:
“When any mortgage of real estate shall be paid, or when a mortgage shall be recorded in the office of the register of deeds, covering real property in which the mortgagor has no interest, it shall be the duty of the mortgagee or his assignee within sixty days [formerly 30 days] after demand, in ease demand can be made, by the mortgagor, his heirs or assigns, or by anyone acting for such mortgagor, his heirs or assigns, to enter satisfaction or cause satisfaction of such mortgage to be entered of record without charge; and any mortgagee or assignee of such mortgages [formerly mortgagee] who shall refuse or neglect to enter satisfaction of such mortgage as is provided by this act shall be liable in damages to such mortgagor, or his grantee or heirs, in the sum of one hundred dollars, together with a reasonable attorney’s fee for preparing and prosecuting such suit; and the plaintiff in such action may recover any additional damages that the evidence in the case will warrant. Civil actions may be brought under this act before any court of competent j urisdiction, and attachments may be had as in other cases.” (Gen. Stat. 1915, § 6471.)
The material change in the statute by the amendment of 1915 was the inclusion of the words which we have italicized in quoting the above section. It seems clear that the amendment intended to reach the sort of case we are now considering, although the prerequisites of the older statute — demand by the mortgagor, his heirs or assigns, and the mortgagee’s refusal of such demand — were not correspondingly broadened or modified to harmonize with the enlarged scope of the italicized language indicated in the amendment. However, unless the remedial purpose of the legislature is to be judicially frustrated, it must be held that the words “mortgagor, his heirs or assigns,” should be broadly construed to mean the party in interest — the party aggrieved by the recording of the invalid mortgage. This only makes the letter of the statute yield to its obvious intent under pertinent and authoritative rules of interpretation. (Coney v. City of Topeka, 96 Kan. 46, 49, 149 Pac. 689.) Morever, the same legislature which made this amendment enacted another statute containing an adequate remedial provision substantially similar but more comprehensive than that intended in section 6471. This other statute is chapter 251 of the Session Laws of 1915 (Gen. Stat. 1915, §§ 3531-3536) entitled:
• "An act to prohibit the making and placing of record false, fictitious and fraudulent mortgages on real estate and providing penalties for the violation thereof.”
Section 1 of this act declares it to be unlawful for any person intentionally to place of record any mortgage on real property other than his own, or “for any person to take or receive and place of record any such mortgage . . . knowing same to be false, fictitious or fraudulent.”
Section 2 declares any violations of the act to be a misdemeanor .■and prescribes its punishment, and allows to the owner such damages “as provided in the next section C33 of this act.”
Section 3 reads:
“That it shall be the duty of the person so placing said mortgage of record or causing same to be done or making it possible that same be done, within thirty days after demand, in case demand can be made, by the owner of the real estate, his heirs or assigns, or by anyone acting for such owner, his heirs or assigns, to cause satisfaction of such mortgage to be entered of record without charge or expense to the owner, his heirs or assigns; and any such person who shall refuse or neglect to enter satisfaction of such mortgage as is provided by this act shall be liable in damages to such owner, his heirs or assigns, in the sum of one hundred dollars, together with a reasonable attorney’s fee for preparing and prosecuting such suit; and the plaintiff in such action may recover any additional damages that the evidence in the case will warrant. Civil actions may be brought under this act before any court of competent jurisdiction, and attachments may be had as in other cases.”
Sections 4, 5 and 6 are not here pertinent.
There can be no doubt that the civil action allowed to the injured owner of real estate'by both of these acts is remedial in character and that they are entitled to liberal construction to accomplish the purposes of the legislature in their enactment. Both statutes fairly cover the case at bar. Defendant knew or should have known that he was placing a cloud on plaintiff’s title when he placed his mortgage of record; and whether he then knew of the wrong he was committing or not, he was given due notice thereof by plaintiffs’ demand that he discharge it. His refusal to comply therewith has unjustly annoyed and damaged the plaintiffs, and they are entitled to the redress provided by law.
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The opinion of the court was delivered by
HopKINS, J.:
Defendant appeals from a judgment of $2,800, awarded plaintiff by the district court of Wyandotte county on account of damages sustained through falling into a manhole.
Trial was to a jury. The principal question was as to whether or not plaintiff was bound by the release which he executed to the company. Plaintiff was a locomotive fireman for defendant at a salary of about $180 per month. • About 9 o’clock in the evening of March. 12, 1919, he stepped from his engine to assist the crew in taking water. He stepped on one edge of the cover or lid of a manhole three or four feet from the track which tipped over and he fell into the hole astraddle of the cover or lid, thereby inflicting the injuries complained of. He was taken to a near-by rest room for a short time and then conveyed' to his home. The next morning he was attended by Dr. Hayward, physician of defendant; was in bed most of the time during the next two days, during which time Dr. Hayward gave him the necessary medical treatment. He was told by Dr. Hayward that as soon as he could walk he should see Dr. Pickard, the main physician of defendant at the Union Station, and on the 17th of March he visited Dr. Pickard and began receiving treatment from him. This treatment continued up until the 8th day of April, when plaintiff was given a surgeon’s discharge by Dr. Pickard. Plaintiff testified that Dr. Pickard said to him that, “I was all right and O. K. to go to work; and for me to go in and see Mr. Carlson (defendant’s claim agent) and get things straightened up and go to work.” The surgeon’s discharge certificate was as follows:
“Form 157.
“Kansas City Terminal Railway Company,
Surgeon’s Discharge Certificate.
4-8-1919.
“To Jno. Carlson:
“The bearer, D. A. Rider, occupation, fireman at., has been under my professional care since 3-17-1919, and is hereby discharged from treatment, and may report for duty in 1 days.
M. W. Pickard, Surgeon."
“This certificate to be filled out by the surgeon and given to the employe, who will present it in person to his superior officer.”
Plaintiff took this certificate to Mr. Carlson and had negotiations for a settlement which were concluded April 14, at which time plain- _ tiff received $180, and signed the release in question. It contained these statements:
“I do hereby compromise said claim and do release and forever discharge (naming the director-general, the Kansas City Terminal Railway Company and other railroad companies) from any and all liability for all claims for all injuries, including those that may hereafter develop, as well as those now apparent, and also do release and discharge them from all causes of actions and claims for injuries and damages, which I have, or might have, arising out of such injuries, either to my person or property, and from all claims, demands or causes of action whatsoever which I may have against them, and do hereby acknowledge full satisfaction of all such liability and causes of action, it being the intention of the parties that all matters of difference between them shall be and are hereby compromised and settled.
“It is expressly understood and agreed that the above-named sum paid is the sole consideration of this release and the consideration stated herein is contractual and not a mere recital; and all agreements and understandings between the parties are embodied and expressed herein; and no promise or representation is or has been made relative to future employment.
“In mailing this settlement I do not rely upon any statement of any doctor, physician or surgeon as to what my physical condition was, is, or will be in the future, as a result of my injuries, and I do not make this settlement because of what anyone has told me about what condition is or will be.
“I have read this release. I know that I am settling for everything and that no representations of any kind have been made to me.”
After executing the release, plaintiff was given a note by Mr. Carlson to the master mechanic, being told by Mr. Carlson to “Take it down to Mr. New and go to work.” He took the note to Mr. New, but was not permitted to resume work. The testimony shows that plaintiff had not recovered. The following appears in the record:
“Q. Now, what was your condition- — after about the 15th of March up until December? A. Well, at times I was in pretty fair condition, and at other times I was clear down, and wasn’t able to get on my feet at all.
“Q. Now, what was the condition of jmur testicle with reference to being swollen? A. Well, at times, it would swell up considerably, then it would be lots worse at times than at other times when I was on my feet — -just depend on what I done. If I done anything that I strained myself the swelling would come back and would be so bad that I couldn’t walk.
“Q. Were you confined to your bed any part of that time? A. Yes, sir.
“Q. About how much? A. Well, that depends — sometimes one day at a time, and other times as high as three weeks at a time.
“Q. Who took care of you during that time? A. My wife, mostly.”
The evidence further shows that late in the fall the plaintiff had improved to such an extent that Dr. Pickard, after examining him, again sent him back to work. He worked something like six weeks or two months, when the swelling of the testicle came back and again incapacitated him from work. The company again sent Dr. Hayward out to give him the necessary medical treatment and attention, and the evidence shows that from February until some time in August the plaintiff gradually grew worse. In regard to his condition from February until August, plaintiff testified as follows:
“Why, I was getting in worse shape. The swelling seemed to increase and get larger all the time, and the pain was more severe.
“Q. How much of the time was you confined to your bed at any time? A. Three weeks was the longest at any one time until I went to the hospital.”
Plaintiff was operated upon in August, after the operating surgeon had drained five teacupfuls of pus from his testicle and groin.
These questions were asked and answers given:
“Q. Now, Mr. Rider, I will ask you to state if at the time you signed this release dated the 14th of April, 1919, if you had known or believed that you had not recovered from the injury that you received on or about the 12th day of March . . . that you would not be able to work for some time, and that you would have to undergo an operation before you was cured, I will ask you to state whether or not you would have signed that release. A. No, sir. I wouldn’t have signed the release if I hadn’t thought I was able to go back to work.”
It is contended by the defendant that plaintiff was not acting in good faith; that on the day after the injury, “he went to the office of Dr. Russell (his family physician) for treatment for his injuries and made several visits to him and received treatment; that, as a witness he was evasive in his answers relative to treatments received from Dr. Russell; that, from the time of the injury up until December, when plaintiff resumed ’work with defendant, he was operating a coal yard; that there was doubt as to whether or not there was a formation of pus in the region of the injury,” and other claims of like nature. The defendant, however, produced no testimony to dispute plaintiff’s claim. These questions were all considered by the jury under sufficient instructions from the court and decided adversely to defendant’s contention. On his part, plaintiff contends that, not only was he mistaken as to the extent of his injury at the time of executing the release, but that defendant’s physician who had charge of his case was also mistaken; that it was a mutual mistake of both parties.
Defendant complains of the action of the trial court — 1st. In overruling defendant’s demurrer to plaintiff’s evidence. 2d. In denying defendant’s request for peremptory instruction in favor of the defendants; and 3d. Because of certain instructions given to the jury.
After the last assignment defendant states: “Our complaint under this assignment is that there was no evidence in the case justifying the court in submitting to the jury any question touching the accident or involving the validity of the release.”
It will be seen that all the assignments of error go directly to the validity or invalidity of the release. In our opinion the instructions given were justified by the evidence and fairly presented the matter to the jury.
In the case of Smith v. Kansas City, 102 Kan. 518, 171 Pac. 9, the court used this language:
“Of course, there is the usual dispute as to the extent of the injury, and the "usual conflict in the medical evidence, but these things were for the jury, and there appears in the record sufficient basis for their conclusions.” (p. 521.)
In Miller v. Gas & Fuel Co., 108 Kan. 124, 193 Pac. 896, this court said:
“If the plaintiff had been discharged from the hospital with the assurance that he was cured and would soon have normal use of his arm, this court would regard the doctor’s statement to that effect as one of fact. (Weathers v. Bridge Co., 99 Kan. 632, 162 Pac. 957; Smith v. Kansas City, 102 Kan. 518, 171 Pac. 9; Wolf v. Packing Co., 105 Kan. 317, 182 Pac. 395.)” (p. 129.)
The evidence was sufficient to take the case to the jury on the question as to whether or not plaintiff and defendant were mutually mistaken as to the nature and extent of plaintiff’s injury at the time the release was executed.
In Parrott v. Railway Co., 111 Kan. 375, 207 Pac. 777, this language was used:
“It is manifest that the release was executed by the plaintiff in the belief that the injury was slight, and that its effect would pass within a few days. He was induced to think so by the statement of the doctor that the soreness would soon pass away. Plaintiff testified that he had 'implicit faith in Dr. Dingess and believed what he said and believed he wo.uld be well in a few days.’ If the statements of the doctor were honestly made heJwas likewise mistaken as to the nature of the injury and it may be inferred that the claim agent who cooperated with the doctor did not understand that it was as serious as it turned out to be. The nominal amounts proposed in settlement of the claim and the amount finally agreed upon tends to show that the claim agent and the doctor both regarded the injury as slight and temporary. The trifling consideration given in payment of a serious and permanent injury argues strongly that there was either a mistake of facts on their part, or that the release was fraudulently procured. Assuming that all were acting in good faith, it is manifest from the evidence that they were mistaken as to the character of the injury, and that under the circumstances the release was not binding.” (p. 377.)
There are numerous authorities which sustain an avoidance of this release on account of the mistake of fact. See Wolf v. Packing Co., 105 Kan. 317, 182 Pac. 395; Crawn v. Packing Co., 111 Kan. 573, 207 Pac. 793; Bertha v. Regal Motor Car Co., 180 Mich. 51, 146 N. W. 389; Great Northern Ry. Co. v. Fowler, 136 Fed. Rep. 118.
We see no reversible error. The judgment is affirmed. | [
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The opinion of the court was delivered by
PorteR, J.:
The plaintiff and the defendant are sisters, grandchildren and the only heirs at law of Amanda V. Orr, who died in 1918, intestate. She had been the owner of real estate consisting of houses and lots in Atwood of the value of about $1,800, personal property consisting of $4,500, in United States bonds, a promissory note secured by a mortgage on real estate, and a small amount of money. About eight months before her death she made a deed of her real estate, a bill of sale of her personal chattels and assigned the' note and mortgage to the defendant, Bertha M. De Shazo, the stated consideration being love and affection and valuable services rendered. Plaintiff attacked the validity of the transfers, alleging undue influence exercised over the grantor by the defendant, and that the instruments were not delivered nor the transfers consummated during the lifetime of the grantor. She asked that the instruments be canceled and that she be held the owner of an undivided one-half interest in the property, and for partition and an accounting.
The answer alleged that at the time of her death Amanda V. Orr did not own the real estate mentioned but had conveyed the same by general warranty deed to the defendant, that the deed was delivered at the time of its execution, and that defendant had ever since been in possession and control thereof. It alleged that at the time the deed was executed and the various transfers of property made, Amanda V. Orr was fully capable and knew the nature and character of the business she was transacting, and that the transfers were the free, voluntary, intelligent acts of the grantor, without any persuasion or influence of the defendant.
At the close of the testimony the court rendered judgment for the defendant, from which plaintiff appeals.
The plaintiff neither in the brief nor abstract assigns any errors. The appeal raises mere questions of fact upon which there was, at most, only a conflict in the,evidence. The plaintiff’s abstract omits all reference to the testimony of eight witnesses called by defendant who gave testimony favorable to the defendant’s contentions. It is true, as suggested, that the evidence shows without any dispute that Mrs. Orr had been in poor health for the last two years of her life; that she had frequent severe spells of sickness; and there was some evidence to sustain a finding that she had become a morphine addict as a consequence of taking the drug to relieve her suffering. But it is insisted in the brief that the evidence shows without dispute that Mrs. Orr during the last year of her life was so weak physically and mentally as to be incapacitated from transacting business or making the deed and transfers in question. To this contention we cannot agree. The testimony of the witnesses for both sides is to the .effect that Mrs. Orr was a woman of keen intellect, of strong character, a remarkably bright woman, with very decided ideas and opinions of her own; that she was of the domineering type, not easily influenced by anyone, and usually had her own way about matters; she was well read, and except when under the influence of narcotics, took a lively interest in current events. She possessed a practical knowledge of business matters and understood her own business affairs. It is true her physician testified that her mental condition, while splendid for a woman of her age, was all right except when she was under the influence of the drug she became addicted to, but that when she was not under its effects she was a woman not easily controlled or influenced, and very fixed in her opinions. During the last two or three years of her life she suffered at intervals with neuralgia of the stomach and biliary colic and she took morphine to relieve her pain from these attacks.
The plaintiff testified that she visited her grandmother in July, 1917, just prior to the making of the deed, and that her grandmother talked intelligently during this visit. “She talked, of course just as she always did, only weaker.” The plaintiff had never lived with her grandmother. Bertha had lived with her almost continuously from 1913 until May, 1917. Bertha was teaching school in Atwood and left in June, 1917, and attended school in Denver, Colo. About the middle of August, she returned because her grandmother had Mr. Robinson, who looked after her business, write asking Bertha to come home and fix up some business matters. She testified that at the time she was there in August she stayed for a week, that her grandmother was in her usual physical and mental condition and knew and understood the nature and extent' of a business transaction ; that her grandmother never took opiates except during illness, and that during the last sickness she was confined to her bed no more than two weeks and was rational and intelligent except during the last three days. Mr. Robinson, a real-estate agent, had transacted business for Mrs. Orr from the time of her husband’s death; he made loans for her, collected rents and deposited money to her credit. There was some evidence offered by plaintiff of witnesses who testified to conversations with Mrs. Orr at various times, in which she expressed an intention of dividing her property between her two grandchildren. There was other testimony, however, that Mrs. Orr stated that Mrs. Harth had never done anything for her, and that she also felt hurt because the plaintiff did not visit her oftener, and statements to the effect that she had not earned any right to share in the property. Robinson testified that he and Bertha urged Mrs. Orr to give plaintiff a part of her property; that Mrs. Orr said the plaintiff had not earned it; that she did not decide fully on the matter that night, but the next day when the transfers were made to defendant Mrs. Orr set aside or arranged to give plaintiff bonds to the amount of $500.
We think the evidence fails to show the existence of a fiduciary relation between the defendant and her grandmother; and also that there was evidence sufficient to sustain a finding that the deed was actually delivered to the defendant, and that the personal property was placed in her control. After the defendant went back to Denver she did not return until late in December. The evidence shows that it was during this visit that Mrs. Orr talked about converting her certificates of deposit into government bonds and taking them in the name of Bertha. Robinson testified that she told him she had made the transfer and had delivered the bonds to Bertha. The evidence of the bankers who had charge of the papers tended to sustain this contention.
The record presents a case very similar to Shell v. Mulligan, 103 Kan. 185, 173 Pac. 286. And in this connection see also, Golder v. Golder, 102 Kan. 486, 170 Pac. 803.
The burden rested on plaintiff to establish the claims set up in her petition. While there was some evidence to sustain her contention, there was more to uphold the judgment of the trial court. The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiffs, who are resident taxpayers of Ottawa county, brought this action challenging the validity of the organization of the defendant rural high-school district, and alleging that its defendant officers and other officials were threatening to subject their properties within this district to illegal tax levies and assessments to pay a proposed issue of bonds in the sum of $25,000, which had been voted at an election irregularly called and held in the defendant district. Plaintiffs prayed that the bond issue and tax levies and assessments pertaining thereto be enjoined, and the organization of the district be adjudged illegal and that its officers be ousted.
Plaintiffs were defeated and appeal.
It will be noted from our summary of plaintiffs’ allegations and prayer that their petition stated a cause of action in quo warranto and a suit for an injunction. Now, as an action in quo warranto alone, these private plaintiffs had no standing to maintain it.’ The state has provided its own officials, an attorney-general and, a county attorney, to challenge the validity of corporate or quasi-corporate organizations in this state like cities, counties, townships, and school districts; and ordinarily it is no justiciable concern of private individuals that these public subdivisions and organizations of the state may have some infirmity in their organization. So, too, the exercise of official powers and the ousting of official usurpers are matters of which the state alone may complain at the suit of its authorized legal representatives. And the fact that the state’s proper officers decline to act does not give authority to private individuals to institute litigation on such matters of public concern. The exceptions to this rule are indicated in section 681 of the-civil code. All this has been expounded by this court many times. (Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417.) In Telephone Co. v. Telephone Association, 94 Kan. 159, 162, 146 Pac. 324, it was said:
“The cases of Houser v. Smith, 80 Kan. 260, 101 Pac. 1001, and The State, ex rel. Attorney-general, v. Bentley, 80 Kan. 227, 101 Pac. 1073, considered together, are instructive. The former, although but briefly reported, was an injunction suit against the county treasurer of Gove county to restrain him from collecting a high-school tax on the ground that 'there was and is no high school in said couffiw of Gove which has been established or created according to law.’ (p. 260.) The plaintiffs were private citizens and were nonsuited. But a radically different result was obtained when an officer of the state challenged the legality of the organization of the high school. In the latter case the organization of the high school was declared void.”
See, also, discussion, excerpts and citations in Albach v. Fraternal Aid Union, 100 Kan. 511, 515-518, 164 Pac. 1065.
But in this case it happens that the same facts which could only concern the state as an action in quo warranto do likewise state a grievance redressible by injunction at the instance of private litigants, as their properties within the defendant school district are about to be subjected to alleged illegal levies and assessments to pay for an alleged illegal bond issue. In that respect the action is maintainable by plaintiffs by express statutory authority. (Civ. Code § 265.)
“A private citizen whose burdens as a taxpayer will be affected by a proposed bond issue is authorized to maintain a suit to enjoin such issue as illegal under section 265 of the civil code.” (Hartzler v. City of Goodland, 97 Kan. 129, syl. ¶ 1, 154 Pac. 265.)
Passing then to the questions which plaintiffs had a right to litigate in this lawsuit and which they have urged in this appeal, our attention is first directed to the notice of the election by the result of which the district was created and the issue of bonds authorized. In the first published notice the territory to be erected into this rural high-school district, aggregating about 70 sections of land, contained an inaccuracy — certain lands in the proposed district being described as “the east half of the southwest'quarter of section 36,” whereas in the proposed district to which the county superintendent had given her approval and which was described in the petition formally signed by the requisite number of legal electors and certified to the board of county commissioners, and pursuant to which the county board called the election, this territory was described and intended to be “the east half and the southwest quarter of section 36.” In succeeding notices published prior to the election this inaccuracy was corrected, but unless the first notice was valid and sufficient, there was not the requisite statutory time, 21 days, between the first valid notice and the time when the election was held. (Construction Co. v. Sedgwick County, 100 Kan. 394, 397, 164 Pac. 281.)
It is hardly necessary to say that the spirit of the maxim, “de minimis non curat lex,” is consistently observed in the judicial work of this court wherever it is applicable; and at first blush it. would seem that in the use of the word “of” for “and” the de mini-mis rule would apply; but here the use of the preposition for the conjunction made a difference of 400 acres of land in the extent of the territory to be subjected to a $25,000 bond issue and the consequent tax levies to pay that bond issue. And if a discrepancy of 400 acres is de minimis, would a section, or two sections or four sections of land be likewise de minimis1 Where should we draw the line?
It is argued, however, that the statute did not require that the election notice should describe the territory to be organized and bonded in the sum of $25,000. It is true that the statute does not prescribe .this in specified language. The statute says: ■
“Notice of all such elections shall be given at least twenty-one days prior to the date of such election by posting printed or typewritten notices on the door of each schoolhouse in the proposed district and, by publishing the same twice in some newspaper published in each county in which the proposed district or any part of the proposed district lies.” (Laws 1917, ch. 284, § 2.)
Observe the text: Notice to whom? To the legal electors concerned. Who are they? Must all the voters of the county concern themselves with such notice? Must they go to the office of the board of county commissioners and examine the petition to. see whether they and their lands and property are affected by the election? We think not. They are entitled to depend on the information given them in the election notice itself. We may take judicial notice of the operative interpretation of this statutory provision. (Harrison v. Benefit Society, 61 Kan. 134, syl. ¶ 2, 59 Pac. 266; Bank v. Reilly, 97 Kan. 817, 823, 156 Pac. 747.) In the blank notices for calling such elections to organize rural high-school districts and to vote bonds for school buildings submitted therewith, which are prepared by the state superintendent of public instruction and in general use throughout the state, appropriate recitals and suitable -space for defining the territory of such proposed districts are embodied in the notices. A notice of a school-bond election can hardly be said to be a notice at all unless it apprises the people concerned of their interest in the matter. Very different would it be if the district was already organized before the bond election was called. In that case, a notice briefly advising the electors of rural high-school district No. 1, Ottawa county, of -the bond election would be altogether sufficient; but when this notice was given there was no such public institution as rural high-school district No. 1, Ottawa county, in existence; the same notice which called for the bond election called upon the electors concerned to vote “yes” or “no” on the establishment of such public institution. In The State v. Bentley, 80 Kan. 227, 101 Pac, 1073, the rule touching the necessity for strict regularity in the matter of notices of special elections was emphasized, and earlier cases were there cited, including The State, ex rel., v. Echols, 41 Kan. 1, 20 Pac. 523, in which it was said: “There is no more important step in an election than the giving of notice.” (p. 4.)
This court is constrained to hold that the notice of the election required that it should define the territory which it was proposed to organize and bond as a rural high-school district, and that the discrepancy of 400 acres between the territory proposed to be organized and bonded and that recited in the notice of the election was of such gravity as to vitiate the election and to vitiate the proposed issue of bonds sanctioned thereat.
This conclusion will necessitate a reversal of the judgment, and it may be unnecessary to note the other matters urged by appellants further than to say that we think there was nothing the matter with the form of ballot used at the election, nor in the sufficiency of the number of propositions submitted thereon: (1) To establish the proposed district, and (2) To issue $25,000 in bonds to construct a school building and purchase a site at Wells. (Miely v. Metzger, 97 Kan. 804, 806, 156 Pac. 753.) Nor do we think that the election was invalid because of the inhibition of the statute which provides that such an election shall not be called oftener than once in every two years unless more than half the legal voters petition therefor. (Laws 1917, ch. 284, § 2.) The earlier election proposed the creation of a rural high-school district composed of about 82 sections of land lying northward of the defendant district but which did include about 17 sections which are inscribed in the defendant district. The earlier election proposed to erect the rural high-school building at Lamar, some nine miles north of Wells. All that the two years’ inhibition intended was to prevent the electors from being harassed with frequent elections on the same or substantially similar propositions. A proposition to erect a school district of 70 sections of land is a different proposition from one to create a district of 80 sections when only 17 of such sections were common to both propositions.
The judgment of the district court is reversed, and the causers remanded with instructions to enjoin the proposed issue of bonds and to enjoin the assessment and levy of taxes therefor.'
JohNStoN, C. J., and Bueoh, J., not sitting. | [
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The opinion of the court was delivered by
BuRCH, J.:
The action was one to recover the statutory penalty for removing, or doing any act toward removing, a fugitive from justice, from this state, without authority to do so, pursuant to provisions of the act relating to rendition of fugitives from justice. The plaintiff was defeated, and appeals.
The defendant was chief of police of the city of Topeka. As such officer, he took the plaintiff into custody and held him, pursuant to the following telegrams:
"Muscatine, Iowa, June 20, 1921. Chief of Police, Topeka, Kansas. Hold state warrant breaking and entering in night time for L. E. Allen. Arrest and notify at once by wire. S. G. Bronner, Chief of. Police.
“Muscatine, Iowa, June 21, 1921. Captain of Police, Topeka, Kansas. Hold L.- E. Allen. Started requisition proceeding today. L. A. Crull.
“Muscatine, Iowa, June 22, 1921. Chief of Police, G. A. Swallow, Topeka, Kansas. Warrant mailed this morning for L. E. Allen. Hold. Will be there with requisition. Has been before. R. J. Wiley, Sheriff.”
Later a warrant issued for the plaintiff in the state of Iowa was placed in the defendant’s hands. The plaintiff was taken into custody on June 20, 1921. On June 21, he instituted a proceeding in habeas corpus, which was heard on June 24. The defendant made a return, showing the .occasion for the plaintiff’s'detention, and testified he believed the Iowa officers were making an effort to procure a requisition and had not had time to do so. The plaintiff was released from custody, pursuant to the following findings:
“The court finds that the respondent, in restraining the petitioner of his liberty, was acting as chief of police of the city of Topeka, in good faith and Without malice, and with probable cause to believe the petitioner guilty of a felony, but that the authority under which he held the petitioner is not sufficient, although the facts set forth in said answer of the respondent are true, and that the petitioner should be discharged; . . .”
At the trial of the present action, the writ, the return, the evidence, and the judgment in the habeas corpus proceeding, were introduced in evidence. A witness for the plaintiff testified that, on June 21, when the time for hearing the habeas corpus proceeding was fixed, plaintiff’s counsel informed .the defendant he would be liable for restraining the plaintiff, and the defendant said he would take a chance.
The statute provides for arrest of a fugitive from justice on a warrant issued by the governor, and for delivery to the agent of the executive of the demanding state. The statute also provides for arrest and detention of a person charged in this state with commission of crime in another state, and for delivery, on warrant of the governor of this state to the agent of the executive of the state in which the crime was committed, if such delivery be demanded. The plaintiff’s contention is that an arrest without a warrant violates the section under which the action was prosecuted, which reads as follows:
“No person, shall take or remove any fugitive from this state, or do any act toward such removal, unless authorized to do so pursuant to the provisions of this act; and any person violating the provisions of this section shall forfeit and pay to the aggrieved party a sum not less than five hundred dollars.” (Gen. Stat. 1915, § 4920.)
The plaintiff misreads the statute. It was designed to prevent taking or removal, and attempted taking or removal, from this state, of a fugitive from justice, without previous sanction of the governor of this state. There was no evidence that the defendant did any act toward that kind of a removal, and the clear inference from the evidence was that he was holding the plaintiff until he could be properly extradited.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
MaRshall, J.:
By this action the plaintiff questions the validity of the organization of rural highTschool district No. 17 in Kingman county. Judgment was rendered in favor of the plaintiff, and. the defendants appeal.
1. It is argued that notice of the election for the organization of the district and the location of a schoolhouse was not published in a newspaper for the required length of time. The first notice was published on June 6, 1919, the second on June 13, and the election was held June 28. It is argued that the last publication should have been twenty-one days prior to the date of the election.
Part of chapter 284 of the Laws of 1917, the law under which this " election was held, reads:
“Notice of all such elections shall bevgiven at least twenty-one days prior to the date of such election by posting printed or typewritten notices on the’ door of each schoolhouse in the proposed district and by publishing the same twice in some newspaper published in each county in which the proposed district or any part of the proposed district lies.” (§ 2.)
When the publication was first made in the newspaper, notice was given. Under the statute that notice must be given twenty-one days before the election. The statute requires more — it requires two publications of the notice, but does not require that the last publication shall be twenty-one days before the election. This accords with that portion of the statute requiring notice to be posted on the -doors of the schoolhouses within the proposed district. No longer time is required in one way of giving notice than is required in the other. If the first publication is twenty-one days before the election, both notices will run simultaneously for the same length of time. That is all that is required by the statute.
2. Was the location of the site for the schoolhouse named with sufficient definiteness? The site was described as follows:
“The said high-school building should be located at and on townsite of town of Belmont and being on N W % S W % of section 16, Eagle township, King-man county, Kansas.”
It appears that the district was composed of sixteen square miles of territory. In Stanhope v. Rural High-school District, 110 Kan. 739, this court said :•
“A proposition to vote bonds for the erection of a high-school building ‘upon a suitable site to be selected in Reece, Greenwood county, Kansas,’ is a sufficiently precise location of the site to answer the purposes of the election.” (Syl. ¶[ 3.)
In Miely v. Metzger, 97 Kan. 804, 156 Pac. 753, it was held that the petition which gave the proposed location as within Ozawkie, Kan., was sufficiently definite.
In School District v. Davis, 99 Kan. 185, 160 Pac. 1008, a description of the location as “within or close to the village of Ran-toul” was held not so indefinite as to invalidate the organization of the school district made under the notice.
In the present case, the location Was placed on a certain forty acres of land, and on the town site of the town of Belmont, which the court thinks was sufficiently definite to comply with the statute.
The judgment is reversed, and the trial court is directed to render judgment for the defendants. | [
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The opinion of the court was delivered by
Mason, J.:
In September, 1909, an arrangement was made between Martin Sweeney, a single man, and his sister, Ellen Finney, a 'widow, that she was to keep house for him at his farm. No amount of compensation was agreed upon, but she said she would not need much wages if she could be allowed to keep some chickens, have a cow or two, and have a horse to drive when she went to town. She kept house for him until January 17, 1917. On August 9, 1918, she sued him for the value of her services, which she placed at $2,625, that action being settled by the payment of $1,500. On October 14, 1918, he sued her, asking $360 on account of her horse and buggy having been kept on the place and hay and grain there grown having been fed to the horse, and $1,260 on account of milk, grain and vegetables there produced having been fed to her chickens. He also asked judgment for $42 as the value of personal property of his which she had appropriated to her own use, consisting of a set of harness, a bed tick, two blankets and three horse collars. On a trial without a jury judgment was rendered for the defendant, and the plaintiff appeals.
1. The trial court found (as we conclude, upon sufficient evidence) that the claims for which $360 and $1,260 were asked had been satisfied by having been included in the settlement under which the $1,500 was paid. The plaintiff contends there was no evidence to support this finding. While the defendant was keeping house for the plaintiff he borrowed $500 from her, the last of which —$286.65—he returned about the time the parties ceased to live together under their agreement, making no claim then of any counterclaim. Receipts signed by the defendant at the time the $1,500 was paid her recited that it was in discharge of her claims for services as housekeeper and of any other claims of hers against the plaintiff, and did not refer to any claims on his part, but the omission to state that it was in settlement of the mutual accounts is not fatal to the defendant’s contention, for it may readily be inferred from the original agreement and the relation and conduct of the parties that it was understood the defendant’s compensation was to be fixed with reference to whatever advantages she had derived from the arrangement under which she was living with her brother.
2. The trial court found upon sufficient evidence that the plaintiff had left the harness and other articles enumerated with the defendant at the time they ceased living together; that she did not claim them, and had not converted them to her own use. She testi- , fied that upon a demand being made upon her for them she said she made no claim to them but they were stored away and it was pretty late and she could not get them that night. This did not prove a conversion. The plaintiff contends that by filing a general denial to the portion of his petition relating to this matter and failing to include in her answer an offer to return the property she asserted ownership and should not be allowed to change her position. It has been questioned whether a general denial in an action for conversion puts in issue anything more than the conversion (Kerwood v. Ayres, 59 Kan. 343, 53 Pac. 134), but we know of no ground for doubting that it does that much. (25 Standard Proc. 46.)
The judgment is affirmed. | [
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The opinión of the court was delivered by
Btjbch, J.:
The action was one by a firm of automobile dis tributors to recover a commission for the sale of an automobile made by another firm of distributors. The plaintiffs recovered, and the defendants appeal.
The plaintiffs and the defendants are distributors of the Studebaker automobile, the plaintiffs for Eureka and part of Greenwood county, and the defendant for Wichita and part of Sedgwick county. They receive cars under what is designated “Dealer’s Agreement” with the Studebaker corporation. The agreement contained the following provision relating to infringement of territory:
“Dealer agrees to solicit no trade nor sell Studebaker automobiles to persons residing outside of dealer’s territory, except that should such persons come unsolicited to dealer’s place of business to buy automobiles off the floor for immediate delivery, dealer may sell such persons, provided in every such case, dealer must pay the Studebaker dealer in whose territory the customer resides, one-half of dealer’s discount profit on such sale. . . .
“It is understood and agreed that this paragraph shall be construed as an agreement between dealer and all other Studebaker dealers who have signed a similar agreement, and that nothing herein contained shall be construed as a liability on the part of the company to dealer for territorial infringement by any other dealer.”
The defendants made an unsolicited sale from their salesroom in Wichita to a resident of Eureka, and the action was on the contract for one-half of the discount profit. The defendants say the contract was in restraint of trade, contrary to the statutes relating to trusts and combinations in restraint of trade. (Gen. Stat. 1915, §§ 6409, 6415, 6453.)
Section 6453 is part of the original antitrust act of 1889. Sections 6409 and 6415 are part of the antitrust act of 1897. In 1907, the legislature enacted the' following:
“A person, firm, corporation or association of persons doing business in this state shall not make it a condition of the sale of goods, wares or merchandise that the purchaser shall not sell or deal in the goods, wares or merchandise of any other person, firm, corporation, or association of persons, but the provisions of this section shall not prohibit the appointment of agents or sole agents for the sale of, nor the making of contracts for the exclusive sale of, goods, wares or merchandise. Whoever, as principal or agent, violates the provisions of this section shall be punished for the first offense by a fine of not lesS than fifty nor more than one hundred dollars; and for each succeeding offense by a fine of not less than one hundred nor more than five hundred dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment.” (Laws 1907, ch. 139, Gen. Stat. 1915, § 2045.)
The earlier statutes are to be construed with the act of 1907. In the case of Mercantile Co. v. Plow Co., 98 Kan. 609, 159 Pac. 391, a wholesale implement company appointed an exclusive agent for the sale of farm implements in a restricted territory. The wholesale company made sales within the territory through other agents. This court held the wholesale company was liable to the exclusive agent for commissions on such sales. The decision clearly covers the present case.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
DawsoN, J.:
This was an action to reinstate an insurance policy and collect the amount alleged to be due thereon. The policy was for $1,000; it was issued to Ralph S. Green; and his mother, the plaintiff, was named as beneficiary. After payment of the first three annual premiums of $24.70 each, the insured entered the army, and considerable correspondence passed between the defendant and one T. P. Downs, a Mitchell county banker, touching the effect on Green’s policy by his enlistment. The record does not show that Downs was the authorized agent of Green in conducting this correspondence, although that fact may be inferred from the circumstances. In answer to Downs’ inquiries, the defendant pointed out the specific clauses in the insurance policy touching the effect of the holder’s entrance into the army — that the policy was void unless a military permit were procured, and this the company avowed its readiness to grant. The defendant company also stated thát, as per the terms of the policy, it would have no cash surrender value until it was five years old, but that it would have a loan value of $29 at the end of three years. It also referred to and reiterated the options contained in the policy — that at the end of three years, if no further premiums were paid, the insured would have extended insurance for $1,000 for four years, 260 days, or in lieu thereof, and at the option of the insured, a paid-up nonparticipating policy for $150. The company’s liability, if the insured should die in military service, was also explained — that it would pay cash surrender value only, or would continue the insurance in full if an extra premium were paid.
Green did not pay any further premiums, but the banker, Downs, wrote to the company that Green desired cash for the surrender value of the policy. A number of letters on this subject passed between Downs and the company, but on November 2, 1917, Downs forwarded the policy to the company with the following letter:
“Gentlemen: Nov. 22, 1917.
“Herewith, I hand you policy of Ralph S. Green, which has been properly surrendered, and trust that you will send us your check for the amount of cash return due on this policy. Mr. Green wants the cash settlement but if you cannot give such, he will take a paid-up policy for $150.00 which you mention.
“Awaiting the return of your check, if you find such possible to send, we are, Respectfully, T. P. Downs, Ass’t Cashier.”
This was answered:
“Nov. 27, 1917.
“The German Nat’l Bank, Beloit, Kansas.
“Gentlemen : — We acknowledge receipt of the Green policy No. 56527 with the permits attached. You will find enclosed the duplicate. There being no cash value due on the policy we are issuing paid-up insurance and the new contract will be issued to you in a few days. Very truly yours,
“Treasurer.”
A paid-up policy for $150 was issued; it was received by Downs and eventually came into the hands of plaintiff’s attorney, and was never returned to the company.
At some time, date not shown, the defendant company adopted a resolution that if experience should show that it could afford to pay more than the cash surrender value on its war risks, it would do so; and after the armistice it adopted another resolution to the effect that its financial affairs were in such a gratifying condition that the company could and would pay its war losses in full.
Young Green was killed in battle in France, and proofs of death and demand for payment of the original policy of $1,000 were presented to the company. This was refused, but tender of the amount specified in the paid-up policy for $150 was made and declined; and this action followed.
The jury made many special findings, most of which were adopted by the court, and judgment entered in plaintiff’s behalf for $1,000, and for interest, and for an attorney’s- fee.
The plaintiff alleged that the $1,000 policy was surrendered through fraud practiced upon her and her son in that the defendant led them to believe they would receive $150 in cash as its surrender value, and that they never agreed to accept a paid-up policy for $150. The jury’s findings are to the same effect. But there is not a syllable of evidence to justify that allegation nor such a finding of the jury. The policy contract itself and all the correspondence clearly and repeatedly showed that there was no cash,,surrender value to this policy until it should be five years old. There was no promise that the company would pay $150 in cash for the surrender of the policy. The company, in justice to its patrons and to sound business principles, could not agree to pay $150 cash for the surrender of a policy on which it had only received three payments of $24.70 each.
One difficulty with this case is that the correspondence touching the surrender of this policy was between Downs and the company, and the record is not at all clear that Downs was authorized to act for Ralph Green. A receipt for the nonparticipating policy of $150^ bears the signatures of Ralph S. Green and the plaintiff, but the plaintiff swears that the receipt was altered after she signed it— that she signed a receipt for $150 which she expected to receive in cash without delay, but that it was altered after she signed it so as to make it read as an acknowledgment of receipt of a paid-up policy for $150. And that matter, while it may overtax the credence of an appellate court, was believed by the jury; so the significance of the receipt must be disregarded. However, this adverse finding is not necessarily fatal to the company; it merely deprives it of an item of evidence which would prove a settlement and acceptance as it contends. The jury similarly found that the $1,000 policy was only surrendered upon the understanding of the insured and beneficiary that $150 in cash would forthwith be paid thereon. But a one-sided misunderstanding is of no consequence; only a mutual mistake, or a fraud by one of the parties, or an unauthorized settlement with the company by Downs, the banker, would justify a reinstatement of the original policy.
We next come to the point affected by the fact that the regular annual payment of $24.70 on the $1,000 policy was in default when Ralph Green died on the battlefield. It is argued for plaintiff that at that time the policy had a loan value of $29, from which the company could have paid the premium. There is a general rule that where an insurer has in its hands funds legally or equitably belonging to the insured sufficient to pay a premium or assessment when due, it is the insurer’s duty to apply them and prevent a ■ forfeiture. (See notes in 23 L. R. A., n. s., 304; L. R. A., 1918-D, 1014; 29 Cyc. 177.) Somewhat analagous cases of our own are: Benefit Association v. Swenson, 49 Kan. 449, 30 Pac. 405; Fraternal Aid Association v. Powers, 67 Kan. 420, 73 Pac. 65; Supreme Lodge v. Welsch, post, p. 55, 57 Pac. 115; Elliot v. Grand Lodge, 2 Kan. App. 430, 42 Pac. 1009.
But it can hardly be said to be the general duty of an insurer 'to apply the loan value of a policy to the payment of premiums, in the absence of any such provision in the contract; and here the policy itself prescribed what the obligation would be if and when a default in payment of premium should occur. It provided that if there should be a default of payment in any premium after the first three premiums were paid, the policy would be automatically nonforfeitable and would “without any action of the insured or payment of further premiums continue as nonparticipating paid-up term insurance for the principal sum insured but without loan or surrender value.” The schedule of values embodied in the policy, in part, reads:
End of Paid-wp , — Extended insurance. — N End of Cash
year. value. years. days. year. value. Loans.
3d 150 4 260 3d - 29
In this case, therefore, when the insured made default in his fourth year’s premium payment the policy automatically became one for $1,000 good for four years and 260 days. If the surrender of the original policy and its exchange for a paid-up policy of $150 was not authorized by the insured, it was valid when young Green died on the battlefield, except for the fact that the policy did not fully cover war risks. But the subsequent patriotic and generous resolutions of the defendant declaring its ability and intention to pay its war losses in full cured that imperfection. (Ellis v. Fraternal Aid Union, 108 Kan. 819, 197 Pac. 189.)
In justice to the company, however, we must hold that part of the theory and contentions of the plaintiff in the trial court and in her brief here cannot be sustained. The company committed no fraud of any sort; it never promised to pay $150 in cash for the surrender of the policy, and there is no foundation for that contention in the record. There was no fraud in the company’s statements that the policy had no cash surrender value and did not cover war risks, although it later saw its way to pay such risks. If it were clear that Downs, the- banker, acted for Ralph S. Green with authority, the defendant would win this lawsuit. That is the uncertain point in it, and the one which will necessitate a new trial.
The defendant’s point touching the statute of limitations is not sustained. It could not be sustained even if the case should be permitted to- turn on a question of fraud. The limitation would not include the time young Green was a soldier, nor the time thereafter when the plaintiff did not know whether her son were alive or dead. (Lewis v. Publishing Co., 111 Kan. 653, 208 Pac. 254.)
'There being no question of fraud in the case, the defendant’s contention- that the plaintiff cannot sue for an alleged fraud practiced on her son is likewise eliminated.
Reversed and remanded for a new trial. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal and cross appeal relate to a controversy over certain Wallace county lands. The lawsuit was chiefly between an adopted daughter, Gladys Yoxall Starbuck, and her adoptive mother, Mary E. Yoxall Kingore.
It appears that the late Samuel D. Yoxall, husband of Mary and adoptive father of Gladys, at his death was the owner and held full title to 960 acres of land in Wallace county, and also held contracts for the purchase of 960 acres of Union Pacific railroad lands adjacent thereto. By the will of Samuel, a life estate in all these lands was devised to Mary, with remainder to Gladys if she survived her mother, otherwise the remainder should devolve on a nephew, Richard Yoxall.
When the will was probated, Mary asked for a determination that the land contracts had been acquired with her funds and that those land contracts equitably belonged to her. The probate court gave judgment in Mary’s favor in accordance with the prayer of her petition. In time, Mary paid the balance of "the purchase price of the railroad lands, but the conveyances thereto were executed to “the devisees under the last will and testament of Samuel D. Yoxall, deceased.”
In July, 1915, a few months after Gladys became of age, she made a quitclaim deed to Mary covering all the Yoxall lands. There was evidence that this deed was made pursuant to an agreement between mother and daughter, during the latter’s minority, the consideration (perhaps insufficient) being Mary’s promise to continue Gladys’s education. Gladys was married in October, 1916, and in March, 1917, this action was begun to set aside the quitclaim deed of July, 1915. Plaintiff’s petition alleged undue influence, insufficient consideration, and fraud in its procurement. On June 16, Mary and Gladys entered into an agreement to dismiss this action, and a stipulation to that effect was signed by them. The consideration was to be the purchase of a house for Gladys or the payment to her of $1,000, $500 in cash and $500 when Mary should sell some property. No part of this consideration was paid. Five days later, Gladys telegraphed and wrote to her attorneys to disregard this stipulation, saying that she had signed it under Mary’s influence, and requesting them to protect her rights.
All these matters, and others of less significance, are narrated in the pleadings.. The trial court gave judgment in Mary’s favor for the railroad lands, and set aside the quitclaim deed from Gladys to Mary.
As to the railroad lands, the trial court specially found:
“XV. . . . That . . . [the railroad lands described] . . . was all or partly purchased with money this defendant, Mary E. Yoxall Kingore, brought to her husband, Samuel D. Yoxall, at or soon after their marriage or was purchased by the said husband, Samuel D. Yoxall, for his said wife, now Mary E. Yoxall Kingore, and she having completed payments on the Union Pacific Land Company’s contracts after the death of her husband, the late Samuel D. Yoxall, this land just above described, is the property of defendant, Mary E. Yoxall Kingore, absolutely, and not subject in any way to the operations of the will of the late Samuel D. Yoxall and the title to said land is hereby quieted so far as the operation of the said will under controversy exists, against all parties claiming, or hereafter to claim any right, title, in or to said land under by or through the provisions of said will of Samuel D. Yoxall, deceased.”
Touching the other lands owned by Yoxall, deceased, and which were devised by his will, the court found:
“II. That Samuel D. Yoxall died on October 28, 1907, leaving a last will and testament which devised and bequeathed all of his personal property to his wife to be her absolute property, and the real estate to be hers as long as she lived, and at her death the real estate to be this plaintiff’s if she was then living, and if she was not living at date of the death of this defendant, Mary E. Yoxall Kingore, then to Richard Yoxall, a nephew. . . .
“XI. That on November 28, 1914, the plaintiff herein became of legal age, viz., eighteen years of age. ,
“XII. On July 12, 1915, the plaintiff herein made, executed, acknowledged and delivered a quit-claim deed to the defendant herein, Mary E. Yoxall Kin-gore, covering all the lands owned by the said Samuel D. Yoxall at date of his death as well as those included in said land contracts; that at, and before and after the time when the deed in question was made and delivered, the relation of parent and child existed in its full vigor between the foster mother, now Mary E. Yoxall Kingore, and the foster daughter, the plaintiff herein; that the position of the foster mother was one of dominance and authority over the foster daughter and of the foster daughter of dependence upon her foster mother; that the plaintiff confided in and trusted her foster mother implicitly; that the property conveyed to the mother was of large value, exceeding twenty thousand dollars and embraced the entire estate or land of the plaintiff; that the plaintiff was without any business occupation or ability or profession, wholly unacquainted with business affairs and the forms and instru-mentalities by which conveyances of property are made' from one person to another; that nothing was paid nor was any binding or enforcible agreement made to pay the plaintiff for all the vast property so conveyed; that the alleged agreement to give the plaintiff an education for the land so conveyed was made in September, 1914, when plaintiff was still a minor. Nothing in the evidence of any consideration for this deed or even a promise of a consideration wfent beyond what was due this plaintiff, by right from her foster mother; that of continuing her in school and music, which was settled upon before the death of her foster father, Samuel D. Yoxall. The deed was wholly void of consideration. ...
‘‘XIV. That on June 16, 1917, 'this plaintiff signed a request to the clerk of the District Court of Wallace county, Kansas, to dismiss this case; that defendant Mary E. Yoxall Kingore had repeatedly importuned the plaintiff to do so, by letter prior to said time, but was unable to secure a dismissal of this case; that she went to Montrose, Colorado, where the plaintiff was living and •there by exercising parental influence and appeals to the filial duty of the plaintiff, accusations of ingratitude and other importunities induced the plaintiff to direct a dismissal of this case which she did, but promptly repudiated as soon as the parental influence was removed; that although the plaintiff was then of age and living away from her foster mother and with her own husband, still she was susceptible to the influence of her foster mother as indicated by her actions and by so holding, this bargain must fail on the same grounds as the original contract and deed.”
Both parties appeal.
Examining the1 errors assigned by plaintiff, the first point raised by her relates to the admission in evidence of defendant’s testimony touching transactions between herself and her deceased husband. The defendant testified that at the-time of her marriage to Yoxall she had $2,000. At that time, in 1885, his only property consisted of his interest as a homesteader in a quarter section of government land. Her testimony narrated at length how Yoxall and herself by their joint efforts for a long period of years accumulated the considerable estate possessed by Yoxall or by Yoxall and defendant at his death in 1907.
. The testimony objected to reads:
“Do you know what use was made of that money [defendant’s $2000] by Mr. Yoxall?
“Objected to as being incompetent, irrelevant and immaterial, and an offer by the defendant to testify to a transaction with a deceased person.
“By the Court: Overruled.
“A. Mr. Yoxall bought horses, sheep and implements for the ranch with this $2,000 which I loaned him.
“Q. Was that ever paid back to you in money by Mr. Yoxall? A. No.
“Objected to by the defendant for the same reason.”
[Overruled.]
Elsewhere the record reads:
“At the time I loaned this money to Mr. Yoxall, I received a note for $2,000. When we were married I tore it up and burned it.
“Q. Was there any arrangement made at that time that caused you to burn up the note?
“[Counsel for plaintiff]: Objected to as calling for a transaction between the defendant and the deceased person, who is the testator.
“By the Court: Overruled; she may answen . . .
“A. The arrangement at that time was made that we would be partners in the ranch. I had all the money that furnished the stock; Mr. Yoxall had the ranch and I had the money for the stock.
“Q. When this railroad land was bought under contract, was there any arrangement made between you and Mr. Yoxall as to whose this land should be?
“[Counsel for plaintiff]: We make'the same objection.
“By the Court: She can answer it.
“A. Yes, sir.
"Q. What was the arrangement? A. The section and one-half was bought for me with my money and it was to be my land. In 1893 and 1894 we sold all of the sheep on the ranch and leased it and at that time Mr. Yoxall says: T consider that your money has earned you $5,000,’ and I was to have this land for my money. There was nothing else said at that time concerning the matter.
“I loaned Mr. Yoxall this money in the fall of 1884 prior to our marriage October 14, 1885. When we got married I tore up the note and put it, in the stove. . . . I do not know when lie made the first payment on the east half of section 23 nor what the consideration was. He bought it with our partnership money. Although we became partners in the ranch nothing was said about my becoming half owner of the original southwest quarter of section 24. It was after that, I started the partnership with him by virtue of giving him this $2,000. I did not invest all of my money in sheep, he bought sheep, horses and implements. It-was not then that he made the statement that my money amounted to $5,000; it was before we bought section 19. When we sold out in '93 and '94 he said my money, amounted to $5,000. We sold the stock.
“He did not indicate at what rate of interest he had computed my $2,000 to make it equal $5,000. He was going to pay me back with land. He was going to buy land with that money. The first time I saw the- contracts was when the land was bought. I read the contracts when they canhe to the house.”
Doubtless much of this testimony was incompetent under section 320 of the civil code, as pertaining to transactions between the witness and a dece&sed person; but there was no jury to be misled thereby and the equitable claims of Mary to the railroad lands were well supported by competent testimony, and the presumption is that although a trial court sitting without a jury may permit incompetent evidence to be introduced it wall not suffer its judgment to be based thereon.
In Gemmel v. Fletcher, 76 Kan. 577, 585, 92 Pac. 713, it was said:
“We do not understand, however, that the admission of this class of testi-monjr is necessarily erroneous, where the trial is by the court without a jury. In such cases it will be presumed, unless the contrary appears from the record, that the court, in reaching its conclusions, considered only such evidence as was legally admissible. (McCready v. Crane, 74 Kan. 710, 88 Pac. 748; Lee v. Railway Co., 67 Kan. 402, 73 Pac. 110, 63 L. R. A. 271; City of Olathe v. Cosgrove, 71 Kan. 885, 81 Pac. 1131; Osborne, Ex’r, v. Young, 28 Kan. 769.)”
In Heery v. Reed, 80 Kan. 380, 102 Pac. 846, it was said;
“The plaintiff was not competent to testify in her action against the executor in regard to her services in nursing and caring for deceased and of other transactions had personally with deceased, but as the same facts were shown by other testimony and there was in fact no contradictory or conflicting testimony on the subjects the error in the admission of the testimony is not material.” (Syl. jf 1.)
Here there was no lack of competent evidence. Defendant’s testimony as to the financial and property status of herself and Yoxall at the time of their marriage, and as to how they both worked to accumulate the property, was competent; and eliminating the incompetent matter in Mary’s evidence, the material facts were established by unassailable testimony. Thus, Welch, a neighbor, testified;
“He [Yoxall] told me that before he got married that he was going in the sheep business and that his wife had some money and that he borrowed the money off of her. He said he borrowed about $2,000 and that he had bought this contract land for her to pay back for her and the homestead belonged to the heirs. . . .
“He told how he had it divided and the land on 19 and the west half of 23 [the railroad lands] was her individual land.”
Another witness, Bessie Wilder, testified:
“I visited Samuel D. Yoxall and his wife in 1909 when they were on the Big Springs ranch in Colorado. Mr. Yoxall said he was going to purchase some railroad land for my auntie — that is his wife. He said he was going to buy some land adjoining the other ranch in Kansas with my auntie’s money so that she might own as much or a part of the land with him. The deal was consummated while I was there at the Big Springs ranch.”
Another witness, Anna Yoxall Pehrson, testified:
“My father’s name was James Yoxall. James Yoxall 'was a brother of Samuel D. Yoxall. When I was a young girl my father resided about five miles outside of Sharon Springs, Kansas. I 'know the ranch of Samuel D. Yoxall. . . . I have known that place all my life. . . . Richard Yoxall, who I heard was named in the will, was my brother. ...
“I know the land that became a part of the Yoxall ranch, known as section 19. I don’t know exactly the meaning of ‘railroad land,’ but I know they always called it railroad land at that time. I don’t know how it came to be called railroad land. People buy this railroad land from the railroad company. I had a conversation with Samuel D. Yoxall with reference to section 19. He told me that he had bought section 19, that was the piece of land east of the house; that he had bought it for my aunt — that was the way he said it — and was going to buy a half section west ^of the house, one half of section 23.
“Q. For your aunt — what aunt? A. My aunt Mary.
“Q. The defendant, Mary E. Kingore? A. Yes, sir. He was going to buy half of section 23 for my Aunt Mary Kingore, too. He said my aunt had brought the money to him when they were married, and that money was to be put into that land. He did not say when he bought section 19; he said he had bought it. The time he talked to me was about 1900. Section 19 is east of the house and section 23 is west of the house. . . . Uncle Samuel said how nnich money Mrs. KingOre had brought; a little over two thousand dollars.’’
To this testimony there should be added the evidence inherent in the fact that commencing in 1885 Yoxall had practically nothing and Mary had $2,000. In twenty-two years by their joint efforts they had accumulated 960 acres of deeded land and had railroad land contracts partially paid out for 960 acres more. That significant fact not only made it natural and probable but would justify an inference that part of this considerable estate equitably belonged to Mary, otherwise at the end of twenty-two years’ labor she was worse off than'when her married life with Yoxall began, while her husband had grown rich in the interval. (Lyons v. Berlau, 67 Kan. 426, syl. ¶ 5, 73 Pac. 52; Scholz v. Hoth, 94 Kan. 205, syl. ¶ 1, 146 Pac. 339; Silvers v. Howard, 106 Kan. 762, syl. ¶ 5, 190 Pac. 1.) It seems that this evidence supported the trial court’s finding XV, and it came clearly within the statutory exception to the rule concerning resulting trusts—
“Where it shall be made to appear that by agreement and without any fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land or some interest therein in trust for the party paying the purchase-money or some part thereof.” (Gen. Stat. 1915, § 11681; Franklin v. Colley, 10 Kan. 260; Rayl v. Rayl, 58 Kan. 585, 50 Pac. 501; Black v. Black, 64 Kan. 689, 68 Pac. 662; Reemsnyder v. Reemsnyder, 75 Kan. 565, 89 Pac. 1014; Piper v. Piper, 78 Kan. 82, 95 Pac. 1051; Stevens v. Hicks, 84 Kan. 351, 113 Pac. 1049.)
There is no error in this portion of the trial court’s decree.
Turning next" to the complaint' involved in defendant’s cross appeal the trial court set aside the quitclaim deed from the plaintiff, Gladys, to the defendant, Mary, her adoptive mother; and likewise held for naught the stipulation touching a settlement and dismissal of this action. It is difficult for an appellate court to meddle with this portion of the judgment because it is virtually foreclosed by the trial court’s findings of fact, XI, XII, and XIV, quoted above. It cannot be denied that there was competent, substantial and sufficient testimony to support those findings, and the fact that there was also evidence to the contrary is of little consequence. (Wood v. Davis, 12 Kan. 575; Kahm v. Klaus, 64 Kan. 24, 67 Pac. 542.)
In Lumber Co. v. Workman, 105 Kan. 505, 508, 185 Pac. 288, it was said:
“It is needless to waste words on the elementary proposition that the findings of fact made by a trial court or jury, when supported by substantial though disputed testimony, are binding on appeal.”
It is argued in effect that the value of the lands was overrated by the court, and that there was "no evidence as to the value of her [plaintiff’s] interest in these lands.” There was no formal showing of the comparative life expectancies of the plaintiff and defendant, and the age of the mother does not appear, but she was old enough to make a second marriage in 1885 ten or eleven years before plaintiff was born. Plaintiff’s life expectancy, therefore, must be twenty or thirty years greater than her mother’s, and therefore, without any mathematical computation of its present worth it was perfectly obvious that plaintiff had a very considerable interest in the lands conveyed by the quitclaim deed.
A very potent item of corroborating evidence that the stipulation for dismissal of this action was procured under the same undue influence as that which prompted the execution of the quitclaim deed inheres in the fact that as soon as plaintiff had an opportunity to escape her mother’s influence and procure independent advice, she repudiated the settlement and stipulation. The principle announced in Smith v. McHenry, 111 Kan. 659, 207 Pac. 1108, and in Linn v. Blanton, 111 Kan. 743, 208 Pac. 616, is consistent with this result, since here the testimony to which the trial court gave credence fully established fiduciary relationship, undue influence and grossly inadequate consideration.
Other matters urged upon our attention have been carefully considered but need no discussion. The trial court’s judgment gave substantial justice to both plaintiff and defendant", and neither of them has shown any plain, palpable error which would justify its disturbance. It is therefore affirmed in all its parts. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff brought this action for delay in trans- • portation of certain goods.
Thé plaintiff is a manufacturer of revolving storm doors. Its. factory is at Independence, Kan. On November 27, 1917, it shipped an odd-sized revolving storm door to a firm in Philadel phia. The door was delayed in transit and did not arrive at destination until April 22, 1918, by which time the consignee had necessarily procured another door.
The plaintiff’s evidence showed that the door was worth $385 at Independence. It was also shown that owing to its odd size and the winter season being over when it arrived at destination it could not be sold. Plaintiff paid the freight charges, $14.03, and caused it to be stored in Philadelphia.
Judgment was entered for plaintiff for $399.03 — being the value of the door plus the freight charges; and defendant appeals.
The first error urged relates to the overruling of defendant’s demurrer to plaintiff’s evidence. Among the exhibits introduced by plaintiff were certain letters written by defendant’s claim agent to plaintiff, in which it was stated that the delay was caused by the embargo on general shipments incident to the transportation of war supplies and that it was impossible to get this shipment transported beyond St. Louis. But the defendant’s answer pleaded neither defense nor excuse based upon this embargo or wartime congestion of traffic; and this self-serving and unsworn declaration of the claim agent hardly amounted to evidence of any sort, certainly not evidence on an issue not raised by the pleadings. It is argued that the court should take judicial notice of the-embargo. We do not take judicial notice of the statute of limitations, of an Act of God, nor of several other perfectly good defenses. They must be specially pleaded (10 C. J. 299; 4 R. C. L. 917, 918), Judicial notice often supplies a want of other evidence; it does not supply an issue where none is raised.
Of somewhat greater merit is the defendant’s contention that the evidence was insufficient to sustain the amount of damages awarded. The plaintiff’s managing officer testified that the door was worth $385, and that the plaintiff tried to sell it in Philadelphia, but “No one wanted it. It was an odd-sized door.” Defendant argues that this evidence did not conform to the general rule that damages for delay are measured by the difference between the value of the goods at the time and place of delivery and their value at the time and place when they are delivered. Such is the general rule. (Anderson v. Railway Co., 107 Kan. 537, 192 Pac. 755.) In the early case of Galena and Chicago Union R. R. Co. v. Rae, et al., 18 Ill. 488, it was said:
“If the grain, shipped was not delivered in Chicago in reasonable time for any fault of the company, the measure of damages is the difference in the value of the grain at Chicago, when it was in fact delivered, and when it should have been, in the usual course of transportation, delivered there.” (p. 491. See, also, 10 C. J. 307; 4 R. C. L. 931.)
Here the evidence only disclosed the value of the door at Independence, not at destination. But since Independence was the point of manufacture, and the testimony showed that the plaintiff shipped its doors all over the country, it is a fair deduction that the door would have been worth as much at Philadelphia, if it had been transported with reasonable despatch, as it was at Independence, the point of manufacture.
An argument is also made that the defendant could not be held liable for the total value of the door since it was not apprised that it was odd-sized, and that it would be valueless for use elsewhere than in the building- for which it was ordered. The court is not impressed with that argument. Shipment of goods of special design, and of no value whatever except for a special purpose, is an everyday occurrence (10 C. J. 308, 311), and no rule of the defendent is cited requiring such particularity of detail to be furnished by the shipper.
One item of damages, the freight charges, was erroneously allowed. The railway company cannot be required to respond in damages for the full value of the door and give up its freight charges also. (Kennedy v. Railway Co., 104 Kan. 708, 181 Pac. 117; 10 C. J. 314; 4 R. C. L. 931, 932.) That would make the plaintiff $14.03 better off because of the delay in transportation than it would have been if 'the door had been transported with promptness and despatch.
In one of the court’s instructions it did misstate the measure of damages. It declared the measure of damages to be based upon the contract price of the door, although the court had already excluded the testimony relating to the contract price. However, since the contract price was exactly the same as the value testified to, $385, arid there was no evidence to the contrary, we do not consider this error more than a mere lapsus linguce, of no importance to this particular case. We note that notwithstanding defendant’s liability for the full value of the door, the plaintiff is permitted to retain it. Under a judgment for its value, the defendant would be entitled to the door, but this point is not urged.
The item of $14.03 for freight charges will be deducted from the amount of the judgment; and thus modified, the judgment will be affirmed. | [
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The opinion of the court was delivered by.
Portee, J.:
This is an original proceeding in mandamus to compel the board of county commissioners of Osage county to redistrict the county into three commissioner districts. The statute upon which the action is based reads:
“The board of county commissioners shall, on the day of the organization of the board or as soon thereafter as may be possible, meet and divide the county into three commissioner districts, as compact and equal in population as possible, and number them respectively 1, 2 and 3 and subject to alteration at least once every three years,” etc. (Gen. Stat. 1915, § 2539.)
This statute was enacted in 1901, but the old statute was in substantially the same language; and it appears that Osage county had never been redistricted since its organization. In April, 1922, certain citizens came before the board and orally presented a petition for the establishment of new commissioner districts. The commissioners considered the matter until June 7, when the petition was denied. The matter was taken before the attorney-general by those dissatisfied with the refusal of the county board, and he advised the board that it was their duty under the statute to.redistrict the county. It appears that the matter received great publicity throughout the county, was discussed among the people and in the newspapers. On June 26, the board acted upon the advice of the attorney-general and made an order redistricting the county. This action is to compel a further redistricting upon the ground that the one made is contrary to law, in that the districts are not as nearly compact and equal in population as possible, and that the order was capriciously and arbitrarily made for the purpose of promoting the political interests of the present members of the board.' It is also claimed that a change made in township lines was illegal because no petition was presented to the board asking for such change and no notice of any change in township lines was given prior to the making of the order. A verified answer has been filed, taking issue with these contentions.
The duty of determining how nearly the proposed districts shall approximate equality in population and compactness of territory is vested in tjie board of county commissioners. The real question for our consideration is whether the order redistricting the county was an abuse of that discretion. In Hayes v. Rogers, 24 Kan. 143, it was said:
"The statute gives the commissioners full power to make the change . . . Large powers are in this x’espect intrusted to them, as well as an almost unlimited discretion.” (pp. 145, 146.)
It goes without saying that the courts will not issue the writ of mandamus to control the discretion vested in the board. Plaintiff in order to recover must show an abuse of that discretion; and on this issue, plaintiff has the burden.
Attached to the petition is a map showing the boundary lines as they existed prior to the order complained of. The population of Osage county is 20,010, and in order to divide it into three districts as nearly equal in population as is mathematically possible would give to each district the population of 6,670. The population of one district under the order of June 26 is 6,671. The population of another district is 411 less than one-third that of the county. Another district contains 7,080 or 410 in excess of one-third the popu lation of the county. Under the old order as it existed district No. 1 contained a population of 9,092 and comprised a territory of 220 square miles, embracing within its limits the cities of Osage City, Burlingame and Scranton. The population of that district was far in excess of one-third the county’s population. Old district No. 2 comprised 232 square miles with a population of 5,651, and district No. 3, which contained 268 square miles, had a population of 5,266. It appears that before the final.action was taken by the defendants more than two months had elapsed between the presentation of the first petition, that during that time the question received much discussion among the people and that numerous articles for and against the proposed change were published in the newspapers. Delegations came before the board from Elk, Barclay, Superior and Olivet townships protesting against any redistricting of the county. It appears further that Osage county contains a large number of what is known as “trouble-making” streams — 110 creek, Salt creek, Tequa creek, Long creek, Dry creek, Dragoon creek, Rock creek, and the Marais des Cygnes river. One plan of redistricting suggested by the petitioners would, if followed out, have placed in one district all of these streams. Among the things to be taken into consideration by the county board was not only the area and population of all the districts but the density of population, the effect resulting from a change in lines as they existed, the possibility of the necessity for i;he creation of new election districts. Besides, a redistricting of the county would require some consideration to be paid to the means of transportation and communication in the various districts. It may be said that the controlling question presented in this case is not a novel one. The statutes of most, if not all, the states contain similar provisions by which legislatures have vested in boards of county commissioners or similar bodies the duty and power to create new districts out of old, as judicial districts, and districts embracing parts of a county. These statutes usually contain similar provisions, to the effect that the districts created shall be comprised of adjacent territory as nearly compact as possible and with a population as nearly equal as possible. It has been held that the word “compact” in such statutes means closely united, and that the word itself has various shades of meaning, when used in this connection. Again, it has been held that the provision with respect to compactness permits the consideration, in good faith, of existing lines, topography, means of transportation and other factors. (Matter of Dowling, 219 N. Y. 44.)
In The People v. Thompson, 165 Ill. 451, it was said:
“. . . we are of the opinion that as used in the constitution, and applicable to mere territorial surface, the word ‘compact’ means ‘closely united,’ and that the provision that districts shall be formed of contiguous and compact territory means that the counties, or subdivisions of counties, (when counties may be divided,) when combined to form a district, must not only touch each other, but be closely united, territorially.” (p. 478.)
With respect to the complaint that the order divides the city of Osage City into three parts and the city of Lyndon into two parts; it appears that the order follows the boundaries of the wards of these cities, which are the boundary lines of voting precincts. Unless the word “compact” as used in the statute means that the residents of each district shall be closely united in interest we see no substantial reason for an objection to the order because streets of a city are used as boundary lines, provided, of course, the voting precincts are not divided. We think the word “compact” as used in the statute means that the territory shall be closely united, and not necessarily that the residents of each district shall be united in interest. Besides, we can conceive of no reason why a city may not be divided so that part of it lies in one commissioner district and part in another. In fact that condition obtains in many of the counties where there are large cities. The city of Kansas City, Kan., lies in three different commissioner districts. The boundary lines of the district in every case follow the boundary lines of the city wards so as not to interfere with the voting precincts. It is true that the same statute which authorizes the division of a county into commissioner districts contains a proviso that in all counties where there are three representative districts they shall constitute the commissioner districts without any action on the part of the county board, so that that situation once being established, the board of county commissioners would be powerless to make any change in the commissioner districts because the legislature has made the representative districts identical with the commissioner districts. The matter is referred to merely as an illustration of the fact that no serious inconvenience results from having parts of a city in one commissioner district and part in another.
In the petition there is a complaint that the order of the board of June 26 makes what is called a “goose neck” of a part of Superior township, which is added to the rest of the second district. This strip of territory, however, appears to be four miles wide and six miles long. In answer to this objection it is asserted that the north half of Superior township was joined to the second district in order to make all the districts as nearly equal in population as possible; that the excess of population in the old first district had to be added elsewhere, and that if all of Superior township had been added to either of the other districts there would have resulted again an excess of population in one district. No doubt it frequently happens that in an attempt to secure compactness of territory and equality of population a compliance with both requirements renders mathematical exactness impossible. Thus, in a case in which the apportionment was not upheld, it was said:
“The requirement of sec. 4, art. IV, Const., that assembly districts shall ‘be in as compact form as practicable,’ being of lesser importance, may to some extent yield in aid of securing a nearer approach to equality of representation.” (The State, ex rel., Lamb v. Cunningham, 83 Wis. 90, syl. ¶ 7.)
The defendants contend that if there has been a failure to create districts equally compact in the order of June 26, it follows from an attempt to comply with the other provision that the district shall contain an equality of population, and the pertinent question is asked by the defendants, “If there has been a deviation from either of these requirements, how much of a deviation must exist before it can be said that the board abused its discretion in the matter?”
One of the cases cited by the defendants in Baird et al. v. Supervisors, etc., 138 N. Y. 95, where it was said in the opinion:
“It is not every departure from equality in the number of inhabitants that can bo interfered with or that ought to be the subject of review by the courts. ... It must be a grave, palpable and unreasonable deviation from the standard, so that when the facts are presented argument would not be necessary to convince a fair man that very great and wholly unnecessary inequality has been intentionally provided for.” (pp."113, 114.)
In People v. Thompson, supra, it was said: “Who then must finally determine whether a district is as compact as it could or should have been made?” (p. 480.) The answer is, the board of county commissioners.
The rule adopted by the courts generally is that if men of judgment and discretion may fairly differ with respect to relative weight of difference of population and compactness, the question belongs to the legislature and the courts will not interfere. In Farrelly v. Cole, 60 Kan. 356, 56 Pac. 492, it was said:
“Discretion is defined, when applied to public functionaries, to be ‘a power or right, conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.’ (Judges of the Oneida C. P. v. The People, 18 Wend. 99.) It perverts and destroys the meaning of the word to hold that exercise of discretion may be reviewed or controlled by some other person or tribunal than the person on whom it is conferred.” (p. 372.) '
The plaintiff has'filed with the court a map labeled “As it might have been,” showing how the county could have been divided into three districts more compactly and with closer equality of population — and leaving the towns of Carbondale and Scranton in one district, Osage City in another, and Lyndon, Quenemo and some other small cities in a separate district. Doubtless another map could be made showing the possibility of redistricting the county so that each district would contain more nearly an equality of population and compactness of territory than would even result from the plan suggested. The legislature has placed the discretion in the board of county commissioners and left it with the board to finally determine whether a district is as compact as it could or should have been made. In The People v. Carlock, 198 Ill. 150, it was said:
“The attempt on the part of the court to condemn an apportionment act merely on the ground an apportionment conforming more nearly to the constitutional requirements, in which a discretion was involved, could be made, would be to invade the province of the legislative department of the State.” (p. 157.)
The conclusion we have reached is that the plaintiff has failed to show that there has been such an unreasonable deviation, either in population or compactness of territory, as would justify mandamus to compel further action.
There remains the contention that the board acted from personal and selfish motives in making the order and redistricting the county in order to secure the reélection of one of its members. It appears that the defendant, Tindell, is the only member of the board who was a candidate for reelection, and'that his opponent resides in the very northwest section of Superior township as it existed before the order complained of was made. If the lines had not been changed and this section had remained in Superior township it would have become a part of the second district, and the opponent could not become a candidate for election in the first district. For this reason the township line was changed to leave the opponent in the first district — the section upon which he lives being placed in Grant township by the order of June 26.
Commissioner districts are created merely to define the territory from which the voters are to select commissioners; they have no functions to perform as governmental agencies. At the time the order was made, candidates for commissioner of the first district had announced themselves; and we think that, in making the readjustment under these circumstances the commissioners had a right to take that fact into consideration. This application for a mandamus was made September 23, its purpose being to effect a change in the districts that would be operative at the election to be held November 7. By action taken midway of the legal process for selection of the new commissioner, the board cannot be required to eliminate any successful nominee by so arranging the lines of the district wherein he lived as to throw him outside the boundaries, if this can be avoided without creating great disparity in the population of the districts, even though by such proceeding a nearer approach might be had to mathematical equality, and the division lines might be made to contain fewer angles.
A writ of mandamus does not create a duty. It merely enforces one already in existence. It 'may be doubted whether the commissioners have even a right, after permitting whole district boundaries to remain unchanged until the holding of the primary, to get rid of a successful candidate who is possibfy distasteful to them, by the expedient of changing the lines after he has won his place on the party ticket.
There is no force in the contention that the change in the township lines by which certain territory was taken from Grant township and added to Superior township is void because there was no petition requesting such a change. Section 2562, General Statutes of 1915, has no application to the mere alteration of township lines. It applies only to organization of new townships. It is within the power of the board to alter the lines of a township at any time and without a petition asking such action. Section 2575, which is part of the same act, provides that when a new township is organized, or when the boundaries of a township are altered, a map or plat must be filed showing the change. The statute has been complied with in , the present case by the filing of a plat showing the changes made in the township lines.
From what has been said it follows that the writ is denied.
Btjech, J., dissents. | [
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The opinion of the court was delivered by
HajRvey, J.:
This is an action for damages for personal injuries against three defendants charged with negligence. A demurrer to the evidence was sustained as to one of the defendants, and as to the other two defendants the jury returned the following verdict:
“We,U;he jury, find for the plaintiff against the defendants and assess the amount uf plaintiff’s recovery from said defendants at $4,000. Isadore Wald-ner, doing business under the firm name and style of Superior Cleaning & Dyeing Co., $3,500, and the city of Kansas City, Kansas, $500.”
The trial court treated that part of the verdict after the figures “$4,000” as surplusage and rendered judgment in'favor of the plaintiff and against both defendants for $4,000. Both defendants prosecuted appeal. Isadore Waldner filed no abstract or brief and his appeal has been dismissed and the case is now for consideration upon the appeal by the city of Kansas City. The appellant filed a motion for a new trial and also a motion for judgment notwithstanding the verdict, both of which motions were overruled. Appellant now contends that the court erred in overruling its motion for a new trial and in overruling its motion for judgment and in entering judgment against it in the sum of $4,000 based upon this verdict.
It is well settled that in actions for damages against two or more joint tort-feasors the jury has no authority to apportion the damages among the defendants, in the absence of a statute specifically authorizing such apportionment, and this for the reason that if defendants are found guilty of negligence which produced the injury, the matter of the degree of negligence as between the defendants is so uncertain as not to form a proper basis for division of damages.
In Sutherland on Damages, 4th ed. § 463, it is said:
“In a joint action against several for trespass or other tort if all are found guilty entire or joint damages must be assessed against them.”
In 17 C. J. 1084, it is said:
“Where the rule is not modified by statute, an assessment of damages in an action against joint tort-feasors must be for a lump sum against those found guilty and cannot be severally apportioned between them.”
Many other authorities might be cited, but the rule -is of such long standing, and has been so universally and repeatedly applied, that we regard additional citation of authorities unnecessary, and especially in view of the fact that it is not specifically controverted in this case.
Though the jury has no power or authority to apportion damages among defendants in ah action of this character, they sometimes attempt to do so and the question then arises as to what should be done with their verdict. The rule is thus laid down in 27 R. C. L. 893:
“There is some conflict as to whether a verdict against joint tort-feasors which assesses the damages severally can be cured or corrected. While there is some authority to the effect that such apportionment of damages is an essential part of the verdict which cannot be disregarded as surplusage and, therefore, no judgment can be entered thereon, it is generally held that the irregularity is not fatal and may be cured by amendment or correction. The question as to the manner in which the irregularity of a verdict severing the damages found against joint tort-feasors may be cured arises in two different ways, according to the form in which the verdict is rendered. Thus, where the verdict is that the plaintiff recover of the defendants a certain sum, followed by an apportionment of such damages among the several tort-feasors, this fixes the plaintiff’s right to recover the full amount against the guilty parties, and the trial court may receive the verdict and amend it by striking out as surplusage all after the finding of the joint liability, or it may return the verdict to the jury for correction. Where a several judgment is rendered against each defendant on such a verdict it is not necessary to enter a reversal because of the erroneous form in which it was entered, since it can be corrected by a direction of either the appellate or the trial court making the judgment conform to the established rule in such cases.”
. In 38 Cyc. 1890, the rule is stated thus:
“Verdicts are to have reasonable intendment, and surplusage or immaterial findings may be rejected in construing them. Thus, if the verdict finds the issue and something more, the latter part of the finding will be rejected as surplusage, and judgment rendered independently of the unnecessary matter, there being nothing to show that the jury reasoned falsely.”
In Olson v. Nebraska Telephone Co., 87 Neb. 593, 127 N. W. 916, an action to recover damages for personal injuries caused, as alleged, by the negligence of two corporations, there was a verdict for plaintiff for $10,000, “to be assessed equally against each of said corporations”; held, to be a joint verdict against both defendants for $10,000, and the judgment rendered against both for the full amount was affirmed.
In Pearson v. Arlington Dock Co., 111 Wash. 14, 189 Pac. 559, the verdict was as follows:
“We, the jury in the above-entitled cause, do find for the plaintiff and against both defendants in the sum of $3,750 each, Arlington Dock Company, North Coast Stevedoring Company. ($7,500.)” (p. 20.)
The court said:
“While the verdict is somewhat awkward, it is perfectly plain that the jury meant to find a verdict of 37,500 for the plaintiff against both defendants, ■each defendant to pay one-half of that amount. The jury did not hav.e any right to segregate this amount and make each defendant liable for a portion thereof, consequently that portion of the verdict where the jury undertakes to do so must be considered surplusage.” (p. 20.)
In San Marcos Elec. Light & Power Co. v. Compton, 48 Tex. Civ. App. 586, 107 S. W. 1151, in an action by a widow to recover damages on account of the death of her husband against two defendants, the jury returned a verdict as follows:
“We, the jury, find the defendants, The San Marcos Electric Light & Power Company, and the San Marcos Telephone Company, both guilty of gross negligence that caused the death of L. B. Compton and therefore assess the damages at 35,000, or in other words, 32,500 [from] each of the Companies, apportioned as follows: the plaintiff, Idalena Compton, to receive from the San Marcos Electric Light & Power Company, 31,500, and also 31,500 from the San Marcos Telephone Company; the plaintiff, A. S. Compton, to receive ’ from the San Marcos Electric Light & Power Company the sum of $750 and also 3750 from the San Marcos Telephone Company; the plaintiff, Mrs. M. A. Compton, to receive from the San Marcos Electric Light & Power Company the sum of 3250 and also 3250 from the San Marcos Telephone Company'.”
The court held that so much of the verdict as apportioned the damages should be treated as surplusage and judgment rendered against both defendants for the full amount fixed by the verdict.
In Robyn v. White, 189 N. W. (Minn.) 577, the jury returned a verdict for plaintiff in proper form, but appended to it the following: “We, the jurors, recommend that the sum of $2,300 claimed to be recovered by this suit be donated to the American Red Cross,” and this was signed by each of the jurors. This was held not to vitiate the verdict. The court said:
“We think the better rule is that when there is a verdict clear and sufficient in all respects, such foreign and irrelevant matter may be rejected as harmless surplusage. It is much the same in principle as a recommendation of clemency.” (p. 578.)
In Lake Erie & W. R. Co. v. Halleck, 136 N. E. (Ind.) 39, being a suit for damages for personal injuries against the railroad company and another, the jury returned the following verdict: “We, the jury, find for the plaintiff against both of the defendants, and assess her damages at $800; Lake Erie & Western Railroad Co., $700; John Jordan, $100.” (p. 40.) The court said:
“It is also well established that: ‘A verdict finding the whole issue, or the substance of it, is not vitiated by finding more; for the finding of what is not in issue is but surplusage.’ Gould, Pleading (9th ed.), 486. It will be observed that the jury by its verdict found for plaintiff against both defendants, and assessed the damages at $800. If the jury had been content to stop there, no objection could be made to the verdict. Not being, so content, the jury assumed to apportion the damages, and in so doing exceeded its jurisdiction, and found ‘more’ than was involved in the issue. Under the rule above cited, which is supported by the weight of judicial authority, that part of the verdict by which the jury attempted to apportion the damages must be treated as surplusage, and does not vitiate that which is necessary and well found. 27 R. C. L. 893; Currier v. Swan, 63 Me. 323; Pearson v. Arlington Dock Co., 111 Wash. 14, 189 Pac. 559; San Marcos Electric, etc,, Co. v. Compton, 48 Tex. Civ. App. 586, 107 S. W. 1151; San Antonio & A. P. R. Co. v. Bowles, 88 Tex. 634, 32 S. W. 880; Windham v. Williams, 27 Miss. 313; Post v. Stockwell, 34 Hun (N.Y.) 375; Washington Market Co. v. Clagett, 19 App. D. C. 12.” (p.40.)
In The State v. Cassady, 12 Kan. 550, the defendant was tried on an information charging burglary and grand larceny. The jury found him guilty of being an accessory before the fact to grand larceny. This was treated as a verdict of guilty of grand larceny and he was sentenced accordingly. The court said:
“The verdict might properly have been simply guilty of larceny. Yet •specifying the particular connection of defendant with the crime did not vitiate the verdict. It wrought no prejudice to his rights.” (p.557.)
In The State v. Wolkow, 110 Kan. 722, 205 Pac. 639, defendant was charged with burglary with explosives, and grand larceny. The verdict was:
“We, the jury empaneled and sworn in the above-entitled case, do upon our oaths find the defendant, Ben Wolkow, guilty of grand larceny, as charged in the information by an agent within the State of Kansas, the defendant, Ben Wolkow, at the time of the commission of said larceny being without the State of Kansas.” (p.727.)
Defendant contended upon his appeal that the information “did not charge appellant with committing a crime by an agent, and therefore he was not, by the verdict of the jury, convicted of the offense charged.” The court said: “This verdict merely contained some unnecessary and surplus matter which could not prejudice the defendant.” (p. 727.)
In Nation v. Littler, post, p. 764, 52 Pac. 96, the jury returned a verdict for plaintiff for a definite amount and assessed one-half of. the costs to each of the parties. The part of the verdict apportioning costs was set aside by the court as being surplusage.
In Hanson v. Kendt, 94 Kan. 310, 146 Pac. 1190, in an action for damages against several defendants, a verdict in favor of the defendants with the additional words “not guilty” was returned. It was held -that the added words were surplusage and did not vitiate the verdict.
In Circle v. Potter, 83 Kan. 363, 111 Pac. 479, the jury returned a verdict for the plaintiff with the addition that certain instruments should be surrendered and canceled of record. The trial court returned the verdict to the jury and instructed them that the matter of cancellation and delivery of the instrument was not before the jury, and the jury, after consideration, returned a verdict for a different sum and without this added matter. This court said that the trial court might have received the first verdict 'and ignored the sur-plusage but that it was within his discretion to return it to the jury.
It has been repeatedly held; in this state and elsewhere, that a recommendation of clemency made by a jury in a criminal case did not vitiate a verdict of guilty, the recommendation being a matter outside of the issues for the jury and being regarded as surplusage.
It will be noted in this case that the verdict of the jury is complete without that part attempting to make an apportionment. Omitting that portion, it reads: “We, the jury, find for the plaintiff against the defendants and assess the amount of plaintiff’s recovery from said defendants at $4,000.” This verdict so read is complete in itself. It is a finding upon every issue submitted to the jury. (There appear to have been no special' findings.) It found, in effect, negligence of both defendants; the amount of injury due to the plaintiff; and the amount that the defendants should pay plaintiff. When the jury had reached that verdict its duties were performed. It could not segregate the damages, and up to that point had not attempted to do so. There had been no request by the defendants for the damages to be segregated. No instruction of the court had authorized the jury to do anything else than find the general verdict. So far as its duty in the trial of this case is concerned, the jury’s functions were completely exhausted. No other question was before it and none other could be decided by it, therefore such additions as it would attempt to make being unauthorized — not in accordance with any request or instruction — cannot be binding upon the court and should be regarded as surplusage.
The judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
HopKins, J.:
Defendants appeal from a judgment setting aside a deed. Early in November, 1918, the plaintiff, who resided at Lincoln, Kan., began negotiations with defendants for the purchase of a stock of merchandise at Eustis, Neb. Plaintiff went to Eustis, taking with him a deed to the southeast quarter of section 2, township 14, range 27, Gove county, Kan., executed by himself and wife, with no grantee named therein. On the 22d of November the parties entered into a contract whereby plaintiff was to purchase from defendants a stock of goods then in the Cash Store at that place, it being specified that the land above described should be accepted by defendants in lieu of $3,500 cash, “deed to said quarter to be put up in escrow in The Pioneer Bank.”
The contract also provided that, “The remainder of the invoice price is to be paid in cash upon, completion of the invoice. The ‘cost price’ shall be understood to be first cost to first parties with no freight added and no discounts to be deducted. If the cost price to the first parties cannot be agreed upon, first party to furnish original invoice or call in a third party to decide the same. The unsalable merchandise shall be taken at its value.”
Invoice of the stock was proceeded with for a few days when the plaintiff, charging defendants with attempting to defraud him by changing the cost marks, refused to proceed further, and the invoicing was never completed.
Defendants put revenue stamps on the deed, inserted their names as grantees, had the deed recorded, and disposed of the stock of goods to other parties.
The first complaint is that the court erred in admitting evidence to vary the terms of the written contract. The contract was silent with reference to the conditions of the escrow. It was neces sary, and therefore proper, for the court to ascertain those conditions.
“The conditions upon which an instrument is delivered in escrow need not, however, be expressed in writing, but may rest in parol, or be partly in writing and part oral. The rule that a contract or instrument made in writing inter partes must be deemed to contain the entire writing or understanding has no application in the case of escrows. It is only necessary that it should distinctly appear from all the facts and circumstances attending the execution and delivery, that the instrument was not to take effect until a certain condition should be performed, and where the language of a written escrow agreement is vague and indefinite, it is the duty of the court in construing it to inquire into the circumstances and conditions existing when it was made, in order to ascei'tain the intention and actual meaning of the parties.” (10 R. C. L. 623.)
There was testimony showing, and we believe the court was justified in finding, that the deed was not to be delivered until the contract had been carried out, and that no legal delivery of said deed was ever made.
Complaint is made of the admission of testimony showing the store was to be closed during the invoice, and that defendants agreed to produce the original invoices. This was not error. The contract states that, “If the cost price to first parties cannot be agreed upon, first party to furnish original invoice.” The very fact that plaintiff demanded the original invoice shows that the parties did not agree as to cost price to defendants.
This court said in Heskett v. Elevator Co., 81 Kan. 356, 105 Pac. 432:
“Parol proof can not be received to enlarge, vary or contradict a complete written contract, but this rule is not applicable to a brief memorandum which on its face is obviously incomplete. As to such a writing, parol evidence may be received, not to contradict the writing, but to show the complete agreement of the parties of which the writing is only a part.” (Syl. fl 1.)
Complaint is made that testimony in reference to the revenue stamps was not permissable under the pleadings. It was permissible to show the affixing of the stamps as one of the incidents or steps taken by appellant in wrongfully filing the instrument for record, and as tending to show nondelivery of the deed. Defendants were not prejudiced.
The evidence is conflicting as -to whether or not appellants changed or caused to be changed the original cost marks on some of the goods. The plaintiff.had extreme difficulty at times during the invoicing in procuring the invoices. It may be readily seen that after continuous unsuccessful efforts to procure the invoices in question, plaintiff became convinced that he was not being fairly-treated. The trial court, after hearing the conflicting testimony, resolved his findings in favor of plaintiff. The record discloses sufficient testimony to sustain such findings, and under the rule, this court will not disturb them. After the interruption of the invoicing, and the recording of the deed, some correspondence was had between the parties. Defendants admit that they otherwise disposed of the stock of goods. They made no claim for damages, and it must, therefore, be presumed that they suffered none.
Forfeitures will be treated with only such tolerance as legal considerations require. (Wilson v. Begshaw, 108 Kan. 543, 196 Pac. 605.)
A forfeiture will not be enforced in favor of a wrongdoer.
Under all of the circumstances of the case it would be inequitable for defendants to receive value for the stock of goods in question and also take plaintiff’s land.
We see no reversible error. The judgment is affirmed. | [
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The opinion of the court was delivered by
MARSHALL, J.:
This action is one in ejectment, for an accounting for rents and profits, and for the partition of real property. Judgment was rendered in favor of the defendants, and the plaintiffs appeal.
A jury was waived, and trial was by the court. The judgment contains special findings of fact, in part, as follows:
“The defendants introduced their evidence and rested, and after argument of counsel the court being fully advised in the premises, finds that Catherine Mahoney died on the 10th day of January, 1921, testate, a resident of Brown county, Kansas, and that her last will and testament was duly and legally admitted to probate and record in the Probate court of Brown county, Kansas, and that ever since the admission to probate as aforesaid, it has been and is now in full force and effect.
“That on the 11th day of July, 1917, and for a long time prior thereto, said Catherine Mahoney was the owner in fee simple and in possession of [certain real property in controversy],
“. . . That on the 11th day of July, 1917, she made and executed her certain warranty deed to Mary Mahoney, Margaret Mahoney, and Catherine Mahonej'’, . . . and delivered the same to The Morril & Janes Bank of Hiawatha, Kansas, to be delivered by said bank to said Mary Mahoney, Margaret Mahoney, and Catherine Mahoney at her death.
“And on said 11th day of July, 1917, said Catherine Mahoney made and executed her certain warranty deed to said defendants, Jeremiah Mahoney and William Mahoney, . . . and delivered said deed to The Morrill & Janes Bank of Hiawatha, Kansas, to be delivered by said bank to said defendants, Jeremiah Mahoney and William Mahonejr, at her death.
“That on said 11th day of July, 1917, said Catherine Mahoney made and executed her certain warranty deed to said defendant Phillip Mahoney . . . and delivered said deed to The Morrill & Janes Bank of Hiawatha, Kansas, to be delivered by said bank to said defendant, Phillip Mahoney, at her death.
“The court further finds that upon the death of said Catherine Mahoney as aforesaid, said bank did deliver and caused to be delivered all of said deeds to the respective grantees in said deeds mentioned and named, and that ever since the death of said Catherine Mahoney, said defendants and each of them have been and are now in the lawful possession of their respective 'pieces and parcels of land above described and set forth and that by reason of the making, executing and delivering of said deeds as aforesaid, said defendants are the owners in fee of the above respective pieces and parcels of land above' described and as set forth in said deeds and entitled to the possession of the same, and that said plaintiffs have no right, title, interest or estate in and to said above-described real estate or any part thereof, and that said plaintiffs are not entitled to recover herein in ejectment or for partition as prayed for.”
The plaintiffs in their brief state—
“The important question for the court to decide is whether or not the appellees are vested of such interest in this property under the ■ deeds in question as to bar the appellants from the shares in the real estate which would fall to them by virtue of the law in the event of the dehth of Mrs. Mahoney intestate as to the real estate.”
This depends on the delivery of the deeds. Was there such a delivery as passed title from Catherine Mahoney to the grantees named therein? The court found that there was. If that finding was supported by evidence, it is conclusive in this court and ends this Jawsuit.
A codicil to the will of Catherine Mahoney was made at the same time that the deeds were' signed. That codicil, in part, reads:
“I have this day made, executed and delivered to be held and delivered by The Morrill & Janes Bank of Hiaw'atha, Kansas, three certain warranty deeds, relating to and effecting the conveyance of the lands described in said three deeds to the grantees named therein, which said deeds are intended and do convey the said lands to the several grantees respectively as in said deeds named. Hereby annulling and making void said will and the first codicil thereto as the sam’e may relate to the land so described in said will and said deeds.”
The deeds and the codicil were written in the office of the probate judge of Brown county, under his direction, at the request of Catherine Mahoney. Each deed was placed in a separate envelope with instructions respectively, as follows:
“To the Morrill and Janes Bank, Hiawatha, Kans. The enclosed deed is delivered to you for [the grantees named in the deed] to be by you delivered to [grantees in the deed] at my death, or in case of his death to be delivered to his heirs.”
There was a slight difference in the wording of the instructions but the meaning of each was the same as that of the others. The three deeds were placed in another envelope, which was sealed and taken to the bank named and given to the president of the bank. The outside envelope had an endorsement on it substantially as follows:
“This envelope contains will of Catherine Mahoney, also three envelopes containing deeds, to be delivered upon notice of decease of testator. Deeds and will delivered to Morrill & Janes Bank in our presence, July 11, 1917, Nannie Ham, Margaret Mahoney, Mary Mahoney.”
The bank, after the death of Catherine Mahoney, delivered the entire package unopened to the probate judge, who opened it and, tinder the directions of the bank, delivered the deeds to the grantees therein named. The larger envelope contained the will of Catherine Mahoney. That will is not in controversy in this action and is important only for the terms of the codicil written on the day the deeds were signed. The evidence supported the finding that the deeds had been delivered. This, case is very similar to Norton v. Collins, 81 Kan. 33, 105 Pac. 26; Elliott v. Hoffhine, 97 Kan. 26, 154 Pac. 225; and Beckley v. Beckley, 99 Kan. 85, 160 Pac. 999.
Other questions were presented on the oral argument, but they are not discussed in the briefs. Presumably, they were not presented to the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The Atchison, Topeka & Santa Fe Hospital Association is a corporation formed for the purpose of providing medical and surgical treatment for the employees of the Santa Fe and associated railway companies. Prior to 1921 its affairs were managed by five trustees, three of them being such ex officio by virtue of holding certain offices in the Santa Fe railway company, the other two being selected from the employees of that company by its president. In that year an action by the state was brought in this court against the hospital association and its trustees challenging among other things the validity of the method by which the two trustees were chosen. That action was dismissed upon the entrance into a stipulation providing for the amendment of the by-laws so that the two trustees to be selected from the employees should be chosen annually at an election in which each employee contributing to the support of the association should be entitled to vote. The stipulation contained the sentence: “All of the trustees of the association shall be persons of good moral character.” Pursuant to the arrangement indicated the by-laws were amended and an election was held in May, 1922, at which the candidates receiving the highest number of votes were R. L. Beeman, who had 12,531, and C. E. Hempstead, who had 9,224. Beeman at once assumed the duties of trustee and has been acting as such. Hempstead attempted to do so but was prevented by the refusal of the other four trustees to recognize him in that capacity. He brought a proceeding in mandamus in the district court seeking a writ compelling such recognition. The defendants filed an answer (supplemented by an amendment) undertaking to justify their conduct on the ground that the plaintiff was not a person of good moral character, inasmuch as he had at one time been prosecuted for forgery, and had lately, while treasurer of an organization of railroad employees, been guilty of embezzling the sum of $17,500. A demurrer to the answer was sustained, and the defendants appeal.
1. The defendants assert that by reason of the provision of the stipulation referred to, which was incorporated in the by-laws, that all trustees shall be persons of'good moral character, the plaintiff being an embezzler is ineligible to that position and therefore they cannot be required to recognize him in that capacity. The plaintiff among other things contends that the defendants are not entitled to question his eligibility and that it cannot be litigated in this proceeding.
It is often said that the title to an office cannot be tried in mandamus. This is a general, but not a universal rule. Quo warranto is the proceeding adapted to the trial of the direct issue of the title to a public office, particularly when made between two contesting claimants. But where a plaintiff asserts, a right which is dependent upon his being a public officer there is no inherent and compelling reason why the fact in that regard may not be determined in the proceeding in which it is asserted, although that happens to be mandamus. (Bailey v. Turner, 108 Kan. 856, 197 Pac. 214.) There is, however, a rule, which is supported by most but not all the decisions on the subject, that the claimant of a public office who brings mandamus to be put into possession of it need only show that he has a prima facie right — such as a certificate of election — and the defendant will not be permitted in that proceeding to go into the question of his eligibility or of the regularity of his selection, such matters being required to be determined by an action to oust him by quo warranto. (18 R. C. L. 263; Note, L. R. A. 1915A 833.) That rule, although a wholesome one, is founded upon convenience and policy and not upon jurisdiction. It is based on the theory that, pending the decision of what may be protracted litigation to determine the ultimate right to an office, it is better that he who has the apparent right — the color of title based on the face of the official returns— shall fill the place; the presumption being for rather than against the validity of his claim. So the holder of the paper title is allowed the speedy remedy of mandamus to gain possession of the office, while he who would challenge his right is relegated to the presumably slower machinery of quo warranto. Whether this rule should be extended to claimants of offices in private corporations does not appear to have been often before the courts. There is a tendency to accord the same treatment to such claimants as to those asserting a right to public offices. (18 R. C. L. 172.) A different practice is indicated by this text statement, to which, however, no case is cited upon the precise point covered by the last clause: “Nor will it [mandamus] be granted where the relator’s right to the [corporate] of fice is not clear, as, for example, when by reason of a personal disqualification he is ineligible thereto.” (26 Cyc. 354.)
Whether or not the rule referred to should apply with equal force with respect to offices in private corporations, it should be extended no further than the reason for it justifies. In our judgment, when the right of one who seeks by mandamus to obtain possession of an office involving (as that now under consideration does) grave responsibilities, financial and otherwise, is challenged in good faith on the ground that he is ineligible because of a disqualification involving turpitude, no public policy requires that he be allowed to perform its duties until the fact in that regard can be judicially determined. If the plaintiff is for the present kept out of the office and finally adjudged to be entitled to it, the association will in the interval have been deprived of the services of an officer competent to act, but this does not outweigh the consideration that if he is now installed and is later found to be ineligible because guilty of embezzlement, the affairs of the association will in the meantime have been administered by a proved felon whose claim of title was invalid. To hold the plaintiff’s demurrer to be well founded is to say that even if he is a confessed embezzler (for so the answer alleges) the court should order him to be placed in a position of trust until that fact shall be established in a new action brought for the purpose of getting him out of it. The impolicy of judicially inducting into office one who is disqualified by want of good moral character is not overcome by the fact that he can afterwards be removed by a judgment in quo warranto unless such result should be prevented by the expiration of his term. “The writ [of mandamus] is employed to promote principles of justice. It will not issue in support of unjust claims, although they may be technically regular.” (State v. Hare, 78 Or. 540, 549.) “It [mandamus] issues to remedy a wrong,'not to promote one, and will not be granted in aid of those who do not come into court with clean hands.” (Turner v. Fisher, 222 U. S. 204, 209.)
The defendants are of course not the judges of the plaintiff’s eligibility; they are not entitled to decide that question. But when they undertake to justify their refusal to recognize him as a trustee by pleading that he is disqualified by reason of lack of moral character a court should not issue a writ of mandamus compelling them to do so, upon pleadings requiring the assumption that he is an unrepentant embezzler.
2. The plaintiff invokes the rule that a demurrer admits only facts that are well pleaded, and contends that the answer does not say that he was guilty of embezzlement, but merely that the defendants had received information to that effect. The language of the pleading bearing on this is as follows:
“Within a short time before the result of the vote for the selection of two trustees of the defendant Hospital Association was announced, the defendants received information that the plaintiff, C. E. Hempstead, who had theretofore for several years occupied the position of Treasurer of the Brotherhood of Locomotive Firemen and Enginemen, a labor organization having members employed on the said railways, and contributing to The A. T. & S. F. Hospital Association fund, had become a defaulter to his Brotherhood, and was short in his accounts, as such Treasurer and as custodian of the funds of said Brotherhood of Locomotive Firemen and Enginemen, in the sum of about $17,500.00; and on May 20, 1922, in the presence of W. K. Etter, Acting General Manager of The Atchison, Topeka and Santa Fe Railway Company, the plaintiff, C. E. Hempstead, confessed that he had been short in his accounts to the amount above stated, but asserted that said shortage had been made up by a payment of $6,000.00 in cash and by securities given to his Brotherhood for the remainder. . . . and defendants aver that the action of plaintiff in failing to account for the moneys received by him as Treasurer of the Brotherhood of Locomotive Firemen and Enginemen was, in legal effect, an embezzlement of the funds of said Brotherhood, and involved moral turpitude and a lack of good moral character.
“Defendants further aver that the Brotherhood of Locomotive Engineers and the Order of Railway Conductors, whose members are employed by The Atchison, Topeka and Santa Fe Railway Company and its auxiliary lines, and who contribute to the support and maintenance of The A. T. & S. F. Hospital Association, defendant herein, and whose membership is very numerous, have protested to the defendants in writing against the recognition of plaintiff as a trustee of said Hospital Association, for the reason that his-acts and conduct as Treasurer of the Brotherhood of Locomotive Firemen and Enginemen, as above set out, do not justify the defendant trustees above mentioned in recognizing him as a person of good moral character, qualified to act as trustee of the Hospital Association.”
The rule that as against a demurrer only facts well pleaded are to be considered is subject to some qualification. Statements are given effect when the attack is by demurrer that would require elaboration if challenged for indefiniteness by motion. If the facts necessary to a cause of action or defense “can be inferred by reasonable intendment from the matters which are set forth” (Pomeroy on Remedies and Remedial Rights, § 549) a demurrer does not lie. The expression that the defendants at a certain time learned of the em bezzlement seems to have -been employed to explain why no earlier action had been taken by them. Whatever want of directness .results is cured by the specific allegation that “the action of plaintiff in failing to account for the moneys received by him . . . was, in legal effect, an-embezzlement.”
3. The answer alleged, also, that in 1901 the plaintiff had forged several checks, amounting to $400, and had been arrested on that account but was discharged by reason of the loss being made good. A record produced by the plaintiff at the hearing in this court recites'that he was arrested and bound over on a charge of forging a check for $15, a memorandum indicating that the case was dismissed in the district court. The remoteness in time of this episode is probably sufficient to admit a presumption of reformation, and the allegation is rather makeweight than of independent force. The time of the alleged embezzlement is not specifically pleaded, although there is room for an inference of its being recent. In the oral argument it was said by the defendants' attorney to have taken place in 1921. The allegation that the plaintiff committed embezzlement is a sufficient specification to sustain the more general averment of want of good moral character. The commission of an offense involving turpitude is conclusive evidence of the lack of that qualification at the time — certainly it would not be contended that such an embezzlement as that described in the answer was consistent with good moral character — and an inference of reformation is not to be drawn merely from the lapse of a brief period. The answer does not in terms allege that the plaintiff has not reformed, but-says that by reason of the facts stated he is not a man of good moral character. No further pleading on the part of the plaintiff is required in mandamus, but if the embezzlement should be established and reformation should be relied on the burden of showing it would be upon him.
4. It is argued in the brief of the plaintiff that the vote by which he was elected by his fellow employees “was a declaration of confidence in him and a prima facie decision that he was a man of good moral character.” Unless the voters at the time of the election knew the plaintiff was an embezzler (as he must be assumed to be for the purpose of the argument) their opinion as to his character could carry little weight for any purpose. And in any event their decision could not affect the fact. If the voters by declaring a man to be of good moral character could determine that issue and render him eligible to membership in the board of trustees the provision inserted in the stipulation in that regard would be merely advisory— without any practical effect whatever. The declaration that “all of the trustees shall be persons of good moral character” imposes an absolute disability upon anyone not having that qualification. It is of the greater force because it is not merely an item in an enumeration of qualifications to fill the office; it is a limitation upon the right to select trustees by popular vote imposed as a part of the very document by which that right was created. A question of eligibility to hold office is not to be determined by the result of an election. We hold that the answer states a defense.
The judgment is reversed and the cause is remanded with directions to overrule the demurrer to the answer. | [
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The opinion of the court was delivered by
BueCH, J.:
The action was one to compel specific performance of a contract to convey three quarter sections of land. The contract was not signed by the defendant’s wife, and one quarter section was a homestead. The court refused specific performance altogether, but awarded damages for refusal to carry out the contract so far as it related to land other than homestead. The plaintiff appeals.
The contract was signed on November 16, 1918. At that time a contract of the defendant to sell the land to Morris W. Fry was on record and unfulfilled. The defendant asserted the contract' was procured by Fry’s fraud, and could be avoided. In view of this situation, the following provisions relating to terms and conditions of sale were inserted in the contract between the plaintiff and the defendant:
“This agreement witnesseth that C. F. Herman . . . has this day bought of S. J. Sawyer, ... on the following terms:
“$3,000, check for which amount is hereto attached, and to be delivered to S. J. Sawyer as soon as abstracts are furnished showing perfect merchantable title to said land. $2,000 mortgage on said land to be assumed by said C. F. Herman, as part payment for said premises, and the balance, $8,200, to be paid as soon as possession is delivered to said C. F. Herman, which is to be not later than March 1, 1919.
“It is agreed between the parties hereto that in case said Sawyer is wholly unable to furnish perfect title to said land, the attached check is to be returned to said Herman and this agreement canceled, and neither party to be hable for damages in any way.”
On November 25, 1918, the defendant' commenced suit to quiet title against the Fry contract, which suit Fry removed to the federal court. Afterward, and in February, 1919, Fry commenced an action in the federal court against the defendant for damages for breach of contract. The petition disclosed a trade of real estate in Kansas City, Mo., for the defendant’s land, alleged that the Kansas City real estate had been taken from Fry because of the defendant’s refusal to perform, alleged that Fry had thus been disabled from performance on his side, and prayed for damages against the defendant. The defendant’s enthusiasm in the prosecution of his own suit against Fry then waned and, when the judgment under review was rendered, in October, 1920, the suit was still pending. Since one quarter section of the land was a homestead, and the contract was not signed by the defendant’s wife, the district court properly excluded that tract from further consideration. The court found the defendant was not able to make perfect title to the remainder of the land, and on that ground refused specific performance.
Exclusion of the homestead from consideration did not prevent specific performance of the contract to convey the remainder of the land. The contract was not “illegal” with respect to the remainder of the land, and the doctrine of entire consideration does not prevent equity from enforcing contracts as far as possible, to the end men may not treat them as scraps of paper, and to the end justice may be done. (Crockett v. Gray, 31 Kan. 346, 2 Pac. 809; Gray v. Crockett, 35 Kan. 66, 75, 10 Pac. 452; Thompson v. Musick, 85 Kan. 399, 116 Pac. 612.)
The provision of the contract governing conduct of the parties if the defendant should be “wholly unable” to perform, related specifically to the outstanding Fry contract, and contemplated, not merely diligence without success, but impossibility. While The de- ■ fendant, led by his counsel, testified he had done everything he could • to get the suit to quiet title disposed of, the patent fact was to the contrary. All he needed to do was to exhibit, on the equity side of the federal court, the pleading filed by Fry on the law side, and a decree would “have been entered whenever applied for.
The perfect title referred to in the provision of the contract just discussed was the perfect merchantable title to be shown by the abstract of title. The quality of merchantableness was to be perfect, and was perfect before March 1, ,1919, the date possession should have been given.' Fry removed the suit to quiet title to the federal court, and necessarily knew its purpose and effect. He then commenced his own action at law, founded on breach of the contract sought to-be canceled in the equity suit. He asserted he could not qualify himself to claim the land, and claimed damages. He .thereby elected to waive, on the record of the federal court, all claim of interest in the land itself, quite as effectually as if he had disclaimed in the' equity suit. A voluntary release or discharge of the contract would not have made the title any better. The only difference would have been that the release would have appeared on the records in the office of the register of deeds of Lane county, while the waiver appeared on the records in the office of the clerk of .the United States district court for the district of Kansas. In either case a proper abstract would have disclosed the state of the title.
The judgment of the district court is reversed, and the cause is remanded with direction to award specific performance of the contract, excluding the homestead, making proper abátements of price, and to award such damages as the plaintiff may have suffered on account of the defendant’s contumacy. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a suit for damages for the breach of a covenant against encumbrances in a general warranty deed. The case was tried to the court in part upon an agreed statement of facts, and in part upon evidence offered. Judgment was for the defendant, and the plaintiff appealed. The plaintiff purchased the real property in controversy and the same was conveyed to him by a general warranty deed. Plaintiff claims that there was a lease on the premises at the time of the purchase, and that because thereof the covenant of the deed against encumbrances was broken, and that he was damaged thereby.
The defendant, a resident of Iowa, owned 120 acres of land in Gove county, Kansas, which he had owned for several years, and prior to the year 1919 had leased the same from time to time to various parties for crop rent. For the year 1919 he leased the property to one Roy Ochs, for $85 cash rent. On March 1, 1920, the tenant wrote defendant about renting the land for the year 1920 and offering to give “the same rent as last year, $85, for the next year 1920.” In reply to that, defendant wrote “If you wish to renew the rental of the land you must remit this spring the increased rental, amounting to $150.” The tenant wrote that he couldn’t afford to pay the rent and didn’t want it, but he offered to take it at the same price as the year before, and sent a check for $85. The defendant returned this check to the tenant, refused to accept that rent for the land, and directed him to vacate the premises. No other arrangements were made about the tenancy for the year 1920. The defendant was endeavoring to sell the land and thought it vacant and unoccupied.
On April 4, 1920, defendant wrote plaintiff offering this farm for sale, stating in the letter, among other things, “Can give possession at once.” On June 5, 1920, plaintiff wired defendant, “I will take your Gove county land as per letter. Send contract and deed to Farmers National. Bank, Osborne, Kansas. Please wire me acceptance of sale.” On the same date, defendant wired plaintiff, “Your land. Will send papers as directed.” Defendant did send the papers to bank as directed, but because of some delay in bringing the abstract to date, and meeting some requirements as to the title, the deed was not delivered to plaintiff until August 7, 1920, the deed delivered having been executed by the defendant on June 18. There was, in fact, a crop of volunteer wheat on the land, which the defendant knew nothing about, and which his former tenant, Roy Ochs, harvested and threshed. It is agreed that the wheat crop was of the value of $4,000; that the customary rental on wheat land in Gove county at that time was one-fourth of the crop delivered at the market.
The first question to be determined is whether or not there was any lease on these premises. No one contends that any lease was actually made between the defendant and Roy Ochs for the year 1920. If Roy Ochs was a tenant at all, he was a “holdover tenant” under his former lease.
Section 5957 of the General Statutes of 1915, reads as follows:
“When premises are let for one or more years, and the tenant with the assent of the landlord continues to occupy the premises after the expiration of the term, such tenant shall be deemed to be a tenant from year to year.”
Can it be said under the above circumstances that Roy Ochs held over as a tenant for 1920 with the assent of the defendant? He had leased the premises for only one year on a cash basis of $85. He wanted to lease it for another year on the same terms; this the owner of the premises refused to do, and when Ochs rather persisted, and sent a check for the rent, the same was returned to him with a refusal to lease, and a direction to vacate the premises. So it seems clear that if Óchs did continue to occupy the premises, such occupancy was not with the assent of his landlord. Some other questions are ably argued by counsel, but with the view we have already expressed as to whether or not there wás a lease, it will not be necessary to discuss them. ■
The judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Poster, J.:
The action was one to recover the value of a certain promissory note which the plaintiff claims she was entitled to receive from the appellant. The case is this.
John L. Agnew, the appellant, had in his possession $2,000 belonging to the appellee, Mrs. M. R. Spencer. By arrangement they met at the Traders State Bank, at Salina, to make settlement. One thousand dollars of the claim was paid to her in the form of a note and mortgage with some cash. Agnew then produced a promissory note which he held in his hand and stated to Mrs. Spencer that it was a thousand-dollar note of the Salina Light, Power & Gas Company, and said to her, “Will you take this note for the remaining thousand dollars?” She knew the light company was perfectly good, and Agnew knew that her son-in-law was secretary of the company. She said that she would take the note for the other thousand dollars. She expected it to be turned over to her, but Agnew said that the note was to be left with C. B. Kirtland, an officer of the bank, for collection. Kirtland was called in, and Agnew stated to him that a settlement had been effected, and the note was handed over to Kirtland. When it matured, about a year later, Mrs. Spencer requested Kirtland to bring the note to her at her home. He called there, paid her a year’s interest on the $1,000, and when she asked for her light company note he offered her three other notes, referred to in the evidence as the “Broeker notes,” which she refused to accept. She inquired what had become of her light company note. Kirtland made no answer to this question, and left her. Some time later Mrs. Spencer discovered that Agnew never had a light company note for a thousand dollars, and that no such note had been turned over to Kirtland. She sued both Agnew and Kirtland. Each answered that a note of the light company for that amount had been delivered to her and left with Kirt-land for collection, and that he had collected the note and reinvested the proceeds in three other notes. Issues were joined and a trial had, in which the jury returned a general verdict against Agnew for the amount of the note and interest. Among the special findings returned was the following:
“Q. 13. Did the defendant, John L. Agnew,. have anything to do with the business of the plaintiff and the Traders State Bank after March 29, 1917. A. No.”
Agnew contends that because of this finding by the jury, Mrs. ■ Spencer could not have been injured in any manner by his action. The argument is based in part upon the answer of. Agnew’s co-defendant, Kirtland, in which he alleged that on the 29th of March, • 1917, Mrs. Spencer left in his custody a certain thousand-dollar note, executed and delivered by the Salina Light, Power & Gas Company, with instructions that if the note was paid to reinvest the proceeds in other notes in accordance with his best judgment, so as to net her not less than six per cent per annum. Kirtland’s answer also alleged that he had followed these instructions. The appellant next argues that the general verdict in favor of Kirtland amounts to a finding that everything he set up in his answer was absolutely true, and that therefore appellant was relieved from any liability for what occurred after the 29th of March, 1917. Presumably the appellant also relies upon the verdict in favor of Kirt-land as a finding that the appellant fully complied with any promises he may have made to deliver a certain note to the appellee on that date. The entire contention ignores the fact that the jury also found in favor of the appellee and against Agnew. It ignores the testimony of an auditor who examined the bank books, and the secretary of the light company who had examined the records of that company, which established that no -such note as the one Agnew represented he was turning over to the appellee was in existence at the date of the settlement. It is probably true that Kirtland received a note of some kind for a thousand dollars; and he may have collected the same and reinvested the proceeds; but the appellee’s testimony was that she had never given him authority to reinvest any money for her. As suggested in the ap-pellee’s brief, if Agnew turned over another note to Kirtland and he appropriated it or its proceeds the .loss does not fall on the plaintiff. If she had agreed to exchange her claim for a horse she could not be compelled to receive a mule.
The rule is that a party is entitled to recover, for a breach of contract, such damages as are the natural, direct and proximate result of the breach. (Speed v. Hollingsworth, 54 Kan. 436, 441, 38 Pac. 496; George v. Lane, 80 Kan. 94, 102 Pac. 55. Stroupe v. Hewitt, 90 Kan. 200, 133 Pac. 562; McDanel v. Whalen, 91 Kan. 488, 492, 138 Pac. 590; Epp v. Hinton, 91 Kan. 513, 516, 138 Pac. 536.)
In this case Mrs. Spencer was entitled to the benefit of her bargain.
The jury were unable to say whether Agnew on the date mentioned turned over to the appellee a note for a thousand dollars upon the settlement that day at the Traders State Bank, but did find that at the time of the settlement Agnew did not own or have in his possession a one-thousand-dollar note of the light company, and that by the terms of the settlement Mrs. Spencer was to have that particular note in part payment of her claim against Agnew. Another finding is that she never accepted in lieu thereof the one-thousand-dollar note of anyone else.
The fact that Agnew had nothing to do with the business between Mrs. Spencer and the bank after March 29, 1917, would not relieve him of liability for the wrong perpetrated upon her at the settlement. Therefore the answer of the jury to question No. 13 is a finding of a fact of no importance in determining the rights between Mrs. Spencer and Agnew.
It is insisted that the 8th instruction is erroneous for the reason that it authorized a verdict against Agnew if the jury found that in the settlement he represented to Mrs. Spencer that he was delivering the note of the light company, which representation was false, provided they found from the evidence that plaintiff relied upon his representations and believed that the note she was receiving was the note of the light company. The complaint is that the court did not couple with these provisos another to the effect that the jury must also find she was injured; but in the 12th instruction the court charged that before the jury could return a verdict against Agnew they must find that Mrs. Spencer was damaged by his acts. The claim of error is predicated upon the singling out of a particular instruction and ignoring the instructions in their entirety. The appellant concedes that if the instructions are considered together they correctly state the law. ! The rule is that they will be considered in their entirety.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Pohtek, J.:
Plaintiff sued for the conversion of exempt property; alleging that its value was $650. J. M. Palmer, one of several defendants, alleged in his answer, by way of cross-petition, that plaintiff was indebted to him in the sum of $1,113 and asked judgment against plaintiff for that amount. Issues were joined, there was a trial which resulted in a general verdict for defendants; but in answer to special questions the jury found that plaintiff owned the property, that its value was $310, and that defendant, J. M. Palmer, was entitled to recover the same amount from plaintiff. A motion to set aside the general verdict and for judgment in plaintiff’s favor was overruled, and he appeals.
A judgment against a defendant for the value of plaintiff’s exempt property cannot be offset by a debt owing from him to the defendant. (Treat v. Wilson, 65 Kan. 729, 70 Pac. 893.) In that case it is said:
“The judgment recovered by plaintiff 'was for the value of this exempt, property. The judgment so obtained stands in the place of the property and is exempt to plaintiff. As defendant could not have seized the horses exempt to plaintiff on execution issued for the enforcement of his judgment, if they had remained unsold, because they were exempt, he cannot, by way of set-off in this action, or other legal proceeding, seize and apply the judgment obtained by plaintiff as the owner of such exempt property, (p. 733.)
It is well settled that the proceeds of exempt property are exempt to the debtor for a reasonable time to enable him, if he see fit, to invest the money in other exempt property. (Bank v. Moore, 111 Kan. 344, 206 Pac. 907; Continental Ins. Co. v. Daly, Adm’x, 33 Kan. 601, 608, 76 Pac. 158; Treat v. Wilson, supra, Millinery Co. v. Round, 106 Kan. 146, 149, 150, 186 Pac. 979.)
The defendants concede that if this were the only question in the case the judgment must be reversed, but insist that where the owner of exempt property sues for its value instead of for a return of the property, he thereby elects to sell the property to the defendant. In replevin, as in conversion, plaintiff must recover solely on the ground that the property taken is exempt. If defendants’ theory were correct the exemption law could readily be defeated in every case in which the specific property could not be returned. A re-plevin action may always proceed as one in conversion where the property itself cannot be recovered; and the plaintiff may be compelled to sue in conversion because of his inability to give the bond required in replevin. We think the defendant is in no position to gain any advantage by the choice of remedies chosen by the plaintiff. It is true, a debtor may always sell his exempt property in satisfaction of a debt, but he cannot be compelled to sell it for that purpose, nor will he be held to have intended so to do merely because he prefers to have the value rather than the return of the specific property when it-has been taken from him unlawfully.
It follows that the judgment is reversed and the cause remanded with directions to render judgment for plaintiff. | [
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The opinion of the court was delivered by
Kaul, J.:
Plaintiff-appellant instituted this action for damages for personal injuries against his employer, The City of Haysville, defendant-appellee. Plaintiff has appealed from a summary judgment entered in favor of defendant.
Plaintiff attacks the summary judgment on two' grounds: First, that it was entered in violation of procedural requirements of K. S. A. 60-256 (c) and, second, it was based on an erroneous finding that plaintiff did not comply with the requirements of K. S. A. 12-105 before bringing the action. Plaintiff further claims the trial court erred in sustaining an objection to interrogatories which plaintiff had propounded to defendant.
Plaintiff was employed by defendant in 1960. His work was in defendant’s water conditioning and purification plant where he worked around and with the chemicals alum, lime and chlorine. Plaintiff’s employment continued until March 31, 1966. On April 13, 1966, plaintiff entered St. Joseph Hospital and was dismissed on April 20, 1966.
On June 14, 1966, plaintiffs counsel addressed a letter to the city clerk of the City of Haysville. The letter stated that plaintiff was totally disabled, as a result of inhaling chemical dust over a long period of time, and that notice was being made pursuant to K. S. A. 12-105.
On oral argument it was conceded that the date of plaintiff’s letter to the city clerk was June 14, rather than July 14, 1966, as found by the trial court. The finding of the trial court in this regard appears to have been based on plaintiff’s oral motion to amend in which he mistakenly fixed the date of his communication as July 14.
Plaintiff first filed the action against McKesson and Robbins Chemical Company, who supplied defendant with chlorine gas. Plaintiff later filed an amended petition naming the City of Haysvills as a defendant. He alleged the city failed to furnish him a safe place to work in that he was assigned to work around alum, lime and chlorine gas, and as a result developed pulmonary emphysema. He further alleged he became aware in April 1966 that he was suffering a lung ailment, permanent in nature.
Defendant answered alleging plaintiff had failed to state a cause of action, had assumed the risk of his employment, was guilty of contributory negligence, and that the action was barred for failure to comply with K. S. A. 12-105 and/or K. S. A. 14-441 (Repealed by Laws of 1968, Ch. 375, Sec. 19.)
The action was subsequently dismissed as to McKesson and Robbins Chemical Company.
On July 24, 1967, defendant filed a motion for summary judgment which was initially overruled. At a pretrial conference, on November 29, 1967, defendant’s motion for summary judgment was orally renewed and sustained. After noting appearances and granting plaintiff leave to amend his petition by alleging service of notice, pursuant to 12-105, supra, the pretrial order and judgment in pertinent part read:
“Thereupon defendant City of Haysville, Kansas, orally moved the court for an order of summary judgment as concerns the City of Haysville, Kansas. The court having considered the pleadings, admissions of counsel, depositions, exhibits and various interrogatories with answers thereto filed herein as well as the contentions and authorities submitted by the parties and being fully advised in the premises finds that:
“1. Plaintiff had knowledge as to the alleged nature and cause of his physical condition for which he seeks recovery of damages of and from the defendant City of Haysville, Kansas, in July or August of 1965.
“2. Plaintiffs communication to the City of Haysville, Kansas, under date of July 14, 1966, does not comply with the requirements of K. S. A. 12-105 and plaintiff may not maintain a cause of action against the City of Haysville, Kansas.
“3. Thereupon the court concludes as a matter of law that the motion for summary judgment by the defendant City of Haysville, Kansas, should be sustained.”
Plaintiff next filed a motion asking the trial court to set aside the summary judgment. With this motion plaintiff filed an affidavit stating that although he learned he had pulmonary emphysema in August, 1965, he was not informed until April of 1966, that his condition was connected with lime, alum and chlorine.
On December 13, 1967, the trial court overruled plaintiff’s motion to set aside the summary judgment and this appeal followed.
Although plaintiff did not object at the pretrial conference to defendant’s motion for summary judgment on the grounds of insufficient notice or that it was oral, he now claims the motion should not have been entertained. We further observe that these grounds were not raised in plaintiff’s subsequent motion to set aside the summary judgment.
The identical question was before this court in two recent cases, in each, of which, the issue was determined adversely to plaintiff s contention. (Collins v. Meeker, 198 Kan. 390, 424 P. 2d 488, and Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P. 2. 1019.)
In considering the point in the Collins case it was stated:
“At this point we take note of the plaintiff’s insistence that the trial court erred in rendering summary judgment at a pretrial conference without previous notice and without a motion for summary judgment having been filed. This identical issue was raised in the recent case of Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P. 2d 1019, where it was determined adversely to the plaintiff’s contention. No good purpose would be served by repeating all that was said in the Green opinion. We believe it sufficient here, to reiterate that a trial court has inherent power to dispose summarily of litigation where no genuine issue exists as to any material fact and where, giving effect to every reasonable inference which can be drawn from the evidence, judgment must be for one party or the other, as a matter of law. Such authority may be exercised by a trial court even though no motion has been filed or prior notice given, provided neither party is placed at a disadvantage because thereof.” (p. 393.)
We turn next to the controlling question whether there remained a genuine issue of fact at the time summary judgment was entered. The determination of this issue depends upon the application of 12-105, supra, to the pleadings, depositions and interrogatories in this case, construed in the light most favorable to plaintiff, as the party opposing the motion. (Herl v. State Bank of Parsons, 195 Kan. 35, 403 P. 2d 110.)
K. S. A. 12-105, insofar as pertinent to our consideration, provides:
“No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within three (3) months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and the circumstances relating thereto: . . .”
The crux of plaintiff’s argument is that the time contemplated in the statute did not commence to run until after the full nature and cause of his injury became known to him, which he fixes in his notice as April 13, 1966, when his condition was diagnosed as permanent lung damage from pulmonary emphysema producing total permanent disability. Plaintiff further asserts the summary judgment, based on the premise that he had knowledge of the nature and cause of his physical condition in July or August 1965, necessitated a finding of fact which was in good faith disputed. In other words, the only issue framed on appeal is whether there is a good faith question of fact as to plaintiff’s knowledge of his injury and the cause thereof when he was hospitalized in 1965.
In his deposition plaintiff described his work and the events leading up to his hospitalization in 1965. When he commenced his employment in 1960; plaintiff knew he would be required to work with alum, lime and chlorine. The method of operation of defendant’s water plant remained the same during the term of plaintiff’s employment. Two or three times each day plaintiff was required to empty eight to ten fifty pound sacks of lime into a hopper, which fed the lime into the water purification plant. Plaintiff stated that he would use from thirteen to twenty-five fifty pound sacks of lime per day. He would cut the sacks and dump the lime into the hopper; dust would roll up out of the hopper and choke plaintiff to the point where sometimes he would have to run outside for fresh air. He stated that sometimes when he dumped two or three sacks he would have to get out; that he was “choked up, smothered down.” He also stated that he got worse and worse the more he emptied lime and alum into the hopper.
Every other day plaintiff dumped a hundred pound sack of alum into the hopper and he stated that his reaction to the alum was just the same as with the lime dust.
Every ten days to two weeks plaintiff was required to change bottles of chlorine gas. About two years after plaintiff started working in the water plant a union, which connected the chlorine bottle with the plant, broke, gas escaped which plaintiff smelled, he shut the bottle off and got out as quickly as possible. Plaintiff stated that after smelling the gas he could not breathe; it took him three to four hours in the fresh air to recover and it made him sick, causing him to vomit. He described the effect of the chlorine gas as being just like the lime dust, “He just couldn’t breathe.”
In August of 1965 (hospital records show it to be July) plaintiff became aware of a lung problem and was hospitalized. In his deposition plaintiff described the events as follows:
“Q. Well, In August of ’65, what were the symptoms that made you think you had a lung problem for the first time?
“A. I came down out of the lime room after putting the lime into the hopper, which we do two or three times a day, and I got downstairs and I was so choked I couldn’t breathe.
“Q. Your lungs were filled with lime dust, were they?
“A. Lime dust, and I couldn’t breathe, and I called my foreman and he sent me a man — my wife came and got me and took me to the emergency room of the St. Joe Plospital.
“Q. How long were you in St. Joe Hospital?
“A. As near as I can recall, eight days.
“Q. Who treated you there?
“A. Dr. Purinton.
“Q. And after the eight day time in the hospital, did you go back to work?
“A. Yes, I went back to work.
“Q. But, as I understand you — did he diagnose your condition as emphysema at that time or did he know what it was at this point?
“A. Yes, yes.”
After his 1965 hospitalization, plaintiff returned to work and continued until March 31, 1966, when he became totally disabled, according to “The doctor’s advice.” Plaintiff stated his physical condition which caused his disability was pulmonary emphysema and that his lung condition occurred as near as he could tell in August of 1965, when he experienced lung problems for the first time.
Plaintiff also admited that he knew he had an asthmatic condition in 1958, before he commenced his employment with defendant.
From his own testimony it is quite apparent plaintiff knew, at least by July 1965, he had a lung condition and that it continued to get worse “the more he dumped lime and alum into the hopper,” and culminated in his choking attack, which required seven days hospitalization in 1965.
A diagnosis of plaintiff’s condition in 1965, the causes thereof and the medical advice given, are set out in the deposition of plaintiff’s physician, Dr. Lew L. Purinton, as follows:
“Q. Now, Doctor, let’s turn to the pulmonary emphysema. Did you form any opinion as to the cause of that physical condition?
“A. Well, I think the same answer would apply, . . .”
“Q. Well, to sum up your conclusion from Mr. Powell’s initial confinement in the hospital, you concluded, and correct me if I misunderstood you, that his exposure to lime dust, his exposure to chlorine gas and his smoking was probably the aggravating condition or the cause of his physical condition at that time?
“A. This is true, I would like to alter it just a little bit. I didn’t feel and and don’t feel at the present time that the inhalation of the dust and the gas was the whole picture. I am sure there were many other factors involved, including smoking and including factors that we don’t understand today and didn’t understand then, but I did feel that the inhalation of the dust particles and the chlorine gas had an aggravating factor to it.
“Q. Doctor, did you have any source of information as to extent of his exposure to lime dust?
“A. Only indirectly, and this came from him and, again, no notes, but I remember he specifically telling me that when he had to empty those bags that the air was white with dust, so to speak, so it must have been a fairly heavy exposure at this time. I really can’t tell you how often he did this, but I got the impression that this was a frequent thing that he did throughout his daily work. . . .
“Q. Doctor, if the source of information relative to his exposure came from Mr. Powell you must have discussed these conditions with him, is that a fair assumption?
“A. Yes, we discussed it a number of times.
“Q. Well, do you recall whether or not during his first hospitalization you gave him any instructions or any warnings relative to subsequent exposures?
“A. We discussed about the frequency of the exposure and that his continued exposure would probably keep his asthmatic condition going.
“Q. All right.
“A. And I advised him to limit the exposures as much as he possibly could. As my recall is, he told me (he) had no other job he could do out there and there wasn’t anybody else that could do this so he was going to have to do it, so we left it at that.
“Q. As I understand it, during his initial confinement in the hospital in 1965, you warned him that repeated exposures to these — to lime dust and chlorine gas would have a harmful effect on his physical well being?
“A. This is my recollection.
“Q. All right, Doctor, would you just kindly tell us as best you can recall what the conversation was relative to future exposures to these conditions?
“A. You are referring to the first hospitalization?
“Q. Referring to the first hospitalization.
“A. We discussed the overall problem with him and this included his exposure to the dust particles in his work as well as to his smoking, and he was advised to limit as much as possible the exposure to the dust that he came in contact with in his job, he was also advised to stop his smoking.
“Q. And the purpose of that advice was to free him from further physical problems, was it not Doctor?
“A. The purpose of that was to limit and to hopefully stop his asthmatic problem.”
After he was released from the hospital on August 2, 1965, plaintiff was not seen by Dr. Purinton until he was again hospitalized on April 12, 1966. With reference to any change in plaintiffs lung condition during the interim, Dr. Purinton testified:
“Q. Well, Doctor, based on your training, your medical training, your medical experience and your examinations of Mr. Powell, can you tell the court and jury that Mr. Powell’s employment and the conditions of his employment had any effect upon his health between July 26, 1965 and April 12, 1966?
“A. From my examination, I didn’t think there had been any particular change. He claimed to have further and progressive difficulty, his subjective complaints were that his asthma had gotten worse, but on his examination I wasn’t able to discover any appreciable change in his condition.”
When asked again concerning any change in plaintiff’s condition, the doctor testified:
“A. I think I answered that earlier that I hadn’t detected any appreciable change, although he complained that his symptoms were worse, but his examination failed to reveal any outright evidence of any progression.”
Plaintiff asserts that his affidavit filed in support of his motion to set aside the summary judgment creates a fact question in that he denied he was told of a connection between his lung condition and his work with lime, alum and chlorine. The effect of his affidavit is an attempt to impeach the testimony of his own doctor. Further, plaintiff’s own testimony conclusively shows that he knew his exposure to dust, under the conditions he related, adversely affected his condition and caused the severe attack in 1965.
Except under conditions not prevailing here, plaintiff may not by his subsequent affidavit impeach his previous testimony upon deposition or the testimony of his attending physician and sole medical expert. (Amerine v. Amerine, Executor, 177 Kan. 481, 280 P. 2d 601, and Steele v. Woodmen of the World, 115 Kan. 159, 222 Pac. 76.)
Since the enactment in 1903 of the precursor of K. S. A. 12-105, this court has repeatedly held the timely filing of a statement re quired by the statute to be a condition precedent to maintaining a suit against a municipality.
The mandatory compliance with the requirements of K. S. A. 12-105, as a condition precedent to the maintenance of an action against the city to recover personal injury or property damage, is discussed in depth, and decisions dealing with the subject are reviewed, in the recent case of Workman v. City of Emporia, 200 Kan. 112, 434 P. 2d 846, and need not be restated. It suffices to say that on the record before us here the trial court correctly ruled that plaintiff had failed to meet the requirements of the statute.
Plaintiff cites and relies heavily on the cases of Morris v. Dines Mining Co., 174 Kan. 216, 256 P. 2d 129; Kitchener v. Williams, 171 Kan. 540, 236 P. 2d 64, and Urie v. Thompson, 337 U. S. 163, 93 L. Ed. 1282, 69 S. Ct. 1018, 11 A. L. R. 2d 252. These cases deal with the application of statute of limitations; Morris and Kitchener with respect to a common-law tort action and Urie with respect to an action brought under the Federal Employers’ Liability Act. The thrust of the decision in each case is that the statute of limitations does not commence to run so as to bar an action until the complaining party has suffered substantial damage as in Kitchener or the injury became ascertainable as in Urie and Morris, as distinguished in point of time from when a defendant’s first negligent act occurred.
Both Morris and Urie suffered silicosis allegedly resulting from exposure to dust.
In fixing time with respect to the statute of limitations under the Federal Employers’ Liability Act, the United States Supreme Court in Urie adopted the rule as follows:
“ . . It follows that no specific date of contact with the substance can be charged with being the date of injury, inasmuch as the injurious consequences of the exposure are the product of a period of time rather than a point of time; consequently the afftcted employee can be held to be “injured” only when the accumulated effects of the deleterious substance manifest themselves. . . ,’”(p. 170.)
The nature of plaintiff’s ailment was manifest and its connection with his employment was fully known to him in 1965, when he could have instituted an action.
Plaintiff complains the trial court erred in sustaining an objection of defendant to interrogatories propounded during the course of pretrial discovery proceedings. Apparently, the objection was sustained on the grounds that the interrogatories were too indefinite and framed to elicit answers which would not be admissible in evi dence under K. S. A. 60-451. The issue raised by plaintiff is not precisely framed by the record before us. Apparently, the interrogatories in question concerned whether the city had made alterations or repairs to the water plant subsequent to April 1, 1966. It appears from the record that some interrogatories, dealing with the same subject, were subsequently submitted to, and answered by, defendant. In any event, plaintiff fails to show how he was prejudiced, as the issue of negligence on the part of defendant was not resolved or considered by the trial court in rendering the summary judgment appealed from.
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal from the judgment of the district court of Dickinson County, Kansas, finding the joint will of Herbert Dix Chronister and his wife, Mabel Belle LaForce Chronister to be contractual. These parties will hereafter be referred to as Herbert and Mabel.
The facts are essentially undisputed. On September 4, 1951, Herbert and Mabel Chronister executed a joint will in which they bequeathed all property owned by them either jointly or severally to the survivor of them, for his or her own personal use and benefit forever, and after the death of the survivor directed their executors to distribute the remaining household furnishings and effects to five beneficiaries, and to sell the remainder of their property, both real and personal, at public or private sale, and distribute the proceeds thereof to the five named beneficiaries, who are shown by the record to be nieces and nephews of Herbert. We shall refer to the will in more detail in the progress of this opinion.
Herbert died September 16, 1951, and on Mabels petition the joint will was admitted to probate by the Butler County Probate Court as Herbert’s will. Herbert’s estate was settled November 6, 1952, at which time the probate court found that Mabel was entitled to the estate during her lifetime with power of disposal, and assigned all property, real and personal, to Mabel to be “held and used or disposed of during her life time, and any estate remaining at the time of her death shall upon proper proceedings be assigned to [the five beneficiaries].”
On August 24, 1965, Mabel executed a second will after having first consulted with John Lehman, an Abilene attorney. In this will Mabel bequeathed 562 shares of Colgate-Palmolive Company stock valued at some $13,000 to her sister, Edith Kessinger, and her children, share and share alike, and devised and bequeathed the rest and residue of her estate to the same nieces and nephews of Herbert named in the joint, or first, will. Mabel died August 22, 1966, and her will was offered for probate in the Dickinson County-Probate Court two days later. As a defense to the admission of Mabel’s will to probate, the executors named in the joint will filed an answer in which they prayed that Herbert and Mabel’s joint will be allowed as Mabel’s last will and testament, and that it be enforced against her estate as a contract.
The cause was thereafter transferred to the district court where, on motion of the executor of Mabel’s will, the district court entered summary judgment admitting her will to probate but reserving jurisdiction to determine whether the joint will of Herbert and Mabel was contractual. At a subsequent hearing on the contractual issue alone, the trial court found the joint will to be contractual on its face and entered judgment accordingly. Mabel’s sister, Mrs. Kessinger, and her two children have appealed from this judgment.
Ry way of preliminary comment, we pause here to reiterate what was said in Menke v. Duwe et al., 117 Kan. 207, 216, 230 Pac. 1065, that a single instrument may be both a will contractual in character, and a contract testamentary in nature; as a will it is revocable but as a contract it is enforceable; and although a contractual will revoked by execution of a second will, cannot be probated, it may nonetheless be enforced as a contract against the estate of the testator breaching it.
The respective positions of the parties to this appeal may be summarized, essentially, in this way: the appellees, who will be referred to herein collectively as the Chronisters, say the will is not ambiguous, that it is contractual on its face and that extrinsic evidence is not admissible to refute its contractual character; while the appellants, to whom we shall hereafter refer as the Kessingers, contend the will is ambiguous, that it does not show up on its face that it is based on contract, and that extrinsic evidence is admissible to establish there was no agreement or contract.
There has been no dearth of litigation in this state over wills which were claimed to be contractual. At first glance, some of our pronouncements on the subject may appear to follow somewhat divergent paths, but more assiduous study should reveal to a discerning eye several guide posts placed along the route to direct a wary traveler to and along the true highway. While we do not propose to discuss each of our former decisions relating to contractual wills, we think several must be noted as having special significance in the emergence of principles which are controlling in this area.
It may first be relevant to point out that disputes may arise as to whether or not a will is contractual, not only when the will is joint in form and contained in a single common instrument, but also when it is drawn in the form of a separate document. No matter which class it comes under, a will may be claimed to be the product of a pre-existing agreement. (See Frontier Lodge v. Wilson, 139 Kan. 75, 30 P. 2d 307; In re Estate of Pennington, 158 Kan. 495, 148 P. 2d 516; Eikmeier v. Eikmeier, 174 Kan. 71, 254 P. 2d 236.) Unless otherwise noted, cases cited throughout this opinion fall within the first category.
In a comparatively early case, Lewis v. Lewis, 104 Kan. 269, 178 Pac. 421, a will which had been executed jointly by a husband and wife was held by this court to be contractual on its face. In response to a contention that there was no evidence to establish that the testators had entered into any contract to make a will, the court replied:
“. . . How could such a will be voluntarily executed if there was no agreement or understanding that it would be made? The will itself, its terms, and its execution, are evidence that such a contract was made. . . (p. 273.)
Since the Lewis case was decided, this court, on a number of occasions, has construed a will which was jointly executed as establishing, per se, a contractual character. In a few instances, specific reference to an existing agreement was set out in the will itself. (Warwick v. Zimmerman, 126 Kan. 619, 270 Pac. 612; Berry v. Berry, 168 Kan. 253, 212 P. 2d 283; In re Estate of Buckner, 186 Kan. 176, 348 P. 2d 818.) In other cases, where specific reference to a prior contract was lacking, wills have been construed as contractual on the basis of specific provisions or terms, one of the common denominators usually being a provision for the disposition of property after the death of the survivor. See, In re Estate of Adkins, 161 Kan. 239, 167 P. 2d 618; Beall v. Hardie, 177 Kan. 353, 279 P. 2d 276; In re Estate of Weidman, 181 Kan. 718, 314 P. 2d 327.) Such a provision was found among the provisions of the will in the Lewis case.
Three opinions of recent origin deserve particular mention, for within their boundaries are mirrored the essence of our decisions in the domain of joint contractual wills. In the case of In re Estate of Miller, 186 Kan. 87, 348 P. 2d 1033, this court, speaking through Mr. Justice Schroeder, reviewed many of our earlier decisions and said:
“The existence or nonexistence of an agreement or contract is in its very nature a fact. In the cases where wills have been held to be contractual, it will be found that either the wills expressly recited that they were contractual, or the fact that they were contractual was established by evidence. (In re Estate of Pennington, 158 Kan. 495, 148 P. 2d 516; and Frontier Lodge v. Wilson, 139 Kan. 75, 30 P. 2d 307. . . . (p. 94.)
“Reciprocal provisions in mutual wills are insufficient to make the will contractual. The general rule is that the execution of a joint will is not of itself sufficient evidence of an enforceable contract to devise between the testators, so as to make the contract enforceable in equity. . . .” (pp. 95, 96.)
In discussing Lewis v. Lewis, supra, Justice Schroeder, after first observing that the language used in that case was rather broad, and that the court had made specific reference in its opinion to “the will itself, its terms,” proceeded to say:
“The case, in effect, holds that where a joint and mutual will is executed by a husband and wife the will itself and its terms may be taken into consideration as circumstantial evidence upon which to base a finding that the will is contractual. This is not to say that the execution of a joint and mutual will compels such an inference.” (p. 97.)
The conclusion of this court in the Miller case appears on page 98 of the opinion:
“A reading of the joint and mutual will of James and Elsie in the instant case shows it to be wholly lacking in any language which would indicate that it was contractual. If it was the intention of the parties to have a contract, it would have been an easy matter to have worded the will to express such an intention. How can it be said that James and Elsie, [the testators] contracted to leave their property to Lucille [the asserted remainderman] upon the death of the survivor when the will itself contains no provision to cover this eventuality? . . .” (Emphasis supplied.)
It is to be noted that extrinsic evidence had not been offered in the Miller case as to whether the will was contractual, and the existence or nonexistence of an antecedent agreement had to be determined from the four corners of the will itself. Consequently, this court was constrained to hold that no agreement was established.
In the second case, In re Estate of Tompkins, 195 Kan. 467, 407 P. 2d 545, a husband and wife executed a joint will leaving all their property to the survivor, with right of disposal, and providing for disposition thereof upon death of the survivor. A dispute having arisen over whether the will was contractual, the trial court held that the terms of the will itself showed it to be joint, mutual and contractual. On appeal this court affirmed the judgment of the trial court in these words:
“. . . A careful examination of the language used can only lead to the conclusion that the will in this case was the result of an agreement or contract of the testators. . . .” (p. 471.)
In arriving at this conclusion we fingered these factors: the use of the plural words “we” and “ours” throughout the will; the directions contained for the disposition of the testators’ property after the death of the survivor; and the carefully drawn provisions for the disposition of any share in case of a lapsed residuary bequest.
The admissibility of extrinsic evidence to show the contractual nature of a will was also raised in Tompkins, where the scrivener of the will had testified without objection concerning conversations had over the years with the joint testators about how their estate was to be planned. As to this testimony we said:
“In this connection it is to be noted that this court has often stated that the rule that parol evidence is never admissible to change or vary the terms of an unambiguous will does not render inadmissible extrinsic evidence that a will was executed pursuant to an agreement. . . .” (p. 474.)
However, as to additional testimony given by the scrivener and admitted over objections, regarding his opinion of the contractual nature of the will, and his explanation given to the testators when the will was executed, we specifically pointed out:
“. . . In so far as such testimony may be said to tend to change or alter the provisions or terms of the will it was inadmissible. (Guthrie v. Guthrie, 130 Kan. 433, 286 Pac. 195; In re Estate of Schnack, 155 Kan. 861, 130 P. 2d 591; In re Estate of Sowder, 185 Kan. 74, 340 P. 2d 907.) . . .” (p. 474.)
The third and latest case is In re Estate of Wade, 202 Kan. 380, 449 P. 2d 488. Here, extrinsic evidence was introduced at the hearing before the trial court and the court made findings of fact therefrom which we held compelled a conclusion that the will was of a contractual character. It is clear from a reading of the Wade will that it did not possess the plain and unambiguous qualities of the will being considered in Tompkins. On page 390 of the opinion, Mr. Justice Kaul, speaking for the court declared:
“In the Wade will there is no language stating it to be contractual, nor does the language used supply with clarity the evidence of an underlying obligation. . . .”
This being true, reliance had to be placed on extrinsic evidence in determining the intent of the testators and the contractual or non-contractual character of the joint will. We stressed again, as we did in Miller, that whether a will is the product of an agreement is a question of fact, which must be established by proof; and that sufficient proof is not supplied by the fact, alone, that a will is joint and mutual, even though a will itself and its terms may suffice as circumstantial evidence to form the basis for finding that a will is contractual.
We distinctly pointed out in Wade that the Tompkins will was held to be contractual on its face because its language clearly indicated the elements of an undertaking by which the testators agreed to be bound. “Although extrinsic evidence tending to prove a contract was received in Tompkins,” we said, on page 389, “it was described as unnecessary for the reason the will was contractual on its face.”
From the cases cited, we believe these rules may be deduced: (1) 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.
Which brings us to this crucial point: Did the trial court err in construing the joint will of Herbert and Mabel Chronister as being contractual on its face? Although portions of the will have already been mentioned, we are impelled to summarize all pertinent provisions, at this point, even though some repetition will inevitably result.
In clause two, the testators devised and bequeathed to the survivor of them all property jointly or severally owned by them for the survivor’s personal use and benefit forever. Clause three directed distribution of household effects to the five Chronisters, in the executors’ absolute discretion, and directed the sale of all other property. Clause four directed distribution of the sale proceeds equally to the Chronisters, and further provided that should any beneficiary die prior to the death of the surviving testator, his or her share should be distributed to his or her issue, but should no issue survive, then such share should go to the remaining beneficiaries, or their surviving issue. Clause five provides that those friends or heirs not mentioned in the will were omitted with full knowledge thereof.
In its Memorandum Decision finding that the joint will was contractual, the trial court included the following pregnant paragraphs:
“11. The court has used the rule of construction that the intent of the testator is paramount and that all other rules are subordinate thereto. (In re Estate of Tompkins, 195 Kansas 467, page 471.)
“12. The will dated 4 September, 1951, especially the following language used therein, was considered by the court.
“(a) The use of the plural pronouns in the declaration (i.e., ‘we’, ‘our’, and ‘us’).
“(b) The use of plural ponouns [sic], without exception, in the body of the will where said will speaks of a bequest or devise.
“(c) Identical disposition of any share in case of a lapse of any residuary bequest resulting from the death of any beneficiary.
“(d) A mutual exclusion (paragraph 5) of heirs of either of the parties or their friends not mentioned therein.
“(e) The use of the word ‘forever’ in the devise and bequest to the survivor in paragraph 2.
“13. The court believes that the term ‘forever’, if standing alone, as used in the survivor paragraph would denote a fee devise, but when the will is construed in toto the court can reach no other conclusion than that there is a clear indication of an agreement by the testators as to the terms and provisions of the will, and that they both intended to be bound thereby.”
To the factors pinpointed by the trial court as compelling the conclusion that the will is contractual, we would add only the fact, which we deem of much significance, that full and explicit provision is made for disposition of the testators’ remaining property after the death of the survivor. As we have said before, provisions of like nature have commonly been said to evidence, in the case of joint wills, an understanding between the joint testators by which they intended to bind themselves.
In agreeing with the trial court’s judgment that the joint will is not ambiguous, but shows by its own terms and provisions a contractual background, we wish to make clear that we refer to lack of ambiguity only in relation to the issue of whether the will was executed pursuant to agreement. Yet the rules with respect to determining whether a testamentary document is ambiguous or not ambiguous as to its contractual character can be no different, in our judgment, than when the document is tested for ambiguity, or lack thereof, as to the meaning of its provisions disposing of property. In either case the critical test is whether the intention of the testator, or testators as the case may be, can be gathered from the four corners of the instrument itself. If the testamentary intention can be gathered from the face of the will, ambiguity does not exist; otherwise it does. In the Tompkins case, we phrased the rule in this fashion:
“The firmly established rule in this jurisdiction for the construction of wills, to which all other rules are subordinate, is that the intention of the testator as garnered from all parts of the will is to be given effect, and that doubtful or inaccurate expressions in the will shall not override the obvious intention of tifie testator. . . .” (p. 471.)
The will of Herbert and Mabel Chronister being contractual, as shown by the terms and provisions appearing upon its facé, it follows that extrinsic evidence was not admissible to disprove such fact, for that issue was foreclosed. Accordingly, the trial court did not err in excluding the proffered extrinsic evidence. It is familiar and respected law that parol or extrinsic evidence is not competent to explain or to vary the term of a written instrument which is clear and unambiguous upon its face. (Baldwin v. Hambleton, 196 Kan. 353, 411 P. 2d 626; In re Estate of Smith, 199 Kan. 89, 427 P. 2d 443; In re Estate of Tompkins, supra.)
Considerable emphasis is placed by the Kessingers (appellants) on Menke v. Duwe et al., supra, where, after considering extrinsic evidence relating to the circumstances surrounding the execution of a joint will, including conversations occurring at that time, the trial court found the will was not executed pursuant to an agreement. This court, on appeal, affirmed that finding but the decision must be read in the light of the form in which the will was prepared and the terms it contained. The will differs markedly in form from the Chronister will, and to a somewhat lesser degree in content. Although but one instrument was executed by the testators, its arrangement as to form, as well as its wording, strongly indicated separate wills contained within a single document. On page 220 the court sagely observed that the instrument itself did not compel the inference that it was contractual in character.
The Kessingers further contend that the probate court, in its order of final settlement of Herbert’s estate, construed the joint will as non-contractual, and they say this construction is res judicata inasmuch as no appeal was taken from the order. Their ingenious argument goes like this: During probate, the executor of Herbert’s estate delivered to Mabel, under court order, certain stocks held by Herbert and Mabel in joint tenancy; in its order of final settlement the probate court approved all acts of the executor; in Berry v. Berry, supra, this court held the execution of a joint contractual will terminates a joint tenancy; ergo, the probate court, in approving the delivery of the stocks to Mabel, construed the will as not being contractual, for otherwise, say the Kessingers, the stocks would have been retained in Herbert’s estate.
We decline to follow this somewhat tortured reasoning. Particularly are we loath to declare judicially that the Butler County Probate Court construed the will as- non-contractual when the court actually found Mabel entitled to the estate during her lifetime with power of disposal, and assigned the same to her for life with power of disposal and assigned the estate remaining to the Chronisters. Nor are we convinced that a finding by the probate court that the will was not contractual, had it been made, would be binding on the Chronisters. In 169 A. L. R. 82, we find this statement:
. . The probate of an instrument executed jointly by two persons, upon the death of one of them, as his will, is not an adjudication that the will is not contractual or that the survivor is not bound by its provisions.
“. . . An order closing the estate of a testate decedent and approving the distribution of the residue of his estate pursuant to the terms of his will to •one surviving him is not an adjudication which precludes the assertion subsequently of a claim of the violation by the survivor of her agreement with the testator for the execution of separate wills containing certain specified provisions. . . .”
It has been suggested that the probate court’s order of final settlement was actually a res judicata pronouncement that the will was contractual in character. In view of the disposition we are making •of this case we do not feel called upon to determine this point.
We conclude that no error was committed by the trial court, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This was an action to construe a will.
Ina L. West, the testatrix, died on February 5, 1965, leaving a will dated December 8, 1955, which was duly admitted to probate, and the Fourth National Bank and Trust Company of Wichita, Kansas, was appointed executor. The husband of the testatrix had died on June 30, 1955, leaving to testatrix the portion of the assets now included in her estate. The testatrix left no spouse or children surviving.
The will, insofar as material to this controversy, reads:
“FrasT: I direct my Executor to pay my just debts and funeral expenses.
“Second: I direct that all Federal Estate Taxes imposed upon or in relation to any property required to be included in my gross estate for Federal Estate Tax purposes and all inheritance and succession taxes payable on or resulting from or by reason of my death, whether or not attributed to properties subject to probate administration, shall be paid out of the residue of my probate estate. My Executor shall not be reimbursed for, nor collect, any part of such taxes from any person, legatee, devisee or beneficiary under this Will, nor shall there be any charge or recovery therefor upon the basis of proration, apportionment, contribution, distribution, or otherwise, against assets not included in my probate estate, or against persons not deriving benefits under this Will.
“Thibd: I give, devise and bequeath all of my property, of whatever kind of character and wheresoever situated, the following percentage interests therein, to-wit:
[There followed ten separate bequests to specified individuals bequeathing a “% interest in my estate.” The percentage interests ranged from 5% to 20% and amounted to 82% of the estate. Some of these bequests were to lapse and would have then fallen into the residuary clause.]
“Fourth: All of the rest, residue and remainder of my estate, of every nature and kind and wheresoever situated, I give, devise and bequeath to the Wesley Hospital and Nurse Training School, now a corporation, of Wichita, Kansas.”
In due time it became apparent that there was a dispute as to the bequests responsible for the payment of the estate and inheritance taxes, and the executor filed a petition with the probate court for the construction of the will.
Highly summarized, the executor’s petition alleged that a distribution of the estate had not been made because it was first necessary to have a determination of the estate and inheritance taxes due and a determination of the bequests subject to payment of such taxes.
The petition for the construction of the will was transferred to the district court for hearing and determination.
The case was presented to the district court on a stipulation which stated the general facts and the positions taken by the federal and state taxing authorities. There was nothing submitted which in any way assisted in arriving at the intention of the testatrix. The trial court made findings of fact in harmony with what has been stated above and concluded as a matter of law:
“First: That the bequests under Paragraph Third in said decedent’s Will constitute specific bequests.
“Second: That under decedent’s Will the bequest to Wesley Medical Center under Paragraph Fourth in decedent’s Will should be applied, paid and treated as consumed, to the extent as required to pay all Federal Estate Taxes and all Inheritance and Succession Taxes payable on and resulting from or by reason of decedent’s death chargeable to any person or decedent’s estate.”
Paragraph Third provided for the proportionate payment of taxes not covered by the residuary clause.
The Wesley Medical Center, the beneficiary under the residuary clause, Paragraph Fourth of the will, has appealed.
Roth parties devote considerable space in their briefs to a discussion of the federal estate tax laws and the state inheritance tax laws. We are not concerned here with charitable deductions, the calculation of such taxes or the general effect of the taxes on the bequests under the will.
The law of this state is applicable in the determination of which legacies shall bear the burden of federal estate taxes. (Riggs v. Del Drago, 317 U. S. 95, 87 L. Ed. 106, 63 S. Ct. 109.)
The basic issue presented on this appeal is whether the trial court erred in finding and determining that the charitable bequest of all “the rest, residue and remainder” of decedent’s estate under Paragraph Fourth of the will should bear all of the estate and inheritance taxes due on the estate, or whether such bequest should bear only a proportionate part of those taxes with the remaining portion being chargeable proportionately against the bequests made in Paragraph Third of the will to certain named and designated beneficiaries.
In considering the question we should give attention to the nature of the taxes to be paid out of the assets of the estate. The federal law deals with an estate tax while the state law deals with an inheritance tax. An estate tax such as the federal law imposes is levied upon the body of the estate before distribution. The right of the distributee to receive the property is not involved. On the other hand, an inheritance tax such as we have in this state is a succession tax — a tax upon the right of the distributee to receive the property. The two rights are distinct and separate. (Russell v. Cogswell, 151 Kan. 14, 98 P. 2d 179.)
Neither the federal government nor this state has enacted any laws directing where the burden for federal estate taxes shall fall. It has therefore been determined that in the absence of anything in the will to the contrary the burden of the federal estate tax falls on the residuary. (Central Trust Co. v. Burrow, 144 Kan. 79, 58 P. 2d 469.) This rule applies in favor of specific bequests but a different rule applies to general bequests as will be discussed later.
Insofar as the inheritance tax under the state law is concerned, it being upon the right of the distributee to take, it is apportioned among the legatees if there is no direction in the will.
Although what has been said tends to clarify or eliminate some of the contentions of the parties, it is not of much aid in determining where under the language of the will the testator intended to place the burden of the taxes under discussion.
Both parties inform us that the cardinal rule for the construction of wills, to which all other rules are subordinate, is that the intention of the testator, as garnered from all parts of the will or from the will in its entirety, is to be given effect and that doubtful or inaccurate expressions shall not override the obvious intention of the testator. (Meyer, Executor v. Benelli, 197 Kan. 98, 415 P. 2d 415; Hitchcock v. Skelly Oil Co., 197 Kan. 1, 414 P. 2d 67; Giese v. Smith, 195 Kan. 607, 408 P. 2d 687.) Or, as was said in Smyth v. Thomas, 198 Kan. 250, 255, 424 P. 2d 498, the court in construing a will should place itself as nearly as possible in the situation of the testator when he made the will, and from a consideration of that situation and from the language used in every part of the will, determine as best it can the purposes of the testator and the intentions lie endeavored to convey by the language used.
Giving detailed consideration to the provisions of the will, we :find in Paragraph First the executor is directed to pay all just debts and funeral expenses.
Paragraph Second of the will is clearly for the purpose of protecting the donee of any gift in contemplation of death from per sonal liability because of estate, inheritance and succession taxes accruing at the donor’s death.
Referring back rather than again repeating the rather lengthy paragraph, it will be noted that the executrix directs that estate, inheritance and succession taxes are to “be paid out of the residue of my probate estate” and this was to be done “whether or not attributed to properties subject to probate administration.” The last clause in Paragraph Second again protects only assets conveyed before death and not included in the probate estate.
Considerable stress is placed on the language stating that such taxes “shall be paid out of the residue of my probate estate.” The difficulty we have here is in determining whether the testatrix was referring to the remainder or residue of her probate estate after the payment of debts and funeral expenses mentioned in Paragraph First or to the residue after payment of the percentage legacies.
Stress is also placed on the phrase in Paragraph Second of the will: “My Executor shall not be reimbursed for, nor collect, any part of such taxes from any person, legatee, devisee or beneficiary under this Will, . . .” It is contended that this shows an intent that no burden be placed on the percentage bequests in Paragraph Third because of the taxes mentioned. We do not so understand the intention. The percentage bequests amounted to 82% of the estate, leaving only 18% for the residuary clause. The testatrix must have known that this was not sufficient to pay the taxes under discussion and if the 82% was to be a percentage of the gross it would have to bear part of the taxes because there would not be sufficient funds in the residuary clause unless there were lapses in the percentage bequests which did not occur.
It is difficult for us to believe that the gift to the Wesley Hospital and Nurse Training School was an intentional worthless gesture on the part of the testatrix.
We find the best guide to the intention of the testatrix lies in Paragraph Third of the will. We quote:
“I give, devise and bequeath of my property, of whatever kind or character and wheresoever situated, the following percentage interests therein to-wit:
Then followed ten separate bequests of “% interest in my estate.” The testatrix does not say gross estate which would have been so easy had that been the intention.
We believe at this point the trial court made an erroneous conclusion and improperly construed the will.
The trial court concluded — “That the bequests under Paragraph Third in said decedent’s Will constitute specific bequests.”
A bequest of a percentage of an estate is perhaps the best example of a general bequest.
The nature of a bequest or legacy was defined in Taylor v. Hull, 121 Kan. 102, 104, 245 Pac. 1026, as follows:
“A legacy is said to be general when it does not direct the delivery of a particular thing, but which may be paid or satisfied out of the general assets; it is demonstrative when the bequest is of a certain sum of money, with directions that it shall be paid out of particular funds; and it is specific when it is a bequest of some definite thing. In 40 Cyc. 1869 it is said:
“ ‘A specific legacy is a bequest of some definite, specific thing, capable of being designated and identified; one which separates and distinguishes the property bequeathed from the other property of the testator so that it can be identified, and delivered to the legatee as a particular thing or fund bequeathed. Such a legacy can be satisfied only by a delivery to the legatee of the particular thing bequeathed to him, and if that thing is not in existence when the bequest would otherwise become operative the legacy has no effect.’ ”
We must conclude that the percentage bequests and legacies made in Paragraph Third of the will are general bequests.
By creating percentage or general legacies we think that the testatrix considered all of her estate not disposed of in Paragraph First to be the “residue of her probate estate” as that term was used in Paragraph Second of the will.
No previous case in this state has been found controlling the precise issue here presented but the conclusion and result we reach are in accord with cases from other jurisdictions which have expressly considered the matter. The leading case, and the one on which the latter decisions appear to rely, is Wells v. Menn, 158 Fla. 228, 28 So. 2d 881, 169 A. L. R. 892. It is there stated:
“We approve the better rule which provides that when a testator devises ten per cent of his estate, or any fractional part thereof, to a named beneficiary it has reference to ten per cent of the net or distributable part of the estate. Henderson v. Usher, 125 Fla. 709, 170 So. 846; Estate of Hinckley, 58 Cal. 457; Zimmer v. Gudmudsen, 142 Nebr. 260, 5 N. W. (2nd) 707; In re: Kirby Estate, 199 Cal. 135, 248 Pac. 517; Stark v. McEwen, 15 Ohio App. 188; Blakeslee v. Pardee, 76 Conn. 263, 56 Atl. 503; Smith v. Terry, 43 N. J. (Equity) 659, 12 Atl. 204; Barnett’s Appeal. 104 Pa. State 342; Briggs v. Hosford, 22 Mass. (Pickering) 288.” (p. 234.)
Cases following the above rule are presented in the annotation at 169 A. L. R. 904. Our research has disclosed no cases directly to the contrary.
We believe the rule is sound where as here there are no specific bequests to be protected and the gross estate amounts to $594,395.
We are also influenced by the fact that any other construction of the will would completely destroy the gift to the Wesley Medical Center. We prefer the rule that where one construction of ambiguous language in a will casts the burden of taxation in such a way as to extinguish certain gifts, whereas another construction gives effect to all dispositive provisions of the will, the latter is to be preferred if no specific gifts are affected.
We are forced to conclude that when the testatrix used the words “residue of my probate estate” in Paragraph Second of her will she was referring to the remainder of her estate after the payment of the charges in Paragraph First, and that she intended her percentage legacies to be a percentage of the net after payment of estate and inheritance taxes.
The judgment is reversed with instruction to the trial court to charge the legacies in Paragraph Third of the will with their proportionate part of the estate and inheritance taxes.
APPROVED BY THE COURT. | [
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|
The opinion of the court was delivered by
Fatzer, J.:
This appeal involves the interpretation of an "uninsured motorists” provision of a liability insurance policy issued by Allied Mutual Insurance Company, a corporation, covering the plaintiff’s two automobiles for which he paid a premium of equal amount on each described vehicle.
Except for the date of the plaintiff’s injury, which occurred on October 1, 1966, and the amount of damages awarded the plaintiff by the arbitrator, this case is identical in factual situations and legal issues as those presented in Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 457 P. 2d 34.
The arbitrator made an award in favor of the plaintiff and against the defendant in the sum of $14,053.15. The defendant paid the plaintiff the sum of $10,000 on one described automobile pursuant to the uninsured motorists provision of its policy, and plaintiff has sued to recover an additional $10,000 on the other described automobile. The district court denied recovery, and the plaintiff has appealed.
We hold the plaintiff is entitled to recover the damages awarded by the arbitrator in the total sum of $14,053.15.
The insurance policy involved in this lawsuit is identical to the policy in Sturdy, supra, except for the amount of the premiums, and its provisions expressly provide the amount the plaintiff may recover as damages.
Part IV of the policy contains “protection against uninsured motorists,” and the word “insured” as used therein means “the named insured” as contained in the declarations of the policy, or, in this case, the plaintiff. Coverage J contains the provision for damages for bodily injury caused by an uninsured motorist, and obligates the defendant:
“To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . . .”
The damages awarded to the plaintiff have heretofore been determined by the arbitration proceeding to be $14,053.15, of which $10,000 has been paid. Hence, under the general provisions of the policy the plaintiff is entitled to recover from the defendant the additional sum of $4,053.15.
As indicated in Sturdy, supra, the plaintiff is not entitled to recover attorneys’ fees in this action and they are denied. The judgment of the district court is reversed with directions to enter judgment in the amount of $4,053.15, together with interest at 6 percent per annum from July 31, 1967.
It is so ordered.
Price, C. J., and Fromme, J., dissent. | [
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|
The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment denying relief in an action to enjoin the enforcement of an ordinance prohibiting huckstering and peddling on the public streets of Overland Park, Kansas.
On July 19, 1965, the governing body of the city of Overland Park, a city of the first class, passed an ordinance to become effective January 1,1966. Section 1 of the ordinance reads:
“It shall hereafter be unlawful for any person, persons, association of persons, firms, or corporation to conduct, hold, carry on, operate a business or engage in the business of huckstering, peddling or similar enterprise, or selling anything of any nature, upon or in any right-of-way of any public street, alley, avenue, boulevard or side-walk-way within the limits of the City of Overland Park, Kansas.”
The penalty for violation of the ordinance was a fine of $100 or imprisonment not to exceed 30 days or both such fine and imprisonment.
Some years prior to the enactment of the ordinance the plaintiff, Delight Wholesale Company, had granted franchises of territory within the city of Overland Park to dealers who sold frozen novelties purchased from it, from jeeps furnished by it, on the streets of Overland Park. The jeeps were leased by the dealers. During 1965, the plaintiff, Robert Fuller, Jr., was such a dealer.
Plaintiffs’ petition for injunction restraining the enforcement of the ordinance alleged that the said ordinance was invalid for numerous reasons that will be presented later.
The answer was a general denial.
The ordinance prohibits all huckstering and peddling on the streets of Overland Park. This would prohibit farmers from selling watermelons, tomatoes and other fresh vegetables from their vehicles. Such sales are about the only opportunity we have to know the difference between a red, juicy watermelon and a sun-kissed tomato all ripened on the vine from those picked green and ripened in the dark recesses of a warehouse. It would also prohibit the old fruit peddler who perhaps is only a nostalgic memory of the past — “Yes, we have no bananas.”
However, we are not to concern ourselves with problems other than those of the plaintiffs. We adhere to the rule that the con stitutionality of governmental action can only be challenged by a person directly affected and such challenge cannot be made by invoking rights of others. (Stone v. City of Wichita, 145 Kan. 377, 65 P. 2d 595; Marks v. Frantz, 179 Kan. 638, 298 P. 2d 316; State, ex rel., v. Fleming Co., 184 Kan. 674, 339 P. 2d 12; 16 C. J. S., Constitutional Law, § 76, page 236.)
From the record it is disclosed that the city’s witnesses conceded that the drivers of the vehicles from which frozen goodies were sold were not careless or reckless. They were considered to be good drivers. Neither is a sanitation nor health problem presented.
Mr. Rennett, president of the city council, testified that there were two conditions creating the problem they were trying to correct— the safety of the younger citizens in the area and the nuisance value. We quote from his testimony:
“Q. These reasons [nuisances], along with safety, were the reasons, in your knowledge, this ordinance was passed?
“A. I think the primary reason the ordinance was passed was for the safety reason. If it was for nuisance value alone, I would not have voted for the ordinance.
“Q. On the safety value, then, the reasons — I guess you have already mentioned why the ordinance was passed — mainly, I believe, that you referred to were that the children were crossing the street, running or walking or congregating at this vehicle?
“A. Yes. We were concerned with the safety of these children.” (Emphasis supplied.)
Two housewives testified in support of the ordinance. Their testimony was summed up by the trial court—
“The dealers driving the jeeps would ring a bell which could be heard for a distance of one to four blocks. The bell disturbed the peace and quiet of the neighborhood and attracted the children who ran into the street from all directions and congregated around the jeep. This disturbed the parents. Some children ages two years to 8 years would run across the street. . . .”
It might be said that the manner of operating ice cream wagons, carts, etc., and the response of children thereto are matters of common knowledge, and testimony will vary greatly as to the benefits and detriments to be derived therefrom.
The trial court concluded from what is quoted above — “All this created a disturbance and constituted a public nuisance.”
We are inclined to agree with the president of the City Council that the nuisance feature alone would not justify the ordinance.
We would not attempt to give a precise definition of the word “nuisance”. It is generally considered to be something that inter feres with the rights of others. (Hofstetter v. Myers, Inc., 170 Kan. 564, 228 P. 2d 522.) A public nuisance is one which annoys an entire community. (State v. Coler, 75 Kan. 424, 89 Pac. 693.) In Wilburn v. Boeing Airplane Co., 188 Kan. 722, 366 P. 2d 246, we held:
“Although perhaps incapable of precise definition, the word ‘nuisance’ is generally held to mean something which interferes with the rights of persons, whether in person, property, or enjoyment of property or comfort, and to mean an annoyance, that which annoys or causes trouble or vexation, that which is offensive or noxious, or something that works harm, inconvenience or damage. What may or may not constitute a nuisance in a particular case depends upon many things, and each case must of necessity depend upon its own particular facts and circumstances.” (Syl. 6.)
A dyspeptic or a recluse might find some things offensive which would not be at all obnoxious to the general public. It is difficult for us to consider the operation of an ice cream vehicle as genuinely offensive or obnoxious.
The question of public safety presents a more difficult problem. The trial court also found that the safety of the children was endangered when they were attracted to the streets and that the ordinance was a proper exercise of the police power.
The appellant argues on appeal that the city lacked the power and authority to enact the ordinance; the ordinance as enacted is not a proper and valid exercise of police power and is unreasonable and arbitrary; the ordinance violates the 14th Amendment to the Constitution of the United States and Section 1 of the Bill of Rights of the Constitution of the State of Kansas, and the adoption of a regulatory ordinance would satisfy the legitimate object.
All of the above contentions may be disposed of by the answer to a single question — is the prohibition of the legitimate business reasonably necessary for the welfare and safety of the children of Overland Park? If the answer is yes the ordinance is valid. If the answer is no the ordinance is void for each and all of the reasons listed by appellants.
It is conceded by appellant that since the adoption of the Home Rule Amendment (Art. 12, Sec. 5, Kansas Constitution) the cities have broad powers of self determination. It has always been the policy of this state to confer on cities the power to pass ordinances to protect the safety, health and general welfare of its citizens.
In Ash v. Gibson, 145 Kan. 825, 67 P. 2d 1101, we stated at page 833:
“. . . At any rate, since the founding of our state the legislative policy has been to confer on the cities the right of self-government in such large measure that it amounts to the possession of pohce power where the safety, health and general welfare of its people are concerned. This power is conferred by means of the various statutes dealing with that subject which have been heretofore quoted in this opinion. (See Service Oil Co. v. City of Marysville, 117 Kan. 514, 231 Pac. 1031.)
“The only limitation on it is that it must be exercised in a reasonable manner. (See Standard Oil Co. v. Marysville, 279 U. S. 582, 73 L. Ed. 856.) There are two views to take of this question. One is the traditional view that this right is a precious thing inherent in the rights of man generally. We have seen that this view has been entertained generally by the people of our race for many years. The other view is that it is a practical necessity in order to make our form of government work at all, extending as it does over a wide expanse of territory and touching widely different situations and communities. . . .” (Emphasis supplied.)
However, while the police power is wide in its scope and gives a governmental body broad power to enact laws to promote the health, morals, security and welfare of the people, and further, a large discretion is vested in it to determine for itself what is deleterious to health, morals or is mimical to public welfare, it cannot under the guise of the police power enact unreasonable and oppressive legislation or that which is in violation of the fundamental law. (Little v. Smith, 124 Kan. 237, 257 Pac. 959; Gilbert v. Mathews, 186 Kan. 672, 677, 352 P. 2d 58.)
Huckstering and peddling of vegetables, fruits and ice cream products have long been recognized as legitimate businesses. However, the right to so sell is not absolute and may be regulated or withheld, if necessary, for public safety and welfare.
The acknowledged purpose of the ordinance is to protect the safety of children who gather about the vehicle in the street. What are the facts? The jeeps from which the ice cream products are sold travel from four to seven miles per hour. They in themselves are not dangerous instrumentalities. The danger, if any, is from other traffic after the children go upon the street. It is quite impossible to keep children out of the street in a residential district. If they do not actually play in the street, they will play in the yard where their toys roll into and across the street. Under such circumstances they are not as readily observed as children following a jeep with a bell that can be heard two or three blocks away.
If children in the streets of residential districts are to be protected, the regulation must be applied to all those using vehicles on the street.
The city has ample power to regulate hucksters and peddlers without prohibition. Although not intended to be exhaustive, they may be prohibited from selling on the freeways, thoroughfares and busy streets; they may be kept away from schools and hospitals, and they may be reasonably regulated as to the hours during which they sell.
The appellant calls our attention to certain cases from foreign jurisdictions, particularly Trio Distributor Corp. v. City of Albany, 2 N. Y. 2d 690, 143 N. E. 2d 329, where the court was dealing with an ordinance requiring vendors in the streets to be accompanied by attendants having the sole duty of protecting children from hazards of vehicle traffic. In the opinion the court stated:
“Although reasonable regulation of itinerant peddling in the streets of municipalities is permitted, ‘When regulation becomes destruction, it ceases to be regulation.’ ... A peddler’s ordinance cannot be used by indirection to prevent the conduct of a lawful business. . . . An ordinance will be invalidated purporting to regulate a lawful activity, where its purpose is ‘to prohibit by onerous and exasperating restrictions under the guise of regulation.’ . . .” (Citations omitted.)
However, our separate research has disclosed a decision from the Supreme Court of Illinois (Good Humor Corp. v. Mundelein, 33 Ill. 2d 252, 211 N. E. 2d 269, 14 A. L. R. 3d 887.) where the court in a well reasoned opinion held an ordinance similar to the one before us valid.
We must apply the general rules to the facts and circumstances as they exist in this state and as they exist in the streets of our residential areas. The facts as they exist in a more heavily populated state might well justify a different conclusion than would be reached here.
In McCulley v. City of Wichita, 151 Kan. 214, 98 P. 2d 192, this court approved the rule that the reasonableness of an ordinance involves a determination as to whether it is for the public benefit of the community in general, and whether the means adopted to produce the public benefit are reasonably necessary to accomplish that purpose and not unduly oppressive upon individuals. We stated at page 225 of the opinion:
“It is well to remember the validity of such legislation must be determined by an application of the enactment to the particular facts and circumstances involved and that the reasonableness of the enactment is a question for courts to determine in the exercise of sound judcial discretion. No arbitrary rule, therefore, can with justice be made applicable to every circumstance. The concern of courts must be and is with the preservation and evolvement of principles which constitute helpful guides to the process of administering justice. . . .”
We are forced to conclude that the businesses of huckstering and peddling may be controlled by reasonable regulations, and the absolute prohibition of such legitimate enterprises is arbitrary and unreasonable. The ordinance is therefore void.
The judgment is reversed and remanded to the trial court, with instructions to enjoin the enforcement of the ordinance.
APPROVED BY THE COURT. | [
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|
The opinion of the court was delivered by
Kaul, J.:
The defendant, Herbert Walter Aten, appeals from a judgment and sentence on a conviction by a jury of grand larceny (K. S. A. 21-533).
On appeal defendant contends articles found in his automobile were erroneously admitted into evidence because the warrant authorizing the search was issued on an insufficient factual basis. Defendant further contends the state’s evidence was insufficient to establish the commission of the alleged crime. No complaint is made concerning the trial court’s instructions and they are not incorporated in the record on appeal.
On December 21, 1966, Kenneth Wight, a resident of Iola, disappeared and has not been seen since such date. According to the testimony of his wife, Wight left home on the morning of December 21, 1966, taking money for a bank deposit with him. He said he was going Christmas shopping and asked her what she wanted for Christmas. Mrs. Wight further testified that Mr. Wight had told her children that he intended to buy a color television set for the home for Christmas.
Peace officers had been on the lookout for defendant since Wight’s disappearance. On January 9, 1967, defendant was found at the Vernie Diehl residence near Iola by the undersheriff of Allen County. Two police officers of Iola and Ray Emmons, a special agent for the Kansas Bureau of Investigation, were called to the Diehl residence by the undersheriff. Defendant was asked by the officers to accompany them to the courthouse in Iola and discuss whether or not he knew anything about the disappearance of Mr. Wight. Defendant, accompanied by a policeman, drove his automobile to the sheriff’s garage at the courthouse. Defendant was next taken to the county attorney’s office where he was fully advised as to his constitutional rights, following which defendant said he would answer some questions and some he would not. Defendant was asked where he had been since December 22, and he stated he had been to Independence, Parsons and Cherryvale, working in salvage yards and junking; he knew nothing about Kenneth Wight or his disappearance. When asked if he had any money on him, defendant pulled out his billfold and showed the officers a $100 bill, a fifty, some twenties and tens. Defendant stated lie earned the money working at the salvage yards, “junking,” and that he won the $100 bill in a “crap game.” He was unable to give details concerning his acquisition of the money. At this point, agent Emmons asked defendant for permission to search his automobile, defendant refused, and the county attorney and Emmons proceeded to the office of the Allen County Court where the search warrant in question was secured.
With the search warrant in hand, the sheriff and agent Emmons proceeded to search defendant’s automobile. They found a billfold, containing one $100 bill and three $20 bills underneath the dash where the radio was mounted. The sheriff also found a ring of keys with six keys on it. The billfold and key ring were identified by Mrs. Wight as her husband’s and she testified they were on his person when she last saw him.
Defendant was charged with first degree robbery and grand larceny. After a preliminary hearing before the county court of Allen County, defendant was bound over for trial to the district court on the grand larceny charge. The county court found the evidence insufficient to bind defendant over on first degree robbery.
At the preliminary hearing, and later at the trial, defendant’s counsel objected to the admission of the billfold and key ring into evidence. Defendant also filed a motion to suppress evidence prior to trial. The objections and motions of defendant were overruled. In each instance defendant contended the evidence was inadmissible because it was seized in a search authorized by an illegally issued search warrant.
After defendant refused permission to search his automobile, on the afternoon of January 9, 1967, the county attorney prepared an affidavit in which he stated:
“That he has just and reasonable grounds to believe, and does believe that a firearm which was the instrumentality of the crime of assault with a deadly weapon, and money and other property which was the fruits of the crime of larceny and/or armed robbery, committed within Allen County, Kansas, are being unlawfully possessed and concealed with a certain motor vehicle, to-wit:
“One 1949 model Oldsmobile sedan, bearing 1966 Kansas license number AL-3919, belonging to one Herbert Aten.”
The record discloses the affidavit was presented to the county court of Allen County, and at the same time the county attorney orally testified in considerable detail as to other facts within his knowledge. After hearing the testimony of the county attorney, the court ordered him to make and file a supplemental affidavit setting out his oral testimony.
Omitting formalities, the supplemental affidavit recites the following:
“I, Mitchell H. Bushey, being duly sworn upon oath, says:
‘T. That he is the person who made the complaint and affidavit filed herein.
“2. That at the time of the hearing upon said complaint for search warrant and affidavit, he testified orally before the above entitled court as to his reasons for having reasonable grounds to believe that a firearm which was the instrumentality of the crime of assault with a deadly weapon, and that money and other property which was the fruits of the crime of larceny and/or armed robbery, were being unlawfully possessed and concealed by the defendant, Herbert Walter Aten, in the 1949 model vehicle described in said complaint for search warrant.
“3. That he testified to the following facts:
“(a) That Herbert Walter Aten was observed by several witnesses who stated to this affiant that they had discovered the defendant watching the pool hall which was owned and the place of business of Kenneth H. Wight, who had disappeared on the 21st day of December, 1966, and has never been heard from or observed by anyone since that date.
“(b) That Herbert Walter Aten is known to have had, and admitted to this affiant that he had possessed a rifle of the same caliber to that of certain shells found near the car of Kenneth Wight, and that said shells are believed to have been fired shortly before Mr. Wight’s disappearance. That there are bullet marks on Mr. Wight’s car which were believed to be made by the bullets fired from said gun.
“(c) Statement of one Vernie Diehl that Herbert Walter Aten is known to have had no money on December 22, 1966, and that he at that time borrowed $1.00 from Mr. Diehl.
“(d) That at the time of Kenneth Wight’s disappearance, he was known by his wife to have had between Six Hundred ($600.00) and Eight Hundred ($800.00) Dollars in his possession, carrying several One Hundred ($100.00) Dollar bills and several Fifty ($50.00) Dollar bills.
“(e) Herbert Walter Aten is known to have left Iola for an undisclosed destination on December 22, 1966, between the hours of 1:00 and 2:00 o’clock in the afternoon of that date. This information was disclosed by the statement of Aten to this affiant and by the statement of Aten’s mother to the Chief of Police, Everett Shepherd.
“(f) On questioning the defendant by this affiant on January 9, 1967, at approximately 5:30 P. M. before the issuance of the search warrant in this matter, Aten showed this affiant a One Hundred ($100.00) Dollar bill and a Fifty ($50.00) Dollar bill which was in his possession in his billfold. Aten was unable to give a satisfactory explantion as to how he came into the possession of these bills.
“4. This affidavit is being made and filed as a supplemental to the complaint for search warrant in accordance with the order of said Court and contains information which was testified to orally before said Court before the issuance of the search warrant.
“Further affiant sayeth not.”
The accuracy of the supplemental affidavit, in reciting the county attorney’s oral testimony, was not attacked in proceedings below nor is it challenged on this ground on appeal.
Procedure for the issuance of a search warrant is set out in K. S. A. 62-1828 to 62-1832. K. S. A. 62-1830 provides in part as follows:
“A warrant shall issue upon affidavit or upon oral testimony given under oath and recorded before the magistrate or judge. If the magistrate or judge is satisfied that there is probable cause for the issuance of a warrant, he shall issue such warrant describing the property to be searched for and seized and naming or describing the person, place or means of conveyance to be searched. . . .” (Emphasis supplied.)
The record discloses the county attorney appeared before the county court at 5:30 in the evening. Apparently no reporter was present or available to record the oral testimony given. This circumstance necessitated the county court’s order that the county attorney reduce his oral testimony to writing in the form of the supplemental affidavit. Accordingly, this was done and, since no challenge is made as to the accuracy of the supplemental affidavit, we believe the provisions of 62-1830, supra, were substantially complied with as to form.
We turn next to defendant’s argument that the county attorney’s affidavit and oral testimony failed to establish a sufficient factual basis for the issuance of a search warrant.
While some of the county attorney’s testimony stems from hearsay and circumstances, he explicitly recites that defendant had large bills, without a reasonable explanation for the possession thereof; that Wight had large bills when last seen; that defendant had a rifle of the same caliber as shells found near Wight’s car; and that defendant had borrowed $1.00 from Diehl on December 22, 1966, indicating he had no money at the time.
The testimony discloses considerable' more than bald conclusions and mere suspicion on the part of the county attorney.
The record discloses the county court carefully considered the county attorney’s affidavit and oral testimony and arrived at its own determination of probable cause rather than acting as a mere rubber stamp for the police.
In the recent case of State v. Hart, 200 Kan. 153, 434 P. 2d 999, this court recognized that the standards for obtaining a search warrant under the Fourth Amendment to the Constitution of the United States are enforced against the states through the Fourteenth Amendment in accordance with several decisions of the Supreme Court of the United States. In considering federal decisions on the point we stated in State v. Hart, supra:
“We are mindful of what has been said in Nathanson v. United States, 290 U. S. 41, 78 L. Ed. 159, 54 S. Ct. 11; Giordenello v. United States, 357 U. S. 480, 2 L. Ed. 2d 1503, 78 S. Ct. 1245; and Aguilar v. Texas, 378 U. S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509; and we recognize the precedent established by those cases. The import of those decisions, as we read them, is that before a search warrant may validly be issued, there must have been placed before the issuing magistrate sufficient facts to enable him to make an intelligent and independent determination that probable cause exists; that bald conclusions or mere affirmations of belief or suspicion are not enough; and while an affidavit may be based on hearsay, there must be sufficient affirmative allegations as to the affiant’s personal knowledge or his knowledge concerning his informant, or as to the informant’s personal knowledge of the things about which the informant spoke, to provide a rational basis upon which the magistrate can make a judicious determination of probable cause.” (p. 162.)
Further in the opinion we said:
“It is true the affidavit contained other allegations, based on information and belief, and it may be that these allegations would not satisfy the test which has been laid down. However, it has not been held, to our knowledge, that the affidavit must pinpoint every source of an affiant’s belief, so long as it discloses a sufficient basis on which a finding of probable cause can be made.” (p. 163.)
We believe the testimony of the county attorney sufficiently informed the county court of the underlying circumstances upon which his conclusions were based and that his conclusions, together with his positive averments, constituted a sufficient basis upon which the county court could make a judicious finding of probable cause.
Since the search warrant was lawfully issued, the sheriff’s seizure of the billfold and key ring was lawful and the admission thereof into evidence was not erroneous.
Defendant next specifies as errors the county court’s order binding him over for trial and the district court’s refusal to discharge him at the close of the state’s evidence. The state contends any deficiency with respect to his preliminary hearing was waived by defendant when he proceeded to waive arrignment and enter a plea of not guilty before the matter was raised in district court. Since defendant supports both specifications by arguing insufficiency of the evidence, which was essentially the same at both the preliminary hearing and the trial, we shall consider the points in conjunction.
In essence defendant argues that the state failed to prove the corpus delicti in larceny and therefore, no inference of guilt may be drawn from defendant’s unexplained possession of the billfold and key ring.
The corpus deliciti in larceny is constituted of two elements: (1) that the property was lost by the owner; and (2) that it was lost by a felonious taking. (32 Am. Jur., Larceny, § 121, p. 1033.)
In most jurisdictions the elements of the corpus delicti in larceny may be established by circumstantial evidence. (52A C. J. S., Larceny, § 129 [5], pp. 655, 656; 32 Am. Jur., Larceny, § 136, pp. 1046, 1047.)
In the early Kansas case of State v. Winner, 17 Kan. 298, we find the following:
“. . . In a criminal case, and even in murder in the first degree, the corpus delicti may be proved by circumstantial evidence. . . .” (p. 305.)
The rule quoted above was most recently recognized in State v. Doyle, 201 Kan. 469, 441 P. 2d 846.
The question presented requires a review of the circumstantial evidence upon which the state made its case.
Mrs. Wight’s testimony established that Wight operated a pool hall, that they did not have any particular financial worries nor had any family quarrels. Wight left home on the morning of December
21, 1966, taking a bank deposit with him to go to the Allen County Rank; he stated he was going Christmas shopping, and asked her what she wanted for Christmas. Wight habitually carried the billfold in his left hip pocket, with the pocket buttoned, that he never carried less than $500, normally in denominations of $100 and $50 bills. Mrs. Wight identified each key and testified the key ring was positively on Wight’s person when he left home.
Kenneth Daniels, an appliance store employee, testified that Wight came into the store the morning of December 21, looked at color television sets and said he wanted to buy one for a Christmas present.
Ray Emmons, a special agent for the Kansas Eureau of Investigation, testified that he had been looking for defendant since December 22, 1966. Emmons recounted the interrogation of defendant, which took place in the county attorney’s office the afternoon of January 9, 1967.
Emmons’ testimony is further narrated:
“. . .; that he asked the Defendant if he had any money on him and the Defendant pulled out his billfold and showed him a $100.00 bill and a $50.00 bill and some twenties and tens; that the Defendant was asked where he got this and he stated he had worked at a salvage yard, that he had been junking and earned it; later the Defendant stated that he won the $100.00 bill in crap game; that later the Defendant stated he had earned the money working at a salvage yard and earned junk working at a salvage yard and sold it to a man who came along in a truck; Mr. Emmons testified that he asked the Defendant if the Defendant would give him permission to search his car and the Defendant refused to allow a search of his car.”
Emmons further testified that he assisted the sheriff in searching the car and found the billfold containing one $100 bill and three $20 bills and saw the sheriff take a key ring with six keys from under the dash.
Vernie Diehl stated defendant borrowed one dollar from him on December 22, 1966.
Twenty days after the disappearance of Wight, defendant was found with a substantial sum in large bills on his person with an unsatisfactory explanation as to either his acquisition of the money or his whereabouts during the twenty day period. Wight’s billfold containing $160 in bills and his key ring were found hidden in defendant’s automobile. All identification had been removed from the billfold. Defendant offered no explanation of the presence of the billfold or key ring in his automobile. No evidence appears indicating that Wight voluntarily parted with his billfold and key ring, which showed up in a place where it could well be inferred he would not have placed them. There is no pretense anywhere in the record that Wight consented to a taking of his property.
The want of consent of the owner to the taking of his property may be proved by circumstantial evidence when, without fault on the part of the state, direct testimony cannot be produced. (52 A C. J. S., Larceny, § 135, p. 671.)
The state’s evidence discloses the billfold and key ring were well hidden in defendant’s automobile. Defendant merely disclaimed any knowledge thereof; he made no suggestion that any one else had possession of his automobile or an opportunity to hide the billfold and key ring.
In a prosecution for larceny the felonious intent may be shown by evidence that the accused concealed the property or denied having possession of it. (52A C. J. S., Larceny, § 136[2]b, p. 675.)
The evidence here reveals a marked change in the financial condition of defendant since the disappearance of Wight with only a very doubtful explanation, a circumstance which the jury has a right to consider. (State v. Grebe, 17 Kan. 458.)
When evidence against the accused is largely circumstantial, evidence that the accused was in need of money, prior to the larceny, and that he possessed money shortly after the alleged theft, is admissible. (52A C. J. S., Larceny, § 124, p. 628.)
We believe the appearance of Wight’s billfold and key ring in defendant’s automobile, with no explanation offered, and the possession of large bills on his person with only a very doubtful explanation for their acquisition, together with other circumstances related, is sufficient to warrant submission to the jury the questions whether or not the items were stolen and, if stolen, were found in the possession of defendant recently thereafter, and if so found, are they now explained or unexplained by defendant.
State v, Kagi, 105 Kan. 536, 185 Pac. 62, dealt with a similar question — whether property found in possession of the accused was stolen property. On review after a conviction an instruction, which reads in pertinent part as follows:
• . In this case, it is for the jury to say from the testimony, First, whether the personal property described in the information was stolen, and if it was stolen, was it found in the possession of the defendant recently thereafter, and if it was so found, is it now explained or unexplained by the defendant.’ ” (p. 539.)
was held to state the applicable rule of evidence fairly, both to appellant and the state.
We are mindful of the duty of this court in a circumstantial evidence case to determine whether there is a basis in the evidence for a reasonable inference of the defendant’s guilt. (State v. Doyle, supra; State v. Patterson, 200 Kan. 176, 434 P. 2d 808.) The jury is the exclusive judge of all material questions of fact but the law requires that the court determine the question whether there was present any evidence whatever of a particular fact. (State v. Doyle, supra; State v. Jensen, 197 Kan. 427, 417 P. 2d 273.)
From our consideration of the evidence produced by the state, we believe an inference may fairly be drawn establishing the elements of larceny. When such is the case it is the function of the jury, not this court on review, to weigh the evidence and pass upon the credibility o£ witnesses.
The rule concerning the sufficiency of circumstantial evidence on appellate review was discussed in the recent case of State v. Nicolay, 202 Kan. 209, 447 P. 2d 403, where we held:
“When considering the sufficiency of circumstantial evidence to sustain a conviction of crime, the question before this court on appeal is not whether the evidence is incompatible with any reasonable hypothesis except guilt, which is a jury question, but the function of this court is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt.” (Syl. ¶ 2.)
In the instant case, the jury by its verdict found the property of Wight was stolen and found in the unexplained possession of defendant.
After his motion for discharge was overruled, defendant took the witness stand. He testified he left Iola on December 22, 1966, in order to buy and sell junk, that he went to Chanute, Independence, Parsons and Pittsburg. On cross-examination he admitted registering in a Parsons Hotel under an assumed name and could give no particular reason for so doing. Defendant attempted to explain his possession of the $100 bill. He stated he won it in a “crap” game back of a filling station in Pittsburg. He did not know the date, the name or location of the filling station, the names of any of the operators or employees, nor the names of any persons in the “crap” game.
Defendant further testified he knew nothing of Wight’s disappearance and that he had never seen the billfold or key ring until shown to him in the county attorney’s office.
The verdict indicates defendant’s claimed lack of knowledge of the presence of the billfold and key ring in his car and his explanation of how he accumulated the funds found in his possession did not appear reasonable to the mind and conscience of the jury. Under these circumstances the verdict must stand. (State v. Satterfield, 202 Kan. 395, 449 P. 2d 566; State v. Brizendine, 114 Kan. 699, 220 Pac. 174.)
The record shows the trial court carefully reviewed the evidence when overruling defendant’s motion for discharge and again when denying his motion for a new trial. For the reasons stated, we find no error in either ruling.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which the defendant was tried by the court without a jury and found guilty of burglary in the first degree. He appeals from the judgment and sentence, and from the order overruling his motion for a new trial.
The only question raised on appeal is whether the trial court abused the exercise of its power of discretion in denying the defendant’s motion to withdraw his waiver of trial by jury.
On the 31st day of August, 1967, prior to the case being called for preliminary hearing on the docket of the Sedgwick County court of common pleas, the regularly employed counsel for Harold Blanton (defendant-appellant) entered into plea negotiations with the deputy county attorney of Sedgwick County.
Negotiations between the appellant’s counsel, Russell Shultz, and the deputy county attorney resulted in an agreement whereby the state would dismiss the second count (attempted forcible rape) with which the appellant was charged, and the appellant would waive preliminary hearing and enter a plea of guilty in the district court of Sedgwick County to first degree burglary. The state also agreed to recommend that a parole be granted the appellant. (As to the propriety of such plea negotiation between counsel for the defendant in a criminal action and counsel for the state, see State v. Byrd, 203 Kan. 45, 453 P. 2d 22.) A condition imposed by the state prior to its making a recommendation of parole was that the appellant be psychiatrically examined to assure the state the appellant was not a dangerous person. This apparently was accomplished to the satisfaction of the state.
Upon waiver of preliminary hearing pursuant to the agreement, the appellant was bound over to the district court to stand trial and appear at the opening day of the September, 1967, term of court.
On the opening day of the September term of the district court counsel for the appellant requested that he be tried by a jury. The case was assigned to the jury docket of division No. 1 of the district court of Sedgwick County. Upon call of the jury docket for that division on the 16th day of October, 1967, the appellant appeared with his attorney, Mr. Kirby, an associate of Russell Shultz, and waived his right to a trial by jury in open court. In doing so the appellant gave assurances he knew what he was doing by answering questions put to him by the court pertaining to his waiver. Thereupon the case was set for trial to the court on the 14th day of December, 1967. On that date the appellant again appeared with Mr. Kirby, the associate of Mr. Shultz, and it was announced the appellant would plead guilty, but that Mr. Shultz, appellant’s counsel, would not be available to the court until the following morning, December 15, 1967. The case was then set for December 15, 1967, when Mr. Shultz appeared with the appellant before the court.
The record discloses Mr. Kirby had some discussion with the trial judge on December 14. On December 15 prior to calling the case for trial, a conference was requested with the court, during which the trial judge stated as a general policy that “persons who plead or who are convicted of first degree nighttime burglary with other persons in a residence, would not be placed on probation.”
Thereupon the appellant entered a plea of not guilty.
When the appellant’s case was called for trial, and after the court directed the state to call its first witness, appellant’s counsel, Shultz, moved the court for permission to withdraw the appellant’s waiver of trial by jury.
The trial court overruled the appellant’s motion and the case proceeded to trial before the court without a jury. The state put on its evidence and rested, and the defendant presented no evidence. After brief arguments the court found the appellant guilty of burglary in the first degree. The state had moved to dismiss the attempted forcible rape charge and the motion was sustained by the trial court.
Thereafter the appellant filed a motion for a new trial which was heard by the trial court on the 5th day of January, 1968, and overruled.
While no criminal appeals in Kansas appear to have involved a situation calling for the exercise of the court’s discretion to grant an application for a jury trial once waived, courts of other jurisdictions have announced the rules governing such action. The prevailing rule is clearly stated in People v. Melton, 125 C. A. 2d Supp. 901, 271 P. 2d 962, 46 A. L. R. 2d 914. The court there said:
“A waiver of trial by jury, voluntarily and regularly made, cannot afterward be withdrawn except in the discretion of the court. (People v. Colton (1949), 92 Cal. App. 2d 704, 707 [207 P. 2d 890]; People v. Cowan (1940), 38 Cal. App. 2d 144, 149 [100 P. 2d 1079]; People v. Hooper (1936), 16 Cal. App. 2d 704, 707 [61 P. 2d 370]; and see 50 C.J.S., Juries, §111 (b), pp. 825-826.) In the exercise of the discretion thus vested in it, the court may consider such matters as the timeliness of the motion to withdraw the waiver and whether a delay of the trial or inconvenience to witnesses would result from the granting of such motion.
“On the other hand, where the request to withdraw the waiver of a jury trial is made sufficiently in advance of trial so as not to interfere with the orderly administration of the business of the court or to result in unnecessary delay or inconvenience to witnesses or to the prejudice of the other party to the action, the court should exercise its discretion to allow the moving party the jury trial he seeks. Certainly, when dealing with a right so fundamental as to be characterized by our Constitution as one which should remain inviolate,’ the court should only deny the privilege thus accorded a defendant charged with crime to a trial by his peers where some adverse consequence will flow from his change of mind.” (pp. 904, 905.)
Many cases supporting the foregoing rule are cited in the Melton opinion and in the A. L. R. citation there indicated.
In the Melton case it was held an abuse of discretion on the part of the trial court to deny a motion for a jury trial made through counsel thirteen days before the date set for trial and one week after the defendant, when without counsel, waived a jury, where it appeared the granting of a jury trial would not have prejudiced the prosecution, and that the waiver was induced by the defendant’s inability to furnish additional bail which the clerk told him would be required for a jury trial.
In Floyd v. State, 90 So. 2d 105 (Fla. 1956), the trial court’s order denying the defendant’s motion to withdraw a waiver of trial by jury was reversed. There the case was scheduled for trial one week after counsel for the defendant moved to withdraw the waiver. In doing so the court held:
“The fundamental right of a defendant to trial by jury will best be protected if the withdrawal of a waiver to such a trial is refused by a court only when it is not seasonably made in good faith, or is made to obtain a delay, or it appears that some real harm will be done to the state, such as unreasonable delay or interruption of the administration of justice, real inconvenience to the court and the state, or that additional expense to the state will be occasioned thereby.” (Syl. j[ 2.)
In the opinion the court said:
“In the case before us the defendant, while represented by counsel who later withdrew, was arraigned on November 16, 1954 at which time he waived trial by jury. On November 26, 1954 his first counsel filed his notice of withdrawal as counsel for defendant. The case was set for trial on December 14, 1954 on which date defendant and his second counsel appeared, the latter counsel announced that he was representing the defendant and moved to be allowed to withdraw the waiver. The trial court denied the motion, but continued the trial for one week to allow defendant’s new counsel to prepare for trial.
“In denying the motion to withdraw the waiver, the court stated that since the defendant was, at the time of arraignment, represented by counsel the waiver of trial by jury would not be set aside. There was nothing to show that the State or the court would be inconvenienced in any way, or that any valid ground, within the rule we have adopted above, existed for denying the motion. It was not shown that justice would have been delayed or impeded. As a matter of fact while the trial started on December 21, 1954 it was never completed in an orderly procedure but was brought to a close by tire summary action of the trial court on March 9, 1955.
“We think the denial of the motion to withdraw the waiver was an abuse of discretion under the facts and circumstances of this case.” (pp. 106, 107.)
Lest the remark that “additional expense to the state” in Syllabus ¶ 2 of the Floyd case above quoted be misconstrued, we hasten to add the state’s cost of a jury trial in jurors’ fees is not such an expense as may be considered by a court in exercising its discretion to deny a motion to withdraw waiver of a jury trial, since the constitutional guarantee of a jury trial is in no way conditioned on the fact that the state must bear the cost of supplying the jury in a criminal case. (People v. Melton, supra; and Floyd v. State, supra, Syl. ¶ 3.)
Cases upholding the action of a trial court denying the defendant’s motion for withdrawal of his waiver of jury trial made at or after the commencement of trial are: Scates v. State, 244 Ark. 333, 424 S. W. 2d 876; People v. Thomsen, 239 C. A. 2d 84, 48 Cal. Rptr. 455; Pearson v. State, 213 So. 2d 616 (Fla. 1968); Walter v. State, 4 Md. App. 373, 243 A. 2d 626; and The People v. Catalano, 29 Ill. 2d 197, 193 N. E. 2d 797. These cases disclose prejudice would have resulted to the state for one reason or another had the defendant been permitted to withdraw his waiver.
In the instant case it is to be noted the appellant’s motion to withdraw his waiver of a trial by jury was first presented to the trial court after the trial had commenced and the state was directed to call its first witness.
The case of Scates v. State, supra, is similar on its facts to the instant case. After the defendants were convicted of burglary, they appealed on the ground the trial court denied their motion to withdraw their waiver of a jury trial. There the defendants sought to have the waiver set aside on the morning of the trial, when it was learned the trial judge would refuse to follow the recommendation of the burglary victim not to prosecute. The appellate court upheld the trial court saying:
“The authorities are uniformly to the effect that a motion for withdrawal of waiver made after the commencement of the trial is not timely and should not be allowed. Whether the motion is timely when made prior to the actual commencement of the trial, is held to depend upon the facts and circumstances of the individual case. . . .” (p.879.)
It is the appellant’s contention he should have been permitted to withdraw the waiver of his right to trial by jury because he understood a deal had been worked out with the county attorney’s office for a parole. He argues this information was received from his attorney, Mr. Shultz. The record discloses Mr. Shultz argued to the trial court that he was possibly responsible for leading the appellant to believe he was assured a parole as a result of an agreement growing out of plea negotiation. In this connection the record leading up to the trial court’s action overruling the motion for a new trial discloses the following:
“The Court: Mr. Shultz, I find it difficult to believe with your experience you would assure a defendant of a parole. I can understand if you told him it would be recommended but I doubt if you told him he would be paroled. I don’t think I can accept that. I can’t believe that.
“Mr. Shultz: I trust the Court is not suggesting I am telling the Court anything other than what I believe.
“The Court: All you have said is you believe he had the impression.
“Mr. Shultz: All right. But I believe I left the question open. I am afraid that I did not tell him that the arrangements made between myself and Mr. Grant were subject to approval of the Judge. I am afraid I represented it to him as a definite promise of parole. I can’t help the fact that I have tried criminal cases before on that standpoint, but nonetheless I do believe that was the position, the condition which I left in his mind. And as I told the Court before — if the responsibility is mine then you may lay it at my feet. That is not the point. The point is the defendant originally had a constitutional right to trial by jury: if through the things I said to him — the advice and counsel I gave to him led him to believe he definitely had a parole — as a matter of fact there was no question in my mind he wouldn’t be paroled — not until the 14th day of December.
“The Court: In view of this evidence, I find it difficult to believe counsel would expect a parole on a first degree burglary and under these circumstances. It appears to me many of these thoughts are afterthoughts. The reasons now advanced for setting aside the waiver were not advanced prior to this time.
“Mr. Shultz: May it please the Court. I am certain . . .
“The Court: I am making a finding to that effect. I have no recollection of these reasons having been advanced and there is no record of it. It wasn’t done in conference to the Court. The only thing said to the Court was this man should be entitled to set aside his waiver of jury trial. But these reasons were not advanced prior to this time. I am inclined to think some of them were afterthoughts and I must so find. We must find the defendant entered into this trial waiver as the record shows — voluntarily and understanding!/; that he was giving up his trial by a jury. Actually, that was all he gave up.
“In addition it might be said under the evidence that a jury verdict of anything less than guilty could not have been accepted by this Court. There was no doubt in the evidence. A new trial would serve no purpose. There has been no prejudice shown. The only thing shown is the case might be tried again by another finder of fact but prejudice has not been shown. If it were a case upon which reasonable minds might differ, we might then approach the question of prejudice: But it wasn’t.
“So, the motion for new trial must be overruled.”
It is settled in Kansas that a defendant in a criminal case may waive his right to trial by a jury in felony cases, capital cases not excepted. The issue was before this court in State v. Burnett, 194 Kan. 126, 397 P. 2d 346, where, in commenting on K. S. A. 62-1401 authorizing waiver of a jury trial, it was said:
“The language of this statute is clear, and simply means that a jury may be waived in any criminal trial, including one for felony — provided the defendant, the state, and the trial court, assent to such waiver. No exception is made for a capital case. On the question as to the validity of such statutes see the Annotation in 48 A. L. R. 767, at p. 772.” (p. 131.)
The test for determining the validity of a waiver of the right to a jury trial is whether the waiver was voluntarily made by a defendant who knew and understood what he was doing. (State v. Burnett, supra.)
The foregoing test has been met in the instant case. At the call of the appellant’s case on October 16, 1967, the following appears in the record:
“Mb. Kirby: We would like to waive a jury trial in this case, your Honor.
“The Court: Do you understand you give up your right to a trial by jury? Do you understand that?
“Defendant Blanton: Yes.
“The Court: Do you realize that you are giving up your right to a trial by jury?
“Defendant Blanton: Yes, sir.
“The Court: Is that what you want to do?
“Defendant Blanton: Yes, sir.
“The Court: Does the State have any objections?
“Mr. Grant: No, your Honor.
“The Court: The Court has no objections. This case is set for trial on Thursday, December 14, 1967, at 9:30 a. m.”
Again when the appellant took the stand in his own behalf during the presentation of his motion for a new trial, he answered questions by the prosecution indicating that he voluntarily waived a jury trial and knew and understood what he was doing. The record also confirms the consent of the state and the court to the appellant’s waiver of a jury trial.
After carefully reviewing the record presented herein and considering all the circumstances, we hold it cannot be said the trial court abused the exercise of its power of discretion in denying the appellant’s motion to withdraw his waiver of a jury trial. (See, The People v. Catalano, supra.) The motion was made after the case had come on for trial, and had in fact commenced. A jury could not have been summoned to hear the case before the close of the term of court, thus causing unreasonable delay and prejudice to the state.
It is well known that motions of all types are made at various steps in criminal proceedings for delaying tactics, and the record in the instant case is not entirely void of disclosures in this vein. The judgment of the lower court is affirmed.
Fontron, J., concurs in the result. | [
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|
Standridge, J.:
The district court dismissed a felony theft charge against David Allen Gill, II, based on its finding that the State violated Gill’s right to a speedy trial under the Sixth Amendment to the United States Constitution. On appeal, the State argues the facts in this case do not support the district court’s decision in this regard. We are persuaded by the State’s argument and therefore reverse the order of dismissal and remand with directions to reinstate the felony theft charge against Gill.
Facts
On July 11, 2008, Kirstin Nelson complained to Topeka police that her ex-boyfriend, Gill, stole several items from her while he was babysitting their children inside her residence. Specifically, Nelson told the responding officer, Officer Michael Isaman, that Gill had taken a Playstation 2, a Kodak digital camera, an iPod, and a Sony laptop computer. In his offense report, Isaman noted that the value of each of these items was $129, $100, $250, and $750, respectively, for a total value of $1,229.
That same day, Officer Isaman executed an affidavit requesting that an arrest warrant be issued for Gill for felony theft. In this affidavit, Isaman failed to mention the value of the items Nelson claimed Gill stole from her.
On April 21, 2009, the State filed a misdemeanor theft charge against Gill. Gill was eventually arrested on June 7, 2009, and posted bail the next day. He was later arraigned on June 24, 2009. Although his case was set for trial on November 10, 2009, it was continued to November 18, 2009, for an unknown reason. On November 12, 2009, Gill requested a continuance in order to allow time to obtain evidence from the State and to subpoena witnesses. The State did not object, and the trial was moved to February 3, 2010.
On February 3,2010, the State moved to dismiss the case against Gill in order to refile the theft charge as a felony. The court granted the request.
On December 3, 2010, the State filed a felony theft charge against Gill. He was subsequently arrested on February 22, 2011, and posted bail that same day. Gill was arraigned on May 18,2011.
On May 24, 2011, Gill filed a motion to dismiss the felony theft charge based upon alleged violations of his Sixth Amendment and statutory rights to a speedy trial. Notably, Gill argued that the time period during which the misdemeanor charge was pending and the time period during which no charges were pending should be considered as parts of the delay in bringing him to trial for constitutional and statutory speedy trial purposes. On June 2, 2011, the district court conducted a hearing on the motion. The court heard testimony from Alicia Caleb, Gill’s probation officer in two unrelated cases, who stated that in November 2010, Gill notified her that he had changed addresses in Topeka. This was the extent of Caleb’s testimony.
After receiving Caleb’s testimony and documentaiy evidence from Gill reflecting the procedural histoiy of the misdemeanor case, Gill’s arrest for the felony theft charge, and Gill’s release on bail, the district court heard arguments from the parties. Defense counsel again argued that the 10-month time period when no charges were pending against Gill should be considered as part of the delay in bringing Gill to trial for speedy trial purposes. Defense counsel also argued that there was no reason to justify the State’s 10-month delay in filing the felony theft charge against Gill. Defense counsel concluded his argument with an assertion that the 10-month time period, along with other time periods chargeable to the State, constituted an unreasonable delay in prosecuting Gill for felony theft and that Gill had been prejudiced by being arrested twice, having to post bail twice, and by the fact that nearly 3 years had passed since the alleged crime occurred. Defense counsel noted that Nelson, the alleged victim, no longer lived at tire apartment complex and that the defense did not know, the names of any other witnesses to the crime.
In response, the State argued that the time period when no charges were pending against Gill should be excluded from consideration in determining the length of delay for speedy trial purposes. Furthermore, the State argued that Gill had failed to provide any facts to establish that he had been prejudiced by the State’s delay ixr bringing him to trial for felony theft.
The district court ultimately granted Gill’s motion to dismiss on the ground that Gill’s constitutional right to a speedy trial had been violated. In reaching this conclusion, the district court determined that the time period when the misdemeanor charge was pending and the time period when no charges were pending against Gill should be considered as parts of the overall delay in bringing Gill to trial for the felony theft charge. The district court also determined that Gill had been prejudiced as a result of the delay in bringing him to trial.
''Analysis
On appeal, the State argues that the district court erred when it concluded that Gill’s Sixth Amendment right to a speedy trial was violated, resulting in the felony theft charge against Gill being dismissed.
A. Standard of Review
Although the district court conducted an evidentiary hearing on Gill’s motion to dismiss for speedy trial violations, the evidence presented at the hearing had no bearing on the district court’s ultimate determination that Gill’s motion should be granted. In other words, the district court’s decision to grant tire motion to dismiss did not turn on factual findings that were based on evidence presented at the hearing. Instead, the district court’s decision to grant the motion was based entirely on documents now in the record and arguments made by the parties. Thus, this court is now in the same position as the district court to determine whether Gill’s constitutional right to a speedy trial was violated. Accordingly, we review this issue—a question of law—independently without any required deference to the district court. See State v. Hayden, 281 Kan. 112, 126-27, 130 P.3d 24 (2006); State v. White, 275 Kan. 580, 598, 67 P.3d 138 (2003); State v. Waldrup, 46 Kan. App. 2d 656, 676, 263 P.3d 867 (2011).
B. Constitutional Right to a Speedy Trial
The Sixth Amendment and § 10 of the Kansas Constitution Bill of Rights guarantee a criminal defendant tire right to a public and speedy trial. Unlike the statutory speedy trial right, which attaches at arraignment, the constitutional speedy trial right attaches at the formal charging or arrest, whichever occurs first. State v. Rivera, 277 Kan. 109, 112, 83 P.3d 169 (2004).
“The Sixth Amendment right to a speedy trial is . . . not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.” United States v. MacDonald, 456 U.S. 1, 8, 102 S. Ct. 1497, 71 L. Ed. 2d 696 (1982).
In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the United States Supreme Court announced a balancing test and identified factors for courts to consider in determining whether a defendant’s Sixth Amendment right to a speedy trial has been violated. These factors include: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his or her right, and (4) prejudice to the defendant. 407 U.S. at 530. None of the factors are controlling in determining whether a defendant’s constitutional right to a speedy trial has been violated, but tire factors must be considered together with such other circumstances as may be relevant. 407 U.S. at 533. We discuss each factor in turn.
1. Length of the Delay
The Supreme Court in Barker noted that the length of the delay in bringing a defendant to trial acts as a “triggering mechanism” for applying the remaining three factors. “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530. With regard to this particular factor, our Supreme Court has resisted setting rigid rules for what length of time is presumptively prejudicial, preferring to examine each delay in the context of the facts in that particular case. See State v. Weaver, 276 Kan. 504, 509, 78 P.3d 397 (2003) (“ ‘[T]he delay in each case is analyzed according to its particular circumstances.’ [Citation omitted.]”). Ac cordingly, the “tolerable delay for an ordinary crime is less than for a complex one.” 276 Kan. at 511.
The facts of this case present two issues that must be resolved before determining whether the length of delay in bringing Gill to trial was presumptively prejudicial. First, we must determine whether the time period during which no charges were pending against Gill {i.e., the time period between the dismissal of the misdemeanor theft charge on February 3, 2010, and the filing of the felony theft charge on December 3, 2010) should be considered in calculating the length of delay. Second, we must determine whether the time period when the misdemeanor charge was pending against Gill {i.e., April 21, 2009, to February 3, 2010) should be considered in calculating the length of delay given the State did not refile this charge against Gill but instead filed a felony theft charge against him.
The outcome of the first issue is clearly controlled by the United States Supreme Court’s decision in MacDonald. In that case, the defendant was indicted by the Army in May 1970 for murdering his wife and two children. In October 1970, the Army dismissed the charges. In December 1970, the defendant was honorably discharged, which terminated die Army’s jurisdiction over him. At the request of the Justice Department, the Army continued to investigate the murders and eventually submitted reports to the Justice Department between June 1972 and August 1973. Following an evaluation of those reports, the Justice Department presented the matter to a grand jury in August 1974. In January 1975, the grand jury returned an indictment charging the defendant with the three murders. A juiy ultimately found the defendant guilty of two counts of second-degree murder and one count of first-degree murder.
On appeal, the Fourth Circuit Court of Appeals held that the indictment violated the defendant’s Sixth Amendment right to a speedy trial. The Supreme Court granted certiorari and reversed, concluding that the time period between the dismissal of the military charges and the later indictment in civilian court should not be considered at all in determining the length of delay in bringing the defendant to trial for Sixth Amendment speedy trial purposes. Specifically, the Supreme Court stated:
“Once charges are dismissed, the speedy trial guarantee is no longer applicable. At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation. Certainly, the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. This is true whether or not charges have been filed and then dismissed. This was true in [United States v.] Marion, [404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971),] where the defendants had been subjected to a lengthy investigation which received considerable press attention. But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed, ‘a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer.’ United States v. Marion, 404 U.S., at 321. Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation.” (Emphasis added.) MacDonald, 456 U.S. at 8-9.
After determining that the time period when no charges were pending against the defendant should not be considered in determining whether his Sixth Amendment right to a speedy trial was violated, the Supreme Court analyzed the time period between the defendant’s civilian indictment and eventual trial. In so doing, the Court noted that the defendant conceded that he had caused the majority of the delay during this time period by his “own legal maneuvers.” 456 U.S. at 11. The Court ultimately held that—even if the defendant had not caused the delay—-the total time period between the indictment and trial “was not sufficient to violate the Speedy Trial Clause.” 456 U.S. at 11. Thus, the Supreme Court reversed the Fourth Circuit’s decision holding that the defendant’s constitutional speedy trial right was violated. 456 U.S. at 11.
As Gill notes in his brief, the MacDonald Court indirectly suggested that bad faith on the part of the prosecution in dismissing and refiling charges against a defendant could result in the time period between dismissal and refiling being considered as part of the delay in bringing the defendant to trial for speedy trial purposes. The MacDonald Court stated:
“[T]he Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause.” (Emphasis added.) 456 U.S. at 7.
Later in the opinion, the MacDonald Court indicated in a footnote that the prosecution acts in “bad faith” when it dismisses charges in order to evade the Sixth Amendment’s speedy trial guarantee. 456 U.S. at 10 n.12. The Court went on to note that there was “no allegation that the Army acted in bad faith in dismissing the charges” because the Army’s decision to dismiss was based on the commanding general of the defendant’s unit “following the recommendation of the Article 32 investigating officer” and concluding that the charges were untrue. 456 U.S. at 10 n.12.
Here, there is nothing in the record to indicate that the State dismissed the misdemeanor theft charge against Gill in order to evade enforcement of the Speedy Trial Clause. Instead, the record established—and Gill concedes—that the State dismissed the charge so it could file a felony theft charge against him. Based on MacDonald, the time period between the State’s dismissal of the misdemeanor theft charge and the filing of the felony theft charge is not considered in a Sixth Amendment speedy trial analysis because, without a showing of bad faith on the part of the prosecution, the Speedy Trial Clause simply does not apply to time periods when no charges are pending and the defendant’s freedom is not impaired by being incarcerated or released on bail. For these reasons, we conclude that the time period between February 3, 2010 (dismissal of the misdemeanor charge), and December 3, 2010 (filing of the felony theft charge), is not part of the delay in bringing Gill to trial for Sixth Amendment speedy trial purposes.
We now must determine whether it is proper to count the time period before the State dismissed the misdemeanor theft charge in this case. Notably, courts are split on whether to consider the time period between when charges are dismissed and then refiled as part of the delay in bringing a defendant to trial for constitutional speedy trial purposes. Some courts have concluded that a dismissal of the charges stops the constitutional speedy trial clock entirely and that when charges are refiled, the speedy trial clock begins anew (i.e., the time period prior to dismissal is not considered as part of the delay in bringing the defendant to trial). See, e.g., United States v. Wallace, 848 F.2d 1464, 1469 (9th Cir. 1988); Commonwealth v. Butler, 79 Mass. App. 751, 756, 949 N.E.2d 936 (2011) (pet. for review pending); Metoyer v. Scott, 70 Fed. Appx. 524, 530, 2003 WL 21716429 (10th Cir. 2003) (unpublished), cert. denied 541 U.S. 907 (2004). Other courts have concluded that dismissal of charges merely tolls the constitutional speedy trial clock and that the time period before dismissal and the time period after charges are refiled constitute the applicable length of delay. See, e.g., United States v. Colombo, 852 F.2d 19, 23-24 (1st Cir. 1988); Humphrey v. State, 185 P.3d 1236, 1244 (Wyo. 2008).
Notably, Kansas appellate courts have never explicitly decided this issue in the context of constitutional speedy trial calculations. In fact, Kansas appellate courts have never cited MacDonald or any other case addressing whether the time period between dismissal and refiling should be considered as part of the delay for constitutional speedy trial purposes. Notwithstanding an absence of cited authority, Kansas appellate courts repeatedly have calculated the length of delay for constitutional speedy trial purposes by counting the entire time period from when a defendant is first arrested or charged to the time the prosecution comes to an end in district court. See, e.g., State v. Jamison, 248 Kan. 302, 306-07, 806 P.2d 972 (1991) (court considered 2 1/2-year period between defendant’s arrest and district court’s dismissal of charges as length of delay for constitutional speedy trial purposes without discounting interim, 10-month time period between State’s dismissal and eventual refiling of charges); State v. Hunt, 8 Kan. App. 2d 162, 163, 167-68, 651 P.2d 967 (1982) (court considered 1-year time period between defendant’s arrest and trial as length of delay for constitutional speedy trial purposes without discounting interim, 4-day time period between State’s dismissal and eventual refiling of charges); State v. Stumpf, No. 103,196, 2011 WL 1877996, at *1, 4 (Kan. App. 2011) (unpublished opinion) (though court considered the over 16-month time period between defendant’s arrest and trial as length of delay for constitutional speedy trial purposes, court acknowledged that 8 months of this time period included time between State dismissing and refiling charges; consequently, court downplayed significance of the 8 months in its speedy trial analysis because no charges were pending during this time period).
Because there is a split in authority on whether the time period prior to charges being dismissed should be considered in a constitutional speedy trial analysis, we find it helpful to look at those Kansas cases that have addressed the same issue in applying Kansas’ statutory speedy trial statute, K.S.A. 22-3402. See State v. Warren, 224 Kan. 454, 457, 580 P.2d 1336 (1978) (The purpose of K.S.A. 22-3402 is to implement and define the constitutional guarantee of a speedy trial.). In situations where the State has filed a charge, dismissed it, and then filed another charge, Kansas courts have held that the statutory speedy trial clock starts anew in the second case if the State dismissed the first case because of necessity or the charge in the second case is not identical to the charge that was previously dismissed. If, however, the first case was not dismissed because of necessity and the charge in the second case is identical to the charge dismissed in the first case, then courts will consider the dismissal of the first case as merely tolling the statutory speedy trial clock. Consequently, the days chargeable to the State in the first case will be added to the days chargeable to the State in the second case to determine whether the statutory time period has been surpassed. See State v. Smallwood, 264 Kan. 69, 75, 955 P.2d 1209 (1998); Jamison, 248 Kan. at 304; State v. Ransom, 234 Kan. 322, Syl. ¶ 1, 673 P.2d 1101 (1983), cert. denied 469 U.S. 818 (1984); State v. Cuezze, Houston & Faltico, 225 Kan. 274, 278, 589 P.2d 626 (1979); State v. Clemence, 36 Kan. App. 2d 791, 798, 145 P.3d 931 (2006), rev. denied 283 Kan. 932 (2007); Hunt, 8 Kan. App. 2d at 167.
Based on MacDonald and the cases cited above applying K.S.A. 22-3402, we hold, as a matter of first impression, that when the State dismisses a charge and files another one, the constitutional speedy trial clock will start anew in the second case if the State dismissed the first case because of necessity or the charge in the second case is not identical to the charge that was previously dismissed. If, however, the first case was not- dismissed because of necessity and the charge in the second case is identical to the charge previously dismissed, then the dismissal of the first case will be construed as merely tolling the constitutional speedy trial clock. Accordingly, the time period before dismissal and the time period after the charge was reinstated will constitute the applicable length of delay for constitutional speedy trial purposes.
Applying this legal principle to the facts here, the record shows that on February 3, 2010, the State dismissed the misdemeanor theft charge against Gill so it could file a felony theft charge against him. On December 3, 2010, the State filed a felony theft charge against Gill. Even if the State’s decision to dismiss was not necessary, the State did not refile the misdemeanor theft charge against Gill but instead filed a felony theft charge. Because this charge was different from the misdemeanor charge that was originally filed against Gill, the constitutional speedy trial clock was reset once the State filed the felony theft charge against Gill. As such, the length of delay in tiris case for constitutional speedy trial purposes runs from December 3, 2010, the date the State filed the felony dieft charge against Gill, to June 2, 2011, when the district court dismissed the charge against Gill due to a violation of his constitutional right to a speedy trial. We find that the duration of this time period-—approximately 6 months— is not presumptively prejudicial; thus, we are not required to consider the other factors that go into the balance. But because a review of the remaining Barker factors offers further support for our holding, we will briefly discuss them.
2. Reason for the Delay
In Barker, 404 U.S. at 531, the Supreme Court stated drat “different weights should be assigned to different reasons” for the delay in bringing a defendant to trial:
“A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.”
On December 3, 2010, the State charged Gill with felony theft. On February 22, 2011, Gill was arrested and released on bail. On May 18, Gill was arraigned on the felony theft charge, and on May 24, he filed his motion to dismiss based on statutory and constitutional speedy trial grounds. The district court conducted a hearing on the motion on June 2, 2011, where it pronounced from the bench that the felony theft charge against Gill was dismissed as a result of the State violating Gill’s constitutional right to a speedy trial.
There are no facts in the record to support a finding that the State delayed in moving the felony theft case forward in order to hamper Gill’s defense. Accordingly, this factor weighs in favor of the State.
3. Gill’s Assertion of His Constitutional Right to a Speedy Trial
Gill asserted his constitutional right to a speedy trial when he filed his motion to dismiss on May 24, 2011. This factor weighs in favor of Gill.
4. Prejudice to Gill
As for the final factor—prejudice to the defendant—the Sixth Amendment right to a speedy trial was designed to (1) prevent oppressive pretrial incarceration; (2) minimize anxiety and concern of the accused; and (3) limit the possibility the defense will be impaired. Barker, 407 U.S. at 532.
Here, Gill was arrested on February 22, 2010, for the felony theft charge and was released that same day after posting bail. Thus, it does not appear that Gill suffered from oppressive pretrial incarceration. Gill claims he suffered from anxiety and concern during the time no charges were pending against him because he was aware that the State would eventually file a felony theft charge against him. But the Supreme Court noted in MacDonald that once charges are dismissed, “the speedy trial guarantee is no longer applicable. At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation.” 456 U.S. at 8-9. Consequently, the anxiety and concern that Gill may have felt while waiting for the State to file a felony theft charge against him does not constitute prejudice under the Sixth Amendment’s Speedy Trial Clause. Finally, Gill claims that his defense was impaired by the State’s delay in charging him with felony theft. Although defense counsel offered summary assertions at the motion hearing, claiming that Gill’s defense had been impaired, Gill did not present any evidence to the district court to establish that his defense was prejudiced by the State’s delay in filing the felony theft charge. See State v. Cole, 37 Kan. App. 2d 633, 637, 155 P.3d 739 (2007) (“Statements of counsel are not evidence.”). Regardless, the MacDonald Court explicitly stated that “[a]ny undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause.” (Emphasis added.) 456 U.S. at 7. Accordingly, the prejudice factor weighs in favor of the State.
Applying the Barker factors to the facts here, we find only one factor weighs in favor of Gill—he asserted his right to a speedy trial. The applicable length of delay—6 months—is relatively short and does not appear to be presumptively prejudicial. There is no evidence showing that (1) the State intentionally! sought to delay bringing Gill to trial for felony theft; (2) Gill was subjected to oppressive pretrial incarceration; (3) Gill experienced undue anxiety and concern during the 6-month period of time that the felony theft charge was pending; or (4) Gill’s defense was impaired in any way while the felony theft charge was pending. For these reasons, we find no constitutional speedy trial violation occurred in this case.
C. Due Process
In the event this court would find that he was not denied his constitutional right to a speedy trial, Gill briefly argues on appeal that the district court’s decision to dismiss the felony theft charge alternatively may be affirmed on grounds that the State’s delay in filing the felony theft charge against him violated his Fifth Amendment due process right to a reasonably timely prosecution.
In United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), the United States Supreme Court recognized that a relationship existed between the requirements of due process under the Fifth Amendment to the United States Constitution and inordinate delay in charging a defendant with a crime. 404 U.S. at 324. In State v. Royal, 217 Kan. 197, 201, 535 P.2d 413 (1975), the Kansas Supreme Court explained the relationship:
“The Marion case rests on the proposition that due process rights may be said to have been denied by reason of preaccusation delay, where it is shown that actual prejudice resulted to the defendant in his [or her] ability to conduct his [or her] defense and that the government intentionally delayed prosecution to gain a tactical advantage over him [or her].” (Emphasis added.)
The Royal court identified two questions that must be considered in assessing whether there has been an impermissible encroachment on due process rights: (1) Has the delay prejudiced the defendant’s ability to defend against the criminal charge? (2) Was the delay in charging the defendant a tactical device used by tire State to gain advantage over the defendant? Both questions must be answered affirmatively before criminal charges will be dismissed based upon a violation of due process rights. 217 Kan. at 202. Notably, the Royal court stated that “[t]he possibilities of prejudice inherent in extended delay in the filing of charges are not of themselves sufficient to demonstrate that the accused cannot receive a fair trial.” 217 Kan. 197, Syl. ¶ 3.
As we already found above, Gill failed to present any evidence at the hearing on his motion to dismiss to establish that he suffered actual prejudice to his defense from the State’s delay in filing the felony theft charge against him. Based on the statements of counsel—which, again, are not evidence, see Cole, 37 Kan. App. 2d at 637—the district court assumed that the delay in filing the felony theft charge would cause prejudice to Gill. This assumption by the district court is simply not sufficient to justify dismissing charges against Gill under the Fifth Amendment’s Due Process Clause. Additionally, Gill failed to establish, and the record on appeal does not support a finding, that the State intentionally delayed in filing the felony theft charge in order to gain a tactical advantage over Gill. Accordingly, we are not persuaded by Gill’s Fifth Amendment due process argument as an alternative reason for affirming the district court’s decision to dismiss the felony theft charge.
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Pierron, J.:
Darlene Hubbard appeals the district court’s granting of summaiy judgment in favor of B. Theo Mellion, M.D. Hubbard sued Dr. Mellion for medical malpractice after a surgical instrument broke during microdiscectomy surgery and a small piece of metal remained lodged in Hubbard’s spinal disc. The district court held that Hubbard had filed a medical malpractice cause of action but she had failed to provide medical expert testimony establishing a standard of care and causal deviation and that neither res ipsa loquitur or the common knowledge exceptions applied to relieve Hubbard of her duty to present medical expert testimony. We reverse.
Hubbard is a registered nurse. On November 28, 2007, she injured her back assisting a patient into bed at Wesley Medical Center in Wichita. Hubbard received workers compensation benefits for her injuries. Hubbard sought treatment from Dr. Mellion for a herniated disc that was causing sharp pain in her buttocks and also down her right leg. Hubbard ultimately decided on surgical intervention in hopes of relieving her pain. On February 20, 2008, Dr. Mellion performed bilateral L5-L6 hemilaminectomies, fora-minotomies, and a discectomy with an operating microscope on Hubbard.
During Hubbard’s surgery, the tip broke off one of the medical instruments, a 2-mm upbiting pituitary rongeur (rongeur) manufactured by Aesculap, Inc. The rongeur is a forcep-type instrument that is used to reach into the disc space and remove the soft parts of the intervertebral disc. Dr. Mellion attempted to retrieve the broke tip but was unable to do so.
Dr. Mellion halted the surgery and consulted Hubbard’s husband regarding the instrument failure and that he was unable to retrieve the broken tip. Dr. Mellion explained the options of either removing the disc (and broken tip) and doing a spinal fusion or stopping the surgery and monitoring Hubbard to see if there were any complications from leaving the tip in the disc. Hubbard’s husband followed Dr. Mellion’s recommendation and decided to stop the surgery. The pain in Hubbard’s right leg was gone after the surgery, but then she had worse pain on her left side. During follow-up visits with Dr. Mellion, x-rays showed that the rongeur piece had not moved and had stayed in the same location in the disc.
Approximately 8 months after surgery, on October 9, 2008, Dr. John Górecki performed a second surgery consisting of “[a]nterior lumbar interbody fusion L4-5 with SynFix including removal of foreign body followed by bilateral laminectomy with foramintomy L4-5, and posterior lateral fusion L4-5 with nonstructural allograft and autologous bone graft and pedical screws.” Dr. Górecki provided a letter on August 26, 2009, stating:
“This patient underwent complete discectomy and spinal fusion with removal of a retained foreign body with the disc space in October 2008. Clearly tire retained fragment of pituitary rongeur within the disc space was a substantial irritant to the disc. It was like having a pebble in a person [sic] shoe. As a direct result the patient required spinal surgery with instrumented fusion.”
On November 30, 2009, Hubbard filed a negligence action against Aesculap, Inc., Kansas Spine Hospital, L.L.C., and Dr. Mellion. Hubbard listed five theories of negligence:
“10. The upbiting pituitary instrument manufactured and sold by defendant Aes-culap, Inc., was in a dangerous and defective condition due to tire negligence of Aesculap, Inc. when it reached its destination, [Kansas Spine Hospital, L.L.C.], before Februaiy 8, 2008.
“11. Defendant [Kansas Spine Hospital, L.L.C.] negligently failed to inspect, test, and or safely maintain the pituitary instrument and provided same for use by defendant Mellion for the surgery he performed on plaintiff on February 28,2008.
“12. Defendant Mellion negligently failed to inspect and or test the pituitary instrument before using it for the surgery he performed on plaintiff on February 28, 2008.
“13. Defendant Mellion negligently used the pituitary instrument causing the tip to bréale off and become lodged in the disc space of the plaintiff.
“14. Defendant Mellion negligently failed to remove the broken piece of the pituitary instrument from the plaintiff at the time of surgery on February 28, 2008.”
Aesculap, Inc. and Kansas Spine Hospital, L.L.C. were eventually dismissed without prejudice. The parties proceeded with a lengthy period of discovery.
During Dr. Mellioris deposition, Hubbard’s attorney questioned Dr. Mellion on the possible reasons why the rongeur broke. The questioning at the deposition was as follows:
“Q. [HUBBARD’S ATTORNEY]: Well, do you—can you see that there are probably three reasons—one of three reasons why it broke? Number one, operator error, that would be you getting a hold of something that was not supposed to be grabbed and you put pressure on it and it broke, that’s a possibility, correct?
“A. [DR. MELLION]: That’s a possibility.
“Q. Okay. Number two would be that the rongeur or the forceps was defective in some way in the way it was manufactured?
“A. That’s a possibility.
“Q. And then the only other reason I can think of would be that it wasn’t taken care of properly by the folks ... at the hospital—
“MR. SOROCHTY [DEFENSE COUNSEL]: I move—
“Q. —who were in charge of seeing that their instruments were . . . inspected and kept in good condition?
“MR. SOROCHTY: Object to the form of the question. In addition, the doctor’s asked and answered that question, says he doesn’t know why. Just because you can only come up with three reasons doesn’t mean those are the only exclusive ones, but you can answer, Doctor.
“A. I . . . agree, I don’t believe that there can only be three concise reasons.
“Q. Okay, Okay. Give me more reasons.
“A. Instrument wear.
“Q. Okay.
“A. Any mechanical instrument, if used enough times will ultimately fail.”
The remainder of Dr. Mellioris deposition involved discussions about wear and tear on the instruments and whether Dr. Mellion had any criticism of Dr. Gorecld’s decision to remove the rongeur piece and perform the spinal fusion surgeiy.
Hubbard’s main expert in this case was Dr. Kevin Lease, a Ph.D. metallurgist engineer from the Department of Mechanical and Nuclear Engineering (Department) at Kansas State University. Dr. Lease was qualified to offer expert opinions as to the cause of fractured metal. In his capacity as the director of the Department’s Mechanical Testing and Evaluation Lab, Dr. Lease analyzed the broken rongeur used in Hubbard’s surgeiy by Dr. Mellion in order to determine what caused the tip of the metal rongeur to break off. After conducting this analysis, and based on his extensive training and experience in the field of metal, Dr. Lease ruled out the possibility that the rongeur failed due to a manufacturer’s defect, ruled out the possibility that the rongeur failed because it had been improperly maintained, and ruled out the possibility that the ron-geur had failed due to normal wear and tear. Based on his findings, Dr. Lease concluded that, of tire four possibilities for failure identified in Dr. Mellion’s deposition, only one remained a viable option: operator error. By way of explanation, Dr. Lease stated he believed the person operating the rongeur at the time it broke applied an amount of force in excess of what the instrument was intended to sustain.
Hubbard also provided expert testimony from Thorsten Barth-elmes, a quality management team leader with Aesculap, Inc. Barthelmes examined Dr. Lease’s report and concluded “tire most probable cause is related to an overload situation during use.”
Dr. Paul Stein, a neurosurgeon and Diplomat with the American Board of Neurological Surgery, performed an independent medical examination. Dr. Stein gave the following opinion:
“Ms. Hubbard underwent a lumbar laminectomy and diskectomy by Dr. Mel-lion on 2/20/08 during which there was a complication in which the upper jaw of a pituitary forceps broke while in tire disk space. Firstly, let me state that I have no criticism of the care provided by Dr. Mellion. The pathology and symptoma-tology for which the surgery was being done was appropriate to the procedure as planned. The records reflect no deviation of proper procedure or care by Dr. Mellion during surgeiy. The pituitary forceps being used was the appropriate instrument for use inside the disk to remove this material. It was being used within the disk which is its appropriate usage. After the upper jaw of the forceps broke, which is not an unheard of event, Dr. Mellion made an appropriate attempt to retrieve the fragment. When he could not do so from his surgical exposure, he rightly discussed the situation with the patient’s husband and provided the appropriate options. The option chosen was reasonable and appropriate and his follow up was proper. At that point, Ms. Hubbard decided to seek further medical attention elsewhere.
“In regard to the actual instance of breakage of the instrument, this is not at all unknown in neurosurgical practice. In my 33 years of active neurosurgical practice in Wichita, I have performed thousands of lumbar disk surgeries. During that practice, on one occasion, the upper jaw of a pituitary forceps, manufacturer unknown, broke in the disk just as occurred in this case. I am aware of this happening to other neurosurgeons in the past as well. These are instruments which must be delicate yet strong in order to be satisfactory for the purpose of their use. Aesculap is a very well known and respected manufacturer of such instruments for neurosurgical practice and I suspect that most neurosurgeons in the United States have used equipment from this manufacturer. It would not be practical to use a brand new instrument in every case, nor is it possible to do structural analysis on each instrument prior to use. While I am not a metallurgist and cannot discussed [sic] that aspect of the manufacturer, I have used the equipment of this manufacturer with confidence for many years while doing neurosurgery and would have no concern regarding future use if I were still doing such surgery.”
The defense offered the expert testimony of Dr. David Fritz, a neurosurgeon. In preparing to give his testimony, Dr. Fritz examined all the depositions and the reports of Dr. Lease and Dr. Stein. At his deposition, Dr. Fritz acknowledged that he was not qualified as an expert on why something made of metal might bréale and he did not know why the rongeur used during Hubbard’s surgery broke. Dr. Fritz testified that surgical instruments such as the rongeur used here fail less than 1% of the time.
Dr. Fritz further testified that the rongeur tip had broken off here in the disc space exactly where proper use of the instrument occurs and that the location of the broken tip would not have caused the postsurgical pain experienced by Hubbard.
In the Agreed Pretrial Order, Hubbard provided tire following contentions and theories of recovery:
“[Hubbard] contends that when [Mellion] performed spine surgery on her he negligently and careless[ly] used a device known as an upbiting pituitary rongeur, hereafter referred to as forceps. [Hubbard] alleges [Mellion] used the forceps contrary to instructions of the manufacturer in that too much force was applied causing the forceps to break and become lodged in the spine of [Hubbard]. [Mel- lion] did not remove the broken part of the forceps. As a result of [Mellion s] negligence [Hubbard] later had to have additional spine surgeiy performed by another spine surgeon to remove the broken piece of the forceps and to fuse the spine. As a direct result of the negligence of [Mellion] [Hubbard], who was a registered nurse at Wesley Medical Center, has been unable to return to work.”
Dr. Mellion filed a motion for summaiy judgment based on Hubbard’s failure to designate a medical expert qualified to testify as to the applicable standard of care for a surgeon performing this type of surgery. The district court ultimately granted summaiy judgment in Dr. Mellion’s favor based on Hubbard’s failure to establish the proper standard of care. More specifically, the court found Hubbard’s mechanical engineer expert established that the rongeur malfunctioned because of operator error but that she must still offer expert testimony to prove that such operator error was outside the established standard of care. The court was not willing to extend the res ipsa loquitur doctrine to the case because there were a number of different ways the rongeur could have malfunctioned, especially in light of the testimony that instruments like these sometimes just break. The court also found the common knowledge exception to the medical expert testimony would not be extended either because that would imply that the rongeur would not malfunction without a doctor acting outside the standard of care and that negligence was required in order to have that land of defect.
Standard of Review
We review a district court’s decision to grant or deny a motion for summary judgment as follows:
“ ““ “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summaiy judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, tire facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” ’ ” [Citations omitted.]’ ” Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
Analysis
The crux of Hubbard’s argument on appeal is that the district court erred by requiring her to present expert medical testimony on the proper standard of care in order to survive summary judgment. Before addressing the merits of her argument, we find it helpful to review some legal fundamentals concerning medical malpractice.
“Medical malpractice is negligence of a healthcare professional in the diagnosis, care, and treatment of a patient.” Perkins v. Susan B. Allen Memorial Hospital, 36 Kan. App. 2d 885, 888, 146 P.3d 1102 (2006). In a negligence case alleging medical malpractice, the plaintiff must prove the following elements:
“(1) The physician owes the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury; (2) the physician breached this duty or deviated from the applicable standard of care; and (3) the patient was injured and die injury proximately resulted from the physician’s breach of the standard of care. [Citations omitted.]” Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008).
Negligence may be proved in a medical malpractice case by direct evidence or by circumstantial evidence; in other words, evidence from which an inference of negligence can be made. A finding of negligence may not, however, be inferred from facts that merely establish lack of success or an adverse result from treatment. Esquivel, 286 Kan. at 296. In the absence of direct or circumstantial evidence, negligence will not be presumed. Perkins, 36 Kan. App. 2d at 888.
Because the diagnosis, care, and treatment of a patient are typically issues outside tire knowledge of an average person who has not received specialized training, expert testimony generally is required to establish the appropriate standard of care in medical malpractice cases. Perkins, 36 Kan. App. 2d at 888. There are, however, exceptions to this requirement. Specifically, experts are not needed to establish the appropriate professional standards of care where either tire doctrine of common knowledge or the doctrine of res ipsa loquitur applies.
The doctrine of common knowledge applies when a breach of reasonable care would be apparent to and within the common knowledge and experience of the average person who has not received any specialized training. Webb v. Lungstrum, 223 Kan. 487, 490, 575 P.2d 22 (1978). The res ipsa loquitur doctrine applies when a layperson could find that the patient’s condition was such that would ordinarily not have occurred if due care had been exercised. Tatro v. Lueken, 212 Kan. 606, 611, 512 P.2d 529 (1973). Although related, there is a difference between the common knowledge doctrine and res ipsa loquitur. In a common knowledge case, a plaintiff presents evidence of the specific act or omission that allegedly deviated from the applicable standard of care and evidence of the injury sustained. The juiy then utilizes common knowledge and experience to assess the wrongfulness of the specific act or omission and attribute the plaintiff s injury to that wrongful act or omission. Perkins, 36 Kan. App. 2d at 888. In a res ipsa loquitur case, however, a plaintiff need only present evidence of the injuiy and is not required to prove a standard of care or a specific act or omission. Under the doctrine of res ipsa loquitur, the mere fact that tire injury occurred raises an inference of negligence. Perkins, 36 Kan. App. 2d at 889.
Having set forth tire relevant legal principles, we now turn to Hubbard’s argument on appeal. Specifically, Hubbard argues tire district court erred in granting summary judgment in favor of Dr. Mellion for the following reasons: (1) the record contains adequate expert testimony from which the jury could conclude Dr. Mellion breached the applicable standard of care for a surgeon performing this type of surgery; (2) a standard of care expert is not required in this case because the common knowledge exception to tire expert witness requirement is applicable; and (3) a standard of care expert is not required in this case because the negligence can be presumed in this case under the doctrine of res ipsa loquitur.
Existing Expert Testimony
Hubbard claims the record contains adequate expert testimony from which the jury could conclude Dr. Mellion breached tire ap plicable standard of care for a surgeon performing this type of surgery and, thus, the district court erred in finding that only a physician could provide standard of care testimony. Specifically, Hubbard argues Dr. Lease’s opinion that the rongeur failed due to operator error is tantamount to an opinion that the defendant negligently applied too much force and caused tire instrument to break. But Hubbard’s argument is really an attempt to “bootstrap” an expert opinion regarding the reason why a metal instrument fractured during surgery into an expert opinion on the proper standard of care for a medical professional who uses the metal instrument during surgery. Such an argument is without merit.
The Common Knowledge Exception to the Expert Witness Requirement
The common knowledge exception in medical malpractice cases applies if what is alleged to have occurred in the diagnosis, treatment, and care of a patient is so obviously lacking in reasonable care and the results are so bad that the lack of reasonable care would be apparent to and within the common knowledge and experience of mankind generally. Webb, 223 Kan at 490.
Kansas courts have identified three essential elements to the common knowledge exception: (1) the plaintiff has asserted a claim of medical malpractice; (2) the care or result of the care is patently bad; and (3) a person without the pertinent medical knowledge can assess the wrongfulness of the diagnosis, treatment, or care and attribute the plaintiff s injury to the wrongful conduct without the assistance of expert testimony. Whether or not the common knowledge exception applies to a given set of facts is a question of law. It is a narrow exception and has rarely been applied. Perkins, 36 Kan. App. 2d at 889.
Here, Hubbard alleges Dr. Mellion negligently applied too much force when using the rongeur during her surgery, which caused the instrument to break. The court is not persuaded that this type of medical malpractice is a matter of common knowledge. The proper procedure for using a rongeur during surgery is not a matter within the province of the common person; thus, a breach of reasonable care would not be apparent to and within the com mon knowledge and experience of the average person who has not received any specialized training. See Webb, 223 Kan. at 490; Perkins, 36 Kan. App. 2d at 888.
The Res Ipsa Loquitur Exception to the Expert Witness Requirement
The doctrine of res ipsa loquitur is one of evidence, rather than substantive law. Generally it becomes applicable in a negligence action where there is no direct proof of negligence, but where circumstances are established so as to leave no conclusion other than that the defendant is at fault. Because of the favorable presumption of skill and care and the nature of medical practice and treatment, which usually requires expert testimony to establish fault, a determination regarding the applicability of res ipsa loqui-tur in a medical malpractice action is difficult. Nevertheless, three conditions must be met for the doctrine of res ipsa loquitur to apply: (1) The thing or instrumentality causing the injury or damage was within the exclusive control of the defendant; (2) the occurrence must be of such kind or nature as ordinarily does not occur in the absence of someone’s negligence; and (3) the occurrence must not have been due to contributory negligence of the plaintiff. See Bias v. Montgomery Elevator Co., 216 Kan. 341, 343, 532 P.2d 1053 (1975). “The rationale behind the doctrine is said to be that when the defendant has exclusive control of the instrumentality he has it within his power to produce evidence of the cause of the injury, while the plaintiff is without such knowledge and must therefore rely on proof of the circumstances.” Bias, 216 Kan. at 343.
The doctrine of res ipsa loquitur is available in an appropriate case to a plaintiff alleging medical malpractice based upon negligence. Applicability must be decided on a case-by-case basis. See Voss v. Bridwell, 188 Kan. 643, 660, 364 P.2d 955 (1961). Therefore, we must determine whether the district court erred in concluding that res ipsa loquitur was unavailable to Hubbard under the facts of this case.
Exclusive Control
To meet the first condition, the plaintiff must have evidence to establish: (a) The specific thing or instrumentality which actually caused his or her injury or damage and (b) the tiling or instrumentality which caused his or her injury or damage was within the exclusive control of the defendant. Thus, the doctrine does not apply where the thing or instrumentality which caused the injury or damage is unknown or cannot be shown. Arterburn v. St. Joseph Hospital & Rehabilitation Center, 220 Kan. 57, 65, 551 P.2d 886 (1976).
With regard to the first requirement, Hubbard alleges the instrumentality which actually caused her injury and damage was the tip of the rongeur, which broke off and became lodged in disc space within her spine. We find sufficient evidence in the record on summary judgment to establish that the broken rongeur was the specific instrumentality which actually caused her injury or damage. Hubbard testified at her deposition that in the months following the surgery, she suffered continuing pain as a result of the instrument tip remaining in her disk material. In October 2008, Hubbard underwent a second spinal surgery, this time performed by Dr. Gorecld. Dr. Gorecld performed a spinal fusion and removed the instrument tip. In 2009, Dr. Gorecld drafted a letter stating in part: “Clearly the retained fragment of pituitary rongeur within the disc space was a substantial irritant to the disc. It was like having a pebble in a person [sic] shoe. As a direct result the patient required a spinal surgery with instrumented fusion.” At his deposition, Dr. Gorecld testified that the contents of his August 26, 2009, letter were truthful.
We also find sufficient evidence in the summary judgment record to establish that the rongeur was within the exclusive control of the defendant when the injury occurred. Notably, Kansas courts do not require the plaintiff to eliminate all other possible causes of the accident in order to establish exclusive control. See Bias, 216 Kan. 341, Syl. ¶ 2. Instead, the plaintiff is only required to produce sufficient evidence from which a reasonable person could say that—on the whole—it was more likely than not there was negligence on the part of the defendant. If the evidence establishes that it was at least equally probable the negligence was that of another, the theoiy of res ipsa loquitur is inapplicable. Bias, 216 Kan. 341, Syl. ¶ 2.
There appears to be no dispute that Dr. Mellion was in exclusive control of tire rongeur during the surgeiy and when the tip broke. Nevertheless, Dr. Mellion argues the res ipsa loquitur doctrine is inapplicable in this particular case because it was at least equally probable that the negligence was that of another and that such negligence occurred before Hubbard’s surgery. Specifically, Dr. Mellion argues he played no role in the design or manufacture of the rongeur, he was not the manufacturer of the rongeur, he did not own the rongeur, he played no role in the maintenance of the rongeur, he was not the individual charged with the responsibility to pull the rongeur from service at the end of its useful life, and the rongeur had been used by an unknown number of physicians prior to its failure in February 2008.
We are not persuaded by Dr. Mellion’s argument here, primarily because in opposing summary judgment, Hubbard presented the expert opinion of Dr. Lease, who examined the rogeur at issue in his lab and—based on his extensive training and experience in the field of metallurgy—ruled out the possibility that the tip of the rongeur broke off due to a manufacturer’s defect, improper maintenance, and normal wear and tear. As Prosser and Keeton remind us, the element of “exclusive control” must not be hardened into a “fixed, mechanical, and rigid rule”:
“ ‘Control’ if it is not to be pernicious and misleading, must be a very flexible term. It may be enough that the defendant has tire right or power of control, and tire opportunity to exercise it, as in dre case of an owner who is present while another is driving the owner’s car, or a landowner who permits visitors to come on his premises. It is enough that dre defendant is under a duty which he cannot delegate to another, as in the case of a surgeon who allows a nurse to count the sponges. It is enough drat tíre defendant shares the duty and the responsibility, as in the case of the landlord of a building from which an electric sign falls into the street.” Prosser and Keeton, Law of Torts § 39 p. 250 (5dr ed. 1984).
Based on Dr. Lease’s testimony, we find Hubbard met her burden to produce sufficient evidence from which a reasonable person could say that—on the whole—it was more likely than not diere was negligence on the part of Dr. Mellion. In so finding, we necessarily reject Dr. Mellion’s claim that the district court cannot rely on Dr. Lease’s expert opinion for purposes of summaiy judgment due to the fact that Dr. Lease’s opinion will be inadmissible at trial because Hubbard cannot lay the proper foundation necessary to introduce it to the jury.
K.S.A. 60-456 governs die admission of opinion testimony. Under the provisions of K.S.A. 60-456(b), admissible expert opinions are limited to those “(1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” “The proponent of expert opinion testimony must lay the foundation to establish these requirements.” State v. Lawrence, 281 Kan. 1081, 1088, 135 P.3d 1211 (2006). To that end, Dr. Mellion argues that Dr. Lease is not qualified to testily as an expert under K.S.A. 60-456 because (1) Dr. Lease possesses no facts or data regarding the amount of force the rongeur was designed to withstand or the amount of force applied to the rongeur by Dr. Mellion during Hubbard’s surgery or the specific design load of tire rongeur; and (2) Dr. Lease does not have the special knowledge, skill, experience, or training to qualify as an expert on use of a rongeur during surgery.
But Dr. Mellion’s argument challenges the foundation that would be required if Dr. Lease testified as an expert on “use” of the rongeur during surgeiy, a subject about which Dr. Lease was not testifying. Dr. Lease only offered his opinion as to the whether tiie actual rongeur at issue in this lawsuit broke because of some defect in manufacturing, because of improper maintenance, or because of normal wear and tear. The record reflects that Dr. Lease is certainly qualified to offer an expert opinion as to the cause of fractured metal: He is a Ph.D. metallurgist engineer from the Department of Mechanical and Nuclear Engineering at Kansas State University and has had extensive training and experience in tire field of metallurgy. Moreover, the record reflects that Dr. Lease rendered his opinion based on an actual physical examination of tire broken rongeur at issue in this case. Based on his expertise in the field of metallurgy and his analysis of the broken rongeur, Dr. Lease then ruled out three of tire four possibilities identified by Dr. Mellion as reasons that could have caused tire instrument to break while Dr. Mellion was using it—manufacturing defect, improper maintenance, and normal wear and tear—to conclude that only one of the possibilities identified by Dr. Mellion remained a viable option: operator error. Although an inference can be drawn from Dr. Lease’s testimony that the only viable alternative to explain why the rongeur broke is that Dr. Mellion applied too much force, Dr. Lease’s opinion simply cannot be characterized as direct medical testimony presented to establish that Dr. Mellion failed to exercise the reasonable degree of learning and skill ordinarily possessed by like members of the medical profession in performing Hubbard’s surgery.
Viewing all of the evidence in tire summary judgment record and resolving all facts and inferences which may reasonably be drawn from that evidence in favor of Hubbard, as we are required to do, we find Hubbard produced sufficient evidence from which a reasonable person could say it was more likely than not that the instrument which caused Hubbard’s injury or damage was within the exclusive control of Dr. Mellion.
The Injury Is of a Kind Which Ordinarily Does Not Occur in the Absence of Someone’s Negligence
In order to survive summaiy judgment on the second element of her res ipsa loquitur claim, there must be sufficient evidence in the record from which a jury could infer that the tip of a rongeur does not ordinarily break off and become lodged in a patient’s disc space absent Dr. Mellion’s failure to use proper care. Although we are inclined to believe that the prospective jurors in this case have some basis in common knowledge and experience from which they could reasonably conclude that the tip of a surgical instrument does not ordinarily break off and become lodged in a patient’s disc space absent negligence on the part of the surgeon, the record in this case actually reflects evidence from two different experts to support this conclusion. Defense expert Dr. Fritz, a neurosurgeon, testified that surgical instruments such as the rongeur used by Dr. Mellion in Hubbard’s surgery here fail less than 1% of the time. And independent medical examiner Dr. Stein, a neurosurgeon and Diplomat with the American Board of Neurological Surgery, drafted a report stating that in his 33 years of active neurosurgical practice in Wichita, he performed thousands of lumbar disc surgeries and on only one occasion did the upper jaw of a rongeur break off in the disc space. When we consider this evidence in conjunction with the expert opinion of Dr. Lease, who examined the rongeur at issue and ruled out the possibility that the tip of the rongeur broke off due to a manufacturer s defect, improper maintenance, and normal wear and tear, we find sufficient evidence from which a jury could infer that the tip of a rongeur does not ordinarily break off and become lodged in a patient’s disc space absent the surgeon’s failure to use proper care.
The Injury Must Not Have Been Due to Contributory Negligence of Plaintiff
Finally, although Hubbard has not specifically alleged that she was not contributorily negligent, the court finds that Hubbard has nevertheless satisfied this third element of a res ipsa loquitur claim. The record reflects that Hubbard was incapacitated during surgeiy, thereby rendering her physically unable to contribute to any injuiy allegedly occurring during the course of the operation.
Conclusion
In granting summary judgment in favor of Dr. Mellion on Hubbard’s medical malpractice claim, the district court concluded that the doctrine of res ipsa loquitur was not applicable under the facts of this case:
“In [a res ipsa loquitur case], it would suggest that the only way that the error could happen would be absent negligence and—or with negligence, and given the testimony that’s been provided in the case, even giving the ultimate conclusion of Dr. Lease of what happened, that doesn’t mean that’s the only way it could happen. As Mr. Levy [Hubbard’s attorney] pointed out, there’s a number of different manners in which a device can malfunction, so to suggest that it’s a—simply because it malfunctioned, it’s a case of strict negligence, I’m not ready to suggest the law is to that level in cases like Ais, especially. The testimony has been Aat Aese things break. Eveiyone knows Aings break. Your pen breaks on you occa sionally, putting too much pressure on the point at the top when you are writing. I don’t know that that’s negligence. It’s just something that happens. I’m not—I don’t think there’s any evidence to support tíre claim of res ipsa [loquitur] in this case and so I’m going to rule for the defendant on that claim or that theory.”
We disagree with the district court’s analysis and, as our discussion above reflects, find sufficient evidence in the summary judgment record from which a jury could find each of the elements necessary to prove medical malpractice under a theory of res ipsa loquitur: (l)(a) Hubbard was injured as a result of the tip of the rongeur breaking off and lodging in her disc space during surgery; (l)(b) the rongeur which caused her injury was within the exclusive control of Dr. Mellion during her surgery; (2) the tip of a rongeur does not ordinarily break off and become lodged in a patient’s disc space absent a surgeon’s failure to use proper care; and (3) Hubbard herself did not contribute in any way to her injury. See Bias, 216 Kan. at 343. We therefore hold that Hubbard may rely upon res ipsa loquitur in presenting her case to a jury. Whether the inference of negligence arising from res ipsa loquitur will be convincing to a jury is a question to be answered by that jury.
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Standridge, J.:
Cecil Thacker appeals from the sentence imposed by the district court after he pled no contest to attempted tampering with an electronic monitoring device. Thacker claims his sentence was illegal because the underlying felony conviction for which he was being monitored was included in his criminal history for sentencing on the attempted tampering charge. For the reasons stated below, we hold the district court did not err in including Thacker s underlying conviction in his criminal histoiy score for sentencing on the attempted tampering charge.
Facts
In 2009 Thacker was placed on parole for a conviction of aggravated indecent liberties with a child less than 14 years old. As a condition of his parole, Thacker was required to wear a GPS monitoring bracelet on his leg at all times. On May 10, 2011, a special agent with tire department of corrections caught Thacker without his bracelet on.
On June 28, 2011, the State charged Thacker with one count of unlawfully tampering with electronic monitoring equipment. Thacker later pled no contest to attempted tampering with an electronic monitoring device. The presentence investigation report listed Thackers criminal histoiy score as “B.” At sentencing, Thacker challenged this criminal history score, arguing that the conviction of aggravated indecent liberties with a child should not be counted as part of his criminal history for purposes of sentencing because it was the conviction for wdiich he was being monitored and, thus, an element of his current offense of unlawfully tampering with electronic monitoring equipment. The district court disagreed. Based on its own independent research, the court found no reason to exclude the prior conviction for purposes of scoring the present crime. Thereafter, the district court calculated Thacker s criminal histoiy classification as “B” based on the crimes in the presentence investigation report. The district court denied Thacker s motion for dispositional departure and sentenced him to the presumptive standard sentence of 19 months in prison with 12 months’ postrelease supervision.
Analysis
As he did below, Thacker argues on appeal that his conviction for aggravated indecent liberties should not have been included in his criminal history score under K.S.A. 2010 Supp. 21-4710(d)(ll) because the conviction is an element of his present crime of conviction. Because the charge of attempted unlawfully tampering with electronic monitoring equipment requires the defendant to be on parole (or under a court order), Thacker claims this prior conviction for which he was on parole is an element of the crime.
Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Jolly, 291 Kan. 842, 845-46, 249 P.3d 421 (2011). Under tire fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, the court 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). As a general rule, a criminal statute is strictly construed in favor of the accused, meaning the court must construe any ambiguity in the statute’s language in favor of the accused. This rule of strict construction, however, must be reasonable and sensible to effect legislative design and intent. State v. Jackson, 291 Kan. 34, 40, 238 P.3d 246 (2010).
Prior convictions of a crime are not counted in determining a defendant’s criminal history category if they “are elements of the present crime of conviction.” K.S.A. 2010 Supp. 21-4710(d)(11). The elements of a crime are defined as “[t]he constituent parts of a crime—[usually] [consisting of the actus reus, mens rea, and causation—that the prosecution must prove to sustain a conviction.” Black’s Law Dictionary 597 (9th ed. 2009). In Kansas, “ ‘all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute.’ ” State v. Smith, 245 Kan. 381, 396, 781 P.2d 666 (1989), disapproved on other grounds by State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006).
Because the real question is whether the conviction was an element of the present crime of conviction “pursuant to the statutory definition,” it does not matter what was included in the charging document or in the statement of facts at the plea hearing. State v. Lenz, No. 95,498, 2007 WL 1309604, at *1 (Kan. App. 2007) (un published opinion). Thus, in deciding similar issues under K.S.A. 2010 Supp. 21-4710(d)(ll), Kansas courts have looked to the plain meaning of the statutory language to determine whether a prior conviction is an element of the defendant’s present crime of conviction.
In State v. Taylor, 262 Kan. 471, 479, 939 P.2d 904 (1997), abrogated on other grounds by State v. Berreth, 294 Kan. 98, 124, 273 P.3d 752 (2012), our Supreme Court held that the defendant’s underlying felony conviction for which he was in custody at the time of his escape was an element of his present aggravated escape from custody charge and therefore could not be used for criminal history purposes. This conclusion turned on the language of the statute in place at the time, which required that the escapee be “in lawful custody upon a charge or conviction of felony.” K.S.A. 21-3810(a) (Furse 1995); Taylor, 262 Kan. at 479.
After Taylor was decided, however, the legislature amended the statutoiy scheme to include alternative categories of escape from custody, so that one category still required the defendant be held in lawful custody “upon a charge or conviction of a felony” while another only required the defendant be in lawful custody “upon incarceration at a state correctional institution . . . while in the custody of the secretaiy of corrections.” K.S.A. 2006 Supp. 21-3810(a); see Lenz, 2007 WL 1309604, at *2. In State v. Brown, 32 Kan. App. 2d 24, 80 P.3d 404, rev. denied 276 Kan. 970 (2003), this court examined the amended escape from custody statute and concluded that the language used in the new categoiy was substantially different from that of the old statute in Taylor. Specifically, the court found that “it would belie the plain meaning of that section to require proof of conviction when criminal elements must be derived only from the statute.” Brown, 32 Kan. App. 2d at 27. The court ultimately held that the statute required proof of Brown’s in-custody status, not proof of the conviction that created that status, so the district court correctly included the defendant’s prior convictions in his criminal history score. 32 Kan. App. 2d at 27.
In State v. Perez-Moran, 276 Kan. 830, 837-38, 80 P.3d 361 (2003), our Supreme Court approved of the Brown court’s reason ing. See Lenz, 2007 WL 1309604, at *2. The court rejected the defendant’s argument that his prior convictions were necessary to establish that he was in the custody of the Secretary of Corrections and thus were elements of battery against a law enforcement officer. Perez-Moran, 276 Kan. at 831-32, 835. Specifically, the court found the statute in that case defined attempted battery against a law enforcement officer as batteiy “ ’committed against a state correctional officer or employee by a person in custody of the secretary of corrections, while such officer or employee is engaged in the performance of such officer’s . . . duty.’ ” (Emphasis added.) K.S.A. 2002 Supp. 21-3413(a)(2); Perez-Moran, 276 Kan. at 833. The court concluded the plain language of the statute only required the State to prove an inmate was in custody, not why the inmate was in such custody. 276 Kan. at 835. Distinguishing the case from Taylor, the court observed that “aggravated escape from custody required that the defendant be ‘in lawful custody upon a charge or conviction of a felony,’ while the charge in this case, battery against a law enforcement officer, requires only that the defendant be ‘in custody of the secretaiy of corrections’ ” as an essential element of tire offense. 276 Kan. at 836-37. The court relied on the Brown court’s interpretation of “statutory language similar to that in this case,” noting that the post-Taylor amendments to the escape from custody statute made clear that the legislature made a distinction between being held in the custody of the Secretaiy of Corrections and being held in lawful custody upon a charge or conviction of a felony. 276 Kan. at 837-38.
In Thacker’s case, the present crime of conviction is unlawfully attempting to tamper with electronic monitoring equipment under K.S.A. 21-4232(a) (Torrence 2007). This statute provides that “[unlawfully tampering with electronic monitoring equipment is intentionally removing, disabling, altering, tampering with, damaging or destroying any electronic monitoring equipment used pursuant to court order or as a condition of parole.” The plain language of the statute identifies the elements of the crime as (1) intentionally removing, disabling, altering, tampering with, damaging, or destroying (2) any electronic monitoring equipment used (3) pursuant to court order or as a condition of parole. Stated differently, the elements are (1) the act of intentionally tampering with electronic monitoring equipment, (2) by someone under a court order or who is on parole, (3) which requires him or her to wear electronic monitoring equipment.
Just as our Supreme Court did in Perez-Moran, we use our state courts’ interpretation of “statutory language similar to that in this case” to determine whether the plain language' of the statute at issue includes a prior conviction as an element of the crime. As in Brown and Perez-Moran, the plain language of the unlawfully tampering with electronic monitoring equipment statute requires only proof of Thacker’s status of being on parole, not proof of the conviction that created that status. See Brown, 32 Kan. App. 2d at 27. Unlike the statute in Taylor, the statute here does not further define “parole” using the words “upon a charge or conviction.” See Taylor, 262 Kan. at 479. As the post -Taylor amendments to the escape from custody statute demonstrate, the legislature is well aware of how to make a conviction an element of a crime but clearly chose not to do so in K.S.A. 21-4232(a) (Torrence 2007). See Lenz, 2007 WL 1309604, at *2. Thus, the State need only prove that Thacker was on parole, not why he was on parole. See Perez-Moran, 276 Kan. at 835.
Our conclusion that the conviction is not included in the statutory definition of the crime in this case is bolstered by Thacker’s own citation to State v. Loudermilk, 221 Kan. 157, 160, 557 P.2d 1229 (1976), in which the court noted that “where a prior conviction is a necessary element of die crime, the fact of prior conviction is contained in the statutory definition of the crime rather than in the penalty section of the statute.” Furthermore, and despite Thacker’s arguments to the contrary in his brief, the elements of a crime are “gathered wholly from the statute,” so neither the language used in the complaint nor the factual basis for the crime presented at the plea hearing are relevant to our determination. See Smith, 245 Kan. at 396.
As a final argument, Thacker contends that his case is similar to State v. Pottoroff, 32 Kan. App. 2d 1161, 96 P.3d 280 (2004). In that case, the State argued, just as it does here, the failure to register as a sex offender statute did not expressly require a conviction to prove the defendant was required to register, but the court rejected that argument and found the conviction that created the registration requirement was “necessarily” an element of failure to register and thus could not be counted in the defendant’s criminal history score. 32 Kan. App. 2d at 1165-67. However, the court’s reasoning in Pottorojf is distinguishable because it found the entire statutory scheme at issue was dependent on the statutory definitions of “offender,” all of which required a conviction. 32 Kan. App. 2d at 1166-67. The unlawfully tampering with electronic monitoring equipment statute at issue here, however, is not dependent on any definitions. Unlike Pottorojf, there is no definition of “parole” provided anywhere in the statutory scheme, much less any wording requiring a “conviction.” Likewise, Thacker’s citation to State v. Vontress, 266 Kan. 248, 260, 970 P.2d 42 (1998), disapproved on other grounds by State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), is misplaced because that case addressed the issue of calculating the criminal history score when multiple convictions arise out of tire same complaint, which is not an issue in Thacker’s case. In addition, the criminal possession of a firearm statute discussed in Vontress actually required the crime be committed “by a person who, within the preceding five years has been convicted of a felony.” (Emphasis added.) K.S.A. 21-4204(a)(3) (Furse 1995); see Vontress, 266 Kan. at 259.
In sum, we find Thacker’s prior conviction was not an element of the present crime and therefore was properly included in his criminal history classification.
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Bruns, J.:
A jury convicted Tommy Ray James of possession of marijuana with the intent to sell, possession of marijuana without a tax stamp, possession with the intent to use drug paraphernalia, transporting an open container, and faulty equipment. Prior to trial, James had pled no contest to an ignition interlock violation. The district court sentenced James to 44 months in the custody of the Secretary of Corrections but granted him a durational departure for a total term of 30 months. On appeal, we find no constitutional violations, no reversible error committed by the district court, and no prosecutorial misconduct. Thus, we affirm.
Facts
On the night of December 10,2009, Master Deputy Mike Voigts was patrolling a section of Interstate 35 in Franklin County. As he drove his patrol car southbound, Deputy Voigts saw an SUV trav-elling northbound with one headlight out. Deputy Voigts turned his patrol car around and initiated a traffic stop. In doing so, the deputy noticed that a male was in die driver s seat and that a female was in the passenger seat.
Deputy Voigts approached the vehicle and told the driver that one of his headlights was out. Immediately, the deputy smelled the odor of alcohol coming from the SUV. The driver got out of the SUV, although Deputy Voigts never made the request, to check his headlight. While outside the vehicle, Deputy Voigts noticed that the driver’s breath also smelled of alcohol.
Once the driver had confirmed that his headlight was out, Deputy Voigts requested his driver’s license and proof of insurance. The deputy identified the driver as James and also determined that James was the owner of the SUV. Because James did not have proof of insurance with him, he stepped to the back of the SUV and made a call on his cell phone to a person he said was his girlfriend to try to obtain his insurance information.
After James finished his cell phone conversation, Deputy Voigts asked him if he had been drinking alcohol. James initially denied that he had been drinking, but he told the deputy that his passenger had been doing so. When Deputy Voigts told James that he could still smell the odor of alcohol when he was talking to him, James admitted that he had drunk one or two drinks in Emporia earlier in the evening.
With James standing at the back of the SUV, Deputy Voigts went to talk to the passenger and asked her to get out of the vehicle. When she did so, the interior light of the SUV came on and the deputy noticed what appeared to be a less-than-full bottle of alcohol on the floor behind the driver’s seat. Deputy Voigts then returned to James to ask him about the bottle.
After James admitted that he knew the bottle was in his SUV, Deputy Voigts placed him in handcuffs and advised him of his Miranda rights. James agreed to talk to tire deputy and said he had purchased the alcohol in Emporia. Although James initially said there was nothing else illegal in the SUV, he later admitted that there were paper cups in the cup holders near the SUV’s center console that contained mixed drinks. James also admitted that he and his passenger had been sipping on the mixed drinks on the way back from Emporia. Based on this information, Deputy Voigts returned to the SUV to search for additional evidence.
Upon opening the glove box of James’ SUV, Deputy Voigts found a large plastic bag containing green vegetation that he believed to be marijuana. The plastic bag was sitting on top of some papers and other things in the glove box. The Kansas Bureau of Investigation later determined that the plastic bag contained 221.59 grams—or approximately a half pound—of marijuana. Although Deputy Voigts did not smell marijuana prior to opening the glove box, he observed two air fresheners hanging from the SUV’s rearview mirror.
After finding the large plastic bag of marijuana in the glove box, Deputy Voigts also advised the passenger of her Miranda rights. The passenger agreed to speak with the deputy and denied that the marijuana belonged to her. She also told Deputy Voigts that she had ridden with James to Wichita and that she did not know there was marijuana in the SUV’s glove box.
Deputy Voigts returned to James—who was standing in front of the deputy’s patrol car—and told him that he found what appeared to be a half pound of marijuana in the glove box of the SUV. Further, Deputy Voigts reminded James of his Miranda rights before asking him questions about die marijuana. Although James told tire deputy that he did not know anything about marijuana, he suggested that his brother may have left the marijuana in his SUV. When Deputy Voigts pointed out that he found the marijuana in the glove box located near where the passenger was sitting, James stated—on more than one occasion—that it was his vehicle and that he would take responsibility.
Shortly thereafter, James once again told Deputy Voigts that the marijuana might belong to his brother. James, who was still in handcuffs, suggested that he could call his brother. AMiough James told Deputy Voigts that he did not know his brother’s phone number, he said that he was “pretty sure” the number was in his cell phone. He then stuck out his hip so Deputy Voigts could retrieve the cell phone from his pants pocket. While removing the cell phone from James’ pocket, the deputy asked “are there going to be any text messages on here relating to drug sales?” And James responded that there was nothing about drugs on his phone.
Deputy Voigts proceeded to look at the cell phone in James’ presence. In scrolling through James’ text messages, the deputy found two incoming messages that caught his attention. On December 8, 2009, a person named Ash sent a text message to James’ cell phone, which read: “U got green I will meet U somewhere.” Another text message, sent on December 9, 2009, said, “Hey TRay this is Cotie. U got a 20?”
At no point did James tell Deputy Voigts he could not search the text messages on his phone, and it appears from the video tape that the deputy did not have to use a password to gain access to the text messages. When asked about the text messages, James denied having any knowledge of them. James tiren asked Deputy Voigts what was going to happen to his SUV, and the deputy responded that it depended upon whether he found “scales or anything like that” in the vehicle.
Deputy Voigts tiren returned to James’ SUV to search for evidence relating to tire marijuana. Upon looking under some papers in tire glove box where he had found the marijuana, the deputy discovered mechanical scales. As Deputy Voigts walked back towards his patrol car, James asked if he was “finding any scales,” and the deputy said, “Yeah, right there.” The deputy also told James that he found the scales in the “same place as where the marijuana was” discovered. When asked about the scales, James told Deputy Voigts they were a “hood ornament.”
The State filed a complaint against James on December 29, 2009. James was charged with possession of marijuana with intent to sell or distribute, unlawfully arranging sales or purchases of controlled substances using a communication device, felony possession of drug paraphernalia, and various other offenses. On June 1,2010, James filed a motion to suppress the evidence seized during the traffic stop.
An evidentiary hearing was held on June 29, 2010, at which both Deputy Voigts and James testified. In addition, a video tape of the traffic stop was presented. After considering the evidence, the district court denied the motion to suppress. Thereafter, on July 22, 2010, the district court memorialized its decision in a journal entry.
On July 26, 2010, the State filed an amended complaint against James. At the same time, the State filed a bill of particulars and a motion to admit the text messages into evidence at trial. In his response, James argued that the text messages were inadmissible hearsay and, in the alternative, that they constituted evidence of prior bad acts subject to the limitations set forth in K.S.A. 60-455. In reply, the State argued that in the event the district court found the text messages constituted prior bad acts, they would be admissible under K.S.A. 60-455 to establish knowledge, motive, intent, plan, and identity.
The district court held a non-evidentiary hearing on October 18, 2010. At the hearing, counsel made oral arguments and responded to questions relating to the text messages and to the charge of unlawfully arranging sales or purchases of controlled substances using a communication device. In a later hearing, the district court announced that it was granting James’ motion to dismiss the charge of unlawfully arranging sales or purchases of controlled substances using a communication device. Additionally, the district court announced that it found the evidence concerning the text messages to be admissible at trial—subject to a limiting instruction—to show that James had knowledge of the marijuana and the intent to sell or distribute.
A 2-day jury trial began on November 16, 2010. At trial, Deputy Voigts testified about the events on the night of December 10, 2009. In addition, a video of the traffic stop was admitted into evidence without objection and was shown to the juiy. Although James objected to both the admission of Deputy Voigts’ testimony regarding the text messages and his opinion testimony as to the meaning of certain terms used in the text messages, the district court overruled these objections.
Regarding the text messages, Deputy Voigts testified that based on his experience in investigating drug crimes, the word “green” is often used to refer to marijuana and the number “20” is often used to refer to $20 worth of drugs. The deputy also testified that one of the text messages was addressed to “T-Ray” and that James’ full name is Tommy Ray James. Deputy Voigts further testified that although the specific amount may differ, $20 worth of marijuana would normally be less than an ounce. . Moreover, the deputy testified that tire scales found near tire bag of marijuana in James’ glove box were capable of measuring from 0 to 4 ounces.
Angelo Madrid took the witness stand as part of James’ defense. After Madrid was advised of his constitutional rights outside the presence of the jury, he testified that he had put the marijuana in James’ glove box. Specifically, Madrid—who is a shade tree mechanic—testified that he had taken the marijuana as collateral for some work he did on another person’s car. According to Madrid, he borrowed James’ SUV, stuck the bag of marijuana in James’ glove box, and forgot that it was there until after James’ arrest. But Madrid testified that he did not know anything about the scales Deputy Voigts also found in the glove box. Moreover, Madrid testified that he knew Ash and Cotie—-the names under which the text messages found on James’ cell phone were sent—but he did not recall ever borrowing a cell phone from James.
Furthermore, James testified on his own behalf at trial. According to James, he and his passenger drove from Olathe to Wichita on December 10, 2009, to buy a $40 jewelry box from tire home of a friend he called “V” or Vincent. But James admitted that he never told his passenger that he was going to Wichita to pick up a jewelry box. He also could not describe where Vincent lived other than on the west side of Wichita.
James testified that he initially thought Officer Voigts had placed the marijuana in his glove box or that it possibly belonged to his brother who lives in Wichita. Although James admitted that he had told Officer Voigts on the night of die traffic stop that he would take responsibility for the marijuana found in his SUV, he testified that he did so because he “knew for a fact” that his passenger had not put the marijuana in his SUV. He also admitted that he initially told Officer Voigts that he had not been drinking alcohol.
James described his relationship with Madrid to be drat of “good friends,” and he testified that Madrid had borrowed his SUV about a week prior to the traffic stop. According to James, he had not driven die SUV from the time Madrid returned it until the day he drove to Wichita to pick up the jewelry box because gas was too expensive. James further testified that after he was released from jail, he called several people—including Madrid—to find out whether any of them knew anything about the marijuana found in his SUV. James indicated that it was during one such call that Madrid told him that he had put the marijuana in the SUV’s glove box.
Regarding die scales, which were admitted into evidence at trial, James testified that he was a diabetic and that a friend gave him the scales to weigh food. James also testified that after he found out that the scales were the wrong size to weigh food, he hung diem from the rearview mirror of his SUV as an ornament. According to James, he did not know how the scales ended up in his glove box near the bag of marijuana.
James testified that he let a lot of people borrow his cell phone because people where he lived—which was in Olathe—did not have access to phones. Additionally, James testified that he did not read the text messages on his cell phone, nor does he even know how to text. When asked if he had ever been called T-Ray before, James stated that he had “been called a lot of things.” And when asked if he had ever loaned his cell phone to someone named TRay, James responded that he was “pretty sure” he had but could not name anyone specifically who went by that name.
After weighing the evidence, the juiy found James to be guilty of possession of marijuana with the intent to distribute, possession with the intent to use drug paraphernalia, possession of marijuana without a tax stamp, transporting alcohol in an open container, and operating a motor vehicle with defective equipment. James was also convicted of an ignition interlock device violation as a result of a no contest plea entered prior to trial. Although the court initially sentenced James to 44 months in custody of the Secretary of Corrections, it granted him a durational departure for a total term of 30 months. Subsequently, James filed a timely notice of appeal.
Analysis
Issues Presented
On appeal, James presents six issues. First, whether the war-rantless search of text messages on his cell phone violated his rights under the Fourth Amendment to the United States Constitution. Second, whether the district court erred by admitting evidence at trial of two text messages found on his cell phone. Third, whether it was error for the district court to permit a law enforcement officer to render opinions at trial regarding the meaning of certain terms used in tire text messages. Fourth, whether the prosecutor committed misconduct during the rebuttal portion of closing argument. Fifth, whether there was sufficient evidence presented at trial to establish beyond a reasonable doubt that James knew the marijuana was in the glove box of his SUV. Sixth, whether the district court committed cumulative error.
Search of Text Messages Incident to Lawful Arrest
James contends that Deputy Voigts violated his constitutional rights under the Fourtlr Amendment to the United States Constitution by searching the text messages on his cell phone without a warrant. In response, the State contends that the search of the text messages for evidence associated with the discovery of the large bag of marijuana found in James’ SUV was part of a valid search incident to arrest. It appears that neidier the United States Supreme Court nor the Kansas Supreme Court has directly addressed this issue.
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Generally, a warrantless search is unreasonable. See State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 563 U.S. 945 (2011). In Kansas, die recognized exceptions to the warrant requirement include—but are not limited to—consent, search incident to a lawful arrest, stop and frisk, probable cause plus exigent circumstances, the emergency doctrine, the plain view doctrine, and inventory searches. See State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012). In the present case, the district court found that the search of James’ text messages was a valid search incident to arrest.
The United States Supreme Court has held that the scope of a search incident to a lawful arrest extends to containers found on an arrestee’s person. United States v. Robinson, 414 U.S. 218, 236, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). In Robinson, the Supreme Court found that a law enforcement officer had the right to inspect a cigarette package found on an arrestee’s person incident to a lawful arrest. 414 U.S. at 236. In reaching this decision, the Robinson court found:
“A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm or to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the laiofid arrest lohich establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a reasonable’ search under that Amendment.” (Emphasis added.) 414 U.S. at 235.
The Robinson court also found:
“Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the law enforcement officer] did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed. Having in the course of a lawful search come upon [a] crumpled package of cigarettes, he was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as ‘fruits, instrumental-ities, or contraband’ probative of criminal conduct. [Citations omitted.]” 414 U.S. at 236.
In Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), the United States Supreme Court found the search of the defendant’s car incident to his lawful arrest to be unconstitutional because die car was no longer in his immediate presence when police detained him. Gant returned to the rule articulated in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), which permits a search incident to a lawful arrest of the arrestee’s person and areas within the arrestee’s immediate presence from which he or she might gain possession of a weapon or destructible evidence. Gant, 556 U.S. at 339; see also State v. Henning, 289 Kan. 136, 147, 209 P.3d 711 (2009). Although Gant addresses the issue of whether a motor vehicle outside an arrestee’s immediate presence can be searched incident to a lawful arrest, we find nothing in die opinion that indicates the United States Supreme Court is backing away from its holding in Robinson, which allows law enforcement officers to look in containers found on a person incident to a lawful arrest.
Furthermore, our review of opinions from various jurisdictions reveals that the weight of authority applies Robinson to cases involving the search of a cell phone—including the viewing of text messages—seized from an arrestee incident to arrest. See United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (Law enforcement officers may search “text messages and other information from cell phones and pagers seized incident to an arrest.”); Silvan v. Briggs, 309 F. App'x 216, 225 (10th Cir. 2009) (“[T]he permissible scope of a search incident to arrest includes the contents of a cell phone found on the arrestee’s person.”); Finley, 477 F.3d at 259-60 (A law enforcement officer was “permitted to search [the defendant’s] cell phone pursuant to his arrest.”); United States v. Gomez, 807 F. Supp. 2d 1134, 1143 (S.D. Fla. 2011) (Law enforcement officers, “while at the scene of the arrest, had no need to obtain either Defendant’s consent, or a warrant, before searching the cell phone’s call log history.”); United States v. Davis, 787 F. Supp. 2d 1165, 1170 (D. Or. 2011) (“Courts have generally permitted law enforcement officers to conduct warrantless searches of cell phones in cases involving drug-trafficking, where evidence of the crime is likely stored on the phones.”); United States v. Wurie, 612 F. Supp. 2d 104, 110 (D. Mass. 2009) (There is “no principled basis for distinguishing a warrantless search of a cell phone from the search of other types of personal containers found on a defendant’s person.”); People v. Diaz, 51 Cal. 4th 84, 93, 119 Cal. Rptr. 3d 105, 244 P.3d 501 (2011) (“We hold that the cell phone was ‘immediately associated with [the defendant’s] person,’ and that the warrantless search of the cell phone therefore was valid.”). See generally Validity of Search of Wireless Communication Devices, 62 A.L.R. 6th 161, § 6.
We recognize that there are jurisdictions that have found searches of cell phones incident to arrest to be illegal. See Schlossberg v. Solesbee, 844 F. Supp. 2d 1165, 1171 (D. Or. 2012); State v. Smith, 124 Ohio St. 3d 163, 170-71, 920 N.E.2d 949 (2009); United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *9 (N.D. Cal. 2007) (unpublished opinion). See generally Annot., 62 A.L.R. 6th 161, § 7. But we note that in the relatively few cases that have determined a cell phone search incident to arrest to be unreasonable, often the basis for this conclusion was not specific to cell phones. For example, there was no probable cause for arrest in the first place, the search of tire cell phone was not contemporaneous to the arrest, or it was unlikely that the cell phone would contain any evidence of the crime. See, e.g. United States v. Quintana, 594 F. Supp. 2d 1291, 1299-1300 (M.D. Fla. 2009); United States v. Lasalle, No. 07-00032, 2007 WL 1390820, at *6 (D. Haw. 2007) (unpublished opinion); United States v. Carter, No. CRIM.A. 04-10099-GAO, 2006 WL 314345, at *5 (D. Mass. 2006) (unpublished opinion).
Here, James relies primarily, on State v. Smith, 124 Ohio St. 3d 163, 170, 920 N.E.2d 949 (2009). In Smith, a divided Ohio Supreme Court held that a warrant was necessary to search a defendant’s cell phone because a cell phone is not a container “capable of holding other physical objects.” 124 Ohio St. 3d at 167. We do not necessarily agree with tire premise that the information kept on a cell phone should be treated differently than information written on a piece of paper found on an arréstee’s person. We also find Smith to be significantly distinguishable from the present case because—unlike the present case—the law enforcement officers completed at least a portion of the search of the cell phone after they had returned to tire police station and were booking items seized at the crime scene into evidence. 124 Ohio St. 3d at 164.
James also relies on State v. Rupnick, 280 Kan. 720, 732, 125 P.3d 541 (2005), to argue that because smart phones can contain large amounts of personal data, courts should treat them like computer hard drives, which are generally searchable only with a warrant. Unfortunately, we cannot tell from the record whether James’ cell phone was a smart phone. In fact, it appears from the video tape of the traffic stop that it was probably, an older version flip phone and that the text messages were not protected by a user password. Regardless, we find that Rupnick merely stands for the proposition that computer hard drives are not searchable without a warrant unless an exception applies. 280 Kan. at 729; see also State v. Isaac, No. 101,230, 2009 WL 1858754, at *4 (Kan. App. 2009) (unpublished opinion).
The issue in dispute is not whether an individual has a reasonable expectation of privacy in the text messages found on his or her cell phone. See Ontario v. Quon, 560 U.S. 746, 130 S. Ct. 2619, 2630, 177 L. Ed. 2d 216 (2010) (discussing expectations of privacy persons may have in data contained in cell phones). Likewise, the issue in this case does not involve the recovery of sophisticated data from a cell phone. Rather, the issue presented is whether the scope of a search incident to a lawful arrest includes text messages contained in cell phones found on an arrestee’s person.
We recognize that many cell phones, tablets, and similar electronic devices are capable of storing a wealth of personal information. But we find that the Fourth Amendment and the exceptions to the warrant requirement adequately protect such information from unreasonable search and seizure. See Gomez, 807 F. Supp. 2d at 1150 (“[T]he solution does not lie with a revamped analysis of the search incident to arrest doctrine.”). Accordingly, we conclude that as part of a search incident to arrest, it is reasonable for a law enforcement officer to view the text messages contained in a cell phone found on an arrestee’s person for evidence probative of criminal conduct.
It is important to recognize that James does not challenge the search of the SUV that led to the discovery of the marijuana in his glove box. Moreover, he does not challenge the legality of his arrest. Likewise, although James’ counsel briefly mentioned during oral argument that the crime of arrest was transporting an open container rather tiran a drug crime, this issue is not addressed in his brief. As such, we need not consider the issue. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011) (An issue not briefed by the appellant is deemed waived and abandoned.).
A review of the record reveals that after Deputy Voigts found the large bag of marijuana in James’ glove box, the deputy notified James of this discovery. He also appropriately reminded James of his Miranda rights prior to questioning him about the marijuana or searching his cell phone. Further, it is undisputed that the cell phone was in James’ pocket at the time of his arrest and that Deputy Voigts searched the text messages at the scene of the traffic stop in James’ presence.
We, therefore, conclude that under the circumstances present, Deputy Voigts’ inspection of the text messages on James’ cell phone was a valid search incident to a lawful arrest. Furthermore, because we conclude that the search of the text messages was a valid search incident to arrest, we need not consider the State’s additional argument that the search was consensual.
Text Messages Were Not Hearsay
James contends that even if the search of the cell phone was valid, the text messages on his phone were inadmissible hearsay. As such, James argues that the district court erred in admitting them into evidence at trial. We review a district court’s decision to admit or exclude evidence pursuant to K.S.A. 60-460 under an abuse of discretion standard. But to the extent that an evidentiary issue involves the interpretation of a statute, our review is unlimited. See State v. Miller, 42 Kan. App. 2d 12, 21-22, 208 P.3d 774 (2009), aff'd 293 Kan. 535, 264 P.3d 461 (2011).
According to K.S.A. 60-460, inadmissible hearsay is a statement made other than by a witness testifying at the hearing that is “offered to prove the truth of the matter stated.” If a party offers a statement for reasons other than to prove the truth of the matter stated, then the statement is not hearsay and it is admissible like any odier relevant evidence. State v. Becker, 290 Kan. 842, 846, 235 P.3d 424 (2010). Likewise, “[statements used circumstantially to give rise to an indirect inference but not to prove the matter asserted” are not hearsay. 290 Kan. at 847. Additionally, statements drat can be neither true nor false are not hearsay. 290 Kan. at 848.
Here, Deputy Voigts found two text messages on James’ cell phone. One said, “U got green I will meet U somewhere,” and the other said, “Hey T-Ray ibis is Cotie, U got a 20?” We find diese statements to be neither true nor false. Although we recognize that there may be instances in which an assertion is made in the form of a question, we do not find that the text messages in the present case constitute assertions. Rather, they were simply questions asking James whether or not he had had any “green”—which Deputy Voigts testified referred to marijuana—and whether or not he had “a 20”—which the deputy testified referred to $20 worth of drugs. Accordingly, we conclude drat the two text messages found on James’ cell phone do not constitute hearsay.
Opinion Testimony Regarding Meaning of Text Messages
James contends that tire district court erred by admitting Deputy Voigts’ opinon regarding the meaning of certain words used in the text messages found on his cell phone. Specifically, James argues that the district court failed to make an express finding that Deputy Voigts was a qualified expert pursuant to K.S.A. 60-456. We review tire district court’s admission of expert testimony for abuse of discretion. See State v. Johnson, 286 Kan. 824, 831, 190 P.3d 207 (2008). Additionally, we have unlimited review over the interpretation of statutes. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Before a witness can render an expert opinion, the district court must find that the opinion is “(1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” K.S.A. 60-456(b). But K.S.A. 60-456(c) provides that “[u]nless the judge excludes the testimony he or she shall be deemed to have made the finding requisite to its admission.” As such, when opinion testimony is admitted by the district court, a finding supporting its admission is implied. See State v. McConnell, 9 Kan. App. 2d 688, 692, 688 P.2d 1224 (1984); State v. Humbolt, 1 Kan. App. 2d 137, 562 P.2d 123 (1977). Thus, we conclude that James’ argument regarding the district court’s failure to make a required finding is without merit.
James also argues that the State failed to establish that Deputy Voigts had sufficient experience to render an opinion about the meaning of “drug jargon” or code words used by those involved in the sale of drugs to conceal the nature of their activities. A review of the record, however, reveals that Deputy Voigts was a 13-year veteran law enforcement officer and a member of the canine narcotics unit. He testified that he was certified every year in the detection of narcotics with canine assistance and without. On the job, he investigated drug crimes on a weekly basis. Moreover, Deputy Voigts testified that through his many narcotics investigations, he had experience dealing with coded text messages relating to drug activity. Consequently, we find that the State laid the proper experiential foundation for Deputy Voigts’ opinion testimony.
Based on United States v. Wilson, 484 F.3d 267, 275 (4th Cir. 2007), James argues that the district court erred by not requiring Deputy Voigts to describe to tire jury the methodology he used to decipher the two coded text messages. But Wilson dealt with an extensive wiretap recording that involved complex coded communications. 484 F.3d at 273-78. Here, Officer Voigts’ opinion testimony simply involved the meaning of only one word and one number, “green” and “20.” Because the drug jargon was not complex and Deputy Voigts based his opinion on his training and experience dealing with the language those involved in drug activities often use, we find that there was no need for the deputy to explain the methodology to the juiy.
We pause to note that even if Deputy Voigts was not qualified to serve as an expert witness, his opinions regarding the meaning of the word “green” and the number “20” as used in the text messages would have been admissible as a lay opinion under K.S.A. 60-456(a). In State v. McGraw, 19 Kan. App. 2d 1001, 879 P.2d 1147 (1994), a nonexpert police officer with personal knowledge and experience was allowed to render an opinion regarding how nightclubs make money. In affirming the district court’s decision to admit this testimony as a lay opinion, this court found that K.S.A. 60-456(a) allows nonexperts to testify in the form of opinion or inference if the testimony is based on the perception of the witness and is helpful to provide the jury with a clearer understanding of his or her testimony. McGraw, 19 Kan. App. 2d at 1012-13.
Here, we find that the Deputy Voigts’ opinion testimony was based on his personal knowledge and experience regarding drug jargon. As well, his testimony was reasonably helpful to the jury. See United States v. Quintana, 70 F.3d 1167, 1170-71 (10th Cir. 1995). We, therefore, conclude that the district court did not err in admitting Deputy Voigts’ opinion testimony as to the meaning of the terms used in the text messages found on James’ cell phone.
Prosecutorial Misconduct
James contends that the prosecutor inappropriately commented in his closing argument on James’ objection to the admission of the cell phone and text messages into evidence at trial. Specifically, the prosecutor made the following statement during tire rebuttal portion of tire closing argument:
“It’s even more unlucky that he let somebody borrow his phone. Didn’t tell us who, but somebody borrowed his phone and somebody received text messages on his behalf that were related to drugs. Not just one, now that’s unlucky, but two. Boy, that’s winning the bad luck lottery. Not just having two text messages, but one that. . . names him specifically, T-Ray. What’s his excuse for that? Think about it. He has an excuse, a convenient excuse for every single thing that happened, except for that. What’s his excuse for that? Ladies and gentleman is it reasonable.. .to believe that Deputy Voigts, doing this for quite some time, would plant the text messages? You recall the State tried to get the phone into evidence. Who objected to that? I wonder why.” (Emphasis added.)
In reviewing an allegation of prosecutorial misconduct, we apply a two-step inquiry to determine whether (1) tire comments amounted to misconduct “outside the wide latitude that the prosecutor is allowed iir discussing the evidence” and (2) if there was misconduct, whether it “prejudiced the juiy against the defendant and denied the defendant a fair trial,” i.e., whether it amounted to plain error. State v. Bennington, 293 Kan. 503, 530, 264 P.3d 440 (2011); State v. McCaslin, 291 Kan. 697, 715, 245 P.3d 1030 (2011). “ ‘[T]he fundamental rule in closing arguments is that a prosecutor must confine his or her comments to matters in evidence.’ ” State v. Huerta-Alvarez, 291 Kan. 247, 263, 243 P.3d 326 (2010) (citing State v. Murray, 285 Kan. 503, 512, 174 P.3d 407 [2008]). Further, it is improper for a prosecutor to ask the jury to speculate about facts that are not in evidence. State v. Jeffrey, 31 Kan. App. 2d 873, 881, 75 P.3d 284 (2003).
In State v. Finley, 273 Kan. 237, 248, 42 P.3d 723 (2002), die Kansas Supreme Court held that it “is a well established law in this state that rulings of the trial court on objections to evidence are not a proper subject for a prosecutor’s closing argument.” (Emphasis added.) In the present case, the prosecutor asked the jury two rhetorical questions that related to a successful objection by defense counsel to the admission of the cell phone at trial. He did not, however, use a fact that was not in evidence, nor did he comment on die court’s ruling on the objection. Rather, the prosecutor used this rhetorical method to respond to defense counsel, who employed a similar rhetorical method in his portion of closing argument when he stated: “And what do we know about the text messages? We’ve never seen them . . . it’s just what the officer has said about them.”
In other words, the prosecutor was responding in rebuttal to defense counsel’s suggestion that the State did not want the jury to see the actual text messages. Likewise, die prosecutor’s comments were responsive to defense counsel’s suggestion that Deputy Voigts might not be telling the truth regarding the content of the text messages. Had defense not made these suggestions, the prosecutor’s rhetorical questions might have risen to the level of pros-ecutorial misconduct. Under die circumstances, however, we do not find that the rhetorical questions—when viewed in context— were outside the wide latitude that a prosecutor is allowed when discussjng the evidence.
Even if we were to find that the prosecutor’s statement fell outside the wide latitude allowed in discussing the evidence, we do not find that the rhetorical questions prejudiced the jury against James and denied him a fair trial. To analyze the second step of the inquiry, we consider three factors: “(1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor’s part; and (3) whether the evidence is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of jurors.” McCaslin, 291 Kan. at 715-16. Although no particular factor is controlling in this analysis, the third factor can override the first two factors if the harmless error tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), are met; that is, tire burden is on the State to prove, beyond a reasonable doubt, that the error did not affect the verdict. McCaslin, 291 Kan. at 715-16.
Based on our review of the record, we do not find that the rhetorical questions asked by the prosecutor in the rebuttal portion of his closing argument constituted gross and flagrant conduct. As indicated above, tire prosecutor only asked these questions once in response to defense counsel’s closing argument. Moreover, we do not find that the prosecutor’s rhetorical questions were emphasized, nor did they violate any rule designed to protect a constitutional right. Rather, the rhetorical questions were a minor part of the prosecutor’s argument and were an understandable—if inelegant—attempt to refute defense counsel’s suggestion during closing argument that Deputy Voigts may not have testified truthfully about the text messages, or that the State did not want the jury to see the actual text messages.
Likewise, when a prosecutor’s improper comment concerns matters not significant to the State’s case, the error is not gross and flagrant. See State v. Baker, 281 Kan. 997, 1013, 135 P.3d 1098 (2006). A review of the record in the present case reveals that the State presented a substantial amount of evidence at trial in support of the charges filed against James. Specifically, the evidence established that James had a large bag of marijuana and a set of scales in the glove box of his SUV, which he was driving at the time of the traffic stop. Both the bag of marijuana and the scales were admitted into evidence.
Deputy Voigts testified about the events on the night of December 10, 2009. In addition, a video of the traffic stop was admitted into evidence and it was viewed by the juiy. On the video tape, the jurors could not only see what happened, but they could hear James giving inconsistent answers to Deputy Voigts’ questions. Furthermore, the jurors could hear James taking responsibility for the maiijuana found in his SUV. The video tape also showed Deputy Voigts searching James’ cell phone and included comments regarding the text messages. Consequently, we find that the prosecutor’s rhetorical questions asked during rebuttal were not significant to the State’s case in light of the other evidence that tire State presented at trial.
As to the second factor, we find that the neither the prosecutor’s comments nor his conduct showed ill will. As indicated above, the rhetorical questions were raised briefly during the rebuttal portion of the State’s closing argument and they were not repeated. Fur ther, the rhetorical questions were asked during the heat of the argument in response to arguments raised by defense counsel. As such, it seems likely that there was little—if any—forethought on the part of the- prosecutor. Additionally, the rhetorical questions did not violate a court order.
Turning to the third factor, we find that the State presented overwhelming evidence to establish James’ guilt beyond a reasonable doubt. Given the evidence, the jury would have likely found James guilty beyond a reasonable doubt for possession of marijuana with intent to sell even if the prosecutor had not asked the rhetorical questions during rebuttal, and even without the actual text messages being introduced into evidence. Not only was the large bag of marijuana located in the glove box of James’ SUV, which he was driving at the time of the traffic stop, James took responsibility for it at the scene.
Furthermore, James admitted to owning the scales found in the same glove box in which the marijuana was found, and Deputy Voigts testified they were the type of scales used to measure out small quantities of marijuana for drug transactions. Although James called Madrid as a witness at trial, the jury clearly rejected Madrid’s story that the marijuana belonged to him and was inadvertently left in the glove box of James’ SUV. And it is the jury—not this court—• that passes on the credibility of witnesses. See State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009). We, therefore, conclude that even if there was prosecutorial misconduct, it was harmless in light of the overwhelming evidence presented by the State at trial.
Sufficiency of Evidence
James argues that there was not sufficient evidence to support his convictions because the State failed to prove he knowingly possessed the marijuana, found in his SUV. As such, we must review all the evidence in the light most favorable to the prosecution to determine if there was sufficient evidence upon which a rational factfinder could have found James guilty beyond a reasonable doubt. McCaslin, 291 Kan. at 710. In reviewing the record, we are mindful that “[a] conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom.” 291 Kan. at 710.
To prove possession, the State had to present evidence that James knew about the marijuana. See State v. Carrasco, 28 Kan. App. 2d 683, 684, 19 P.3d 202 (2001). Absent a confession, possession can be constructive, “ ‘as when marijuana is kept by the accused in a place where he has some measure of access and right of control.’ ” State v. Dean, 42 Kan. App. 2d 32, 38, 208 P.3d 343 (2009) (citing State v. Rose, 8 Kan. App. 2d 659, Syl. ¶ 5, 665 P.2d 1111, rev. denied 234 Kan. 1077 [1983]).
Here, Deputy Voigts found the marijuana in the glove box of a vehicle that James was driving and admitted to owning. Moreover, Deputy Voigts found a set of scales—that James also admitted to owning—in the same glove box. These scales, according to the deputy, were the type of scales suitable for measuring out small amounts of marijuana. Likewise, there was evidence presented at trial that James accepted responsibility for the marijuana at the scene of the traffic stop.
James also had two text messages on his phone asking if he had marijuana. One, sent the day before tire traffic stop, was addressed to “T-Ray,” and it is undisputed that James’ full name is Tommy Ray James. Moreover, James had air fresheners hanging from his rearview mirror, which Deputy Voigts testified are often used to mask the odor of marijuana. Accordingly, we conclude that there was sufficient evidence presented at trial to lead to the fair inference that James knew about the marijuana.
Furthermore, a defendant’s proximity to drugs and the proximity of a defendant’s possessions to drugs can support a finding of constructive possession. See Dean, 42 Kan. App. 2d at 39. Again, Deputy Voigts found marijuana in James’ glove box after stopping James for driving with a headlight out. As such, James, who was in the driver’s seat, was in close proximity to the marijuana contained in the glove box. Deputy Voigts also found James’ scales in the glove box right next to the 1/2-pound bag of marijuana. Considering, in the light most favorable to the State, that James owned the vehicle, had a cell phone with drug related text messages, was in close proximity to the drugs, and had odier possessions in close proximity to the drugs, there was sufficient evidence to support the finding that James knowingly possessed the drugs.
Cumulative Error
Finally, James argues he is entitled to a reversal of his convictions and sentences because of cumulative error. In order to determine if there has been cumulative error, we review “ whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial/ ” State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010). Because we do not find that there has been error in this case, we do not find that there was cumulative error. Furthermore, even if the rhetorical question asked by the prosecutor during closing was inappropriate, it was at best only harmless error. And a single harmless error cannot constitute cumulative error. See State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010). Thus, considering the totality of the circumstances, there was no cumulative error in this case.
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Standridge, J.:
J.D.H. appeals from the district court’s revocation of his juvenile sentence and the order to serve his underlying adult prison sentence in a case designated as an extended juvenile jurisdiction prosecution (EJJP). For the reasons stated below, we affirm.
Facts
In 2011, the State charged J.D.H. with aggravated robbery, aggravated burglary, and aggravated assault. In conjunction with these charges, the State filed a motion for adult prosecution. Thereafter, J.D.H. entered guilty pleas to all three counts, pursuant to a plea agreement in which the parties agreed to designate the proceedings as an EJJP under K.S.A. 2010 Supp. 38-2347. The State agreed to recommend a controlling juvenile sentence of 36 months of intensive supervised probation and an underlying adult sentence of tire middle number of the appropriate sentencing grid box for each count, with Count 1 running consecutive to Counts 2 and 3, which would run concurrently with each other.
The State never filed a written motion seeking to withdraw its motion for adult prosecution and requesting the court designate the proceedings as an EJJP. Nevertheless, the plea agreement stated that the “State agrees to modify its motion requesting Adult Prosecution in these matters; State and Respondent agree that the proceedings be designated an Extended Juvenile Jurisdiction Prosecution.” At the plea hearing, the judge explained J.D.H.’s rights under the EJJP statute, designated the proceedings as an EJJP, and found the plea was knowingly, intelligently, and voluntarily entered.
At the sentencing hearing on August 4, 2011, the court told J.D.H. it was going to impose an adult sentence that would be stayed as long as J.D.H. complied with the terms of his juvenile sentence but advised him that if he violated the terms of his juvenile sentence, the court would “have to give” him the adult sentence. J.D.H. indicated to the court that he understood. After the parties agreed that J.D.H.’s criminal history score was a D, the court followed the plea agreement and imposed a controlling juvenile sentence of 36 months of intensive supervised probation and stayed an underlying 126-month adult sentence.
Two months after sentencing, J.D.H.’s intensive supervision officer filed a report stating that J.D.H. had violated his juvenile sentence. The State subsequently filed a motion to revoke J.D.H.’s juvenile sentence. At the hearing on the motion to revoke, J.D.H. acknowledged that he had violated the terms and conditions of his juvenile sentence. The State requested that the underlying adult sentence of 126 months in prison be imposed as required by K.S.A. 2010 Supp. 38-2364(b), which states in pertinent part:
“After tire hearing, if the court finds by a preponderance of the evidence that the juvenile committed a new offense or violated one or more conditions of the juvenile’s sentence, the court shall revoke the juvenile sentence and order the imposition of the adult sentence previously ordered pursuant to subsection (a)(2) or, upon agreement of the county or district attorney and the juvenile offender’s attorney of record, the court may modify the adult sentence previously ordered pursuant to subsection (a)(2).” (Emphasis added.)
J.D.H.’s counsel acknowledged that the parties did not agree to modify the underlying adult sentence and, as a result, the district court did not have the discretion to modify J.D.H.’s adult sentence under this statute. Nevertheless, J.D.H.’s counsel argued that the automatic application of K.S.A. 2010 Supp. 38-2364. “abrogates [the district court’s] duties as a Judge and I don’t think that it’s Constitutional.” The district court found that J.D.H. had violated the terms of his juvenile probation but continued the sentencing hearing so both parties could provide authority on how to interpret the statute.
At the subsequent sentencing hearing, a different judge presided. J.D.H.’s counsel stated that he realized that the caselaw did not favor the argument he was making, but he wanted to preserve the issue for appeal. The district judge then found the court had no authority to modify the underlying adult sentence, noting:
“The case law says that there is no—once there’s a finding that it’s a violation, there is no discretion given to the Judge. And that matter is up on appeal right now, as far as I know, because I wanted some clarification from the Court of Appeals under those conditions. There are several cases where they have clearly said that once the violation is found that we have to proceed to Sentencing and there is no discretion.
“And, I think you’re right, in the adult court there is some discretion, but they don’t give us that under EJJP. So I guess I will affirm what, apparently, the earlier ruling was.”
Consequently, the district court ordered J.D.H. to serve the underlying 126-month adult prison sentence.
Analysis
In challenging the revocation of his juvenile sentence and imposition of the adult sentence, J.D.H. argues on appeal (1) that the district court did not have jurisdiction to impose the EJJP sentence against him under K.S.A. 2010 Supp. 38-2347(a)(3) because the State did not file a motion to request the court to designate the proceeding as an EJJP, (2) that K.S.A. 2010 Supp. 38-2364(b) can be read with K.S.A. 2010 Supp. 22-3716(b) to allow the sentencing judge the option to modify the adult sentence upon a finding that a juvenile has violated his juvenile sentence in an EJJP, and (3) that K.S.A. 2010 Supp. 38-2364 violates the separation of powers doctrine by prohibiting the sentencing judge from exercising discretion to modify the adult sentence. We address each of these arguments in order.
1. Jurisdiction
J.D.H. claims the district court did not have jurisdiction to impose the extended juvenile jurisdiction sentence in the first place because the State did not file a motion requesting the district court to designate the proceeding as an EJJP, which J.D.H. contends is required by K.S.A. 2010 Supp. 38-2347(a)(3). Before we consider the merits of J.D.H.’s argument, however, we first must consider whether this court has jurisdiction to address it.
The right of appeal is entirely a statutory right; no appellate review is required by the United States Constitution or the Kansas Constitution. As such, dris court has no jurisdiction to entertain an appeal by a defendant in a criminal case unless the defendant appeals within the time prescribed by the statutes providing for such an appeal. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008). An appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, the appeal must be dismissed. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010).
A defendant must file a notice of appeal within 14 days of sentencing under K.S.A. 2011 Supp. 22-3608(c). See State v. Phinney, 280 Kan. 394, 401-02, 122 P.3d 356 (2005). J.D.H. received both his adult and juvenile sentences on August 4, 2011. He did not file his notice of appeal until February 27, 2012, which was over 6 months after the 14-day window. As such, this court does not have jurisdiction to consider J.D.H.’s first claim of error.
2. Modification of a Previously Imposed Underlying Adult Sentence under K.S.A. 2010 Supp. 38-2364(b)
J.D.H. contends that K.S.A. 2010 Supp. 38-2364(b) must be construed in conjunction with K.S.A. 2010 Supp. 22-3716(b), which necessarily means that a sentencing judge has discretion to modify an EJJP adult sentence after finding that a juvenile has violated the terms of an EJJP juvenile sentence. Although conced ing that several panels of this court have issued opinions to the contrary, J.D.H. requests this panel consider the issue in order to preserve the issue for further appellate review.
Again, we first must determine whether we have jurisdiction to address the issue raised. Generally, issues not raised before the district court cannot be raised on appeal. In re Care & Treatment of Miller, 289 Kan. 218, 224-25, 210 P.3d 625 (2009). However, an appellate court may consider an issue raised for the first time on appeal if it falls within three recognized exceptions: (1) the newly asserted claim involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) the claim’s consideration is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court’s judgment may be upheld on appeal despite its reliance on the wrong ground or reason for its decision. State v. Anderson, 294 Kan. 450, 464-65, 276 P.3d 200 (2012). Supreme Court Rule 6.02(e) (2011 Kan. Ct. R. Annot. 39) requires the appellant to identify which of these exceptions apply and why it is applicable. 294 Kan. at 465.
In this case, J.D.H. claims K.S.A. 2010 Supp. 22-3716 should be read in conjunction with K.S.A. 2010 Supp. 38-2347 to allow a defendant to seek modification of a previously imposed underlying adult sentence. As the State notes, however, J.D.H. did not make this argument to the district court; instead, J.D.H. conceded that the district court did not have discretion to change the original adult sentence upon a finding that J.D.H. has violated his juvenile sentence. Moreover, J.D.H. failed to acknowledge in his appellate brief that he was raising the argument for the first time on appeal; thus, J.D.H. failed to identify which, if any, exception would allow him to raise the issue for the first time on appeal and to explain why the exception applies.
In State v. Perez, 294 Kan. 38, 42, 261 P.3d 532 (2012), the defendant summarily argued that a particular issue should be considered for the first time on appeal because “ 'this circumstance fits within the exceptions’ ” recognized by caselaw. Because this shortcoming violated Supreme Court Rule 6.02(e) and the issue already had been resolved in a prior case against the defendant’s position, our Supreme Court declined to consider the issue for the first time on appeal. 294 Kan. at 42-43; see also, e.g., State v. Johnson, 293 Kan. 959, 963-65, 270 P.3d 1135 (2012) (declining to address merits of State’s argument where State provided no explanation why issue should be considered for first time on appeal).
In this case, J.D.H. offers even less explanation than the defendant in Perez for why the court should consider the issue for the first time on appeal. And, like Perez, this court already has addressed and resolved the issue contrary to the position J.D.H. is raising. In the absence of any facts or argument to demonstrate why the issue raised by J.D.H. for the first time on appeal falls within one of the three recognized exceptions, we may decline to consider this constitutional issue for the first time on appeal. But even if we did choose to consider it, J.D.H. s argument regarding the proper interpretation of K.S.A. 2010 Supp. 38-2364 is without merit.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. Goldsmith v. State, 292 Kan. 398, 400, 255 P.3d 14 (2011). The statute reads:
“When it appears that a person sentenced as an extended jurisdiction juvenile has violated one or more conditions of the juvenile sentence or is alleged to have committed a new offense, the court, without notice, may revoke the stay and juvenile sentence and direct that the juvenile offender be immediately taken into custody and delivered to the secretary of corrections pursuant to K.S.A. 21-4621, and amendments thereto. The court shall notify the juvenile offender and such juvenile offender’s attorney of record, in writing by personal service, as provided in K.S.A. 60-303, and amendments thereto, or certified mail, return receipt requested, of the reasons alleged to exist for revocation of the stay of execution of the adult sentence. If the juvenile offender challenges the reasons, the court shall hold a hearing on the issue at which the juvenile offender is entitled to be heard and represented by counsel. After die hearing, if the court finds by a preponderance of the evidence that the juvenile committed a new offense or violated one or more conditions of the juvenile's sentence, the court shall revoke the juvenile sentence dnd.order the imposition of the adult sentence previously ordered pursuant to subsection (a)(2) or, upon agreement of die county or district attorney and the juvenile offender’s attorney of record, the court may modify the adult sentence previously ordered pursuant to subsection (a)(2). Upon such finding, die juvenile’s extended jurisdiction status is terminated, and juvenile court jurisdiction is terminated. The ongoing jurisdiction for any adult sanction, other tiian the commitment to the department of corrections, is witii die adult court. The juvenile of fender shall be credited for time served in a juvenile correctional or detention facility on tire juvenile sentence as service on any authorized adult sanction.” (Emphasis added.) K.S.A. 2010 Supp. 38-2364(b).
Other panels of this court have already interpreted this statute several times, and in each case the panels came to the same conclusion: the statutory language prevents the district court from doing anything other than imposing the underlying adult sentence.
In State v. J.H., 40 Kan. App. 2d 643, 646, 197 P.3d 467 (2007), the court examined the prior version of K.S.A. 2010 Supp. 38-2364—K.S.A. 38-16,126—which contained the same “shall revoke the juvenile sentence and order the imposition of the adult sentence” language, but not the provision allowing the court to modify the sentence upon the parties’ agreement. The court found this language “leaves no doubt as to legislative intent.” 40 Kan. App. 2d at 646. The court interpreted the statute to require that “[i]f the trial court after hearing revokes the juvenile sentence, the court is specifically directed to enforce imposition of the adult sentence previously ordered.” 40 Kan. App. 2d at 646.
The court next held in In re E.F., 41 Kan. App. 2d 860, 865, 205 P.3d 787 (2009), that the J.H. court had properly interpreted the statutory language, then codified at K.S.A. 2008 Supp. 38-2364. The court noted that the language of the statute providing that the court “ ‘shall revoke the juvenile sentence and order the imposition of the adult sentence previously ordered’ ” means what it says, noting that “when its terms are met, the statute ‘compel[s] incarceration’ and leaves the district court no room to consider other alternatives.” 40 Kan. App. 2d at 863.
Then, in State v. I.A., No. 104,481, 2011 WL 3250584, at *7 (Kan. App. 2011) (unpublished opinion), the court addressed K.S.A. 2010 Supp. 38-2364 after the legislature had added the provision allowing the court to modify the adult sentence “ ‘upon agreement of the county or district attorney and the juvenile offender’s attorney of record.’ ” The majority followed In re E.F. and State v. J.H.:
“The language governing extended jurisdiction juvenile proceedings seems plenty clear. Once the court finds a violation of the juvenile sentence, it must then order that the adult sentence be carried out. The adult sentence, in effect, be comes tlie punishment for the violation of the conditions imposed in an extended jurisdiction juvenile proceeding. At that point, however, the adult sentence has been imposed and has become effective. Then, and only then, does die ‘ongoing jurisdiction of the adult criminal justice system ldclc in. If the young person fails to comply with the now-controlling adult sentence, an adult criminal court has jurisdiction to address and sanction diose failures. The message couldn’t be much more obvious.” State v. I.A., 2011 WL 3250584, at *4.
The court also held that K.S.A. 2010 Supp. 22-3716, which applies to probation revocation of adult defendants, has no application to the handling of EJJP cases:
“Nothing in K.S.A. 2010 Supp. 38-2364 even hints that the juvenile court might act under K.S.A. 22-3716 to mitigate the contingent adult sentence imposed as part of the extended juvenile jurisdiction. The statute outlines the juvenile process in detail and contains several cross-references to odier statutory provisions, including one in the criminal code. Had the legislature intended to transplant or incorporate the provisions of K.S.A. 22-3716 from the code of criminal procedure into K.S.A. 2010 Supp. 38-2364, it would have specifically identified the statute for that purpose. The omission of any such reference is telling, especially given the legislature’s careful attention to the use of other statutoiy cites in outlining how the extended juvenile jurisdiction process is supposed to work.” State v. I.A., 2011 WL 3250584, at *4.
Although recognizing that a district court dealing with a probation violation under K.S.A. 2010 Supp. 22-3716 has a broader range of options than does the juvenile court addressing a failed EJJP adjudication, the court found the legislative purpose justified the distinction. It found the EJJP operates as a last chance agreement for a juvenile offender who has already failed in that system and is working on what would be a second felony if committed by an adult, while the adult statute regarding probation violations covers a broad range of offenders and probation breaches, from first-time petty offenders to more serious criminals. The court noted that it made sense for the legislature to afford district courts latitude in fashioning appropriate sanctions for those adult breaches. State v. I.A., 2011 WL 3250584, at *5-6. The court went on to note that adult probation provisions were extended as an inducement, or “carrot,” to coax good behavior from the convicted criminal, but the EJJP provisions stayed the underlying adult sentence as a threat, or “stick,” to coerce good behavior from the juvenile of fender. 2011 WL 3250584, at *6. The court ultimately concluded that K.S.A. 2010 Supp. 22-3716 and K.S.A. 2010 Supp. 38-2364 establish “parallel processes, not dovetailed ones” and are meant to operate independently with two different groups of violators. 2011 WL 3250584, at *6-7.
Notably, Judge Leben dissented in State v. I.A. In his dissent, Judge Leben found “nothing inconsistent between the provisions of K.S.A. 38-2364(b) and K.S.A. 22-3716” and stated he would read them together. 2011 WL 3250584, at *8 (Leben, J., dissenting). Noting that the State admitted at oral argument that a juvenile serving an EJJP sentence is serving a “nonprison sanction,” Judge Leben found the provisions for a violation of a “nonprison sanction” in K.S.A. 2010 Supp. 22-3716 would apply to an EJJP violation so that that district court would have die option of imposing a lesser sentence (although not an adult probation). 2011 WL 3250584, at *8-9 (Leben, J., dissenting). Judge Leben further found no statutory language in K.S.A. 2010 Supp. 38-2364(b) precluding the application of the adult sentencing provisions, and thus; there was no inconsistency between the two statutes. He also found it unlikely the legislature would have wanted to give fewer options to district courts in dealing with juvenile offenders, given tiiat the juvenile-offender provisions are generally designed to give more, not fewer, chances to juvenile offenders. 2011 WL 3250584, at *9 (Leben, J., dissenting).
J.D.H. urges the court to disregard the opinions issued by other panels of our court and adopt the analysis presented by Judge Le-ben in his State v. I.A. dissent. But Judge Leben’s analysis was based on a former version of the law. In the wake of Judge Leben’s dissent, this court has followed the State v. I.A. majority opinion on at least two occasions and found that the new language of K.S.A. 2010 Supp. 38-2364 “requires imposition of the adult sentence” when the juvenile has admitted violation of the terms of the juvenile sentence not amounting to a new offense. In re R.L.R., No. 107,129, 2012 WL 2926163, at *3 (Kan. App. 2012) (unpublished opinion) (holding “[t]he district court in this case correctly held that it had no option to consider R.L.R.’s motion for dispositional or durational departure,” noting “[w]e look to the I.A. court’s res olution of its case for guidance”); In re F.P.C., No. 104,497, 2011 WL 4716724, at *1 (Kan. App. 2011) (unpublished opinion).
The plain language of the statute is clear: unless the parties agree otherwise, the district court does not have discretion to modify an adult sentence after finding that a juvenile has violated the terms and conditions of his or her juvenile sentence in an EJJP. K.S.A. 2010 Supp. 38-2364(b).
3. Separation of Powers
J.D.H. argues that if the court finds K.S.A. 2010 Supp. 38-2364 does not give tire district court discretion to depart from a previously imposed adult sentence in an EJJP case, the court should find the inability to exercise such discretion violates the separation of powers doctrine set forth in tire Kansas Constitution.
The constitutionality of a statute is a question of law over which the court has unlimited review. Martin v. Kansas Parole Board, 292 Kan. 336, 342, 255 P.3d 9 (2011). While the Kansas Supreme Court has the right to interpret our Kansas Constitution in a manner different than the United States Constitution has been construed, it has not traditionally done so. State v. Scott, 286 Kan. 54, 93, 183 P.3d 801 (2008). A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court has the authority and the duty to do so. State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009).
The Kansas Constitution, like the United States Constitution, has no express provision establishing the doctrine of separation of powers. However, Kansas courts have recognized that the very structure of the three-branch system of government creates the doctrine. State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 59, 687 P.2d 622 (1984). Each branch of government—legislative, executive, and judicial—is given the powers and functions appropriate to it, thus avoiding a dangerous concentration of power through the checks and balances each branch has against the others. State v. Greenlee, 228 Kan. 712, 715, 620 P.2d 1132 (1980). Although early Kansas decisions applied the doctrine strictly to allow no overlapping of powers, more recent decisions recognize “that there may be a certain degree of ‘blending or admixture’ of the three powers of government and that absolute separation of powers is impossible.” State v. Beard, 274 Kan. 181, 186, 49 P.3d 492 (2002). Thus, “[i]t is now a well-recognized fact that the powers of one branch may overlap with another branch’s powers.” 274 Kan. at 186.
To determine whether a statute unconstitutionally violates the separation of powers doctrine, Kansas courts apply the following principles:
“(1) A statute is presumed to be constitutional. All doubts must be resolved in favor of its validity, and before a statute may be stricken down, it must clearly appear the statute violates the constitution. [Citation omitted.]
“(2) When a statute is challenged under the constitutional doctrine of separation of powers, the court must search for a usurpation by one department of the powers of another- department on the specific facts and circumstances presented. [Citations omitted.]
“(3) A usurpation of powers exists when there is a significant interference by one department with operations of another department. [Citation omitted.]
“(4) In determining whether or not a usurpation of powers exists a court should consider (a) the essential nature of the power being exercised; (b) the degree of control by one department over another; (c) the objective sought to be attained by the legislature; and (d) the practical result of the blending of powers as shown by actual experience over a period of time." ’ [Citations omitted.]” 274 Kan. at 186.
In this case, the essential nature of the power being exercised— sentencing of convicted criminals—is both legislative and judicial. The United States Supreme Court, in Mistretta v. United States, 488 U.S. 361, 390, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989), observed that “the sentencing function long has been a peculiarly shared responsibility among the Branches of Government and has never been thought of as the exclusive constitutional province of any one Branch.” Our Supreme Court also has stated that the “legislature alone has the power to define offenses and affix punishment” and that “[c]ourts are empowered only to ascertain whether an offense has been committed and, if so, to assess punishment.” State v. Ponce, 258 Kan. 708, 711, 907 P.2d 876 (1995); see Beard, 274 Kan. at 185.
The degree of control by the legislature over the courts under K.S.A. 2010 Supp. 38-2364 is considerable, since, as discussed above, Kansas courts have repeatedly found the statute leaves the sentencing judge in an EJJP case no discretion to modify an adult sentence upon a finding that a juvenile violated the conditions of his or her juvenile sentence. See In re E.F., 41 Kan. App. 2d at 865; State v. J.H., 40 Kan. App. 2d at 646-47; State v. I.A., 2011 WL 3250584, at *6.
However, the legislature has not entirely usurped the courts’ discretion to decide tire adult sentence under tire EJJP. As J.D.H. concedes, the judge in EJJP cases is able to determine tire conditional adúlt sentence at tire time of tire original sentencing. K.S.A. 2010 Supp. 38-2364(a) provides:
“(a) If an extended jurisdiction juvenile prosecution results in a guilty plea or finding of guilt, tire court shall:
(1) Impose one or more juvenile sentences under K.S.A. 2010 Supp. 38-2361, and amendments thereto; and
(2) impose an adult criminal sentence, the execution of which shall be stayed on the condition that the juvenile offender not violate tire provisions of the juvenile sentence and not commit a new offense.”
Just as the Supreme Court found in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), the sentencing scheme in this case did not take away all judicial discretion in fixing the sentence because the court could sentence a defendant to a minimum of 5 years up to a maximum of 10 years; indeed, district courts in EJJP’s have discretion at the outset to sentence juveniles to any adult sentence within the range allowed under the adult sentencing statutes. Therefore, although the degree of control by the legislature over the courts under K.S.A. 2010 Supp. 38-2364 is considerable, it is not complete.
This control over punishment of convicted -criminals is well within the legislature’s power. Although our Supreme Court has stated that “tire sentencing function in a criminal case is considered a judicial function,” it has also noted that “[ejqually clear is the legislature’s exclusive role in providing, through our statutes, for the punishment of convicted criminals. The power of the legislature to specify the punishment for a crime is controlled only by the Constitutions of the United States and the State of Kansas.” State v. Reed, 248 Kan. 792, 798, 811 P.2d 1163 (1991).
To that end, Kansas courts previously have rejected separation of powers challenges to mandatory sentencing provisions that limit the sentencing discretion of district courts. Reed, 248 Kan. at 798-99; see, e.g., 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); Freeman, 223 Kan. at 370-71 (mandatory sentencing provisions for those convicted of certain crimes involving use of a firearm under K.S.A. 1977 Supp. 21-4618 upheld); 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] did not violate separation of powers). In Freeman, our Supreme Court quoted tire Ninth Circuit to note that mandatory sentences “ ‘[a]t worst . . . merely forbid[] in this kind of case and for good reason the discretionary granting of special benefits which Congress did not have to permit in the first place.’ ” 223 Kan. at 365. Furthermore, in holding a mandatory fine provision did not violate the separation of powers doctrine in Gibson, this court adhered to the principle of law that the legislature has the sole power to provide for the punishment of offenders. The court also quoted the Michigan Supreme Court for the proposition that:
“ ‘It is not essential to the validity of a penal statute that the court imposing the sentence be permitted to exercise discretion to some extent or within prescribed limitations.. . . The fact that the legislature in tire instant case saw fit to prescribe the penalty and to make tire imposition mandatory does not render the statute under which the defendant was prosecuted unconstitutional.’ ” Gibson, 8 Kan. App. 2d at 138 (quoting People v. Wolfe, 338 Mich. 525, 542, 61 N.W.2d 767 [1953]).
Thus, despite the significant encroachment on the judiciary’s discretion in sentencing, the legislature has not exceeded its power in the EJJP sentencing scheme by imposing a mandatory adult sentence after a finding of a juvenile sentence violation.
Finally, the third and fourth factors for determining if a usurpation of powers exists—the objective sought to be attained by the legislature and the practical result—do not indicate a significant interference amounting to a usurpation of powers here. As discussed above, this court has found that the EJJP operates as a last chance agreement for a juvenile offender who has failed in the juvenile system. State v. I.A., 2011 WL 3250584, at *5-6. This interpretation implies that the legislative objective is to allow the judicial branch the opportunity to deal with the offender within the juvenile system before K.S.A. 2010 Supp. 38-2364(b) steps in to impose a mandatory adult sentence. This leeway does not indicate the legislature is significantly interfering with the judiciary.
Taken together, these factors do not point to a significant interference by the Kansas Legislature amounting to a usurpation of the powers of Kansas courts under the separation of powers doctrine. Although K.S.A. 2010 Supp. 38-2364 removes the district court’s discretion to impose a lesser adult sentence on a juvenile after a violation of his or her juvenile sentence, Kansas courts have found this blending of the legislative duty to prescribe punishments with the judiciary’s duty to sentence convicted offenders to be acceptable under the separation of powers doctrine, especially in cases involving mandatory sentencing statutes. Therefore, because there is a reasonable way to construe K.S.A. 2010 Supp. 38-2364 as constitutionally valid and all doubts are resolved in favor of its validity, we presume the statute is constitutional.
Affirmed. | [
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Standridge, J.:
Luis D. Sarabia-Flores appeals from the district court’s order denying his postsentencing motion to withdraw his guilty plea to misdemeanor drug paraphernalia charges. Sarabia-Flores entered his guilty plea in 2002 and filed the motion to withdraw his plea in 2011. Sarabia-Flores contends his counsel at trial was ineffective for failing to advise him of potential immigration consequences arising from his plea as required by Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284 (2010). But after briefing and oral argument imthis matter, the United States Supreme Court held in Chaidez v. United States, 568 U.S. _, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149 (2013), that defendants whose convictions became final prior to Padilla cannot benefit from its holding. Because the rule announced in Padilla does not apply retroactively to a defendant whose conviction became final before Padilla was decided, we affirm the district court’s decision to deny Sarabia-Flores’ motion to withdraw his plea.
Facts
In December 2001, Luis D. Sarabia-Flores was charged in Sedgwick County District Court with one count of possession of cocaine. Ultimately, Sarabia-Flores entered a guilty plea to an amended charge of attempted possession of paraphernalia, a class B misdemeanor. Sarabia-Flores was placed on 12 months’ probation with an underlying jail term of 6 months’ incarceration. The plea was entered and sentence was imposed on July 3, 2002. Several months later, Sarabia-Flores violated the terms of his probation and his probation was revoked. He was ordered to serve 60 days in jail, after which his case was terminated.
In March 2011, Sarabia-Flores filed a motion to withdraw his guilty plea in his 2002 case. Sarabia-Flores asserted that he was not a United States citizen and that his attorney failed to advise him of the immigration consequences—automatic deportation—of pleading guilty to a drug-related charge. Sarabia-Flores argued that his attorney was ineffective in failing to advise him of the likelihood of deportation under Padilla and that manifest injustice required he be permitted to withdraw his plea. The State opposed Sarabia-Flores’ request for relief on both the procedural ground that the motion was filed out of time and the substantive ground that Sar-abia-Flores was unable to establish that permitting him to withdraw the plea would correct a manifest injustice.
In May 2011, the Department of Homeland Security (DHS) issued a notice to appear to Sarabia-Flores alleging that he was in violation of his 1994 entry permit which admitted him to the United States for 72 hours as a visitor. Citing his violation of the terms of his entry and his 2002 conviction, DHS determined that Sarabia-Flores should be detained pending his removal from the country.
On June 3, 2011, the district court held a hearing on Sarabia-Flores’ motion to withdraw his plea. As a preliminary matter, the court rejected the State’s claim that Sarabia-Flores’ motion was time barred. Sarabia-Flores then testified. In his testimony, Sara-bia-Flores acknowledged that he did, in fact, enter the United States in 1994 on a border crossing permit limited to 72 hours and thereafter stayed and became an undocumented alien. Sarabia-Flores further testified, however, that during the 2002 case his attorney never asked where he was born or whether he was a United States citizen, and never mentioned that pleading to the paraphernalia charge could have immigration consequences. Sar-abia-Flores noted that he did not speak English in 2002 and did not learn of the potential immigration consequences of his plea until December 2010, when he went to an attorney to try to obtain legal status. When he learned his conviction would prevent him from obtaining legal status, Sarabia-Flores hired his present counsel to seek to withdraw his plea. After he appeared for his initial hearing on his motion to withdraw, immigration officials took him into custody.
After hearing the evidence and tire parties’ oral arguments, the district court denied the motion. Specifically, the district court found the Padilla case did not apply retroactively to Sarabia-Flores’ 2002 plea. As a result, the court held trial counsel’s performance was not ineffective assistance under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267.
Analysis
Standard of Review
An appellate court will not disturb a trial court’s denial of a motion to withdraw a plea after sentencing unless the defendant establishes an abuse of discretion. State v. Plotner, 290 Kan. 774, 777, 235 P.3d 417 (2010). Judicial discretion varies depending upon the nature of the question presented for determination. A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
The Timeliness of Sarabia-Flores’ Motion to Withdraw Plea
Relevant to the facts presented here, a motion to withdraw a plea after sentencing must be brought within 1 year of “[t]he final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction.” K.S.A. 2012 Supp. 22-3210(e)(1). The statutory amendment creating this time limitation became effective on April 16,2009. L. 2009, ch. 61, sec. 1.
Relying on State v. Benavides, 46 Kan. App. 2d 563, 568-69, 263 P.3d 863 (2011), the State argued to the district court that for cases predating the amendment such as the one presented here, a defendant had 1 year from the effective date of the amendment to file a motion to withdraw plea. But the district court was not persuaded by the State’s argument and held that the 2009 amendment creating the 1-year statute of limitations did not apply retroactively to Sarabia-Flores’ 2002 plea. On appeal, the State contends that this portion of the district court’s ruling was erroneous.
Nevertheless, we cannot consider the procedural argument made by the State in its brief because the State did not cross-appeal from the court’s ruling that the 1-year statute of limitations did not apply retroactively to Sarabia-Flores’ 2002 plea. See Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003) (in order to present adverse ruling for appellate review, K.S.A. 2002 Supp. 60-2103[h] requires an appellee to file a cross-appeal from that adverse ruling).
The District Court’s Decision to Deny Sarabia-Flores’ Motion to Withdraw Flea
After sentencing, a district court may, in the exercise of sound judicial discretion, set aside the judgment of conviction and withdraw a defendant’s plea in order “[t]o correct manifest injustice.” K.S.A. 2012 Supp. 22-3210(d)(2). When determining whether the defendant has shown manifest injustice, i.e., an outcome which is obviously unfair or shocking to the conscience, district courts should consider the following: “(1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made.” State v. Bricker, 292 Kan. 239, Syl. ¶ 4, 252 P.3d 118 (2011).
On appeal, Sarabia-Flores claims the district court erred in finding that the failure of his attorney in 2002 to determine his status as an undocumented alien and advise him of the adverse impact any conviction could have on his immigration status was insufficient evidence to establish the manifest injustice necessary to allow him to withdraw his plea. “A defendant filing a postsentence motion to withdraw plea under K.S.A. 22-3210(d) that alleges ineffective assistance of counsel due to deficient performance must meet constitutional standards to demonstrate manifest injustice.” Bricker, 292 Kan. at 245. Consequently, Sarabia-Flores must meet the Strickland test by demonstrating that (1) counsel’s performance fell below the objective standard of reasonableness and (2) there is a reasonable probability that but for counsel’s errors, the result of the proceeding would have been different. 466 U.S. at 687; see Bricker, 292 Kan. at 245-46. Sarabia-Flores bears the burden to show by a preponderance of the evidence that his attorney’s representation was deficient and prejudiced him. See State v. Adams, 292 Kan. 151, 167, 254 P.3d 515 (2011).
Notably, Sarabia-Flores’ claim of ineffective assistance of counsel is grounded in the United States Supreme Court’s decision in Padilla, 130 S. Ct. at 1483, which held that the Sixth Amendment requires criminal defense attorneys to advise their noncitizen clients about the deportation consequences of a guilty plea. Padilla was decided in 2010, but Sarabia-Flores’ conviction became final in 2002. Because his conviction became final well before the Supreme Court decided Padilla, Sarabia-Flores can only avail himself of the rule announced in Padilla if that rule applies retroactively to cases on collateral review under the framework set forth in Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). At the time of briefing and oral argument in this case, no Kansas appellate court had squarely addressed whether Padilla applies retroactively. On February 20, 2013, however, the United States Supreme Court resolved the issue and unambiguously held that Padilla set forth a new rule of criminal procedure that does not apply retroactively to cases on collateral review. See Chaidez, 133 S. Ct. at 1105 (“We conclude that, under the principles set out in Teague . . . , Padilla does not have retroactive effect.”).
The law is now clear that Sarabia-Flores, like other defendants whose convictions became final prior to Padilla, cannot avail him self of its holding in a collateral proceeding. See Chaidez, 133 S. Ct. at 1113 (“Under Teague, defendants whose convictions became final prior to Padilla . . . cannot benefit from its holding.”). Accordingly, wo affirm the district court’s order denying Sarabia-Flo-res’ motion. | [
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Green, J.:
This is a summary judgment case involving a foreclosure action by Prime Lending II, LLC. Prime Lending filed an action to foreclose its mortgage on certain real property owned by Trolleys Real Estate Holdings, LLC. Prime Lending also sued Aaron Buerge, Trolley s LLC, and Trolley’s Overland Park, LLC (collectively Trolley’s). Later, Prime Lending was granted permission to add Blue Moose, O.P., LLC, as a party defendant for the purpose of foreclosing Blue Moose’s leasehold interest in the property.
Prime Lending moved for summary judgment, asking to foreclose on tire property. The trial court granted Prime Lending’s motion for summary judgment and ordered a sheriff s sale of the property. Prime Lending, based on its bid of $2,200,000, was the high bidder for the property. The trial court issued an order confirming the sheriff s sale. The trial court later issued an order certifying its previous August 24,2011, memorandum decision of summary judgment as a final judgment under K.S.A. 2012 Supp. 60-254(b) and denying Trolley’s motion for leave to amend its answer.
Because we determine that the trial court abused its discretion when it retroactively certified its August 24, 2011, memorandum decision of summary judgment as a final judgment under K.S.A. 2012 Supp. 60-254(b) and because the trial court has failed to make a proper determination required by K.S.A. 2012 Supp. 60-254(b), we dismiss this appeal as interlocutory.
Facts
On February 6, 2009, Prime Lending brought an action to foreclose its mortgage on real property located in Overland Park, Kansas. A little more than a month later, Prime Lending filed an application for appointment of receiver. The trial court then scheduled a hearing for Prime Lending’s receiver motion for May 12, 2009. The defendants, Aaron Buerge; Trolley’s Real Estate Holdings, LLC; Trolley’s LLC; Trolley’s Overland Park, LLC; Trolley’s Bar and Grille, LLC; and Ryan G. MacDonald, filed responsive pleadings and counterclaims against Prime Lending.
Before the hearing on Prime Lending’s application for appointment of receiver, the defendants filed for bankruptcy. Because of the bankruptcy filing, Prime Lending was prevented from pursuing its foreclosure action until the bankruptcy jurisdiction ended. On February 15, 2011, the defendants entered into an agreed order dismissing the bankruptcy proceedings of Trolley’s Real Estate Holdings, LLC and Trolley’s Overland Park, LLC.
The following month, Prime Lending moved for leave to amend its petition so that it could add Blue Moose as a party to the foreclosure action. Prime Lending sought to foreclose Blue Moose’s leasehold interest in foe property. The trial court granted Prime Lending’s motion to add Blue Moose as a party defendant. On June 28, 2011, Prime Lending moved for summary judgment. Blue Moose filed a responsive pleading to Prime Lending’s motion. On August 24, 2011, the trial court issued its memorandum decision granting Prime Lending’s summary judgment motion. Approximately a week later, the-trial court entered its journal entry of judgment of foreclosure.
On September 29, 2011, the trial court entered an order of sale, which directed the Johnson County sheriff to advertise and to do a judicial sale of the property. The property was sold to Prime Lending based on its high bid of $2,200,000. After the sale, Prime Lending moved to confirm foe sheriff s sale. Although defendant Aaron Buerge filed an objection to Prime Lending’s motion, he later withdrew his objection. None of the other defendants filed objections to Prime Lending’s motion to confirm the sheriff s sale. The trial court entered its order confirming foe sheriffs sale on December 16, 2011.
On May 14, 2012, Prime Lending moved to certify foe trial court’s August 24,2011, memorandum decision as a final judgment under K.S.A. 2012 Supp. 60-254(b). The trial court granted Prime Lending’s motion to certify the August 24, 2011, memorandum decision as a final judgment under K.S.A. 2012 Supp. 60-254(b) in its memorandum decision and journal entry dated June 19, 2012. In particular, the trial court stated in its June 19, 2012,-memoran-dum decision and journal entry that it did not make an express determination that there was no just reason for delay in its August 24, 2011, memorandum decision:
“This Court’s August 24, 2011, Memorandum Decision did'riot' specify that judgment was final as to Trolley’s and Blue Moose, and that there was no just reason to delay foreclosing on the property. Nevertheless, considering that this matter had been pending for two years at the time of judgment, and at least one party still remains subject to bankruptcy court, this Court’s Memorandum Decision was clearly issued with the purpose of allowing foreclosure to proceed immediately. Therefore, the Court grants Plaintiff s motion and certifies the August 24, 2011, Memorandum Decision as a final judgment pursuant to K.S.A. 60-254.”
The trial court also denied Trolley s motion for leave to amend its answer.
Was the trial court’s August 24, 2011, memorandum decision or August 31, 2011, journal entry judgment of foreclosure sufficient to establish a final judgment under K.S. A. 2012 Supp. 60-254(b)?
Trolley s written brief seems to raise two arguments: (1) that “the journal entry of judgment of foreclosure [was] a final judgment as to all parties and claims because Prime [Lending] consummated a sheriff s sale of the collateral without obtaining a K.S.A. § 60-254(b) certificate”; that alternatively, “a foreclosure judgment is not a final judgment where it disposes of less than all parties or less than all claims in the absence of a K.S.A. § 60-254(b) certificate”; and (2) that the trial court should have allowed it to amend its pleadings to pursue resulting claims against Prime Lending because the trial court had not issued a final judgment under K.S.A. 2012 Supp. 60-254(b).
But, based on the substance of the briefs and the record on appeal, Trolley s arguments should be rephrased into the following questions: (1) Was the trial court’s memorandum decision, filed August 24, 2011, or was journal entiy of judgment of foreclosure, filed on August 31, 2011, sufficient to establish a final judgment under K.S.A. 2012 Supp. 60-254(b)? (2) If the August 24, 2011, memorandum decision or August 31, 2011, journal entiy of judgment of foreclosure was not final, what effect did the nonfinal judgments have on the later proceedings?
Although Prime Lending maintains that the applicable standard of review requires this court to “disturb the trial court’s assessment of the equities only if it can say that the judge’s conclusion was clearly unreasonable,” Prime Lending’s framing of the standard of review is misplaced. Here, the principal question under this appeal involves the legal effect of the trial court’s prior judgment, i.e., whether the judgment of foreclosure by the trial court was final under K.S.A. 2012 Supp. 60-254(b). The legal effect of a trial court’s previous judgment is a question of law, over which this court’s review is unlimited. See Regency Park, LP v. City of Topeka, 267 Kan. 465, 467, 981 P.2d 256 (1999).
A. Was the trial court’s August 24, 2011, memorandum decision or its August 31,2011, journal entry of foreclosure a final judgment under K.S.A. 2012 Supp. 60-254(b)P
Trolley’s first argument is raised in the alternative. On the one hand, Trolley’s maintains that “where a trial court confirms a sheriff s sale, it errs in subsequently finding that the judgment of foreclosure is not final as to all parties [or] claims.” In the alternative, Trolley’s maintains that if the judgment was not final as to all parties or claims, then the trial court erred in confirming the sheriff s sale and this court should set aside the foreclosure sale and the order confirming the sheriff s sale.
Here, neither the trial court’s August 24, 2011, memorandum decision nor its August 31, 2011, journal entry of judgment of foreclosure contained the express determination that there is no just reason for tire delay and an express direction for entry of judgment. K.S.A. 2012 Supp. 60-254(b). Under K.S.A. 2012 Supp. 60-258 “[n]o judgment is effective unless and until a journal entry or judgment form is signed by the judge and filed with the clerk.” Moreover, K.S.A. 2012 Supp. 60-258 expressly states that “entry of judgments [are] subject to subsection (b) of K.S.A. 60-254,” which provides the following:
“When an action presents more than one claim for relief, whether as a claim, counterclaim, cross claim or third-party claim, or when multiple parties are involved, the court may direct entiy of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all tire parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” (Emphasis added.)
A partial adjudication of an action absent a K.S.A. 2012 Supp. 60-254(b) certification remains interlocutory and “may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” K.S.A. 2012 Supp. 60-254(b).
Because the statutory language of K.S.A. 2012 Supp. 60-254(b) and Federal Rule of Civil Procedure 54(b) are identical, Kansas appellate courts have adopted and followed the federal decisions interpreting Rule 54(b). See City of Salina v. Star B, Inc., 241 Kan. 692, 695, 739 P.2d 933 (1987). Indeed, both the Kansas and federal courts have been consistent in holding that an order disposing of fewer than all claims or parties must contain an express determination that there is no just reason for delay and an express direction for die entry of judgment before the order is considered a final judgment. See, e.g., City of Salina, 241 Kan. at 697; Dennis v. Southeastern Kansas Gas Co., 227 Kan. 872, 610 P.2d 627 (1980); Fredricks v. Foltz, 221 Kan. 28, 31, 557 P.2d 1252 (1976); Henderson v. Hassur, 1 Kan. App. 2d 103, 107, 562 P.2d 108 (1977); D & H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443, 1444 (10th Cir. 1984); 6 Moore, Taggert, & Wicker, Federal Practice ¶ 54.54, at 54-287 and ¶ 54.28[2] (2d ed. 1987), and authorities cited within; 10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d, § 2653 (1983), and authorities cited within.
In fact, the Kansas and federal courts take the requirement of the express determination so seriously that cases where K.S.A. 2012 Supp. 60-254(b) or Rule 54(b) was mentioned by the trial court without an express determination were held not to be final judgments. The courts reasoned that even though the judgments cited to the appropriate statute, the judgments were not final because they did not contain the express determination and direction required under the rules. See City of Salina, 241 Kan. at 695-97; Mooney v. Frierdich, 784 F.2d 875 (8th Cir. 1986); and Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414 (9th Cir. 1985).
Finally, to eliminate any sense of confusion for what is required for a final judgment in Kansas, our Supreme Court has stated the following: -
“A trial court, intending to enter a final judgment on less than all claims or against less than all parties, must make an express determination that there is no just reason for delay and must expressly direct the entry of judgment. These must appear affirmatively in the record, preferably by use of the statutory language.” City of Salina, 241 Kan. at 696.
The reason for the express determination rule under K.S.A. 2012 Supp. 60-254(b) and Rule 54(b) is to prevent litigants from having to guess whether an order would be held “final” by an appellate court. Dickinson v. Petroleum Corp., 338 U.S. 507, 517, 70 S. Ct. 322, 94 L. Ed. 299 (1950). As a result, for a judgment to be effective under K.S.A. 2012 Supp. 60-254(b), the trial court must make findings and make a record of them that there is no just reason for delay and that the partial judgment should be entered. “This is true whether the judgment is summary or otherwise.” 4 Gard and Casad, Kansas Law and Practice, Kansas C. Civ. Proc. Annot. § 60-254(b), p. 315 (4th ed. 2003); City of Salina, 241 Kan. at 696.
As stated earlier, neither the August 24, 2011, memorandum decision nor the August 31, 2011, journal entry of judgment of foreclosure contained the express determination that there was no just reason for delay and direction required by K.S.A. 2012 Supp. 60-254(b). Moreover, both the August 24, 2011, memorandum decision and the August 31, 2011, journal entry of judgment of foreclosure failed to make any reference to K.S.A. 2012 Supp. 60-254(b). As a result, the summary judgment rendered in favor of Prime Lending in the foreclosure action and the judgment of foreclosure did not become final. Absent a K.S.A. 2012 Supp. 60-254(b) determination that there is no just reason for delay and an express direction for the entry of judgment, no appeal can be taken from a trial court’s partial judgment on a claim before entry of a final judgment disposing of all claims against all parties. See 4 Gard and Casad, Kansas Law and Practice, Kansas C. Civ. Proc. Annot. § 60-254(b), p. 314 (4th ed. 2003), comment (If the judge refuses to make the express determination called for under K.S.A. 60-254[b], appeal on that claim must await the entry of final judgment on the whole case.).
B. What effect, if any, does the trial court’s June 19,2012, memorandum decision and journal entry, which retroactively certified the trial court’s August 24, 2011, memorandum decision as a final judgment under K.S.A. 2012 Supp. 60-2S4(b), have on this court’s jurisdictionP
Although the problem has not been raised by either party, we are faced at the outset with the jurisdiction question of whether K.S.A. 2012 Supp. 60-254(b) has been properly invoked. An appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, it is the duty of tire appellate court to dismiss the appeal. State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, 352, 241 P.3d 45 (2010). Whether jurisdiction exists is a question of law over which an appellate court exercises unlimited review. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009).
Neither the plaintiff nor the defendants address the trial court’s June 19, 2012, memorandum decision and journal entry where the trial court retroactively certified its August 24,2011, memorandum decision as a final judgment under K.S.A. 2012 Supp. 60-254(b). In its June 19, 2012, memorandum decision and journal entry, the trial court granted Prime Lending’s motion to certify the court’s August 24, 2011, memorandum decision as a final judgment under K.S.A. 2012 Supp. 60-254(b). If the trial court properly retroactively certified its August 24,2011, memorandum decision as a final judgment, then Trolley’s would have needed to file their appeal within 30 days from the August 24, 2011, memorandum decision. See K.S.A. 2012 Supp. 60-2103(a) (Under this subsection, the time for taking an appeal is 30 days.). But Trolley’s did not appeal within 30 days from the August 24, 2011, memorandum decision. Trolley’s, however, have timely appealed from the trial court’s June 19, 2012, memorandum decision and journal entry. Nevertheless, under K.S.A. 2012 Supp. 60-254(b), if we were to determine that the August 24, 2011, memorandum decision was validly certified as a final judgment as to Trolley’s and they had failed to timely appeal from the August 24, 2011, memorandum decision, we would be required to dismiss tire present appeal as untimely. Obviously, the trial court retroactively certifying its August 24, 2011, memorandum decision creates a major problem for Trolley’s and this court.
Trial courts, however, have been admonished not to certify cases under Rule 54(b) as a routine matter or as an accommodation to counsel. Campbell v. Westmoreland Farm, Inc., 403 F.2d 939, 942 (2d Cir. 1968); see also Long v. Wickett, 50 Mass. App. 380, 389-90, 737 N.E.2d 885 (2000). Because the trial court failed to malee the proper express determination required by K.S.A. 2012 Supp. 60-254(b) when it issued its August 24, 2011, memorandum decision or its August 31, 2011, journal entry of judgment of foreclosure, it had no discretion to retroactively make those decisions final judgments. See State ex rel. Board of Healing Arts v. Beyrle, 262 Kan. 507, 510, 941 P.2d 371 (1997) (The judgment lacked the determination required by K.S.A. 60-254(b), “and it is not possible to now amend the order so to include the required findings within the order.”); see also Razook v. Kemp, 236 Kan. 156, 158-59, 690 P.2d 376 (1984).
During the June 8, 2012, hearing concerning Prime Lending’s motion to certify the judgment of foreclosure as a final judgment under K.S.A. 2012 Supp. 60-254(b), Prime Lending admitted through counsel that its foreclosure action was not final as to all claims or parties:
“[Tjhere exists the counterclaim filed by Mr. Buerge, and it hasn’t been resolved, and we can’t cause that to be dismissed: So there are claims out there that are still pending in this action. One is tire counterclaim.
“The second is that there are claims that we’re not pursuing, but they are claims that exist against Mr. Buerge. He is in bankruptcy, and that bankruptcy has not been resolved. And until the bankruptcy proceedings are resolved, those claims won’t go away. That whole proceeding needs to be resolved first.”
Moreover, Prime Lending in its brief maintains that its foreclosure action is not final as to all claims or parties.
Counsel for Prime Lending during the June 8, 2012, hearing asked the trial court not to retroactively certify its judgment of foreclosure to the date it was entered (August 31, 2011), but asked the trial court to certify its judgment of foreclosure from the date of the current proceedings. Nevertheless,'the trial court attempted to retroactively certify the August 24, 2011, memorandum decision as a final judgment, which we have determined to be improper. Moreover, had the trial court certified the current proceedings, we express no determination whether this would have resolved the jurisdiction problem.
Because no attempt was made to follow the proper express determination required by K.S.A. 2012 Supp. 60-254(b), we determine that this appeal is interlocutory. As stated earlier, a partial adjudication of an action absent a K.S.A. 2012 Supp. 60-254(b) certification remains interlocutory and “may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” K.S.A. 2012 Supp. 60-254(b). Thus, an appellate court has no jurisdiction under K.S.A. 2012 Supp. 60-254(b) unless the trial court has made the proper express determination required by K.S.A. 2012 Supp. 60-254(b). See Beyrle, 262 Kan. at 510 (When no attempt is made to follow the requirements of K.S.A. 60-254[b], an appellate court lacks jurisdiction to hear the appeal.); see also Backus Plywood Corp. v. Commercial Decal, Inc., 317 F.2d 339, 340-41 (2d Cir. 1963) (‘Where the district court issues a [Rule 54(b)] certificate, we have no jurisdiction unless the district court had power to do so.”). As a result, we lack jurisdiction to hear this case under K.S.A. 60-2101(b).
Dismissed. | [
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Green, J.:
This is a summary judgment case involving a foreclosure action by the Bank of Blue Valley (the Bank). Over the course of several years, Duggan Homes granted multiple mortgages to the Bank in part consideration for loans to fund its real estate development projects in Johnson County. The loans were also secured by personal guaranties from John Duggan and his spouse. Duggan Homes later defaulted on the loans, and the Bank sued to collect on the notes and the Duggans’ guaranty agreements. The Bank also sought to foreclose on the mortgages. After the suit was filed, the Bank and the previously mentioned parties entered into a settlement agreement. Under the terms of the settlement agreement, Duggan Homes agreed to convey several properties to the Bank in full satisfaction of the indebtedness. The Bank took the properties subject to the judgment liens of several subcontractors of Duggan Homes.
Later, the Bank filed an amended petition naming the subcontractors as defendants. The amended petition sought to foreclose the mortgages that were included in the Bank’s and Duggan Homes’ settlement agreement.
The Bank moved for summary judgment, and the subcontractors also filed a cross-motion for summary judgment. The subcontractors maintained that tire Bank was not entitled to foreclose on its mortgages. The trial court held that although the Bank “identifies the cause of action as a foreclosure,” the Bank “simply desires to quiet title to the property.” As a result, the trial court granted summary judgment in favor of the Bank and quieted title to the real property in the Bank. On appeal, the subcontractors contend that the trial court erred in granting summary judgment in favor of the Bank based on a quiet title theory that was never requested nor pleaded by the Bank. We agree. Accordingly, we reverse and remand.
The Bank entered into three separate loan agreements with Duggan Homes. The Bank loaned money for home construction of three properties in Johnson County, Kansas.
First, on January 6, 2004, Duggan Homes executed a promissory note for Loan Number 9226510 in favor of the Bank in the principal amount of $210,000. To secure this loan, Duggan Homes executed a construction mortgage in this same amount in favor of the Bank, which was recorded on January 13, 2004, with the Johnson County Register of Deeds regarding 23854 W. 126th Terrace, Olathe, Kansas.
Second, on April 5, 2007, Duggan Homes executed a promissory note for Loan Number 9242350 in favor of the Bank in the principal amount of $306,360. To secure this obligation, Duggan Homes executed a mortgage in favor of the Bank in the same principal amount, which was recorded on April 9, 2007, with the Johnson County Register of Deeds regarding property located at 3203 West 155th Terrace, Overland Park, Kansas.
Finally, on April 5, 2007, Duggan Homes executed a promissory note for Loan Number 9242360 in favor of the Bank in the principal amount of $340,760. Duggan Homes executed a mortgage in the same principal amount in favor of the Bank, which was recorded on April 9, 2007, for property located at 3107 West 155th, Overland Park, Kansas.
As additional security for the Duggan Homes’ notes, the Bank obtained guaranty agreements from John Duggan and his spouse. Sometime after the execution of these three transactions, Duggan Homes defaulted on all three notes. On December 19, 2008, the Bank sued Duggan Homes seeking to collect on the notes and Duggans’ guaranty agreements. The Bank also sought to foreclose on the three mortgages.
In December 2009, the Bank and Duggan Homes reached a written settlement agreement. As consideration for the settlement agreement, the Bank agreed to accept the conveyance of the Dugan Homes’ properties along with a workout note “in full satisfaction of and payment of the Duggan Homes Notes and any and all indebtedness of Duggan Homes under the Duggan Homes Loan Documents.” Moreover, Duggan Homes and its guarantors agreed to release any and all claims against the Bank under the terms of the settlement agreement. In exchange for these promises, tire Bank agreed to release Duggan Homes and its guarantors from all claims. The Bank further agreed to report to credit agencies that all indebtedness of Duggan Homes and its guarantors were “satisfied.”
The settlement agreement also included multiple no merger provisions. Indeed, Paragraph 18 of the settlement agreement stated the following:
“No Merger. The parties acknowledge and agree that notwithstanding the transaction contemplated by this Agreement, the Notes and Mortgages will remain in full force and effect after the transactions contemplated by this Agreement have been consummated. The parties further acknowledge and agree that the interest of the Lender, its nominee or assigns in the Duggan Homes Properties created by all of the conveyances provided for herein will not merge with the interest of the Lender in the Duggan Homes Properties under the Mortgages. It is the express intention of each of the parties (and all of the conveyances provided for herein will so recite) that such interest of the Lender in the Duggan Homes Properties will not merge, but shall be and remain at all times separate and distinct, notwithstanding any union of said interest in the Lender at any time by purchase, termination or othenvise, and that the lien held by the Lender against the Duggan Homes Properties created by the Mortgages and Notes will remain at all times valid and continuous liens against the Duggan Homes Properties.” (Emphasis added.)
The involved parties signed the settlement agreement with the previously mentioned terms, and Duggan Homes conveyed a special warranty deed to the Bank granting the Bank title to the properties.
Before entering into the settlement agreement with the Bank, Duggan Homes tried to settle several disputes that it had with its subcontractors. Specifically, on January 22, 2009, Duggan Homes filed a declaratory judgment action against the following subcontractors: (1) Joe Kilowatt, Inc.; (2) United Heating and Cooling, Inc.; (3) United Plumbing and Service Co., Inc.; (4) Allegiance Capital Group I, LLC; (5) Graham-Welch Associates, Inc.; (6) Tory Graham, Inc.; and (7) Fountain Glass, Inc. (collectively subcontractors). On April 28 and 29,2010, the trial court entered separate orders granting the subcontractors judgment liens on Duggan Homes’ properties. Duggan Homes and the Bank’s settlement agreement stated that the Bank took tire conveyed properties “subject to the lien of general real estate taxes, and all other encumbrances of record.”
On October 1, 2010, the Bank filed a second amended petition naming the subcontractors as defendants. The amended petition sought to foreclose the three mortgages that were included in the Bank and Duggan Homes’ settlement agreement. Eventually, the Bank moved for summary judgment. The subcontractors then filed a competing motion for summary judgment. At the hearing on tire Bank’s summary judgment motion, the trial court sought to clarify the relief that the Bank was seeking. After the Bank explained that it sought to clear title to the property to make it saleable, the trial court requested that the Bank file an amended memorandum in support of its summary judgment motion. Under the amended memorandum, the Bank stated drat it brought its action “for the purpose of clearing title to real property it accepted from its borrower, Duggan Hornes, Inc.”
Following the additional briefing of the parties, the trial court in its memorandum decision dated November 18, 2011, granted tire Bank’s summary judgment motion. The trial court ordered title to die property to be quieted in the name of the Bank. In response to the trial court’s judgment quieting tide in favor of die Bank, the subcontractors moved to alter or to amend the findings and the judgment.
The subcontractors argued that the Bank had never sought relief under a quiet title theory and asked the trial court to vacate its judgment quieting title in favor of the Bank. In responding to the subcontractors’ motion to alter or to amend the findings and the judgment, the Bank contended that under K.S.A. 60-208(f) and K.S.A. 60-254(c), the trial court had “the ability and responsibility to dispense justice to provide relief that will satisfy a claimant, even if that relief was not plead [sic].” Relying on these two statutes, the trial court denied the subcontractors’ motion to alter or to amend the findings and the judgment. In its ruling the trial court stated: “[Ajltliough [the Bank] was not entitled to foreclose per se because the underlying debt secured by the mortgage was released prior to [Bank’s] motion for summary judgment, [Bank] may still establish priority between its mortgage and [the subcontractors’] judgment liens.”
The subcontractors—except for Fountain Glass, Inc.—timely filed a joint notice of appeal from the trial court’s ruling.
I. Did the trial court err in granting summary judgment in favor of the Bank on a theory of quiet title that was never requested or pleaded hy the Bank?
When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summaiy judgment is appropriate. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. To preclude, summary judgment, the facts subject, to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
In the Bank’s first motion for summaiy judgment, the Bank sought (1) an in rem judgment against Lots 16,154, and 155 based on alleged debt due from Duggan Homes; (2) “foreclosure of the mortgages described in tire Bank’s Petition and Memorandum in Support filed concurrently herewith”; (3) “judgment against the Subcontractor Creditors that each does not hold a valid lien interest” or, in tire alternative, “establishing that their respective judgment liens [are] second and subordinate to Plaintiff s first and priority Mortgages and foreclosing said hens”; and (4) “judgment against Fountain Glass” establishing that “its judgment hen is second and subordinate to Plaintiff s first and priority Mortgages and foreclosing said lien.” (Emphasis added.)
The Bank’s amended motion for summaiy judgment requested rehef as follows: “for judgment against the Subcontractor Creditor defendants that each does not hold a valid judgment lien interest ... or in the alternative establishing their respective judgment liens as second and subordinate to Plaintiff s first and priority Mortgages and foreclosing said liens.” (Emphasis added.)
Absent from tire Bank’s initial motion for summary judgment, its amended motion for summary judgment, and its accompanying memoranda is any request for or argument that the Bank is seeking an order quieting title in the property. Indeed, nowhere in the Bank’s second amended petition does the Bank ever assert a cause of action for quiet title or request that the trial court enter an order to “quiet title to the property.” To the contrary, for example, the Bank, in count seven of its second amended petition for “Mortgage Foreclosure 3107 W. 155th Terrace,” prayed that this property
“be ordered sold according to the law and that the proceeds from the sale of [sic] the 3107 W. 155th Terrace be applied as follows:
a. to the Payment of costs of this action of said sale;
b. to the Payment of any and all taxes and assessments, all interests and penalties thereon, that may be found due on the real property on the sale date;
c. to the payment of the judgment of the Bank of Blue Valley, together with interest thereon; and
d. the remainder, if any to be paid into the Court. . . .” (Emphasis added.)
Each count for foreclosure in the Bank’s second amended petition contains tire same prayer but for the address of tire property. Indeed, the Bank acknowledged in open court that it desired to “do a foreclosure sale.” “In the absence of a pretrial order, the issues raised by the facts alleged in the petition control the scope of the lawsuit.” Febert v. Upland Mutual Ins. Co., 222 Kan. 197, Syl. ¶ 1, 563 P.2d 467 (1977). The “trial court has no jurisdiction to hear issues which are not raised by the pleadings or defined at [a] pretrial conference” unless the parties consent to tire new issues. 222 Kan. at 200.
Here, tire Bank has never sought or established a basis to obtain quiet title to the three properties in question. Rather, tire Bank in its second amended petition, in its initial motion for summary judgment, and in its amended motion for summary judgment has sought to foreclose the mortgages and to obtain an order foreclosing the subcontractors’ judgment liens on the propeiir.es. More over, no pretrial order has ever been entered in this matter allowing the Bank to assert a claim for quiet title. Finally, the Bank concedes in its brief that it never used the word “quiet” in its pleadings.
In denying the subcontractors’ motion to alter or to amend the findings and the judgment of the trial court’s order of summary judgment, the trial court appears to have relied on K.S.A. 2012 Supp. 60-208(e) and K.S.A. 2012 Supp. 60-254(c). Under K.S.A. 2012 Supp. 60-208(e), it states that “[pjleadings must be construed so as to do justice.” Moreover, K.S.A. 2012 Supp. 60-254(c) states in pertinent part: “Every other final judgment should grant relief to which every party is entitled, even if the party has not demanded that relief in its pleadings.” Although the Bank contends that these statutes give the trial court “the ability and the responsibility to dispense justice to provide relief drat will satisfy a claimant, even if that relief was not plead [sic],” the Bank cites no case authority in support of this proposition. Nevertheless, our Supreme Court in In re Marriage of Brown, 247 Kan. 152, 168, 795 P.2d 375 (1990), held that 60-254(c) did not allow an award of money for unjust enrichment in an action when only a claim for divorce and maintenance was pleaded. Thus, the Bank’s contention under 60-254(c) runs counter to the Brown holding.
Here, the trial court surmised that “[ajlthough Plaintiff identifies the cause of action as a foreclosure, Plaintiff simply desires to quiet title to the property.” The trial court, however, cannot supply the claim by “supposition.” Meyer Land & Cattle Co. v. Lincoln County Conservation Dist., 29 Kan. App. 2d 746, 756, 31 P.3d 970 (2001) (providing that even under notice pleading, tire “claim is to be provided by the petitioner and not by the supposition of the court”), rev. denied 273 Kan. 1036 (2002). The trial court “cannot supply a cause of action when it is clear from reading the entire pleading that it was not meant to be pleaded and it was not contained in the pleading in any understandable form.” 29 Kan. App. 2d at 756.
Accordingly, because the subcontractors objected to the quiet title theoiy and because they never consented to the use of this theory, the trial court erred in granting the Bank’s motion for summary judgment.
For the salce of argument, even if the trial court had the authority to convert the Bank’s pleaded foreclosure action into a quiet title action, it still did not clear title to tire real properties. Although tire Bank argues in its brief that “Kansas law has long provided that a quiet title action is appropriate to clear property title of mechanics’ liens,” this statement is too broad. Moreover, the statement is inapplicable to this case. See 5 Gard, Casad and Mulligan, Kansas Law and Practice, Kansas C. Civ. Proc. Annot. § 60-1002(b), p. 136 (5th ed. 2012) (K.S.A. 60-1002[b] “extends the right to tire property owner to bring an action to quiet title against any and all types of liens which have ceased to exist or which have become barred [by a statute of limitations], whether the lien was that of a mortgage or of some other character.” [Emphasis added.]).
Here, the Bank made no argument that the subcontractors’ liens had ceased to exist or had become barred by a statute of limitations. Moreover, the trial court’s holding was not based on either of those two grounds. The trial court simply held that the Bank’s mortgages were “senior to the [subcontractors’] judgment liens.” Thus, the trial court’s quiet title ruling was inadequate to strip the real property of the subcontractors’ liens. Only through a foreclosure action can a senior lienholder strip the real property of known or recorded junior liens. See Lenexa State Bank & Trust Co. v. Dixon, 221 Kan. 238, 245-46, 559 P.2d 776 (1977), requiring holders of junior hens which are known or of record to be made party defendants in a first mortgage foreclosure action in order for the purchaser at foreclosure sale to get a clear title unencumbered by the secondary liens.
Nevertheless, as the Bank points out in its brief, the foreclosure issue is not squarely before this court because the Bank has abandoned its foreclosure action and now relies entirely on the trial court’s alternative ground of quiet title for granting relief in the Bank’s favor:
“Because the district court did not address the issue of whether die Bank could foreclose its mortgages in its November 18th judgment, it is inappropriate for this Court to render an advisory opinion. Further, in the Subcontractorfs’] notice of appeal, the Subcontractor^’] only appeal from die grant of Summary Judgment in favor of die Bank and did not appeal the denial of dieir Cross-Motion For Summary Judgment. Thus, the determination of whether the Bank can foreclose on its mortgages must, if ever, be left for another day.”
We will heed the Bank’s advice and not reach out to decide an issue not squarely before this court.
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|
Malone, J.:
K.B. appeals the district court’s order that he register as a sex offender under the Kansas Offender Registration Act (KORA) following his juvenile adjudications of two counts of battery. K.B. asserts that the district court lacked substantial competent evidence to determine, beyond a reasonable doubt, that the batteries were sexually motivated. We agree. Accordingly, we vacate the registration order and remand for an evidentiary hearing for tire district court to determine whether the batteries were sexually motivated, if tire State seeks such a finding. Additionally, K.B. argues that the district court erred in recommending that he complete sex offender treatment as a condition of his sentence. We disagree and find that the district court was authorized to recommend sex offender treatment. But we note that on remand the district court may reconsider its recommendation if the district court hears evidence on whether the batteries were sexually motivated.
On May 3, 2010, the State filed a juvenile complaint in Marion County alleging that K.B. committed one count of indecent liberties with a child and one count of purchase or consumption of an alcoholic beverage by a minor. On August 16, 2010, the State filed a separate juvenile complaint in Marion County alleging that K.B. committed one count of rape. The State later amended the charges of indecent liberties with a child and rape to misdemeanor battery. On January 19, 2011, K.B. pled guilty in each case to the amended charge of misdemeanor battery, and the charge of purchase or consumption of an alcoholic beverage by a minor was dismissed. The district court adjudicated K.B. a juvenile offender in each case and transferred the cases to Sedgwick County, where K.B. lived, for sentencing.
On April 13, 2011,. the State filed a juvenile complaint in Montgomery County alleging that K.B. committed one count of criminal discharge of a firearm at an occupied dwelling. K.B. pled no contest to the- charge. The district court adjudicated K.B. a juvenile offender and transferred the case to Sedgwick County for sentencing.
On August 9, 2011, the Sedgwick County District Court held a sentencing hearing in all three cases. At the hearing, the State noted that the two batteries had stemmed from allegations of a sexual nature. K.B. denied any sexual contact with either victim. The district judge stated that he had .reviewed the presentence investigation (PSI) report and a social update that included the results of a Juvenile Sex Offender Assessment Protocol-II (J-SOAP). On the two battery adjudications, the district court placed K.B. into the custody of the Juvenile Justice Authority (JJA), The district court found that the batteries were sexually motivated, ordered sex offender registration, and recommended that K.B. complete sex offender treatment as a condition of his direct commitment and aftercare. In rendering its decision, the district court made no findings as to the alleged sexual nature of the crimes other than to state that the batteries involved “younger people who are easily victimized” and to note to K.B. that “you have two young ladies coming forward saying that you sexually are molesting them.” On the criminal discharge of a firearm adjudication, the district court found that K.B. was a chronic offender II, escalating felon, and ordered direct commitment to the Juvenile Correction Facility for 12 months with 12 months’ aftercare, to run concurrent with the sentences on the batteries. See K.S.A. 2011 Supp. 38-2369(a)(3)(B).
On August 17, 2011, K.B. filed a motion to correct illegal sentence in which he argued that there was insufficient evidence to support the district court’s conclusion that his offenses were sexually motivated. K.B. asked the district court to reverse the finding of sexual motivation and vacate the registration order and any requirement that he complete sex offender treatment as part of his sentence. At the hearing, the State conceded that the sexual motivation finding was improper and should be vacated along with the order for sexual offender registration, but argued that the district court had the general authority to order counseling, and therefore the sex offender treatment recommendation was not contrary to statute. After hearing argument, the district court denied K.B.’s motion. K.B. timely appealed his sentences, and the three cases were consolidated for appeal.
On appeal, K.B. argues that the district court lacked substantial competent evidence to determine, beyond a reasonable doubt, that the batteries were sexually motivated and the district court erred in ordering him to register as a sex offender. K.B. also argues that the district court abused its discretion in recommending that he complete sex offender treatment as a condition of his direct commitment to JJA and aftercare. Although the State conceded in district court that the sexual motivation finding was improper, on appeal the State argues that the registration order was supported by substantial competent evidence. The State also argues that the district court did not abuse its discretion in recommending that K.B. complete sex offender treatment.
Under the KORA, any person who is adjudicated as a juvenile offender for an act which, if committed by an adult, would constitute a sexually violent crime may be required to register as a sex offender, so long as the crime is not an off-grid felony or a severity level one nondrug felony. See K.S.A. 22-4902(b); K.S.A. 22-4904. K.S.A. 2009 Supp. 22-4902(c) lists a number of specific crimes considered sexually violent and also includes:
“(15) any act which at the time of sentencing for the offense has been determined beyond a reasonable doubt to have been sexually motivated. As used in this subparagraph, ‘sexually motivated’ means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant’s sexual gratification.”
K.B. first argues that the district court erred by finding that the batteries were sexually motivated. Because simple battery, the crime at issue here, is not explicitly listed as a sexually violent crime in K.S.A. 2009 Supp. 22-4902(c), the district court must have found beyond a reasonable doubt that the batteries were sexually motivated in order to have properly required K.B. to register as a sex offender.
When reviewing a district court’s finding that an offense was sexually motivated under the KORA, an appellate court determines whether that finding of fact is supported by substantial competent evidence. State v. Chambers, 36 Kan. App. 2d 228, 239, 138 P.3d 405, rev. denied 282 Kan. 792 (2006). Substantial evidence is legal and relevant evidence that provides a substantial basis of fact from which to reasonably determine the issues and that a reasonable person could accept as being adequate to support a conclusion. State v. Walker, 283 Kan. 587, 594-95, 153 P.3d 1257 (2007).
K.B. pled guilty to the battery charges in Marion District Court. As K.B. notes, a guilty plea can be a source of substantial competent evidence sufficient to support a finding that a crime was sexually motivated. See State v. Gallardo, 43 Kan. App. 2d 346, 352, 224 P.3d 1192 (2010), rev. granted and remanded by order on other grounds May 21, 2012. But here, it does not appear that the sentencing court—a different court tiran the one that took K.B.’s guiltyplea—considered any facts admitted by K.B. at the plea hearings. The transcripts of the plea hearings are not included in the record on appeal. Moreover, the State did not present the sentencing court with any testimony or other evidence about a sexual motivation for the batteries.
K.B. cites State v. Young, No. 97,948, 2008 WL 2186173 (Kan. App. 2008) (unpublished opinion), for his proposition that the evidence considered by his sentencing court was insufficient to support a finding that the batteries were sexually motivated. In Young, the State originally charged the defendant with lewd and lascivious conduct, but later amended the charge to aggravated assault. The defendant pled guilty to the amended charge and, for the factual basis underlying the plea, the State merely recited the language contained in the amended complaint. Prior to sentencing, a PSI report was submitted to the district court based on information from police reports, which described the sexual allegations leading to the charges against the defendant. At the sentencing hearing, the district court noted the original charge of lewd and lascivious conduct and the State read a statement from the victim in which the victim was thankful that she had not been raped. The district court found that the conviction was sexually motivated and ordered the defendant to register as a sex offender. 2008 WL 2186173, at *2.
On appeal, the defendant argued that the district court’s finding that the crime was sexually motivated was not supported by substantial competent evidence. This court stated that in order to satisfy the requirements of the catch-all section of tire KORAs provisions on what constitutes a sexually violent crime, “the State must present substantial competent evidence, which would be more than the prosecutor’s unsworn statements relating hearsay and the victim’s unsworn statements.” 2008 WL 2186173, at *5. This court noted that the plea to aggravated assault, “ ‘not only allowed tire victim to avoid testifying about what [the defendant] had done, . . . it also kept the information of the crime off the record.” 2008 WL 2186173, at *5. This court concluded that because evidence of the alleged sexual motivation was not included in the record, the district court did not have tire substantial competent evidence required to determine beyond a reasonable doubt that the defendant committed the crime for the purpose of his sexual gratification. 2008 WL 2186173, at *5. Accordingly, this court reversed and remanded for an evidentiary hearing on whether the crime was sexually motivated. 2008 WL 2186173, at *5.
Likewise, here, the State failed to present any evidence of sexual motivation underlying the batteries committed by K.B. The prosecutor stated at sentencing that “[ijt’s concerning to the State that the two batteries stem from sexual allegations in nature,” but the prosecutor presented no evidence to support the contention. The PSI report and the social update stated that the batteiy charges were pled down from aggravated indecent liberties with a child and rape. According to a referenced affidavit, which was not submitted to the district court and is not included in the record on appeal, one batteiy charge stemmed from an allegation that “[K.B.] rubbed the breast of his ex-girlfriend with his finger while being intoxicated.” In another instance, “[ajccording to the Affidavit, the 12-year-old victim reported having consensual sex with [K.B.] in his bedroom.” But the PSI report also stated that K.B. “adamantly denied any sexual contact with either victim” and claimed he did not even know the 12-year-old alleged victim.
In In re T.T.R., No. 106,897, 2012 WL 2476997 (Kan. App. 2012) (unpublished opinion), this court again addressed the propriety of using a PSI report as the source of evidence for a district court’s determination that a crime was sexually motivated under the KORA. In T.T.R., a juvenile offender entered an Alford plea to amended charges of misdemeanor assault and aggravated battery after originally being charged with aggravated indecent liberties with a child. The district court considered the PSI report and a J-SOAP, in which the juvenile and his mother denied the sexual molestation allegations in the original complaint, and a screener found no other indications of sexual acting out or sexual pathology. 2012 WL 2476997, at *1. As in the instant case, the PSI report also referenced information from the alleged victims as contained in an affidavit, but the affidavit was not submitted to the district court. 2012 WL 2476997, at *3. The district court mentioned the serious allegations and terrible impact of the child molestation, noted that the girls gave consistent statements to police about the alleged molestations, and stated that it found the girls’ statements to be credible. 2012 WL 2476997, at *2. Basing its decision on the complaint and the PSI report, tire district court ultimately determined that the aggravated battery and misdemeanor assault were sexually motivated. 2012 WL 2476997, at * 3.
On review, this court determined that the district court lacked substantial competent evidence to find, beyond a reasonable doubt, that the crimes were sexually motivated. 2012 WL 2476997, at *5. Specifically, this court noted that because the juvenile had entered an Alford plea, he had never admitted to the allegations contained in the affidavit. 2012 WL 2476997, at *4. Citing Young for support, this court found that “victims’ unsworn statements alone cannot constitute substantial competent evidence for a trial court to rule that a defendant has committed a sexually motivated crime.” 2012 WL 2476997, at *4. This court remanded with directions to vacate the portion of the sentence which stated that the offenses were sexually motivated. 2012 WL 2476997, at *5.
Similarly, here, the district court did not hear K.B.’s guilty plea and there is no evidence that the district court was aware of factual admissions in the guilty plea that supported a finding of sexual motivation. Although the PSI report and social update listed the original charges, the fact that sexual crimes were originally charged and later amended is not sufficient evidence to prove, beyond a reasonable doubt, that later-charged crimes were sexually motivated. The affidavit to which the PSI report and tire social update refer is not included in the record on appeal, nor is there any indication that the district court had the affidavit. Also, the district court did not make clear which facts it relied on in determining that the offenses were sexually motivated. Consistent with Young and T.T.R., we conclude the district court lacked substantial competent evidence to find, beyond a reasonable doubt, that K.B.’s batteries were sexually motivated.
We specifically address the disposition of this case due to a lack of consistency in prior cases considering this issue. In some cases, this court has reversed and remanded for further proceedings to determine whether the crimes were sexually motivated. See In re L.L.B., No. 106,469, 2012 WL 1658933 (Kan. App. 2012) (unpublished opinion); Young, 2008 WL 2186173; State v. Schweigert, No. 91,483, 2005 WL 2076470 (Kan. App. 2005) (unpublished opinion). In at least one instance, however,, this court has taken the action now urged by K.B.: remanded with directions to vacate the portion of the sentence which stated the offense was sexually motivated. See In re T.T.R., 2012 WL 2476997. Neither K.B. nor the T.T.R. court explains why a district court’s erroneous factual finding that a crime was sexually motivated precludes further proceedings on remand. There are no double jeopardy concerns because K.B.’s guilt was determined when the district court accepted his guilty plea and adjudicated him a juvenile offender. Accordingly, we conclude that the appropriate disposition of this issue is to vacate the district court’s order that K.B. register as a sex offender and remand for an evidentiaiy hearing for the district court to determine whether tire batteries were sexually motivated, if the State seeks such a finding.
K.B. also asks this court to vacate the district court’s recommendation that he complete sex offender treatment as a condition of release from JJA custody. K.B. argues, without citing any authority, that a recommendation of sex offender treatment presumes sexual offender status. K.B. contends that because tire district court erred in finding that the batteries were sexually motivated, the district court also erred in recommending sex offender treatment as a condition of his sentence.
K.B. acknowledges that, generally, setting conditions of probation and parole lies within the sound discretion of the district court. State v. Mosburg, 13 Kan. App. 2d 257, 258, 768 P.2d 313 (1989). Accordingly, the district court’s conditions of a juvenile offender’s postrelease supervision should be reviewed for abuse of discretion.
Under K.S.A. 2011 Supp. 38-2361(a)(4) and (10), because K.B. was placed in the custody of the commissioner of the JJA, the order for K.B. to complete sex offender treatment “constitute[d] a recommendation by the court.” The statute affords the district court broad discretion to recommend that a juvenile who has been adjudicated a juvenile offender “attend counseling, educational, mediation or other sessions.” See K.S.A. 2011 Supp. 38-2361(a)(10), (b). There is no language in the statute that requires a district court to find that a juvenile offender is a sex offender before recommending sex offender treatment. Accordingly, the district court was authorized to recommend that K.B. complete sex offender treatment as a condition of his direct commitment and aftercare. On remand, however, the district court may reconsider whether sex offender treatment is an appropriate recommendation if the parties present evidence on whether the batteries were sexually motivated.
Affirmed in part, vacated in part, and remanded with directions. | [
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Arnold-Burger, J.:
Before the Kansas Department of Revenue (KDR) can suspend a driver’s license as a result of a driver’s illegal breath alcohol concentration (BAC) level, Kansas law requires the arresting officer to serve the driver with a form notice called a DC-27 form. K.S.A. 2010 Supp. 8-1002(c). Our courts have treated the service of this form on the driver as jurisdictional, meaning if it is not properly served, then the KDR lacks the administrative authority or jurisdiction to suspend or restrict the driver’s driving privileges. Anderson v. Kansas Dept. of Revenue, 18 Kan. App. 2d 347, 348, 853 P.2d 69, rev. denied 253 Kan. 856 (1993).
In this case, the arresting officer personally served Pratt with tire DC-27 form but failed to check a box on the DC-27 form to indicate the manner of service, personal or mailed. We find that this did not deprive the KDR of jurisdiction to suspend Pratt’s driver’s license for two reasons. First, Pratt stipulated that the officer per sonally served her with the notice. Second, while the DC-27 form includes a paragraph that allowed for the arresting officer to certify tire manner of service, personal or mailed, there is no statutory requirement for such certification. Thus, the officer s failure to certify the manner of service of the DC-27 form on Pratt does not, standing alone, deprive the KDR of jurisdiction. The only other issue raised by Pratt involves a claim of actual prejudice that is refuted by the record. Accordingly, we affirm the decision of the district court affirming the KDR’s suspension of Pratt’s driver’s license.
Factual and Procedural History
Pratt was driving when she was stopped by police and subsequently submitted a BAC test that was over the legal limit. Following her arrest for driving under the influence (DUI), the officer personally served her with a copy of a DC-27 form. At issue is a numbered paragraph of the DC-27 form served on Pratt that read as follows:
“8. A copy of this document which contains a Notice of Driver’s License Suspension is being served on tire above-named person on 7-17,2010 by (check one) personal service; mailing by first-class mail to the address shown above. NOTE: Personal service is required if a determination of refusal or failure is made while the person is in custody.”
Although the officer initialed this paragraph, he did not check either box within die paragraph. The officer’s failure to check either box under this paragraph on the DC-27- form serves as the impetus behind this appeal. Simply put, Pratt insists that the officer’s failure to certify, by checking the appropriate box, that he personally served her with the DC-27 form deprived the KDR of jurisdiction to suspend her driving privileges.
After receiving trial briefs from both parties, which included a stipulation regarding all relevant facts, the district court concluded the officer’s failure to check a box under paragraph 8 on the DC-27 form did not deprive the KDR of jurisdiction, so it denied Pratt’s petition for review and affirmed the KDR’s suspension of Pratt’s driving privileges. This is Pratt’s timely appeal from that decision.
Analysis
On appeal, Pratt reiterates her argument that tire KDR lacked jurisdiction to suspend her driving privileges due' solely to the arresting officer’s failure to check a box under paragraph 8 on the DC-27 form to certify his personal service of that form on Pratt. The KDR responds that the officer was not statutorily obligated to certify the manner in which he served Pratt with the DC-27 form and that Pratt cannot show any actual prejudice given her admission of personal service and her timely request and receipt of an administrative hearing.
Our standard of review in this case is de novo.
The parties agree that this court has unlimited review over this issue for at least three reasons.
First, Pratt frames the issue of the officer’s failure to check tire box noting personal as opposed to mailed service on the DC-27 form as one involving the KDR’s jurisdiction. See Anderson, 18 Kan. App. 2d at 348 (framing tire issue of proper service of notice as jurisdictional). Whether the KDR had subject matter jurisdiction is a legal question subject to unlimited appellate review. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009).
Second, resolution of the issue requires this court to interpret statutes, which also raises a question of law which is subject to unlimited appellate review. 288 Kan. at 395.
Third, appellate courts have de novo review of a district court’s decision based upon stipulated facts and documents. Shirley v. Kansas Dept. of Revenue, 45 Kan. App. 2d 44, 46, 243 P.3d 708 (2010).
The general purpose of the DC-27 form is examined.
Before discussing the parties’ arguments, some general background of tire creation of the DC-27 form is necessary for context. In that regard, our Supreme Court has explained that the DC-27 form was developed by the KDR to aid law enforcement officers, the Division of Motor Vehicles, and drivers who have been requested to submit to alcohol testing. There are two primary com ponents to the DC-27 form: a notification aspect and a certification aspect. The notification aspect arises under K.S.A. 2010 Supp. 8-1001(k) and contains information an officer must advise the driver of before administering an alcohol test. The certification aspect arises under K.S.A. 2010 Supp. 8-1002(a) and concerns matters occurring after the test failure or test refusal has already taken place. See State v. Baker, 269 Kan. 383, 385-87, 2 P.3d 786 (2000). There is no dispute here that the DC-27 form served on Pratt reflects the officer s strict compliance with these pretest notice and posttest certification requirements. See K.S.A. 2010 Supp. 8-1002(a) and (d) (setting forth information officer is required to certify and additional information required on the DC-27 form).
We review the pu-rpose of the check boxes in paragraph 8 on the DC-27 form.
Rather, the sole dispute in this case involves the substance of numbered paragraph 8 of the DC-27 form, which the KDR points out serves a purpose distinct from the pretest notification and post-test certification requirements discussed in Baker: it indicates how the DC-27 form was served upon the driver. An entirely separate subsection of K.S.A. 2010 Supp. 8-1002 governs that requirement, providing, in pertinent part:
“(c) When the officer directing administration of the testing determines that a person has . . . failed a test and the criteria of subsection (a)(2) have been met, tíre officer shall serve upon the person notice of suspension of driving privileges pursuant to K.S.A. 8-1014, and amendments thereto. If the determination is made while the person is still in custody, service shall be made in person by the officer on behalf of the division of vehicles.”
Notably, although the DC-27 form includes a space under paragraph 8 for the officer to check how service of tire form was accomplished, personally or by mail, nothing in the plain language of K.S.A. 2010 Supp. 8-1002(a), which is the only subsection that lists information to which the officer must certify, requires certification of the manner of service. The statute, in a later subsection, merely requires that the form contain “the date notice is being served.” K.S.A. 2010 Supp. 8-1002(d). According to the KDR, the check boxes in paragraph 8 are on the DC-27 form simply because “it is sometimes helpful to the [KDR] to know the manner of service . . . [and] [h]aving a place to indicate the manner of service on the form also helps remind officers that in certain cases personal service is required.”
Because the statute does not require that the officer certify the manner of service, we cannot read into the statute a requirement not provided by the legislature. See Enslow v. Kansas Dept. of Revenue, 26 Kan. App. 2d 953, 957, 996 P.2d 361 (2000).
The arresting officer strictly complied with the statute.
Although the primary thrust of Pratfs arguments on appeal concerns whether the doctrine of substantial compliance applies to the requirements of K.S.A. 2010 Supp. 8-1002, we need not reach this issue because Pratt stipulated that the arresting officer strictly complied with K.S.A. 2010 Supp. 8-1002(c) by personally serving her with the DC-27 form. In addition, the officer initialed paragraph 8, indicating that he served the DC-27 form on Pratt, and he noted the date of service. When there is strict compliance with a statute, the doctrine of substantial compliance never comes into play. See Byrd v. Kansas Dept. of Revenue, 295 Kan. 900, 907, 287 P.3d 232, 237 (2012) (finding that there was no need to consider tire doctrine of substantial compliance as it relates to K.S.A. 2010 Supp. 8-1002[c] in light of uncontroverted evidence that the DC-27 form was mailed according to office policy).
So the only question before this court is: What, if any, effect does the arresting officer s failure to check the box under numbered paragraph 8 on the DC-27 form have on the KDR’s jurisdiction to suspend Pratt’s license when, as here, personal service is admitted?
The answer is none. Although such a failure might have some other effect, such as requiring the arresting officer’s testimony at an administrative hearing concerning the manner of sex-vice (which the KDR states was done here) or it might require the officer’s testimony to provide foundation for admission of evidence of the test results during a related criminal proceeding, it does not, standing alone, depiive the court of jurisdiction because the officer strictly complied with the statute. See Baker, 269 Kan. at 388. Accordingly, Pratt’s challenge to the KDR’s jurisdiction to suspend her license lacks merit.
Pratt cannot show actual prejudice.
This leaves one last argument by Pratt, which is her claim that she was actually prejudiced by the officer’s failure to check a box under paragraph 8. More specifically, Pratt contends that this failure deprived her of the ability to “discern from the black and white record the precise process by which the driver’s license suspension determination would be made and when jurisdiction on the DC-27 form would lapse.” Along these same lines, Pratt variously argues: she “was unable to determine the administrative and judicial process by which the driver’s license suspension would be made”; she did not “fully understand her rights”; she did not understand “how to proceed and strictly comply with the requirements of her petition for review”; and “[i]n order for [her] to properly understand how to proceed and strictly comply with the requirements of her petition for review, the DC-27 form must indicate how she was served.”
As support for her prejudice arguments, Pratt points to the instructions for requesting an administrative hearing found on the reverse side of the DC-27 form. Those instructions state that any such request must be postmarked within 14 calendar days “after the date of service of this form,” and that “[i]f this form was served on you by mail, you will have an additional 3 days, pursuant to K.S.A. 60-206(d).” According to Pratt, without any indication on the form of how she was served “she would not know the timeframe in which she had to file the petition for review.”
But as the KDR properly points out, Pratt’s argument confuses the deadline for filing a request for an administrative hearing under K.S.A. 2010 Supp. 8-1020 with the deadline for filing a petition for judicial review filed under K.S.A. 77-613. And regardless, Pratt met both deadlines, so the record contradicts her prejudice arguments.
Second, Pratt has not shown any legal interest that has been impaired or diminished by the manner in which the officer completed the DC-27 form. Pratt received an administrative hearing and an opportunity for a bench trial on her petition for review, and her driving privileges remained intact throughout the proceedings. Accordingly, none of her legal rights were prejudiced. See DeLong v. Kansas Dept. of Revenue, 45 Kan. App. 2d 454, 457-58, 252 P.3d 582 (2011) (a driver’s due process rights not implicated when driving privileges were temporarily extended pending the outcome of agency action).
Pratt’s final suggestion that she was not required to establish prejudice lacks merit. This argument is premised on the officer’s failure to strictly comply with the certification and notice requirements of K.S.A. 2010 Supp. 8-1002. As already discussed above, there was strict compliance with those statutory requirements, so Pratt’s argument necessarily fails.
For all of these reasons, we affirm the district court’s decision denying Pratt’s petition for review and affirming the KDR’s suspension of Pratt’s driving privileges. | [
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Atcheson, J.:
Defendant Jessica Lundquist contends Prairie Village police officers had no lawful basis to search her car without a warrant even though she met with an undercover agent in the car to facilitate illegal drug sales twice in 3 days, the second time just before she was arrested. The Johnson County District Court denied Lundquist’s motion to suppress a small amount of marijuana police discovered during the search of her car. The court later convicted her of felony possession of marijuana as a repeat offender. Lundquist has appealed the ruling denying the motion to suppress. We affirm the district court because the search was reasonable under the Fourth Amendment to the United States Constitution. The officers had probable cause to search the car and needed no warrant based on the motor vehicle exception to the warrant requirement of the Fourth Amendment.
Factual Background and Procedural History
Through a confidential informant, Prairie Village Police Officer Ivan Washington contacted Lundquist and arranged to buy 10 pills of ecstasy from her. Washington, working in an undercover capacity, met with Lundquist in the parking lot of a Lenexa supermarket on December 14,2009, and purchased the pills for $90. Lundquist drove to the parking lot in her Nissan sedan. The two exchanged the drugs and money in her car. Lundquist told Washington she could arrange a discount price for a larger order and offered to sell him 100 pills for $700.
Washington took Lundquist up on her offer. He met with her in a restaurant parking lot in Prairie Village 3 days later. Lundquist again drove her Nissan but arrived in tandem with an Oldsmobile with several occupants. Washington first approached the Oldsmobile and was quickly directed to the Nissan, where Lundquist and a passenger were waiting. Lundquist told Washington to give her the money and she would tiren get the pills. Washington refused, saying he would only exchange the money for the drugs. At tire suppression hearing, Washington testified he saw no drugs in Lundquist’s car. Washington then got out of the Nissan and returned to his pickup truck. Lundquist went to the Oldsmobile and then to the truck. After sitting down in the truck, she handed Washington the pills, and he gave her the money.
As soon as Lundquist left the truck and started toward her Nissan, other Prairie Village officers approached and arrested her. She was immediately handcuffed and read the Miranda warnings. Washington testified that Lundquist was perhaps one-and-a-half car lengths from the Nissan. The Oldsmobile sped off with other officers in pursuit. That chase ended in Kansas City, Missouri, when the suspects successfully evaded the officers.
After restraining Lundquist, Washington and other officers searched the Nissan. They found a small amount of marijuana in the side compartment of the driver’s door, six ecstasy pills, and a handgun in the backseat area.
Lundquist already had a conviction for possession of marijuana. So the district attorney’s office charged her with felony possession under the recidivist provisions of K.S.A. 2009 Supp. 21-36a06(b)(3), (c)(2); see K.S.A. 2009 Supp. 65-4105(d)(16) (designating marijuana as a controlled substance). The pills Lundquist sold Washington contained neither ecstasy nor any other controlled substance. Accordingly, the district attorney’s office charged Lund-quist with two counts of misdemeanor distribution of a noncon-trolled substance represented to be a controlled substance. See K.S.A. 2009 Supp. 21-36al4.
Lundquist filed a motion to suppress the drugs and other items the police took from her car. The district court held an evidentiary hearing on the motion on August 18,2010, and denied it in a bench ruling after hearing argument from counsel. The State offered three bases for denial: (1) the search was incident to a lawful arrest; (2) the police had probable cause and did not need a warrant under the motor vehicle exception; and (3) the items inevitably would have been discovered during an inventory search of the car. The district court relied on the first and third grounds to deny the motion. At a bench trial on April 7, 2011, the district court found Lundquist guilty of all three charges. She was placed on probation for 18 months, with an underlying sentence of 13 months in prison. Lundquist has timely appealed.
Legal Analysis
On appeal, Lundquist argues the district court erred in granting the motion to suppress, a ruling implicating only her felony conviction for marijuana possession. The State asserts the same bases it presented to the district court for the propriety of the search. Because we find the Prairie Village police had probable cause to search Lundquist’s car and the motor vehicle or automobile exception obviated the need for a warrant, we affirm the district court for that reason. We need not and, therefore, do not consider the other grounds the State advances for tire constitutionality of the search.
In reviewing a district judge’s ruling on a motion to suppress, an appellate court applies a bifurcated standard. The appellate court accepts the factual findings of the district judge if they are supported by competent evidence having some substance. The appellate court exercises plenary review over legal conclusions based upon those findings, including the ultimate ruling on the motion. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007); see State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The prosecution bears the burden of proving a search or seizure to be constitutional by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008) (allocation of burden; quantum of evidence); Thompson, 284 Kan. at 772 (allocation of burden).
By its express language, the Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures” and, thus, prohibits government agents from engaging in unreasonable searches and seizures. To further that right, the Fourth Amendment also requires warrants based on probable cause be presented under oath to a judicial officer and any warrant describe with particularity the places to be searched and the person or objects to be seized. As a general matter, warrantless searches violate the Fourth Amendment, subject to certain defined exceptions. Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009); Maryland v. Dyson, 527 U.S. 465, 466, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (1999).
The Fourth Amendment applies to motor vehicles. New York v. Class, 475 U.S. 106, 114-15, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986); State v. Sanchez-Loredo, 294 Kan. 50, 59, 272 P.3d 34 (2012). But the Court has long recognized that government agents need not obtain a search warrant for a motor vehicle if they have probable cause to believe contraband or evidence of criminal activity may be found there. Dyson, 527 U.S. at 466-67; Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996); United States v. Ross, 456 U.S. 798, 809, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982); Carroll v. United States, 267 U.S. 132, 149, 45 S. Ct. 280, 69 L. Ed. 543 (1925). That is, a warrantless search of a motor vehicle based on probable cause alone will be considered reasonable under the Fourth Amendment. Dyson, 527 U.S. at 466-67 (The motor vehicle exception imposes “no separate exigency requirement” that some compelling circumstance effectively precludes government agents from obtaining a search warrant.). The motor vehicle exception to the warrant requirement is rooted in twin considerations: the ready mobility of the vehicles and the reduced expectation of privacy their occupants and owners enjoy. Labron, 518 U.S. at 940; Ross, 456 U.S. at 806-07, 823; Sanchez-Loredo, 294 Kan. at 57. The United States Supreme Court has succinctly stated the motor vehicle exception this way: “If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.” Labron, 518 U.S. at 940. The exception also embraces a search for evidence of a crime supported by probable cause. California v. Acevedo, 500 U.S. 565, 580, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991); United States v. Ned, 637 F.3d 562, 567 (5th Cir.), cert. denied 132 S. Ct. 276 (2011); United States v. Pittman, 411 F.3d 813, 817 (7th Cir. 2005); Sanchez-Loredo, 294 Kan. at 59; see California v. Carney, 471 U.S. 386, 395, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985) (Armed with probable cause, law enforcement officers could search “[a] vehicle for evidence of a crime” under the exception.).
For purposes of the motor vehicle exception, a car is considered “readily mobile” if it is operable, even though it may he parked at the time of the search. Carney, 471 U.S. at 392-93 (exception ap plies if vehicle is “capable” of use on the highway, although it “is found stationary in a place not regularly used for residential purposes”); Ned, 637 F.3d at 567. Courts have held the vehicle need not be occupied, see Ned, 637 F.3d at 567; United States v. Gallman, 907 F.2d 639, 641 (7th Cir. 1990), although the applicability of the exception to an unoccupied vehicle parked in a residential driveway has been questioned, see United States v. Goncalves, 642 F.3d 245, 250-51 (1st Cir. 2011).
Lundquist’s Nissan sedan came within the motor vehicle exception when the Prairie Village police arrested her. The car was plainly operable. While the car was parked and Lundquist was not in it, the exception extends to vehicles in public or commercial parking lots or spaces. In this case, Lundquist arrived with a passenger who remained with the Nissan throughout tire incident. The passenger could have operated and removed the car, though nothing in the record indicates he or she had any intention or desire to do so. The passenger’s physical presence, nonetheless, bolsters the applicability of the exception.
The police officers also had to have probable cause for the search to satisfy the Fourth Amendment as applied to motor vehicles. Probable cause supporting a constitutional search requires that government agents possess specific facts leading a reasonable person to conclude evidence of a crime may be found in a particular place. The standard sets the bar at “a fair probability” in light of the factual circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (search warrant may issue when the supporting affidavit establishes “a fair probability that contraband or evidence of a crime will be found in a particular place”); Sanchez-Loredo, 294 Kan. at 55 (probable cause to search a motor vehicle requires a “ ‘fair probability’ that the vehicle contains contraband or evidence” based on the “totality of the circumstances”); State v. Bottom, 40 Kan. App. 2d 155, 161, 190 P.3d 283 (2008), rev. denied 287 Kan. 766 (2009).
Lundquist suggests the officers did not have adequate cause, since Washington saw no drugs in the Nissan during the second transaction. Lundquist plainly got the pills she sold from the occupants of the Oldsmobile. But Lundquist takes too narrow a view of the facts and what the officers properly could search for. Lund-quist had 90 pills she represented to be a controlled substance in her car 3 days before. That alone might have been fresh enough information to obtain a search warrant for the car on the day Lund-quist was arrested. See United States v. Kennedy, 427 F.3d 1136, 1142 (8th Cir. 2005) (discussing staleness of information in determining probable cause to search car for illegal drugs); United States v. Brookins, 345 F.3d 231, 236 (4th Cir. 2003) (officers’ observations furnishing probable cause for warrantless search of motor vehicle for drugs had not become stale in 15 minutes but would have been so 2 weeks later). In addition, however, when the police arrested Lundquist, she was using the Nissan to facilitate a second drug transaction involving a much larger quantity of pills. Although those drugs were plainly kept in another place—the Oldsmobile— that doesn’t negate the possibility she might have had a smaller stash of pills or other contraband in her car. And the two transactions close in time suggest Lundquist’s continuing involvement in trafficking, increasing the probability she would keep drugs in the car on a regular basis.
Apart from the pills, the officers had probable cause to search the car for other evidence of drug trafficking. Lundquist’s immediate involvement in a sale of what appeared to be and what she represented to be illicit drugs cleared that standard. Even if Lund-quist had no pills or other drugs in the Nissan during the second transaction, she veiy well could have had other incriminating items. A cell phone, for example, would have call histoxy information that could point to Lundquist’s suppliers or other contacts. There might be text messages providing similar evidence. Lundquist might have kept handwritten notes of telephone contacts, addresses, or specific transactions. A large amount of cash would be indicative of drug trafficking. So would the presence of materials, such as plastic sandwich bags, commonly used to package illicit drugs for distribution. Lundquist’s direct participation in the sales coupled with her use of the Nissan to carry out those transactions furnished the police officers probable cause to search the car. The officers searching the Nissan for that sort of evidence would have discovered the marijuana. It was in a place where those items might reasonably have been found. See Acevedo, 500 U.S. at 580 (Under the motor vehicle exception, “police may search an automobile and containers within it where they have probable cause to believe contraband or evidence is contained.”); United States v. Cervantes, 678 F.3d 798, 802 (9th Cir. 2012) (same). On the facts, we are not called upon to decide if government agents would have to obtain a warrant to search a smartphone after constitutionally seizing it under the motor vehicle exception. See City of Ontario v. Quon, 560 U.S. 746, 760-61, 130 S. Ct. 2619, 177 L. Ed. 2d 216 (2010) (discussing expectations of privacy persons may have in data contained in smartphones and the uncertain Fourth Amendment implications of those expectations); United States v. Lujan, No. 2:11CR11-SA, 2012 WL 2861546, at *11 (N.D. Miss. 2012) (slip opinion) (motor vehicle exception extends to search of cell phone seized from vehicle); United States v. Stringer, No. 10-05038-01-CR-SW-GAF, 2011 WL 3847026, at *8 (W.D. Mo. 2011) (unpublished opinion) (applying exception but characterizing law as “unsettled”); United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *9 (N.D. Cal. 2007) (unpublished opinion) (rejecting search incident to arrest as basis to search cell phone, especially given the quantity and type of data it may hold).
Lundquist did not explicitly rely on the Kansas Constitution Bill of Rights § 15 as a basis to suppress the marijuana. That provision contains functionally the same language as the Fourth Amendment. The Kansas Supreme Court has consistently interpreted the Kansas constitutional protections against unreasonable searches and seizures to be no greater than those in the Fourth Amendment. See State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011). The court declined to consider the application of the Kansas Constitution in Sanchez-Loredo, 294 Kan. at 59, because the defendant had not cited or argued the provision. We have no reason to conclude Lundquist would have succeeded with an argument based on the Kansas Constitution absent a contrary ruling from the Kansas Supreme Court. And there isn’t one.
In sum, the search of Lundquist’s car met the test of reasonableness under the Fourth Amendment consistent with the motor vehicle exception to the warrant requirement. The district court correctly denied the motion to suppress and properly admitted the marijuana as evidence in the prosecution of Lundquist.
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Marquardt, J.;
Monica Felice Rivera appeals her jury convictions for involuntary manslaughter and child endangerment. Rivera alleges there was insufficient evidence to support her convictions and that both the State and the district court committed several errors prior to and during her trial that denied her the right to a fair trial. She claims that her convictions should be reversed as a matter of law. We affirm in part, reverse in part, and remand for a new trial.
Facts
On May 5, 2009, Rivera and her boyfriend, Jason Jones, took her 4-year-old son, G.R., to the Safe Kids Daycare (daycare). Kathy Harris, a daycare employee, saw bruising and swelling on die left side of G.R.’s head. G.R. told Harris that he had been hit by a ball and that a doctor had taken a picture of his head. Rivera spoke to Ms. Renee, another daycare employee, and told her to take extra special care of G.R. because of the bruising and swelling on the one side of G.R.’s face.
Rivera testified that the bruising and swelling on G.R.’s face occurred in two separate incidents. The first incident occurred on April 29, when G.R. was standing on a stool in the kitchen and suddenly fell and struck his head. Rivera testified that G.R.’s head “bounced back and forth like three times” and he sustained a “goose egg” on his head. According to Rivera, the second incident occurred on May 2, when G.R. was hit in the head by a soccer ball and then collided with another player.
While at daycare on May 5, G.R. fell off a swing. Harris noticed that G.R. suffered a small scratch on his back. Rivera was notified that G.R. had fallen off the swing, but she testified that after G.R.’s fall from the swing, he had a big scrape and a big bruise on the bottom of his back. The following day, Rivera testified that G.R. hit his head against the comer of a countertop while he was reaching for his glasses. When Jones left G.R. at daycare that morning, Harris reported that G.R. was crying and complaining that his head hurt and said that he had hit his head on a cabinet. Harris testified that G.R. appeared to have more swelling and bruising and that his injuries were more black, red, and purple than they were the previous day.
Toni Cox, Rivera’s older sister, testified that Rivera brought G.R. to her house on two separate occasions to make sure that G.R. was okay. On the first visit, Cox testified that she observed a large knot with swelling and bruising on the side of G.R.’s head. Cox advised Rivera to take G.R. to the hospital to get X-rays or a CT scan. Rivera testified that she took G.R. to an emergency room and was told that the injury to G.R.’s head would probably cause G.R. to have a black eye. During the second visit, Cox reported that the swelling and bruising on G.R.’s face appeared to have shifted to the front of his face and that it appeared that the injury had gotten larger. Cox testified that she became concerned that someone was possibly physically abusing G.R., and she specifically asked Rivera to not allow Jones to discipline G.R. Cox testified that Rivera stated she was going to allow Jones to continue disciplining G.R. because G.R. acted better now.
On May 7, Rivera took G.R. to see Dr. Debra Heidgen, a pediatrician, who observed bruising and a lot of swelling and diagnosed G.R. as having a hematoma on his head. Dr. Heidgen testified that the injury was more than a simple surface bruise and involved the top layer of the bone. Dr. Heidgen also testified that she had seen G.R. in January 2009 and again on February 24,2009. During both visits, she did not observe any injuries to G.R. that raised concerns, but during the February appointment, she did note that G.R. suffered from contact dermatitis and had scratches and bumps on his body.
Sometime around the January appointment with Dr. Heidgen, Rivera began to have a concern about one of G.R.’s eyes. Rivera testified that G.R. had previously had surgery and was required to wear corrective eyewear. Rivera testified that while at a soccer-game with G.R., she noticed that G.R.’s one eye turned out a lot more than normal. Rivera scheduled an appointment with G.R.’s eye doctor in May 2009, and she took G.R. to see a specialist at Children’s Mercy Hospital. Rivera testified that the doctor at Children’s Mercy did not believe that additional surgery was necessary but did change G.R.’s eyeglasses prescription.
Rivera testified that on May 8, 2009, G.R. fell while riding his scooter at Jones’ parents’ house, hit his head on some bricks, and got a big strawberry mark on his head. On May 11, Rivera did not take G.R. to daycare because he kept getting injured. She wanted G.R. to stay home and take it easy. On May 13, Rivera took G.R. to daycare again. Harris testified that after G.R. was dropped off, he complained to the daycare workers that his head hurt and that Jones had spanked him hard two times. Harris noted that G.R. appeared to have a new black eye that was purple, red, and swollen. Stephanie Dickerson, another daycare worker, testified that when she observed G.R., she noticed that he had bruising on his face, redness, and bloodshot veins in his eye. Dickerson testified that both Rivera and G.R. told her that G.R. had fallen trying to reach for an object on a dresser; however, G.R. also told tire workers that Jones had done something to his eye. After hearing G.R.’s com plaints and observing the injuries to his face, the daycare workers decided to report suspected child abuse to the Kansas Department of Social and Rehabilitation Services (SRS).
Jennifer Beard, a detective with the Leavenworth Police Department, took G.R. into protective custody. Beard testified that she observed a softball sized bruise on the left side of G.R/s head and lighter bruising around one of his eyes. Beard believed that the different coloration of tire bruises indicated that the injuries occurred at different times. When Rivera returned to daycare later that day to pick up G.R., Beard told Rivera that she suspected Jones was abusing G.R. Beard also testified that she warned Rivera that if Jones continued to abuse G.R., G.R. would either be seriously injured or tolled. Beard acknowledged that she failed to record notes from this conversation in her investigative report. Rivera testified that she did not remember Beard ever giving her that particular admonition.
Beard testified that when she asked G.R. about the source of his injuries, G.R. told her that he hurt his head when he fell off a stool. Beard also asked Rivera about G.R/s injuries and stated that Rivera told her that G.R. had fallen off a stool, hit his head against a cabinet, and had been hit in the head by a soccer ball. Rivera testified that prior to G.R. being taken into protective custody, Jones had disciplined G.R. by swatting him on the butt a couple of times and that Jones would use his hand to discipline G.R. Rivera further testified that she had never witnessed Jones hit G.R. and that G.R. had never told her that Jones had beaten him or abused him.
While in protective custody, Beard took G.R. to Dr. Heidgen again, and during the examination, Dr. Heidgen observed new injuries on G.R/s body around his eye; bruising, redness, and impressions resembling fingerprints on G.R/s buttocks; marks and bruising on G.R/s shoulder; and red finger marks on G.R/s upper left arm. Although Dr. Heidgen was unable to conclusively determine what caused the particular bruising, she testified that the injuries on G.R/s body were not consistent with injuries that a child normally sustains in a fall. Dr. Heidgen testified that she examined G.R. the following day and noted that the coloring of his bruises had turned from red to a darker purple color.
On May 15, 2009, the Leavenworth County District Court entered an ex parte order placing G.R. in SRS custody and entering a restraining order preventing Jones from having any contact with G.R. On May 20, the district court held a temporary custody hearing. At this hearing, the State of Kansas was represented by Cheryl Marquardt; E. Roger Horsky was G.R.’s guardian ad litem; and Rivera was represented by Michael Willcott. Rivera testified that G.R. had collided with another player while playing soccer. She also testified that prior to the child-in-need-of-care (CINC) case, the only forms of discipline G.R. received were swats and timeouts, but after the CINC case was filed, Rivera and Jones stopped using corporal punishment and only used time-outs. At the conclusion of the temporary custody hearing, the district court ordered G.R. to remain in SRS custody and Jones to have no contact with G.R. The district court also ordered Rivera to have unrestricted visitation with G.R. at her sister’s house. SRS was ordered to prepare a safety plan, and once the court approved the safety plan, SRS had the discretion to place G.R. with Rivera.
After tire temporary custody hearing, SRS placed G.R. in Cox’ home. While G.R. stayed at Cox’ home, G.R. fell down tire stairs twice and also fell off his bicycle. Cox testified that G.R. moved fast wherever he went, that she often had to tell him to slow down, and that G.R. suffered from equilibrium problems. Cox maintained that G.R.’s falls while he was in her custody were not tire product of G.R.’s coordination deficiencies but were caused by the recent injuries he had suffered. In addition to G.R.’s coordination deficiencies, Rivera explained that Cox spoiled G.R. and that G.R. would throw temper tantrums and throw his glasses when he was angry. Sherry Bridget and Tonya Jacobs, employees of the Leavenworth County Head Start Program, observed G.R. and noted that he had behavioral issues. Jacobs testified that she was G.R.’s teacher from December 2008 to May 2009, that G.R. would throw temper tantrums and get angry, that she never observed any injuries on G.R. that caused her any concern, and that she never heard G.R. complain of any injuries.
On June 7, Rivera testified that G.R. injured himself after he climbed up on his dresser to reach a television and the dresser tipped over. Rivera testified that she took pictures of G.R.’s injuries to provide documentation to SRS while G.R.’s CINC case was still pending. Two days later, SRS placed G.R. back in Rivera’s home. That same day, Rivera took G.R. into Head Start to sign a release form. Shannon Hudson, an employee of Head Start, observed that G.R. had several cuts and bruises and had blood in his eye from what appeared to be a broken blood vessel. On June 23, Rivera testified that G.R. received a broken lip after he ran into a pole at Wal-Mart. Rivera further testified that on another occasion, G.R. fell out of his bed and hit the side of his head against a toy tractor.
When SRS placed G.R. back in Rivera’s home on June 9, the district court’s order that Jones was not to have any contact with G.R. was still in effect. On July 9, Rivera and Jones participated in the following exchange of text messages:
“Rivera: I really think u need to control your temper differently”
“Jones: U know im trying with [G.R.] but u make me fell [sic] like im always wrong”
“Rivera: I think breakng [sic] his toys was wrong, sometimes you go too far.”
The following day, Rivera and Jones exchanged the following text messages:
“Jones: Another day another arugment [sic] about [G.R.]
“Rivera: I’m not gonna have u loose [sic] your temper n hurt him or break his toys because u can’t control your temper n u get mad at me n taire it out on him.”
On July 20, the district court held a CINC hearing in which the parties were represented by the same attorneys who appeared at the temporary custody hearing. At this hearing, the State advised the district court that the State believed it was in G.R.’s and the family’s best interests for the court to approve an informal supervision agreement. Under the terms of the informal supervision agreement, G.R. was released from SRS custody and was placed back in Rivera’s custody, Rivera and Jones were required to complete a parenting class, Jones was required to complete a counseling intake to determine what counseling services he would be required to attend, and the no-contact order preventing Jones from having any contact with G.R. was eliminated. Both Willcott and Horsley joined in the State’s recommendation for the court to approve the informal supervision plan. The district court approved the informal supervision agreement.
Rivera’s sister, Samantha, testified that in August 2009, one of Jones’ children put a rope around G.R.’s neck and walked him around like he was a dog on a leash. Samantha testified that this particular incident resulted in G.R. getting a red mark around his neck. Samantha further testified that G.R. and the other children in the family would often ride around in little four-wheel scooters and crash into one another. She explained that the crashes would result in the kids suffering scrapes and bruises and that the crashes occurred quite frequently. Samantha also testified that she never saw Jones physically abuse G.R. and did not observe anything suspicious that would cause her to believe that Jones was abusing G.R.
On September 16, Rivera accompanied Jones to the Guidance Center to complete Jones’ court-ordered counseling intake. The assessment recommended that Jones participate in individual therapy and continue attending a parenting class. The assessment did not recommend that Jones participate in an anger management class. Both Rivera and Jones successfully completed their parenting classes.
On October 1, Rivera was working at St. John’s Hospital when she received a phone call from Jones, advising that G.R. had fallen down the stairs. Rivera took a photograph of G.R.’s injuries on her phone and showed those photographs to Christina Debusk, a coworker. Debusk testified that the photograph showed that G.R. was a little bit swollen and blue on his head.
On October 4, Rivera received another phone call from Jones while she was at work, in which Jones advised that G.R. had fallen down the stairs again and Rivera needed to hurry home. When she got home, G.R. was lying on the couch and kept repeating, “I, I, I.” Rivera believed that G.R. had suffered brain damage, and she decided to pick him up and drive him to tire hospital. Rivera took G.R. to the hospital emergency room, where he was admitted to a trauma room for treatment. While administering treatment, Sandra Arneson, a hospital nurse, observed an injury to G.R.’s penis that she felt was unusual. Ameson asked Rivera about the bruise to G.R.’s penis and was told that tire bruise occurred after G.R. fell a few days earlier. Rivera also told Arneson that she was present when G.R. fell and had personally observed him fall.
While G.R. was still in the hospital’s trauma room, Officer Joseph Tavano of the Leavenworth Police Department spoke with Rivera about G.R.’s injuries. Rivera told Tavano that G.R. had fallen down the steps the previous Thursday while she was at home. She also told Tavano that she did not see G.R. fall but heard him fall. Shortly after Rivera told Tavano this information, she sent Jones a text message stating, “I told the officer I was with him the other day when he fell.”
Approximately an hour and a half after G.R. was brought to the hospital, he died. After G.R. died, Detective Beard went to the hospital’s trauma room to photograph G.R.’s body. Beard observed a looping bruise on the left side of G.R.’s face and pattern bruising consistent with fingertip impressions. Beard testified that the looping bruise on G.R.’s face was a pattern bruise that was consistent with the shape of a flyswatter that was located in the living room of Rivera’s house.
G.R.’s autopsy revealed that he died of blunt force injuries to his head and abdomen. The autopsy report noted that G.R. suffered a vertical transecting laceration in his liver, acute hemorrhages in his right adrenal gland and multiple lung lobes, and a branched fracture in his posterior skull. The autopsy report also noted that G.R. suffered extensive and acute contusions and abrasions on his head, torso, and extremities.
During an interview with Leavenworth Police Department after G.R.’s death, Rivera told officers that she was in shock after G.R. died and that was the reason she told Tavano that she was with G.R. the Thursday before he died. Rivera also explained to the officers that the injuries G.R. sustained between October 1 and October 4 were from G.R. falling because that is what G.R. had told her. In response to an inquiry of whether Rivera had ever seen Jones go too far in disciplining G.R., Rivera told the officers of one incident in March when G.R. sustained bruising on his butt after he was spanked too hard by Jones. Rivera told the officers that after this incident, Jones and Rivera decided that they would no longer use corporal punishment to discipline the children. Rivera also maintained that G.R. never told her about any physical abuse committed by Jones and that she never saw Jones physically abuse G.R.
Rivera knew that Jones had served time in prison for robbing a convenience store, but she maintained that Jones had never been abusive toward her, with the exception of tire last 2 weeks of their relationship when he began to accuse her of cheating on him.
Liza Ruiz, who described herself as a close friend of Rivera, testified that she had previously been in a relationship with Jones and that Jones had physically abused her for approximately 8 or 9 years. She also testified that she shared two children with Jones and that on one occasion she observed Jones pick up and choke their 4-year-old son. Ruiz indicated that she had told Rivera about Jones’ physically abusive behavior. Rivera testified that Ruiz had told her that she and Jones would argue and fight, but Rivera denied that Ruiz ever told her that Jones had physically abused either of their children.
After G.R.’s death, Jones pled guilty to one count of second-degree murder and one count of abuse of a child. At Rivera’s trial, the State and Rivera agreed to stipulate that Jones had pled guilty to second-degree murder and abuse of a child. The State initially charged Rivera with one count of aggravated endangering a child but subsequently amended the complaint to charge Rivera with one count of involuntary .manslaughter and one count of endangering a child.
Prior to trial, Rivera’s counsel moved to disqualify the prosecutor, depose the prosecutor, dismiss the complaint for failure to charge a crime, and continue the trial. Rivéra sought to disqualify tire prosecutor in her criminal case and/or be granted the opportunity to depose the prosecutor because the prosecutor in the criminal case was the same prosecutor who represented the State in G.R.’s CINC case. Rivera alleged that the prosecutor was a material witness and possessed potentially exculpatory evidence that was important to Rivera’s defense. The district court denied both of these requests.
In her motion to dismiss the complaint, Rivera alleged that the complaint was fatally defective because it did not include an essential element for tire crime of endangering a child. The district court denied this motion. In her oral motion to continue the trial, Rivera argued that a continuance was justified because counsel required additional time (1) because of the short time between the preliminary hearing and the trial date; (2) to review newly discovered materials that were recently provided by the State; (3) to prepare a response to the testimony of witnesses who were recently endorsed at a pretrial hearing; (4) to send out subpoenas for SRS witnesses and obtain their cooperation to testify at trial; (5) to file new pretrial motions; and (6) to interview other witnesses involved in G.R.’s CINC case because the court had denied her request to depose the prosecutor or call the prosecutor as a witness at trial. The district court denied Rivera’s motion for a continuance.
At a subsequent pretrial hearing, Rivera’s counsel reiterated her reasons for ashing for a continuance. In response, the district court asked Rivera’s counsel if counsel was renewing her request for a continuance. Rivera’s counsel never specifically answered the question but repeatedly stated that the defense was as prepared as they could be to proceed to trial under the strict constraints imposed by the district court.
On the morning of trial, the district court held a conference with Rivera’s counsel and the State to discuss some preliminary instructions that the court intended to give to the jury prior to the start of trial. The district court advised counsel for both parties that it intended to give a preliminary instruction on involuntary manslaughter and would instruct the jury as follows:
“The defendant is charged of the crime involuntary manslaughter. The defendant pleads not guilty. To establish this charge, each of the following claims must be proved:
“[One,] [t]hat Jason Jones unintentionally ldlled [G.R.];
“Two, that it was done while in the commission of endangering a child, and
“Three, that this act occurred on or about the 4th day of October, 2009, in Leavenworth County, Kansas.”
The State did not oppose this proposed preliminary instruction, but Rivera’s counsel objected to it.
Prior to the beginning of trial, the district court read the preliminary instructions to the jury, including the preliminary instruction on involuntary manslaughter. The district court also advised the jury that it would give the jury a set of final instructions, that those final instructions might define one or more less serious crimes, and that the court might provide the jury with additional instructions as necessary. The district court also advised the juiy that the final instructions would be read to the jury after all of the evidence had been submitted.
At the conclusion of the presentation of all of the evidence, the district court and both counsel participated in the instructions conference. During this conference, Rivera’s counsel requested that the district court give the standard PIK instruction for involuntary manslaughter; the State did not object. Rivera’s counsel also requested that tire district court issue a curative instruction to eliminate any confusion that could arise due to the differences between the PIK instruction and the district court’s preliminary instruction on involuntary manslaughter. The district court denied this request. When the district court issued its final jury instructions, tire PIK instruction for involuntary manslaughter was included. The juiy convicted Rivera of involuntary manslaughter and endangering a child. Rivera timely filed her notice of appeal.
Sufficiency of the Evidence for an Involuntary Manslaughter Conviction
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
Rivera argues that the State presented insufficient evidence to prove that she left G.R. in the care of Jones and that doing so was the proximate cause of G.R.’s death. Rivera further argues that her conviction for involuntary manslaughter must be reversed because the case against her was wholly circumstantial, and in order to find her guilty of involuntary manslaughter, the jury was required to stack inference upon inference to conclude that she involuntarily killed G.R. by leaving him in Jones’ care.
The State charged Rivera with involuntary manslaughter under K.S.A. 21-3404(b), which proscribes the unintentional killing of a human being committed “in the commission of, or attempt to commit, or flight from ... a misdemeanor that is enacted for the protection of human life or safety, including acts described in K.S.A. 8-1566 and subsection (a) of 8-1568, and amendments thereto, but excluding the acts described in K.S.A. 8-1567 and amendments thereto.” In the complaint, the State alleged that Rivera committed die misdemeanor of endangering a child and that this misdemeanor was enacted for the protection of human life or safety, which adequately supported the involuntary manslaughter charge.
Rivera argues that “[u]nder the circumstances, Mr. Jones’ killing of G.R. was an intervening event that caused the death of G.R. While it may have been foreseeable that some harm might occur to G.R. in tire care of Mr. Jones, there was insufficient evidence that Ms. Rivera’s actions were the proximate cause of G.R.’s death.”
In order to convict a defendant of involuntary manslaughter, the State must prove that the defendant’s conduct was the proximate cause of the victim’s death. State v. Scott, 285 Kan. 366, 372, 171 P.3d 639 (2007). “Proximate cause is cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred, the injury being the natural and probable consequences of the wrongful act.” Kuxhausen v. Tillman Partners, 291 Kan. 314, Syl. ¶ 6, 241 P.3d 75 (2010).
In State v. Davidson, 267 Kan. 667, 987 P.2d 335 (1999), Davidson was convicted of reckless second-degree murder after Davidson’s three Rottweilers escaped from their enclosure and killed a young child. At trial, the State presented considerable evidence demonstrating that Davidson’s Rottweilers exhibited vicious propensities, regularly roamed at large outside of their enclosure, and had threatened or bitten numerous neighbors and guests. Additionally, Davidson had been told about these incidents and had been warned about possible adverse consequences if she failed to take remedial action. In order to convict Davidson of reckless second-degree murder, our Supreme Court concluded:
“The State is not required to prove that defendant knew her dogs would attack and kill someone. It was sufficient to prove diat her dogs killed Chris and that she could have reasonably foreseen that the dogs could attack or injure someone as a result of what she did or failed to do.” Davidson, 267 Kan. at 683.
The Davidson court held that when the evidence is viewed in the light most favorable to the State, it showed that Davidson cre-áted an unreasonable risk and that it could be inferred from her conscious disregard of that risk that she demonstrated an extreme indifference to the value of human life. Davidson, 267 Kan. at 684.
Although Rivera was charged with the less serious crime of involuntary manslaughter, the analysis in Davidson is nonetheless applicable in resolving her claim that the State did not present sufficient evidence to show that her leaving G.R. in Jones’ care was the proximate cause of G.R.’s death. In order to convict Rivera of involuntary manslaughter, the State was required to prove that Jones killed G.R. and that Rivera could have reasonably foreseen that Jones could injure G.R. while G.R. was left alone in Jones’ care. The first requirement is satisfied because Rivera stipulated that Jones pled guilty to reckless second-degree murder for killing G.R. The second requirement is also met because Rivera concedes in her brief that “it may have been foreseeable that some harm might occur to G.R. in the care of Mr. Jones.” Thus, Rivera’s concessions and stipulations provide sufficient evidence to support her conviction of involuntaiy manslaughter.
The State presented evidence that G.R.’s daycare worker, law enforcement officials, G.R.’s pediatrician, and even members of Rivera’s own family had concerns that G.R. was being abused or drat Jones should not be permitted to discipline G.R. for fear that he would go too far. There was testimony and photographic evidence describing G.R.’s numerous bruises and injuries to his face, body, and extremities. The State also presented text messages between Rivera and Jones in which Rivera mentions that Jones had broken G.R.’s toys, that she did not want Jones to direct his anger against her towards G.R., and that she was not going to allow Jones to lose his temper and hurt G.R. There was also evidence that showed that on the day of his death, G.R. had a large looping bruise on the left side of his face, and Detective Beard testified that the shape of this bruise was consistent with the shape of the handle of a flyswatter that was found in Rivera’s home. When G.R. was brought to the hospital on October 4, Arneson noticed a suspicious bruise on G.R.’s penis, and she asked Rivera about the origin of the bruise. Rivera told Arneson that G.R. received the bruise when he fell down the previous Thursday and that she was with G.R. when he fell. However, Rivera later admitted that this statement was not true, as she was at work that day and it was Jones who had told her that G.R. had fallen down the stairs. Finally, Liza Ruiz testified that Jones had physically abused her as well as one of her children and that she had told Rivera about this abuse.
Rivera disputed virtually all of this evidence and argued at trial that G.R.’s injuries were the product of accidents, aggressive child’s play, G.R.’s coordination difficulties, and a byproduct of G.R.’s eye condition. The State and Rivera presented evidence to support two competing and conflicting narratives, and it is apparent that the jury disagreed with Rivera’s explanation of G.R.’s injuries and found that G.R.’s injuries were caused by Jones’ physical abuse. It is not the function of an appellate court to reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence, as these tasks are uniquely entrusted to the jury. State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). Therefore, the testimony and photographs presented at trial provided sufficient evidence upon which a rational factfinder could rely to find that Rivera could have reasonably foreseen that Jones could injure G.R. while G.R. was left alone in Jones’ care.
Equally unpersuasive is Rivera’s argument that there was insufficient evidence to support her involuntaiy manslaughter conviction because the jury was required to stack inference upon inference in order to convict her of that crime. The text message conversations between Rivera and Jones provide direct evidence that Rivera knew that Jones posed at least some risk to G.R.’s physical well-being. Furthermore, there was evidence that Rivera was told about prior incidents in which Jones had become physically violent with his prior girlfriend and one of his children. Finally, the jury heard testimony and saw photographs describing all of the bruising and injuries that G.R. had suffered over approximately a 5-month period. It was for the juiy to decide whether G.R.’s injuries were caused by accidents and child’s play or whether they were caused by physical abuse. See Krentz v. Haney, 187 Kan. 428, 432, 357 P.2d 793 (1960). Based on the witness testimony and the photographic evidence admitted at trial, it was not unreasonable for the jury to infer that G.R.’s injuries were the product of physical abuse committed by Jones and that Rivera knew or should have known about the abuse but ignored it. Therefore, there was sufficient evidence to support Rivera’s conviction for involuntaiy manslaughter.
Prosecutor’s Disqualification or Being Called as a Defense Witness
A district court’s decision on a motion to disqualify an attorney from handling a legal matter is reviewed for an abuse of discretion. State v. Cope, 30 Kan. App. 2d 893, 895, 50 P.3d 513, rev. denied 274 Kan. 1115 (2002). Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Prior to trial, Rivera filed a motion seeking to have the district court disqualify the prosecutor, or alternatively, she sought permission to depose the prosecutor or to call the prosecutor as a witness at trial. The district court denied Rivera’s requests, and she asserts that the district court erred in doing so.
Disqualification
Rivera argues that one of the prosecutors who handled her criminal case should have been disqualified from prosecuting the criminal case because that same prosecutor represented the State in G.R.’s CINC case. Rivera contends this prosecutor “had knowledge of the proceedings and facts involved with the CINC case, and she had given Ms. Rivera the message that it was safe for G.R. [to] have contact with Mr. Jones.” Rivera further contends that the prosecutor’s “decision to agree to lift the no-contact order was also undoubtedly supported by some exculpatory information that was never made known to the defense.”
“The key in deciding whether a prosecutor should be disqualified is whether the prosecutor has a significant personal interest in the litigation which would impair the prosecutor s obligation to act impartially toward both the State and tire accused.” Cope, 30 Kan. App. 2d at 897. In her motion to disqualify, Rivera never alleged that the prosecutor s handling of G.R.’s CINC case caused her to have a significant personal interest in Rivera’s criminal case. Rather, Rivera asserted that die prosecutor’s involvement in G.R.’s CINC case made her privy to potentially exculpatory information that the defense sought to acquire. Thus, Rivera failed to show that there was prosecutorial partiality warranting disqualification, and the district court did not abuse its discretion in denying Rivera’s motion. See State v. Shore, No. 97,833, 2007 WL 4578005, at *11-12 (Kan. App. 2007) (unpublished opinion), rev. denied 286 Kan. 1185 (2008) (affirming tire district court’s denial of the defendant’s motion to disqualify the prosecutor when the prosecutor represented the State in a previous CINC case involving both the defendant’s brother and tire victim).
Deposing or Calling the Prosecutor as a Witness at Trial
Similar to Rivera’s argument for disqualifying the prosecutor, she argues that the district court erred in denying her request to depose the prosecutor or to call the prosecutor as a witness at trial because the prosecutor’s involvement in G.R.’s CINC case made the prosecutor privy to information that Rivera believed was vital to her defense. Specifically, Rivera contends that the prosecutor’s decision to recommend an informal supervision agreement in G.R.’s CINC case and the removal of the no-contact order was potentially exculpatory information. Rivera claimed this information showed that the State believed it was acceptable for Jones to resume living with Rivera and for Jones to have contact with G.R. Rivera desired to ascertain the prosecutor’s motivation for making this recommendation, and to that end, she requested that the district court allow her to depose the prosecutor or call the prosecutor as a witness at trial.
Rivera notes that the legislature has specifically exempted judges (K.S.A. 60-442) and jurors (K.S.A. 60-443) from testifying in a case in which those persons are involved and has also recognized that a defendant has the privilege to refuse to testify in his or her own case (K.S.A. 60-423[a]), but she points out that there is no similar exclusion in the Kansas Rules of Evidence which excludes a prosecutor from being called as a witness in a case in which the prosecutor is personally participating. Although Rivera recognizes that there is no expi'ess rule preventing a party from calling a prosecutor as a witness in a case in which that prosecutor is personally participating, her argument nonetheless fails.
Our Supreme Court has “condemned as bad practice the participation by an attorney in the trial of a case, either criminal or civil, when he is called as a witness.” Holt v. State, 202 Kan. 759, 763, 451 P.2d 221 (1969). Additionally, the Kansas Rules of Professional Conduct (KRPC) advise that, except as otherwise provided, “[a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.” KRPC 3.7(a) (2011 Kan. Ct. R. Annot. 576). Although these statements do not expressly declare that a prosecutor may not be called as a witness in a case in which the prosecutor is personally participating, they give some indication that the practice is disfavored.
In deciding a motion to disqualify an attorney when opposing counsel wishes to call that attorney as a witness, a court should consider: (1) whether it has been shown that the attorney would give evidence material to the determination of the issues being litigated; (2) whether the evidence could not be obtained elsewhere; and (3) whether the testimony would be prejudicial or potentially prejudicial to the testifying attorney’s client. National Bank of Andover, N.A. v. Aero Standard Tooling, Inc., 30 Kan. App. 2d 784, 792, 49 P.3d 547, rev. denied 274 Kan. 1113 (2002).
In this case, Rivera has failed to show that the prosecutor’s deposition or trial testimony was necessary to her defense. First, the prosecutor’s rationale and decision-making process for agreeing to an informal supervision agreement and dropping Jones’ no-contact order was not material to the issues being litigated in the case. The main issue in the case was whether Rivera could have reasonably foreseen that Jones could cause harm to G.R. when she left G.R. alone in Jones’ care, not whether the prosecutor reasonably foresaw this possibility. Second, and even more significant, is the fact that Rivera was able to present the information she wished by other means. During the trial, both Willcott, Rivera’s attorney during the CINC case, and Horsky, G.R.’s guardian ad litem, testified. Rivera’s counsel had the opportunity to question these attorneys as to why the parties agreed to recommend the adoption of the informal supervision agreement and the removal of tire no-contact order. In fact, Rivera’s attorney posed this question to Horsky. Furthermore, Rivera also admitted a transcript of the July 20 CINC hearing. In that transcript, the prosecutor explains why the State was recommending the informal supervision agreement. Thus, Rivera has failed to show that the district court erred in denying her motion to depose the prosecutor or to call the prosecutor as a witness.
Prosecutorial Misconduct
Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the misconduct prejudiced tire jury against the defendant and denied the defendant a fair trial. State v. Bennington, 293 Kan. 503, 530, 264 P.3d 440 (2011). A contemporaneous objection is not required to review a prosecutorial misconduct claim based on comments made during voir dire, opening argument, or closing argument. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012). If the defendant demonstrates that the State committed an error of constitutional magnitude, then the State must prove beyond a reasonable doubt that the error did not affect the defendant’s substantial rights. Anderson, 294 Kan. at 461.
Rivera alleges that the prosecutor engaged in prosecutorial misconduct by making prejudicial comments to the jurors during both voir dire and by making two inappropriate comments during the prosecutor’s rebuttal closing argument.
Prosecutor s Statements During Voir Dire
During voir dire, the prosecutor made the following statements to the potential jurors:
“Okay. Now, ladies and gentleman, the case has to be decided sometime. Are you able to respectfully listen to each other and reach a decision? Does anyone think that, well, maybe the evidence could be presented better a different day? Or maybe a different group of people might be better able to decide this case?”
Also during voir dire, the prosecutor asked a prospective juror whether he believed “that [he] would be able to put in the time and effort and energy necessary to actually reach a verdict?” Rivera contends that these comments constituted prosecutorial misconduct because they implied that a hung jury would somehow be a failure of the system. Rivera’s argument is unpersuasive.
In State v. Nguyen, 285 Kan. 418, 435, 172 P.3d 1165 (2007), our Supreme Court affirmed that an instruction given by the district court advising the jury that “[l]ike all cases, it must be decided sometime” is not error.
Here, the prosecutor’s statements and questions during voir dire essentially contained the content presented to jurors in a typical Allen-type instruction, similar to what was given in Nguyen. See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). If it is appropriate for a district court to make such a statement when giving a jury the final instructions before deliberations, then it is reasonable to conclude that a prosecutor is permitted to pose Allen-type questions and statements to the potential jurors during voir dire. Therefore, the prosecutor’s statements did not exceed the wide latitude granted a prosecutor, and we find that this did not constitute prosecutorial misconduct.
Prosecutors Comments During Rebuttal Closing
During closing argument, Rivera’s counsel argued that the jury should acquit Rivera of the crimes charged because the attorneys and the district court in the CINC case all agreed that informal supervision was appropriate and agreed to drop the no-contact order preventing Jones from having contact with G.R. Rivera’s counsel remarked that something happened around the time of the July 20, 2009, hearing to change everyone’s mind, including the pros ecutor’s, but that the defense was unable to find out what changed the prosecutor’s mind because the defense could not call the prosecutor as a witness. During the rebuttal closing, the prosecutor responded to this argument with the following statements:
“Now, [let’s] talk about the smoking guns, and those are Defendant’s Exhibit B and C and P, and those are with the child-in-need-of-care case that everybody said it was safe, it was okay, it was legal, go ahead and let the—let Jason Jones the boyfriend of approximately eight months back into diat home. It wasn’t the Court who placed the boyfriend hack in the home. It was Ms. Rivera who put that boyfriend back in the home.
“The order was it’s okay to continue contact—you can have contact now July 20th of 2009, but where’s the information coming from that SRS is relying on, that the Court is relying on, that the guardian ad litem is relying on, that the State is relying on? It’s the mother. The mother who got up on the stand and said, He doesn’t spank, don’t woriy about it; he swatted him once, but it was okay and we just use time-out.
“What did the Court rely on? What did everybody rely on in this case? It’s what the mother said, and what she said at that point wasn’t accurate. SRS isn’t in tire home. KVC isn’t in tire home, CASA is not in the home. They're not living there every day. The Court is not in the home, the State is not in the home, the pediatrician is not in the home. Who’s in the home? The mother. And the mother is tire one drat has tire duty to protect drat child.” (Emphasis added.)
Rivera asserts that these statements constituted prosecutorial misconduct because the prosecutor, who was the same prosecutor who represented the State in G.R.’s CINC case, offered unsworn testimony by explaining to the jury the reasons why the State agreed to the informal supervision arrangement and the dropping of the no-contact order. Rivera contends that by making these statements “in the rebuttal closing argument instead of a pretrial deposition or as a witness at trial, tire prosecutor gave the defense no opportunity to question her reasoning, question the facts supporting her reasoning, or even an opportunity to address the jury in closing argument as to her reasoning.”
A prosecutor is not permitted to argue facts not in evidence during closing argument because such statements tend to make the prosecutor his or her own witness, offering unsworn testimony not subject to cross-examination. State v. Huerta-Alvarez, 291 Kan. 247, 263, 243 P.3d 326 (2010). In this case, the prosecutor’s com ments to the juiy were improper when she told the jury what the State relied upon in making its recommendations in G.R.’s CINC case. No evidence was presented at trial to explain what information the State considered in making its recommendations. The prosecutor’s comments were outside the wide latitude afforded a prosecutor in discussing the evidence, and thus, the first prong of the prosecutorial misconduct analysis is satisfied.
After determining that a prosecutor’s statements were improper, an appellate court considers whether the statements were harmless and whether the prosecutor’s statements were so prejudicial that the defendant was denied his or her right to a fair trial. In analyzing this issue, a court considers three factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct was motivated by ill will; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the mind of a juror. State v. Marshall, 294 Kan. 850, Syl. ¶ 3, 281 P.3d 1112 (2012); State v. Sprung, 294 Kan. 300, 313, 277 P.3d 1100 (2012).
First, in determining whether a prosecutor’s conduct was gross and flagrant, a court considers whether the prosecutor repeated or emphasized the statement and whether the prosecutor’s statement was an impromptu response to arguments made by defense counsel. State v. Peppers, 294 Kan. 377, 400, 276 P.3d 148 (2012). Here, the prosecutor only referred one time to the State’s reliance on the information supplied by Rivera at the temporary custody hearing as the basis for the State’s decision to support informal supervision and dropping the no-contact order. The prosecutor also made a similar reference to what “everybody” relied on in supporting these recommendations. However, this statement is not as objectionable because the jury heard testimony from Rivera’s CINC attorney and G.R.’s guardian ad litem and reviewed court documents and a transcript from the July 20 CINC hearing. Therefore, there was some basis for arguing what the other attorneys and the court relied on in reaching the decisions in G.R.’s CINC case.
Second, in determining whether a prosecutor’s conduct was motivated by ill will, a court considers whether the conduct was deliberate, repeated, or in apparent indifference to a court’s ruling. Peppers, 294 Kan. at 400. In this case, the prosecutors objectionable statement to the information that the State relied upon in G.R.’s CINC case was made one time and was not done in violation of any court ruling. Furthermore, the prosecutor’s comments were likely not deliberate but were made in response to an argument made by Rivera’s counsel. Our Supreme Court has recognized that a statement made in response to a defense argument is a mitigating factor countering a conclusion that a prosecutor acted with ill will. Marshall, 294 Kan. at 862.
Finally, the third factor considers whether there was direct and overwhelming evidence such that die prosecutor’s misconduct would have little weight in the minds of the jurors. Upon reviewing the record, there is no reasonable possibility that the prosecutor’s statements affected the outcome of the trial. Based upon the testimony of Rivera’s attorney in the CINC case, the testimony of G.R.’s guardian ad litem, the documents, and the transcript from the July 20 CINC case, the jury was fully informed that all of the attorneys and die court agreed that informal supervision was appropriate, that G.R. should be released from SRS custody, and that the no-contact order preventing Jones from having contact with G.R. should be lifted.
Rivera contends that the prosecutor improperly commented on the credibility of Rivera during rebuttal closing argument. Rivera argues that the prosecutor implied that Rivera’s testimony at the temporaiy custody hearing was dishonest when she said, “He doesn’t spank, don’t worry about it; he swatted him once, but it was okay and we just use time-out.” This statement conflicted with the admission that Rivera later made to law enforcement that Jones once spanked G.R. too hard and caused bruising to G.R.’s butt.
Our Supreme Court has held that a prosecutor is not permitted to comment on the credibility of a witness. State v. Elnicki, 279 Kan. 47, 60-64, 105 P.3d 1222 (2005). Here, the prosecutor’s statements did not exceed the wide latitude afforded a prosecutor in discussing the evidence during closing argument. The prosecutor did not directly comment on Rivera’s credibility but rather pointed out that Rivera’s testimony at the CINC hearing was inconsistent with statements she later made to police. The State is permitted during closing argument to point out inconsistencies in a defendant’s statements in order to persuade the jury that a defendant’s testimony is not believable. See Elnicki, 279 Kan. at 61-63.
Because Rivera has failed to prove that the prosecutor’s state-' ments during voir dire and closing arguments were improper, we find that Rivera was not prejudiced or deprived of the right to a fair trial.
Preliminary Jury Instruction
When a party has objected to a juiy instruction at trial, an appellate court examines the instruction to determine whether it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury. In making this determination, an appellate court is required to consider the instructions as a whole and not isolate any one instruction. State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).
Rivera asserts that her convictions should be reversed and the case remanded for a new trial because the district court gave a preliminary instruction on the charge of involuntary manslaughter before the start of tire trial that misstated the law and reasonably could have misled the jury into convicting her. The district court advised the jury that one of the elements that the State must prove was that “Jason Jones unintentionally killed [G.R.].” However, it was Rivera who was on trial for unintentionally killing G.R. Rivera’s counsel objected to this instruction.
At the conclusion of all of the evidence, Rivera’s counsel requested that the district court include the standard PIK instruction for involuntary manslaughter in the instructions submitted to the jury. The State agreed, and tire PIK instruction was given. The final jury instruction advised the jury that in order to convict Rivera of involuntary manslaughter, the State must prove that “the defendant unintentionally killed [G.R.] ”
There does not appear to be any Kansas case that addresses whether the giving of a preliminary jury instruction that misstates the law can be cured by the district court submitting the correct instruction to the jury at the end of the trial. Our Supreme Court has generally stated that preliminary instructions must properly and fairly state the law as applied to the facts of tire case and must not reasonably have been capable of misleading the jury. State v. Cook, 259 Kan. 370, 394, 913 P.2d 97 (1996).
The federal courts that have addressed this issue have held that a final jury instruction that correctly summarizes the law cures any prejudice caused by tire giving of a legally inaccurate preliminary instruction so long as the trial judge explains to the jury at the time preliminary instructions are issued that the court will give the jury final jury instructions at the conclusion of the trial and that those instructions are controlling. United States v. Hernandez, 176 F.3d 719, 735 n.10 (3d Cir. 1999) (“[Wjhen such preliminary instructions are given, jurors must not be allowed to guess at which of two conflicting instructions control their deliberations. This can be avoided by simply informing jurors which instructions control in the event they perceive a conflict between something they are told during the course of the trial, and something contained in the formal instructions that will follow the close of the evidence.”); United States v. Hegwood, 977 F.2d 492, 495 (9th Cir. 1992) (“The district court’s error in its initial instruction was cured by its subsequent instruction.”); Guam v. Ignacio, 852 F.2d 459, 461 (9th Cir. 1988) (“Because the trial judge used the correct instruction at the end of trial, and because the correct instruction was the only instruction given to the jury to take with them to the jury room, it is presumed fhat the jury followed the correct instruction.”); United States v. Norris, 753 F. Supp. 2d 492, 521 (E.D. Pa. 2010) (holding that erroneous preliminary instruction was not prejudicial to defendant because tire trial court informed the juiy drat the final instructions were controlling).
During the reading of tire preliminary instructions, the district judge explained to the jury that “[djepending on the evidence, I may in my final instructions define one or more of less serious crimes or give additional instructions. If this becomes necessary, I will give you those instructions at that time.” The district judge subsequently told the jury that “[ajfter all of the evidence has been submitted, Áren I will read to you the full instructions and then we’ll hear arguments of counsel and then there will be deliberations.” Although the district court explained to the jury that a final set of instructions would be submitted at the end of the trial, the court never expressly declared that the final instructions would control and take precedence over any conflicting preliminaiy instruction. Nevertheless, the district court’s cautionary instruction about the final instructions appears sufficient to advise the jury that the final instructions, and not the preliminary instructions, were controlling in this case.
Finally, while reading the final instructions, the district court informed the jury that it was required to decide tire case “by applying these instructions to the facts as you find them.”
It is also significant that the only instruction delivered to the jury and taken into the jury room for the deliberations was the PIK involuntary manslaughter instruction. A jury is presumed to follow the instructions given to it. State v. Mitchell, 294 Kan. 469, 482, 275 P.3d 905 (2012). The jury was given the correct involuntary manslaughter instruction immediately before its deliberations and had a copy of that instruction to consult during those deliberations.
Accordingly, we find that a final jury instruction that correctly summarizes the law cures any prejudice caused by the giving of a legally inaccurate preliminary instruction so long as the trial judge explains to the jury at the time preliminary instructions are issued that die court will give the jury final jury instructions at the conclusion of the trial and that those instructions are controlling. The district court cured the preliminary instruction misstatement when it gave the final jury instructions.
Jury Instruction on Proximate Cause
When a defendant fails to request a particular jury instruction, an appellate court reviews the claimed error under a clearly erroneous standard of review. Under this standard, the failure to give a particular jury instruction is clearly erroneous if there is a real possibility the jury would have rendered a different verdict had the instruction error not occurred. State v. Holman, 295 Kan. 116, Syl. ¶ 3, 284 P.3d 251 (2012).
At trial, Rivera did not request that the district court give a jury instruction on proximate cause; she now asserts that the district court should have given such an instruction. Rivera maintains that the jury could have found that Rivera should have reasonably foreseen that G.R. could be injured when she left him in Jones’ care; however, she argues that her involuntary manslaughter conviction should be reversed because the jury was never directed to find that Rivera’s actions were the proximate cause of G.R.’s death.
At the conclusion of the trial, the district court instructed the jury that in order to find Rivera guilty of involuntary manslaughter, the jury had to find that Rivera “unintentionally killed [G.R.] ” Elaborating on the concept of proximate causation as it relates to the crime of involuntary manslaughter, our Supreme Court stated:
“The legislature chose to use the word ‘killing’ to describe the death of the victim for each of the potential means of involuntary manslaughter it defined. ‘Killing’ connotes specific, proximate causation—not merely a peaceful, natural death. We note that Black’s Law Dictionary recognizes the word’s necessary implication; ‘kill’ means ‘to end life, to cause physical death.’[Citation omitted.]” State v. Scott, 285 Kan. 366, 371, 171 P.3d 639 (2007).
The lack of a separate instruction on proximate cause was not clearly erroneous. Because foe phrase “unintentional killing” in the involuntary manslaughter instruction required foe jury to find that Rivera’s actions caused foe death of G.R., no separate instruction on proximate cause was necessary. There is no real possibility that foe juiy would have rendered a different verdict had foe district court submitted a separate instruction on proximate cause.
Involuntary Manslaughter Instruction
The State charged Rivera with involuntary manslaughter under K.S.A. 21-3404(b), which proscribes the unintentional killing of a human being committed during foe commission of a misdemeanor that was enacted to protect human life or safety. The State alleged that the qualifying misdemeanor was foe crime of endangering a child. However, at foe conclusion of the trial, the district court instructed foe jury that in order to convict Rivera of involuntary manslaughter, foe State had to prove foe following elements:
“1. That the defendant unintentionally killed [G.R.];
“2. That it was done while in the commission of endangering a child, and
“3. That this act occurred on or about the 4th day of October, 2009, in Leavenworth County, Kansas.”
Rivera contends that this instruction was defective because it did not advise the jury of the elements of endangering a child, which was the underlying misdemeanor necessary to support the invol-untaiy manslaughter charge. Rivera did not object to the instruction, nor did she request that the instruction include the elements of endangering a child.
Rivera failed to request the instruction, and so we review the issue under a clearly erroneous standard. Under this standard, the failure to give a particular jury instruction is clearly erroneous if there is a real possibility the jury would have rendered a different verdict had the instruction error not occurred. Holman, 295 Kan. 116, Syl. ¶ 3.
Rivera argues that the involuntary manslaughter charge is similar to felony murder and if the instruction “had been consistent with the rules for instruction on felony murder, the juiy would have been instructed on the elements of the underlying misdemeanor offense (endangering a child) as part of the elements instruction for involuntary manslaughter.”
The Notes on Use to PIK Crim. 3d 56.02—the instruction for felony murder—state that in addition to the felony-murder instruction, the elements of the underlying inherently dangerous felony should also be set out either by reference to another instruction that lists those elements, or the elements should be set forth in the concluding portion of the felony-murder instruction. The Notes on Use to PIK Crim. 3d 56.06—the instruction for involuntary manslaughter—do not contain a similar recommendation for the variant of involuntary manslaughter involved in this case. However, our Supreme Court has held that an aggravated burglary instruction was defective when the district court failed to instruct the jury on the elements of the underlying offense that the State was required to prove in order to prove the aggravated burglary charge. State v. Linn, 251 Kan. 797, 802, 840 P.2d 1133 (1992), superseded on other grounds as noted in State v. Hedges, 269 Kan. 895, 8 P.3d 1259 (2000).
In this case, in order to prove the charge of involuntary manslaughter, the State was required to prove that Rivera also committed the underlying misdemeanor of endangering a child. In the same way that a felony-murder instruction must include the elements of the underlying felony by either including the additional elements in the instruction or by referring to a separate instruction that lists tire elements, any instruction that pertains to the crime of involuntary manslaughter charged under K.S.A. 21-3404(b) must include the elements of the underlying offense in the concluding portion of the instruction or by reference to a separate instruction that is included with the entire set of instructions. Thus, the district court erred by not including the elements of endangering a child in the involuntary manslaughter instruction given to the jury.
At the conclusion of the trial, the district court gave the jury a separate instruction that set out the elements of endangering a child. The endangering a child instruction pertained to a separate crime charged, and no reference was made to this instruction in the involuntary manslaughter instruction. But the district court was required to include in its instruction to the jury on involuntary manslaughter the elements of the underlying crime. Accordingly, we find that the district court erred in failing to include the elements of endangering a child in the involuntaiy manslaughter instruction. Thus, the jury was not properly instructed on the elements of the underlying offense that the State was required to prove in order to convict Rivera of involuntary manslaughter.
Unanimity Instruction
Rivera argues that the district court erred by failing to give a unanimity instruction because this was a multiple acts case and the State never elected which act it was relying upon to support each charge. Specifically, Rivera contends that this is a multiple acts case because the State charged her with involuntary manslaughter, with endangering a child as the underlying misdemeanor, as well as charging her with endangering a child. She argues that the juiy heard evidence of a number of acts that could have satisfied the elements of endangering a child for either offense.
When a defendant fails to request a particular jury instruction, an appellate court reviews under a clearly erroneous standard of review a defendant’s claim that a district court erred by failing to give a particular instruction. Under this standard, the failure to give a particular juiy instruction is clearly erroneous if there is a real possibility the jury would have rendered a different verdict had the instruction error not occurred. Holman, 295 Kan. at 116, Syl. ¶ 3. Because Rivera did not request a unanimity instruction, the claim is reviewed under the clearly erroneous standard.
A multiple acts issue exists when the State presents evidence of several acts and any one of those acts could constitute the crime charged. In a multiple acts case, a juiy must be unanimous as to which act or incident constitutes the crime charged. In order to ensure juiy unanimity, the State must elect the specific act or incident it is relying upon to support the crime charged or tire court must instruct the jury that all of the jurors must agree that the same underlying- criminal act or incident has been proven beyond a reasonable doubt. State v. Bailey, 292 Kan. 449, 458, 255 P.3d 19 (2011).
In Count 1 of the amended complaint, the State charged Rivera with involuntaiy manslaughter, alleging:
“That on or about the 4th day of October, 2009, in Leavenworth County, Kansas, Monica Felice Rivera, then and there being present did unlawfully, feloniously and unintentionally kill [G.R.], which was done in the commission of, or attempt to commit, or flight from the commission of Endangering a Child, a misdemeanor, as defined in K.S.A. 21-3608, that is enacted to protect human life or safety, in violation of K.S.A. 21-3404, Involuntary Manslaughter, a severity level 5 person felony.”
Count 2 of the amended complaint alleged:
“That on or between the 1st day of October, 2009 and tire 4th day of October, 2009, in Leavenworth County, Kansas, Monica Felice Rivera, tiren and there being present did unlawfully, intentionally and unreasonably cause or permit [G.R.], a child under 18 years of age, to be placed in a situation in which the child's life, body or health could be injured or endangered, in violation of K.S.A. 21-3608, Endangering a Child, a class A person misdemeanor.”
On Count 2, the State presented evidence of two particular incidents that could have supplied the factual basis to support the endangering a child charge. First, the State presented evidence that Rivera left G.R. with Jones on October 1 while she was at work. Later that day, Rivera received a call from Jones informing her that G.R. had fallen down die stairs. The State also presented evidence that Rivera left G.R. with Jones on October 4. On that day, while Rivera was at work, she received another phone call from Jones telling her that G.R. had fallen down the stairs again and that she needed to huriy home. When Rivera returned home, she discerned that G.R. was seriously injured and transported him to the hospital, where G.R. later died.
The State’s theory of the case was that the reports of G.R. falling down the stairs were fabricated, that Jones physically abused G.R. and inflicted physical injuries on him, and that Rivera knew or reasonably should have known about this abuse. The jury convicted Rivera of endangering a child. However, the problem is that the juiy could have convicted Rivera of endangering a child based upon the events that occurred on October 1 or the events that occurred on October 4. The issue is exacerbated by the fact that the State’s involuntary manslaughter charge required the State to prove the endangering a child misdemeanor as a necessary element of that offense, and the amended complaint specified that the events in question related to the involuntary manslaughter charge occurred on October 4. The jury convicted Rivera of both involuntary manslaughter and endangering a child. Thus, there is a possibility that die jury could have convicted Rivera of both offenses based upon the same events from October 4.
In order to confirm that the jury did not do this, the State has to elect which act or incident it is relying upon to support each charge, or the district court has to give a unanimity instruction. Here, the district court did not give a unanimity instruction, and the State never elected which act it was relying upon to support each of the charges. A review of the trial transcript containing the State’s closing argument reveals that the State argued to the jury that the events of October 1 through October 4 were a continuous and related set of events that led up to the killing of G.R. by Jones. Accordingly, diere is no way of knowing whether the jury convicted Rivera based solely on the events of October 4, or whether it convicted her of endangering a child based upon the events of October 1 and involuntary manslaughter based upon the events of October 4. Thus, Rivera’s convictions must be reversed and the case remanded for a new trial.
Is Endangering a Child a Lesser Included Offense of Involuntary Manslaughter?
The question of whether one crime is a lesser included offense of another crime is a question of law over which an appellate court exercises unlimited review. State v. Parks, 294 Kan. 785, 802, 280 P.3d 766 (2012).
Rivera argues that she could not properly be convicted of both involuntary manslaughter and endangering a child because the involuntary manslaughter offense with which she was charged required the State to prove that she committed the crime of endangering a child. Therefore, Rivera contends that all of the elements of the lesser crime—endangering a child—are identical to some of the elements of the greater crime—involuntary manslaughter. Rivera did not raise this argument before the district court but asserts that the issue may be raised for the first time on appeal to serve the ends of justice and prevent a denial of fundamental rights. See State v. Nguyen, 285 Kan. 418, 433-34, 172 P.3d 1165 (2007).
K.S.A. 21-3107(2) provides that “[ujpon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both.” K.S.A. 21-3107(2)(b) goes on to specify that a lesser included crime includes “a crime where all elements of the lesser crime are identical to some of tire elements of the crime charged.”
Our Supreme Court recently addressed a similar issue in Parks. In that case, the court held that a defendant may be convicted and sentenced for both felony murder and aggravated robbery, even when the aggravated robbery is the underlying felony for the felony-murder charge. Parks, 294 Kan. at 801-04. That analysis is equally applicable in this case. Rivera could be convicted of both involuntary manslaughter and endangering a child, even when the endangering a child charge supplied die underlying misdemeanor for the involuntary manslaughter charge. Additionally, Rivera’s argument is also problematic because she fails to acknowledge that she could have been convicted of both charges based upon events that transpired on separate dates. Therefore, Rivera’s claim that endangering a child is a lesser included offense of involuntary manslaughter is without merit.
Jurisdiction
The question of whether a complaint is sufficient to confer subject matter jurisdiction on the district court is a question of law over which an appellate court has unlimited review. State v. Scott, 286 Kan. 54, 62, 183 P.3d 801 (2008).
Prior to trial, Rivera filed a motion to dismiss the amended complaint because the endangering a child charge was defective. Specifically, Rivera contended that this charge was defective because tire amended complaint omitted die reasonable probability element. The district court denied Rivera’s motion because it stated that it would inform the jury of all the necessary elements of the offense, including the reasonable probability element, when the court issued the final instructions to the jury.
Count 2 of the amended complaint alleged:
“That on or between the 1st day of October, 2009 and the 4th day of October, 2009, in Leavenworth County, Kansas, Monica Felice Rivera, then and there being present did unlawfully, intentionally and unreasonably cause or permit [G.R.], a child under 18 years of age, to be placed in a situation in which the child's life, body or health could be injured or endangered, in violation of K.S.A. 21-3608, Endangering a Child, a class A person misdemeanor.”
Because Rivera challenged the sufficiency of the amended complaint prior to trial, we review the document to determine whether it omits one or more of the essential elements of the crime it attempts to charge. See State v. Reyna, 290 Kan. 666, 677, 234 P.3d 761, cert. denied 131 S. Ct. 532 (2010). Under this standard, a complaint is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or others of the same import so long as the defendant is fully informed of the particular offense charged and the court is able to determine under what statute the charge is founded. Reyna, 290 Kan. at 677.
In this case, the amended complaint was sufficient because it substantially followed the language of K.S.A. 21-3608(a).
Request for a Continuance
An appellate court reviews a district court’s decision to grant or deny a continuance for an abuse of discretion. State v. Cook, 281 Kan. 961, 986, 135 P.3d 1147 (2006). An abuse of discretion occurs when the action is arbitrary, fanciful, or unreasonable. This means no reasonable person would have taken the action of the trial court. State v. Sellers, 292 Kan. 117, 124, 253 P.3d 20 (2011).
Rivera argues that the district court abused its discretion by denying her request for a continuance because this case moved rapidly from preliminary hearing to trial and her counsel did not have adequate time to review documents, interview witnesses, and prepare for trial. The preliminary hearing in this case was held on July 8, 2010. Three pretrial hearings were held on July 19, July 23, and July 30. The case was tried to a jury from August 2 to August 5. Thus, there was less than a month between the preliminary hearing and the trial date.
At the July 23 hearing, Rivera’s counsel orally requested a continuance. Rivera’s counsel asserted that the defense required additional time to prepare for trial, review recently received discovery materials, prepare the testimony of new witnesses, send out subpoenas for witnesses from SRS, file new motions, and interview witnesses involved in G.R.’s CINC case. The district court denied Rivera’s request for a continuance because the court concluded that the nature of the case had not changed significantly since the case was initially filed in October 2009.
Although there was a quick turnaround from the preliminary hearing to the pretrial hearings and to the jury trial, the case itself was nearly a year old when the trial occurred. The district court’s rationale for denying Rivera’s request for a continuance was not unreasonable.
Even more damaging to Rivera’s argument are the events that transpired at the July 30 pretrial hearing. At that hearing, the district court asked Rivera’s counsel several times whether the defense was renewing its request for a continuance. Rivera’s counsel never specifically renewed the request for a continuance but declared that the defense was as prepared as it could be under the circum stances to proceed to trial the following week. Taking into consideration the events of the July 30 hearing, it is difficult to conclude that the district court’s previous denial of Rivera’s motion for a continuance was unreasonable because the court gave Rivera additional opportunities to pursue a continuance and Rivera did not take advantage of that opportunity. Therefore, the district court did not abuse its discretion in denying Rivera’s request for a continuance.
Cumulative Error
An appellate court evaluates a cumulative error claim to determine whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010). Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant, and a single error is insufficient to support reversal under the cumulative error rule. State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009).
Because we found that the district court erred in failing to give the unanimity instruction and in failing to list the elements of the misdemeanor underlying the involuntary manslaughter charge, we find that Rivera was denied a fair trial.
We affirm in part, reverse in part, and remand the case for a new trial. | [
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|
Hill, J.:
USD 259 asks us to overturn the Workers Compensation Board and hold that K.S.A. 2006 Supp. 44-523(f) bars Debra K. Welty from recovery because the regular hearing on her claim was held almost 6 years after her application for benefits was filed. Because nothing in the language of K.S.A. 2006 Supp. 44-523(f) indicates the legislature intended for the amendment to prior law operate retroactively, we hold the Board properly affirmed Welty’s compensation award.
School nurse Welty slips and falls.
The facts concerning how and to what extent Welty was injured are not crucial to the outcome of this appeal, but they do provide a context to illustrate how workers compensation claims are resolved. Welty injured her left knee on September 3, 2003, when she slipped on water and fell. Surgery was performed on that knee in January 2004. But because of her altered gait from the left knee problems, Welty began developing right knee issues. Welty then received surgery on her right knee in June 2008.
Welty experienced issues with pain and as a result received two left lumbar sympathetic blocks for regional pain in August 2004 and two more in December 2004. She was then referred to a pain specialist who, in January 2005, recommended the placement of a spinal cord stimulator to help ease the pain.
Welty filed an application for a hearing with the Division of Workers Compensation on April 21, 2004. The matter did not proceed to a final hearing until April 8, 2010. At the hearing, the District asked the administrative law judge (ALJ) to dismiss Welty’s case because under K.S.A. 2006 Supp. 44-523(f), a workers compensation matter must proceed to a final hearing within 5 years of the date the application for a hearing is filed—and this did not occur in Welty’s case.
The ALJ held that K.S.A. 2006 Supp. 44-523(f) should be applied prospectively to workers compensation cases, so that the statute does not affect accidents that occurred before the effective date of the amendment'—-July 1, 2006. Because Welty’s accident occurred on September 3, 2003, the ALJ held Welty’s case was not subject to dismissal and awarded Welty temporary total disability benefits.
The District appealed, but on June 7, 2011, the Board affirmed the ALJ’s decision with regard to the application of K.S.A. 2006 Supp. 44-523(f). The Board first reasoned that even if the statute were applied retroactively, Welty did not have a “reasonable” time after enactment of the statute to take the claim to a final hearing. The Board next observed that it has “consistently” held the statute does not apply retroactively—and to reverse this line of reasoning would be inconsistent and impair the rights of claimants who have relied on the Board’s past decisions on the issue. The Board also noted there were several reasons Welty’s claim was heard more than 5 years after she applied for a hearing—including that an application for a hearing is a “request” for a hearing; at the time of the hearing, the District argued Welty had not reached maximum medical improvement and Welty needed treatment for both knees and her spine and underwent extensive and lengthy psychological treatment. The Board stated that the ALJ and parties have “equal responsibility” to ensure that a claim proceeds in a timely fashion.
The District appeals the Board’s decision.
The issue before us.
The District contends Welty’s workers compensation claim is time-barred. The District argues that according to the plain language in K.S.A. 2006 Supp. 44-523(1), her claim must be dismissed because her final hearing did not occur within 5 years of the date of filing an application. In response, Welty argues this statute should be applied prospectively from July 1, 2006, when the law took effect and therefore simply does not apply to Welty’s case.
Our standard ofrevieio.
This court reviews appeals from the Board under the Kansas Judicial Review Act. Under the Act, we may grant relief if we determine the agency has erroneously interpreted or applied the law. K.S.A. 2010 Supp. 77-621(c)(4). This court has unlimited review over questions of law. Trevizo v. El Gaucho Steakhouse, 45 Kan. App. 2d 667, 672, 253 P.3d 786 (2011).
The statute in question, K.S.A. 2006 Supp. 44-523(f), provides a way for the workers compensation division to cleanse its house of stale claims:
“Any claim that has not proceeded to final hearing, a settlement hearing, or an agreed award under the workers compensation act within five years from the date of filing an application for hearing . . . shall be dismissed by the administrative law judge for lack of prosecution. The administrative law judge may grant an extension for good cause shown, which shall be conclusively presumed in the event that that claimant has not reached maximum medical improvement, provided such motion to extend is filed prior to the five year limitation provided for herein. This section shall not affect any future benefits which have been left open upon proper application by an award or settlement.”
This statute was amended to include section (f) during the 2006 legislative session. It went into effect on July 1, 2006.
Basically, the District argues that this is a statute of limitations and is considered procedural and is therefore retroactive in application. The District cites in support In re Tax Grievance Application of Kaul, 269 Kan. 181, 184, 4 P.3d 1170 (2000). Indeed, in Kaul, the court was asked to determine whether K.S.A. 1999 Supp. 74-2426(c)(3) applied to a tax matter appealed prior to the enactment of the statute. That statute dictated whether a particular type of tax appeal would be reviewed in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions or by the Court of Appeals. The court held that because the statute was a procedural statute describing the mechanism for carrying on the suit, the amendment applied retroactively. 269 Kan. at 184. But clearly, this decision only affected the question of which body had jurisdiction to hear the taxpayer’s appeal, the agency or the appellate court.
The second case cited by the District is Bonin v. Vannaman, 261 Kan. 199, 929 P.2d 754 (1996). The issue in Bonin was whether the litigant’s tort claims against her doctor were barred by the applicable statute of repose. Bonin did not address whether an amended statute of limitations operates retroactively and applies to earlier claims. Basically the Bonin court, in general terms, stated that a statute of limitations is procedural and a statute of repose is substantive. See 261 Kan. 199, Syl. ¶ 2. We do not find Bonin persuasive because it did not address the issues that we have before us. The District also cites Stevenson v. Topeka City Council, 245 Kan. 425, 427-28, 781 P.2d 689 (1989), a tort action, where the court found that an amendment to a státute affecting the statute of limitations was procedural. We note that the court stated explicitly that even though the amended statute was procedural, “it should be given retrospective application only if such retrospective operation will not affect a vested right of a party.” 245 Kan. at 428. In fact, the court in Stevenson found that if the statute was applied retroactively, tire plaintiff in that case would not have had a reasonable time to comply with the amended statute so her tort action would quickly be barred by the statute of limitations. The court, therefore, refused to apply the statute retroactively to her case. 245 Kan. at 430.
Unlike Stevenson, where the timely filing of a notice rested in tire hands of the tort claimant, tire holding of the final hearing in this case is achieved’ through the collaboration of the ALJ and the parties. Indeed, the District even argued at the final hearing in this case that Welty had not yet achieved maximum medical improvement, a condition usually achieved prior to the final hearing.
Recent Kansas Supreme Court rulings have persuaded us that we need to take a closer look at this particular amendment to the statute. Our Supreme Court in Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607-10, 214 P.3d 676 (2009), directed tire appellate courts to give effect to the express statutory language of the legislature and to avoid adding things not readily found within the language of the statute at hand. Later then, in Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 588, 257 P.3d 255 (2011), the court held that the significant changes made to the workers compensation statutes in 2011 did not apply to Bryant’s case and the statutory scheme in place at the time of his injury and claim controlled. 292 Kan. at 588. The Bryant court reasoned:
“As a general rule, a statute operates prospectively in tire absence of clear statutory language that the legislature intended it to operate retroactively. [Citation omitted.] Even if the legislature expressly states that a statute will apply retroactively, vested or substantive rights are immune from retrospective statutory application. Substantive rights include rights of action ‘for injuries suffered in person.’ [Citations omitted.] The retroactive application of laws that adversely affect substantive rights violates a claimant’s constitutional rights, because it constitutes a taking of property without due process of law. [Citation omitted.]” 292 Kan. at 588.
When read together, Bergstrom and Bryant persuade us that what is critical in this determination is the language used in the particular statute at issue. Here, we see nothing in the language of the statute that indicates a legislative intent that it be applied retroactively. Secondly, a fair reading of Bryant and Bergstrom leads us to believe that substantive rights are immune from retrospective statutory application. We are simply not persuaded that this amendment to the law was a mere procedural change that had no effect to deprive some injured workers of benefits that were vested in them.
We note that the law recognizes that the right to compensation accrues from the date of injury. See K.S.A. 44-535. In Kimber v. U.S.D. No. 418, 24 Kan. App. 2d 280, 282, 944 P.2d 169 (1997), the court held:
“In determining this issue it is important to consider one of the basic principles governing liability of an employer under the acts set forth in K.S.A. 44-535. That statute provides that the right to compensation under the act shall be deemed in eveiy case to have accrued to the injured worker at the time of the accident. [Citation omitted.]”
It is obvious that at the time of the accident Welty suffered here, K.S.A. 2006 Supp. 44-523(f) did not exist. And under the doctrine of law set out above, her substantive lights were determined by the law in existence at the time of her accident. Welty points out to us that the two Board members who dissented in her case have now come around to her way of thinking on the application of K.S.A. 2006 Supp. 44-523(f) and refer to a recent Board decision by attaching it as a supplement to her brief. Rivas v. Rickert, No. 1,007,167 (WCAB September 20, 2011).
We will not engage in speculation about what label to put upon this statute, whether it is a statute of limitations as the District suggests or a statute of repose as Welty argues. But we do point out that K.S.A. 44-534(b) provides:
“No proceeding for compensation shall be maintained under the workers compensation act unless an application for a hearing is on file in the office of the director within three years of tire date of the accident or within two years of the date of the last payment of compensation, whichever is later.”
That appears to be the applicable statute of limitations in Welty’s case. We note this because K.S.A. 2006 Supp. 44-523(f) does not run from tire time of injury, but rather from the date of the application filing.
In any event, we are not convinced that this statute has retroactive application in this case, and we therefore affirm the holding of the Board.
Affirmed.
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Malone, C.J.:
Ellis County (the County) appeals the order of the Court of Tax Appeals (COTA) granting an application for exemption from ad valorem taxation filed by Wedge Log-Tech, L.L.C./Pioneer Wireline Services (the taxpayer). COTA granted the exemption based upon its finding that the taxpayer s wireline equipment is included in the category of commercial and industrial machinery and equipment as defined under subclass 5 of class 2 of § 1(a) of Article 11 of the Kansas Constitution. Personal property in this subclass is exempt from ad valorem taxation pursuant to K.S.A. 2012 Supp. 79-223(b). The County argues on appeal that the taxpayer s wireline equipment is properly classified with mineral leasehold interests under subclass 2 of the constitutional provision because wireline equipment is intrinsically related to tire oil and gas industry.
Commercial and industrial machinery and equipment, as defined by the Division of Property Valuation (PVD) of the Kansas Department of Revenue, is “any taxable, tangible personal property [except for state assessed property and motor vehicles] that is used to produce income or is depreciated or expensed for IRS purposes.” 2008 Personal Property Valuation Guide, § 2.05 at 58. At the hearing before COTA, the taxpayer showed, by a preponderance of the evidence, that the wireline equipment met these criteria. The County asked COTA to classify the taxpayer’s wireline equipment as part of a mineral leasehold interest, but the County’s reasons for doing so have no supporting legal authority and are contrary to the PVD’s historical position on wireline equipment, which has been to classify it as commercial and industrial machinery and equipment. For these reasons, we affirm COTA’s order granting the taxpayer’s application for exemption from ad valorem taxation.
Factual and Procedural Background
The taxpayer operates a wireline data logging business. Most of the taxpayer’s customers are oil and gas producers, but the taxpayer also provides services in relation to water wells, salt mines, and commercial disposal wells. Wireline equipment generally consists of data logging tools that are lowered on a truck-mounted wire into well holes to take various readings. The wireline tools are never attached to the well, and the equipment is not owned by the well operator. Wireline equipment includes logging tools that test porosity, resistivity, and permeability of rock in order to analyze the presence of certain rock formations that may indicate the presence of oil or gas. Also included in wireline equipment are tools used to perform perforation operations, which penetrate a well’s casing to obtain maximum reservoir productivity. In order to use wireline equipment, production from a well must be stopped and the production equipment removed.
For tax year 2008 and all prior years, the taxpayer reported its wireline equipment, along with other personal property assets, for tax purposes as schedule 5 property—commercial and industrial machinery and equipment—which falls under subclass 5 of class 2 of § 1(a) of Article 11 of the Kansas Constitution. The County listed the assessed value of the taxpayer’s commercial and industrial machinery and equipment at $1,216,248. In 2008, the taxpayer asserted that its commercial and industrial machinery and equipment, including the wireline equipment, was exempt under K.S.A. 2012 Supp. 79-223(b), which exempts certain commercial and industrial machinery and equipment purchased after June 30, 2006, from ad valorem taxation.
Prior to 2008, the County had listed, classified, valued, assessed, and taxed the subject property as commercial and industrial machinery and equipment. But after the taxpayer applied for the exemption, the County notified the taxpayer that it had reclassified the subject property as schedule 2 property under subclass 2 of the constitutional provision, which covers mineral leasehold interests. The County disagreed with the taxpayer’s request for an exemption and, after an informal hearing, the county appraiser found that the property was not exempt under K.S.A. 2012 Supp. 79-223(b).
On July 14, 2008, the taxpayer filed a notice of equalization appeal with the regular division of COTA, claiming improper valuation of exempt commercial and industrial machinery and equipment for tax year 2008. Additionally, in August 2009, the taxpayer filed an application for tax exemption for tax years 2007 through 2009, arguing again that the property was statutorily exempt. COTA consolidated the equalization appeal and the exemption application, but the equalization appeal was dismissed during the hearing by agreement of the parties. Accordingly, the only matter remaining is the exemption application.
COTA held a hearing on February 9, 2010, at which both the taxpayer and the County presented witnesses and evidence. First, the taxpayer called Dean Denning, the county appraiser. Denning testified regarding the process by which the County initially assessed the subject property as schedule 5 property and certified it as such to the county clerk. Denning further admitted that all of tire property tire taxpayer claimed as exempt was either purchased after June 30, 2006, cost less than $1,500, or both.
On cross-examination, Denning testified that whether to classify property as schedule 2 or schedule 5 was not important to the appraisers office until die legislature enacted the exemption for certain schedule 5 property. Denning testified that he believed the legislature did not intend to exempt property related to the oil industry; therefore, he believed that such property should be moved to schedule 2 “to keep [the property] from being exempt.” Regarding the taxpayer s wireline equipment, Denning determined that the property was oil equipment schedule 2 property because the property “would have never been bought by the taxpayer if there was not an oil industry to use it in.” Denning saw the issue as whether the property related more to oil and gas or to other manufacturing, and he believed that die taxpayer s business was oil and gas.
Next, die taxpayer called Craig McLaughlin, an open hole manager for the taxpayer, who testified regarding the type of work the taxpayer performs and how the taxpayer uses the wireline logging tools. McLaughlin emphasized that the taxpayer did not produce any oil and gas, nor did it own any mineral leasehold interests. McLaughlin testified that he believed the wireline equipment fell within die PVD’s definition of “commercial and industrial machinery and equipment.” McLaughlin also read the PVD’s definition of “mineral leasehold interests” for purposes of taxation under schedule 2, but drew a distinction between the wireline equipment’s use in gathering information about oil and gas wells and the PVD’s requirement that the equipment be used in operating the oil and gas wells to qualify as mineral leasehold interests.
Steve Ofstehage, the taxpayer’s controller, verified the documentation supporting the exemption application, stating that the assets in question were purchased after June 30, 2006. Ofstehage also read aloud K.S.A. 2009 Supp. 79-223(b) and explained why he believed the wireline equipment was exempt under the statute. Ofstehage testified that the wireline equipment provided information about oil and gas wells, which was an exempt use, and the well owners then used the information to operate the wells.
The taxpayer then called Ronald Cook, a registered professional petroleum engineer, to testify. COTA accepted Cook as qualified as an expert on the PVD’s Oil and Gas Appraisal Guide. Cook had extensive experience with wireline equipment and had prepared an expert report in which he concluded that the wireline equipment at issue here was schedule 5 property, not schedule 2 property. Cook also distinguished between schedule 2 equipment, which is used in the extraction of oil and gas or the operation of oil and gas wells, and wireline equipment, which he characterized as being used “to quantify reservoir properties,” not to operate oil and gas wells.
The County called Lisa Ree, the deputy county appraiser who had assisted with reviewing the rendition'the taxpayer filed for the tax years at issue; she had also made the determination to adjust certain items from schedule 5 to schedule 2. When asked the standard by which she determined whether property fell under schedule 5 or schedule 2, Ree stated she based it on “[wjhether it’s regular personal property or whether it’s oil field use” and that if she was uncertain of the use, she decided in favor of taxation.
The County next called Lynn Kent, the manager of the oil and gas section at the PVD. Kent was responsible for publishing the PVD’s Oil and Gas Appraisal Guide and assisting county appraisers with questions on valuing oil and gas properties. Kent testified that she had been the manager of the oil and gas section at the PVD when tire legislature enacted K.S.A. 79-223 and that she “was told by numerous staff members here and also having talked to the oil and gas industry representatives, that there was no equipment that was considered as oil and gas-related to be included as exempt in this ... exception.” Kent further testified that she believed wireline equipment “is very necessary in discovering oil and gas properties and—and then producing oil and gas properties,” although she admitted that the wireline equipment was not used in the “actual extraction” of tire oil and gas. Kent acknowledged that no other county but Ellis County is classifying wireline equipment as schedule 2 mineral leasehold interest property. She stated that other counties are “waiting to see the results of this case” to know whether to classify wireline equipment as schedule 2 property.
COTA took the matter under advisement, and both parties filed posthearing briefs. On March 13, 2012, COTA filed its order; the next day, COTA filed a corrected order to correct typographical errors and an error in the certification of the original decision. In the corrected order, COTA granted the taxpayer s application for exemption. COTA noted that the burden was on the taxpayer to prove by a preponderance of the evidence that it was entitled to the statutory exemption. COTA concluded that “based on the existing regulatory framework as interpreted and applied by taxing authorities throughout Kansas, this court finds the applicant here has established that all of die subject property satisfies the statutory requirements for exemption.” The County filed a petition for reconsideration, which was denied. The County subsequently filed a petition for judicial review with this court.
Did COTA Properly Classify the Wireline Equipment as Commercial and Industrial Machinery and Equipment?
On appeal, the County limits its question to whether the taxpayer’s wireline equipment should be classified as commercial and industrial machinery and equipment under subclass 5 of class 2 of § 1(a) of Article 11 of the Kansas Constitution or as a.mineral leasehold interest under subclass 2 of the same constitutional provision. The County argues that COTA erred and the wireline equipment is properly classified as a mineral leasehold interest under subclass 2. The taxpayer contends that COTA correctly found that the wireline equipment is commercial and industrial machin ery and equipment under subclass 5 and is therefore eligible for an exemption.
The proper classification is important because the classification controls whether the wireline equipment is exempt from ad val-orem taxation. K.S.A. 2012 Supp. 79-223(b) exempts from taxation “[c]ommercial and industrial machinery and equipment acquired by qualified purchase or lease made or entered into after June 30, 2006, as the result of a bona fide transaction not consummated for the purpose of avoiding taxation.” For purposes of die exemption, the statute defines “commercial and industrial machinery and equipment” as “property classified for property tax purposes widiin subclass (5) of class 2 of section 1 of article 11 of the constitution of the state of Kansas.” K.S.A. 2012 Supp. 79-223(d)(2). Other than referencing the constitutional classification, however, the statute provides no definitional guidance.
Section 1(a) of Article 11 of the Kansas Constitution establishes the system of taxation in Kansas and states:
“Property shall be classified into the following classes for the purpose of assessment and assessed at the percentage of value prescribed therefor:
“Class 2 shall consist of tangible personal property. Such tangible personal property shall be further classified into six subclasses, shall be defined by law for the purpose of subclassification and assessed uniformly as to subclass at the following percentages of value:
“(2) Mineral leasehold interests except oil leasehold interests the average daily production from which is five barrels or less, and natural gas leasehold interests the average daily production from which is 100 mcf or less, which shall be assessed at 25%. 30%
“(5) Commercial and industrial machinery and equipment which, if its economic life is seven years or more, shall be valued at its retail cost when new less seven-year straight-line depreciation, or which, if its economic life is less than seven years, shall be valued at its retail cost when new less straight-line depreciation over its economic life, except that, the value so obtained for such property^, notwithstanding its economic life and as long as such property is being used, shall not be less than 20% of die retail cost when new of such property . 25%”
In its order, COTA examined the circumstances surrounding the 1986 constitutional amendment that created the classification scheme at issue:
“This language was adopted by amendment in 1986, creating the property classification scheme that exists to this day. Like most constitutional provisions, this section is expressed in broad terms. In particular, we note that subclass 2(5) is so broadly drawn as to conceivably embrace property within any of the other tangible personal property subclasses. In view of this contextual ambiguity, our interpretation must not be narrow or technical but should be based on the facts and circumstances giving rise to the provisions enactment. [Citation omitted.]
“Leading up to tire 1986 constitutional amendment, the Kansas Tax Review Commission was formed to advise the legislature on exigent property tax issues. This commission concluded that statewide reappraisal was appropriate because property was not being taxed uniformly and equally throughout the state. See Kansas Tax Review Commission, Final Report and, Recommendations, P-5 (1985). In its report, the commission concluded that additional changes in the law were necessary to mitigate shifts in tax burden among the various classes of property that would inevitably result from reappraisal. See id. at P-6. The commission recommended ‘a comprehensive, straightforward classification system.’ See id. at P-9. The legislative history indicates no intention to redefine the substantive criteria for property classification. In fact, the commission’s final report suggests die opposite—that die amendment’s purpose was to mitigate the anticipated disproportionate effects of reappraisal on existing classes of property throughout the state.”
This court reviews COTA decisions under the guidance of the Kansas Judicial Review Act (KJRA), K.S.A. 2012 Supp. 77-601 et seq. Under the KJRA, the burden of proving the invalidity of COTA’s action rests on the party asserting invalidity. See K.S.A. 2012 Supp. 77-621(a)(1). This court is authorized to grant relief only in limited circumstances, including where the agency erroneously interpreted or applied the law. See K.S.A. 2012 Supp. 77-621(c)(4). Both parties agree that the issue revolves around tire correct classification of the wireline equipment. Because there is no factual dispute, the issue presented is a question of law. See In re Tax Exemption Application of Mental Health Ass'n of the Heartland, 289 Kan. 1209, 1211, 221 P.3d 580 (2009) (“Whether certain property is exempt from ad valorem taxation is a question of law if the facts are not in dispute . . . .”)• Accordingly, it appears that this court may only grant the County relief if it determines that COTA erroneously interpreted or applied the law in reaching its decision that the wireline equipment is commercial and industrial machinery and equipment and therefore eligible for the exemption. Issues involving constitutional or statutory interpretation are questions of law over which an appellate court has unlimited review. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009).
The touchstone of interpreting or construing statutory language is legislative intent. Law v. Law Company Building Assocs., 295 Kan. 551, 566, 289 P.3d 1066 (2012). To determine legislative intent, an appellate court must begin by examining the language the legislature used in the statute. 295 Kan. at 566. “Only if that language is ambiguous does a court rely on any revealing legislative history or background considerations that speak to legislative purpose, as well as the effects of application of canons of statutory construction.” 295 Kan. at 566. As the County notes, however, the general rule is that statutes imposing a tax must be interpreted strictly in favor of the taxpayer, but “tax exemption statutes are interpreted strictly in favor of imposing the tax and against allowing an exemption for one that does not clearly qualify.” See In re Tax Exemption Application of Mental Health Ass’n of the Heartland, 289 Kan. at 1211.
This case, however, also implicates constitutional language. COTA noted in its order that the rules governing interpretation of constitutional provisions differ from those regarding statutory interpretation. The beginning analysis is the same: “ Tn ascertaining the meaning of a constitutional provision, the primary duty of the courts is to look to the intention of the makers and adopters of that provision.’ [Citation omitted.]” State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 562-63, 186 P.3d 183 (2008). The difference appears in that statutory interpretation looks to tire plain language of the statute first, whereas, “ ‘ “[i]n interpreting and construing the constitutional amendment, the court must examine the language used and consider it in connection with the general surrounding facts and circumstances that, cause the amendment to he submitted.” [Citation omitted.]’ [Citation omitted.]” (Emphasis added.) In re Tax Exemption Application of Central Illinois Public Services Co., 276 Kan. 612, 621, 78 P.3d 419 (2003).
The taxpayer maintains that COTA properly held that the subject property is commercial and industrial machinery and equipment. The Personal Property Valuation Guide (PPV Guide) promulgated by the PVD defines commercial and industrial machinery and equipment as “any taxable, tangible personal properly [except for state assessed property and motor vehicles] that is used to produce income or is depreciated or expensed for IRS purposes.” 2008 Personal Property Valuation Guide, § 2.05 at 58. At the hearing before COTA, the taxpayer showed, by a preponderance of the evidence, that the wireline equipment met these criteria. McLaughlin and Ofstehage testified that the assets in dispute are tangible personal property, except State-assessed property or vehicles, that are used to produce income and are depreciated or expensed for IRS purposes. Furthermore, Cook provided expert testimony about his extensive experience with wireline equipment and concluded that the equipment at issue here was schedule 5 property.
Moreover, the evidence established that the assets at issue are not schedule 2 mineral leasehold interests. The PPV Guide states:
“For purposes of taxation, oil and gas leases, oil and gas wells, all casing, tubing and other equipment and materials used in operating oil and gas wells are considered personal properly. The Kansas Constitution classifies personal property that qualifies as Mineral Leasehold Interests (oil and gas) into Class 2, Subclass 2 (2.02) for property tax purposes.” 2008 Personal Property Valuation Guide, § 2.02 at 19.
Based on the PPV Guide, the PVD has historically classified drilling rigs, casing, tubing, and other equipment as schedule 2 mineral leasehold interest property when the equipment is actually used in extracting oil and gas from the ground. But as Kent acknowledged in her testimony, no other county but Ellis County is classifying wireline equipment as schedule 2 mineral leasehold interest property. Furthermore, Kent testified that the PPV Guide, which is the only source for classifying any equipment under schedule 2, has never listed wireline equipment as itemized equipment under schedule 2. Instead, she testified that “currently the [PVD] takes the positions that wireline equipment is [machinery] and [equipment].”
In its appellate brief, as it did in its posthearing briefs, the County relies heavily on COTA’s analysis and order in In'the Matter of the Application of McPherson Drilling for Exemption from Ad Valorem Taxation in Montgomery County, Kansas, Docket No. 2009-156-TX. This case concerned a request for exemption under K.S.A. 2008 Supp. 79-223 for two drilling rigs used for “ 'drilling oil and gas wells.’ ” Docket No. 2009-156-TX, slip op. at 1. The taxpayer asserted that the rigs fell within the definition of commercial and industrial machinery and equipment and were therefore exempt. Docket No. 2009-156-TX, slip op. at 2. At the hearing before COTA, Lynn Kent gave undisputed testimony that the Kansas Oil and Gas Appraisal Guide instructed that drilling rigs should be valued as part of an oil and gas leasehold interest and that such rigs had been classified and taxed in diat manner since 1965. Docket No. 2009-156-TX, slip op. at 5. After reciting the applicable law, COTA denied the application for exemption from taxation for the drilling rigs. Docket No. 2009-156-TX, slip op. at 6.
The facts herein are clearly distinguishable from the facts in McPherson Drilling. In that case, the subject property was two drilling rigs which were clearly used to extract oil and gas from the ground. By contrast, the wireline equipment which is the subject property herein is diagnostic in nature. The wireline tools are never attached to the well, and the equipment is not owned by the well operator. In fact, the evidence herein established that in order to use wireline equipment, production from a well must be stopped and the production equipment removed. Also, in McPherson Drilling, Kent testified that the Oil and Gas Appraisal Guide instructed that drilling rigs should be valued as part of an oil and gas leasehold interest and that such rigs had been classified and taxed in that manner since 1965. In her testimony herein, Kent acknowledged the opposite fact, i.e., that the Oil and Gas Appraisal Guide has never listed wireline equipment as itemized equipment under schedule 2.
The County argues that wireline equipment is so intrinsically related to the oil and gas industiy that the equipment should be classified with mineral leasehold interests for tax purposes. But the County provides no statutory or constitutional authority for the proposition that any equipment that is intrinsically related to the oil and gas industiy—a vague standard at best—should be assessed and taxed as a mineral leasehold interest. At the COTA hearing, Kent seemed to state that authority could be found in K.S.A. 79-329, which states:
“For the purpose of valuation and taxation, all oil and gas leases and all oil and gas wells, producing or capable of producing oil or gas in paying quantities, together with all casing, tubing or other material therein, and all other equipment and material used in operating the oil or gas wells are hereby declared to be personal property and shall be assessed and taxed as such.” (Emphasis added.)
As the taxpayer points out, however, this statute does not state that “all other equipment and material used in operating tire oil or gas wells” shall be declared personal property assessed and taxed as a mineral leasehold interest under subclass 2 of class 2 of § 1(a) of Article 11 of tire Kansas Constitution. The statute only mandates that such equipment be assessed and taxed as personal property. Class 2 of § 1(a) of Article 11 of the Kansas Constitution lists six subclasses of tangible personal property; both mineral leasehold interests and commercial and industrial machinery and equipment are classifications of personal property that would satisfy K. S. A. 79-329.
Even if this court adopted tire County’s assertion that all equipment intrinsically related to the oil and gas industry should be taxed under schedule 2, the evidence fails to establish that the taxpayer s wireline equipment satisfies this test. In its brief, the County states that “[a]ll six witnesses testified that ‘but for the oil and gas industry, the wireline industry would not exist.” As the taxpayer points out in its brief, however, this statement is not accurate. None of the taxpayer’s three witnesses (McLaughlin, Ofstehage, and Cook) testified that the wireline industry would not exist but for the oil and gas industry. Although McLaughlin testified that the taxpayer would not operate in Elhs County if there were no oil and gas producers there, McLaughlin also testified that the taxpayer provided services for industries other than oil and gas. Specifically, McLaughlin testified that the taxpayer provided services for water wells, salt mines, and disposal wells.
Beyond the fact that the County fails to provide any authority for this court to adopt its asserted test for classifying property as schedule 2 mineral leasehold interests, K.S.A. 2012 Supp. 79-223(c) expressly prohibits reclassification of schedule 5 property for the purpose of avoiding the tax exemption provided by the statute. K.S.A. 2012 Supp. 79-223(c) provides, in pertinent part: “The county appraiser shall not reclassify any property that is properly classified for property tax purposes within subclass (5) of class 2 of section 1 of article 11 of the constitution of the state of Kansas.” As Kent confirmed in her testimony, this provision was specifically added to the statute by the legislature in 2008 to prevent county appraiser’s offices throughout the state from reclassifying property to avoid the exemption that the legislature intended.
Simply put, the legislature has prohibited the County from doing what it is now trying to do—reclassify the taxpayer’s property to deny the exemption that the legislature intended. Denning, the county appraiser, acknowledged that prior to 2008, the County classified the subject property as commercial and industrial machinery and equipment. But Denning admitted, under questioning from his own counsel, that he reclassified the wireline equipment in 2008 “to keep [the property] from being exempt.” By doing so, the County violated the express directive of K.S.A. 2012 Supp. 79-223(c).
Finally, the County challenges COTA’s statement that it is the role of the legislature, not COTA, to implement a shift in ad val-orem tax policy in Kansas. In its order, COTA reiterated Kent’s testimony, when she was asked the PVD’s position on how wireline equipment should be classified, where she stated that the PVD was waiting for COTA to rule on the correct classification. COTA then stated:
“We respectfully disagree with PVD’s decision to rely on the adjudication process to redefine the parameters of tax classification for standard items of equipment used in tire oil and gas industry. Granted, an important role of this court is to help define tire law through adjudication, particularly where proper application of the law is uncertain under a given set of circumstances. But in order for adjudication to be a legitimate nreairs of ordering the rights and obligations of litigants, there must exist authoritative rules that can be applied. In contrast to administrative orders, which are ad hoc decisions driven by dre facts of a particular case, actions by administrative agencies which create standards of general application should be adopted by rule. [Citation omitted.] This court believes drat rulemaldng, not adjudication, is the proper vehicle for implementing a shift in tax policy with such broad application and wide-ranging impact as that proposed here by Ellis County.”
We agree with COTA that it is the role of the legislature, not COTA or this court, to implement a shift in ad valorem tax policy in Kansas. The PVD has historically classified wireline equipment as schedule 5 commercial and industrial machinery and equipment. If the County desires to change the historical classification of wire-line equipment from schedule 5 property to schedule 2 property, die proper avenue is either promulgation of the change through the appropriate PVD guides or through statutory changes made by the legislature. See O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 348, 277 P.3d 1062 (2012) (“the legislature, unlike the judiciary, is one of the branches of government charged with development of public policy on behalf of the electorate”). Under die current constitutional and statutory scheme in Kansas, we conclude that COTA properly classified die taxpayer s wireline equipment as commercial and industrial machinery and equipment, thereby making the property exempt from ad valorem taxation pursuant to K.S.A. 2012 Supp. 79-223(b).
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Atcheson, J.:
Defendant Isaac Beltran appeals the ruling of the Reno County District Court denying his motion to suppress cocaine and money a law enforcement officer discovered when he stuck his hand in Beltran’s pocket during the execution of a search warrant at a house Beltran happened to be visiting. We affirm the district court but decline to do so on its determination the officer had probable cause to search Beltran or its alternative rationale based on inevitable discovery. The simple facts of this case filtered through the United States Supreme Court’s established Fourth Amendment jurisprudence, most notably Devenpeck v. Alford, 543 U.S. 146, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004), lead to the paradoxical conclusion that although the officer expressly disclaimed any intent to arrest Beltran before the search, an objectively reasonable officer would have had probable cause to arrest Beltran for obstruction, and the search would have been constitutionally acceptable as an incident of that justifiable, if theoretical, arrest. Because search and seizure analysis is driven by objective reasonableness rather than subjective intent, as Devenpeck makes clear, the search comported with the Fourth Amendment to the United States Constitution, so the district court reached the right result.
Factual Background and Case History
In the late afternoon on December 29,2010, Reno County Sheriff s Deputy Shawn McClay participated in the search of a residence in South Hutchinson. The law enforcement team had gotten a search warrant to look for marijuana, cocaine, and evidence indicative of drug trafficking at the house. Neither the search warrant nor the underlying affidavit appears in the record on appeal. Only McClay testified at the hearing on Beltran’s motion to suppress.
Beltran had no particular connection to the house—he did not own it, rent it, or live diere. But he happened to be diere when the officers arrived to search. McClay testified the team had iden tified suspects associated with drug trafficking at the house. Beltran was not among those persons either.
McClay knocked on the front door of the house and identified himself as a law enforcement officer. He also displayed a badge and wore clothing indicating he was a sheriff s deputy. As he approached tire door, McClay saw a person he later identified as Beltran. Nobody responded to the door. After waiting about 20 seconds, McClay tried the knob and opened the door. He entered and immediately confronted Beltran. Beltran had not been alone in the house. Other occupants attempted to leave through tire back door.
According to McClay, Beltran either put his left hand into the left front pocket of his pants or already had his hand there, and he then began to walk away toward the kitchen. McClay ordered Belt-ran to stop and apparently told him to take his hand out of his pocket. Beltran did not comply and continued walking toward the ldtchen. From the testimony, it is not clear whether McClay repeated those commands. But Beltran plainly ignored them and continued to move away from McClay.
In his words, McClay then “made contact with” Beltran. Again, the testimony is not especially detailed on the point. McClay apparently grabbed Beltran’s right hand and then pulled his left hand out of the pant pocket. While holding both of Beltran’s hands in his right hand, McClay reached into the left front pocket of Belt-ran’s pants and extracted two plastic bags containing what turned out to be cocaine and a third bag with $221 in it. McClay testified that he believed Beltran might have had a weapon or evidence in his pocket. On cross-examination, McClay agreed he had not placed Beltran under arrest at that point and had not seen him commit a crime.
During the search of the house, after McClay halted Beltran, officers hound marijuana in the living room and a bedroom.
Beltran filed a motion to suppress the cocaine and money taken from his pants. The district court denied tire motion. In its bench ruling, the district court characterized the question as a close one and concluded McClay had probable cause to search Beltran when he ignored the commands to take his hand out of his pocket and to stop moving away. The district court also determined McClay would have inevitably discovered the contraband in Beltran’s pocket because the marijuana found in the house solidified the probable cause to search Beltran.
Beltran later went to trial on stipulated facts, and the district court convicted him of possession of cocaine, a felony, in violation of K.S.A. 2010 Supp. 21-36a06. Beltran had no other adult convictions and no juvenile adjudications affecting his criminal history. The district court imposed a standard guidelines sentence of imprisonment for 11 months and followed the statutory presumption by placing Beltran on probation for 18 months. Beltran has timely appealed and asserts the denial of the motion to suppress as the only issue.
Legal Analysis
Fourth Amendment Principles and Detention of Persons During Execution of Search Warrants
In reviewing a district court’s ruling on a motion to suppress, an appellate court applies a bifurcated standard. The appellate court accepts the factual findings of the district court if they are supported by competent evidence having some substance. The appellate court exercises plenary review over legal conclusions based upon those findings, including the ultimate ruling on the motion. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007); accord State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The prosecution bears the burden of proving a search or seizure to be constitutional by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008) (allocation of burden; quantum of evidence); Thompson, 284 Kan. at 772 (allocation of burden). Here, the facts were effectively undisputed, and the district court accepted McClay’s rendition of the events. What remains—the application of those facts to the governing legal principles—is a question of law.
By its express language, the Fourth Amendment guarantees “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures.” Absent a warrant from a judge, a government agent’s search violates the Fourth Amend ment unless die circumstances fit within a recognized exception to the warrant requirement. Kentucky v. King, 563 U.S. 452, 131 S. Ct. 1849, 1858, 179 L. Ed. 2d 865 (2011) (“[Warrantless searches are allowed when the circumstances make it reasonable, wtthin die meaning of the Fourth Amendment, to dispense with the warrant requirement.”); Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) (“[Warrantless searche[s] . . . ‘are per se unreasonable under die Fourtii Amendment—subject only to a few specifically established and well-delineated exceptions.’ ” [quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)]). Here, the officers did not have a warrant authorizing them to search Beltran. So McClay’s search must fit within a recognized exception to be reasonable under die Fourtii Amendment. We, therefore, look at possible bases for a warrantless search of Beltran.
Armed with a search warrant for the house, McClay had the constitutional authority to detain Beltran as the officers looked through the place for contraband and evidence related to drug trafficking. Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981) (“[F]or Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.”). The authority of law enforcement officers to seize persons under Summers extends to anyone on the premises to be searched even if the individual has no ownership or possessory interest in the premises. See Bailey v. United States, 568 U.S. —, 133 S. Ct. 1031, 1043-45, 185 L. Ed. 2d 19 (2013) (Scalia, J., concurring); United States v. Sanchez, 555 F.3d 910, 916-19 (10th Cir. 2009).
But the search warrant did not permit law enforcement officers to conduct a full search of Beltran simply because he was on the premises. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979); State v. Vandiver, 257 Kan. 53, Syl. ¶ 2, 891 P.2d 350 (1995). In Ybarra, the Court recognized that “a search or seizure of a person must be supported by probable cause particularized with respect to that person.” 444 U.S. at 91. In that case, law enforcement officers had obtained a warrant to search a tavern and a particular bartender for narcotics. Ybarra was a customer apparently looking to get a drink at the bar when the warrant was executed. He had no other or greater connection to the establishment. Accordingly, the officers lacked probable cause to search him and could not overcome that constitutional deficiency simply because “coincidentally there exist[ed] probable cause to search or seize another or to search the premises where the person may happen to be.” 444 U.S. at 91. The Court, however, indicated that if the officers had a reasonable suspicion Ybarra were armed and posed a threat, they could have, consistent with Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), conducted a limited pat-down search of him for weapons. 444 U.S. at 92-93; see Arizona v. Johnson, 555 U.S. 323, 326-27, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009) (investigatory Terry stop may entail frisk or pat-down for weapons if officer reasonably suspects individual may be armed). The Kansas Supreme Court has embraced these principles. See Vandiver, 257 Kan. 53, Syl. ¶¶ 1-3. And they are essentially codified in K.S.A. 22-2509.
In an investigatory detention or Terry stop, law enforcement officers may halt and briefly question a person if they have a reasonable suspicion that, based on articulable facts, the individual has just committed, is committing, or may be about to commit a crime. See Johnson, 555 U.S. at 326-27; Adams v. Williams, 407 U.S. 143, 145-46, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); Terry, 392 U.S. at 21-23, 30. The suspicion of criminal involvement must be grounded in fact-based conclusions and not mere hunches, but an officer may rely on training and experience to deduce nefarious implications from conduct those outside the law enforcement field might view as entirely innocuous. See Terry, 392 U.S. at 22-23, 27; State v. Martinez, 296 Kan. 482, Syl. ¶ 4, 293 P.3d 718 (2013) (district court erred in finding that an experienced officer with a hunch possessed a reasonable suspicion of wrongdoing); accord Brown v. Texas, 443 U.S. 47, 52 n.2, 99 S. Ct. 2627, 61 L. Ed. 2d 357 (1979). During a Terry stop, an officer may conduct a pat-down search for weapons if the particular circumstances also suggest the individual may be armed and pose a threat. Johnson, 555 U.S. at 326-27 (investigatory Terry stop may entail frisk or pat-down search for weapons if officer reasonably suspects individual may be armed) Terry, 392 U.S. at 27, 29-30; State v. White, 44 Kan. App. 2d 960, 970-71, 241 P.3d 951 (2010).
In conducting a constitutionally acceptable pat-down search, a law enforcement officer is confined to “patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault.” Sibron v. New York, 392 U.S. 40, 65, 88 S. Ct. 1889, 20 L. Ed. 2d 917(1968); White, 44 Kan. App. 2d at 964. Here, McClay exceeded the scope of a lawful pat-down when he reached into Beltran’s pocket. Sibron, 392 U.S. at 65; White, 44 Kan. App. 2d at 970-71. His search of Beltran, if based on a reasonable suspicion, violated the Fourth Amendment. The district court, however, concluded McClay had probable cause to search Beltran and, therefore, could go beyond a pat-down for weapons. The district court erred in its conclusion.
Probable cause to search or seize imposes a higher threshold than reasonable suspicion. In the context of an arrest or seizure of an individual, probable cause requires an officer to have knowledge of facts that would lead a reasonably cautious person to believe a crime had been committed and the suspect committed it. Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979) (“This Court has repeatedly explained that probable cause’ to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, the suspect has committed, is committing, or is about to commit an offense.”); Dunaway v. New York, 442 U.S. 200, 208 n.9, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); see Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20-21, 290 P.3d 555 (2012). Probable cause for a search warrant requires that government agents possess specific facts leading a reasonable person to conclude evidence of a crime may be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (search warrant may issue when the supporting affidavit establishes “a fair probability that contraband or evidence of a crime will be found in a particular place”); State v. Bottom, 40 Kan. App. 2d 155, 161, 190 P.3d 283 (2008), rev. denied 287 Kan. 766 (2009). Those standards share the common requirements that a reasonable person be persuaded by particularized facts to believe the determinative proposition—either that the suspect committed a crime or that evidence of a crime may be found in a specific location. But probable cause to search is not interchangeable with probable cause to arrest in the sense that facts supporting a search warrant for a particular place do not necessarily establish criminal conduct on the part of someone with a possessory interest in that place or someone merely present there when the search is carried out. A search warrant alone is not a basis to arrest an individual for a criminal offense. See Zurcher v. Stanford Daily, 436 U.S. 547, 556 & n.6, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978) (pointing out differing legal implications of probable cause supporting a search warrant and probable cause permitting an arrest).
If, however, law enforcement officers have probable cause to arrest a person, they may make a full search of the individual as part of that process. Gant, 556 U.S. at 339; see Thompson, 284 Kan. 763, Syl. ¶ 11. Probable cause to search a person may also be combined with recognized exigent circumstances to permit a full warrantless search of him or her without grounds for an arrest. Vandiver, 257 Kan. at 62; State v. Houze, 23 Kan. App. 2d 336, Syl. ¶ 1, 930 P.2d 620 (“A warrantless search of a person is permissible where there is probable cause for the search and exigent circumstances justify an immediate search.”), rev. denied 261 Kan. 1088 (1997); United States v. Banshee, 91 F.3d 99, 102 (11th Cir. 1996); accord United States v. Robinson, 414 U.S. 218, 227-28, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) (“ ‘A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation.’ ”).
We now apply those principles to McClay’s search of Beltran.
Officers Had No More Than Reasonable Suspicion Beltran Possessed Weapons or Contraband
Based on the record evidence and fully crediting McClay’s testimony, as the district court did, we do not share its conclusion that an officer would have had more than a reasonable suspicion that Beltran possessed a weapon or contraband. Beltran’s late afternoon presence at a house the officers had good reason to believe was the site of ongoing drug dealing cannot itself amount to probable cause to conclude he had a weapon or illegal drugs. Beltran had no particular connection to the house. At the time the officers arrived, they had no basis other than his presence there to assume his involvement in drug trafficking, either as a buyer or seller, or in any other criminal activity. As we explain, Beltran’s evasive conduct, as the search progressed, furnished no more than reasonable suspicion. Courts reviewing comparable circumstances have so concluded.
Under Summers, McClay could have properly detained Beltran while the officers executed the search warrant by looking through the house. But the detention is akin to a Ternj stop in character. It could be no more intrusive or lengthy than necessary to accomplish the officers’ puppose in safely searching the house without undue interference from the persons present. See Bailey, 133 S. Ct. at 1037-43; Summers, 452 U.S. at 702-03.
An experienced narcotics officer might suspect that a person found at a likely drug house during the execution of a search warrant could be armed. See United States v. Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005) (“Because weapons and violence are frequently associated with drug transactions, it is reasonable for an officer to believe a person may be armed and dangerous when the person is suspected of being involved in a drug transaction.”); United States v. McKissick, 204 F.3d 1282, 1293 (10th Cir. 2000) (recognizing that “guns are ‘tools of the trade’ in the distribution of illegal drugs”). The existence of a search warrant shows that law enforcement officers have (at a minimum) sufficient current, reliable information to satisfy a judge that illegal drugs and other contraband or evidence of unlawful activity may be found there. That’s considerably more than an unverified tip or casual observations suggesting a place might be a haven for drug trafficking—limited reconnaissance that likely fails to establish reasonable suspicion for even experienced police officers to stop persons entering or leaving the premises, let alone to search them. United States v. Swindle, 407 F.3d 562, 569 (2d Cir. 2005) (“entering a known drug house alone does not itself suggest a crime is afoot”)- Nonetheless, the courts generally have not equated a person’s presence at the site of drug trafficking to the sort of fact-based reasonable suspicion recognized in Terry as authorizing a pat-down search for weapons. And Ybarra goes further in holding that the probable cause supporting a search warrant does not directly transfer to a person found on tire premises so as to supply reasonable suspicion for a pat-down of the individual without something more. 444 U.S. at 92-93; see United States v. Ritter, 416 F.3d 256, 268-69 (3d Cir. 2005) (Citing Ybarra, the court affirmed the suppression of drugs found on an individual during a pat-down by officers executing search warrant for illegal drugs at a house when they had no particularized reason to conclude the person was armed.); Denver Justice & Peace v. City of Golden, 405 F.3d 923, 929-30 (10th Cir. 2005) (distinguishing the detention of individual permitted by Summers from even a limited search of that person absent particularized reasonable suspicion). In light of that authority, McClay could not have conducted a constitutionally acceptable pat-down of Belt-ran simply based on his presence at the drug house.
If items sought in a search warrant include guns or evidence of violent crimes, the circumstances arguably might be sufficiently different to permit officers to use more intrusive measures in handling anyone on the premises. But even then, the officers could not exceed Terry-type pat-downs in searching persons on the premises. See Muehler v. Mena, 544 U.S. 93, 99-100, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005) (no Fourth Amendment violation when officers handcuffed occupants of house where known gang members lived during execution of search warrant for firearms); Denver Justice & Peace, 405 F.3d at 930-31 (suggesting the possibility that in certain situations officers executing a search warrant for a particular place might constitutionally conduct limited searches of the individuals at the scene based on the nature of the evidence being sought); United States v. Barlin, 686 F.2d 81, 87 (2d Cir. 1982) (Distinguishing Ybarra, the court upheld the search of a handbag belonging to a woman who arrived in the company of two known drug dealers at an apartment being searched pur suant to a warrant that had already yielded firearms and narcotics.). Here, the record indicates the search warrant specified only drugs and related items but not weapons or evidence related to violent crimes.
In the same vein, an experienced narcotics officer could well consider a person’s unexplained presence inside a known drug house to be at least noteworthy and more likely suspicious. But to the extent the courts have considered roughly similar facts, they generally have rejected mere presence as supporting a constitutionally acceptable Terry stop of the individual based on reasonable suspicion of criminal activity. Ybarra, 444 U.S. at 94-95; Ritter, 416 F.3d at 269 & n.12; see Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”). Inferring criminal intentions from mere presence apparently tilts more toward a constitutionally infirm hunch. Here, there was really nothing more at the beginning of tire search. Beltran was there in the late afternoon and had not been seen frequenting the house under unusual circumstances, as, for example, maldng repeated visits lasting only a few minutes each. Nor did he have a documented history of involvement with illegal drugs indicated by rehable informants or criminal convictions. We decline to speculate on what historical information of that type might elevate an individual’s mere presence to a reasonable suspicion of possible criminal activity.
McClay had no legally significant, particularized grounds to consider Beltran to be armed or in possession of contraband when they first encountered each other. To the contrary, McClay properly sought to detain Beltran under the Summers rule applicable to anyone found on premises being searched pursuant to a warrant. The Summers rule requires no individualized cause to detain a person; his or her presence on the premises at the time of the search is legally sufficient in and of itself. Bailey, 133 S. Ct. at 1037-38 (Characterizing the Summers rule as “categorical,” the Court recognizes- detaining an individual on that basis “does not require law enforcement officers to have particular suspicion that an in dividual is involved in criminal activity or poses a specific danger to the officers.”)- Indeed, the rule’s very purpose is to allow law enforcement officers to briefly confine and control individuals occupying a place subject to a search warrant, thereby reasonably facilitating the task of searching when the officers otherwise would have no constitutional basis to do so. See 133 S. Ct. at 1037-43. The rule is one of necessity and imposes (in a limited way) on the freedom of an individual only because of his or her presence in a particular place at a particular time and not because of any specific action or behavior arousing the suspicion of law enforcement officers. In short, the detention becomes constitutionally reasonable because it is attendant to the search of a particular place based on a judicially issued warrant—a proper exercise of government authority expressly recognized in the Fourth Amendment—and has been deemed necessary to accomplish that search. But given that purpose, the imposition necessarily must be a carefully limited one to satisfy the constitutional requirement of reasonableness.
In this case, though, there was more than mere presence as the search unfolded. Beltran did not provide a static backdrop to the officers’ investigation. He deliberately attempted to evade McClay by walking away and refusing to take his hand out of his pocket contrary to the officer’s directions. That conduct also must be taken into account in assessing reasonable suspicion and probable cause. A court should view all of the relevant circumstances collectively in assessing the reasonableness of a search for Fourth Amendment purposes. Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 619, 109 S. Ct. 1042, 103 L. Ed. 2d 639 (1989) (“What is reasonable, of course, ‘depends on all of the circumstances surrounding the search or seizure and tire nature of the search and seizure itself.’ ” [quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S. Ct. 3304, 87 L. Ed. 2d 381 (1985)]); see Sloop, 296 Kan. at 20-21; State v. Sanchez-Loredo, 294 Kan. 50, 55-56, 272 P.3d 34 (2012). So Beltran’s presence at the house should be combined with his evasive actions after McClay entered. But that holistic review doesn’t appreciably advance the prosecution’s cause. The courts have consistently recognized an individuars furtiveness or flight as contributing to reasonable suspicion, though not demonstrating probable cause. Wardlow, 528 U.S. at 124-25 (“evasive behavior” and “unprovoked flight,” especially in a high-crime area, are “pertinent factor[s] in determining reasonable suspicion”); United States v. Navedo, 694 F.3d 463, 474 (3d Cir. 2012) (“unprovoked flight, without more, cannot elevate reasonable suspicion to detain and investigate into the probable cause to arrest”); United States v. Johnson, 620 F.3d 685, 694-95 (6th Cir. 2010) (collecting cases); Jenkins v. City of New York, 478 F.3d 76, 89 n.12 (2d Cir. 2007); United States v. Garcia, 441 F.3d 596, 598 (8th Cir. 2006) (officer had reasonable suspicion for investigatoiy stop when individual left known drug house and “act[ed] in a furtive manner ... concealing something in his pants”); State v. Boyer, 967 So. 2d 458, 471-72 (La. 2007) (officer had reasonable suspicion for pat-down search for weapons when individual at scene of execution of search warrant for drugs refused to comply with an order to remove his hand from his pocket); State v. Talley, 145 N.M. 127, 133-34, 194 P.3d 742 (2008) (refusal to remove hand from pocket in response to officer s order contributed to reasonable suspicion individual might be armed and potentially dangerous).
The Summers rule allowing the detention of Beltran does not enhance the effect of Beltran’s evasive conduct to furnish McClay with 'particularized reasonable suspicion or probable cause over and above what might be reflected in that conduct itself. In other words, Beltran’s presence at the house did not combine synergis-tically with his evasive actions to create some fortified form of particularized reasonable suspicion or probable cause. Apart from triggering the Summers rule, Beltran’s mere presence had little, if any, significance for Fourth Amendment purposes, and his evasive conduct in that context fostered a reasonable suspicion but no more. So the circumstances would have permitted McClary, at most, to conduct a pat-down search of Beltran for weapons.
In some situations, the cumulative effect of a series of actions that individually might appear innocent can foster a reasonable suspicion of criminal conduct just past, actively underway, or in the offing. See Wardlow, 528 U.S. at 125. The Wardlow Court cited the facts of Tem/ as illustrative of just that sort of situation where an experienced detective reasonably suspected an incubating rob bery as a pair of men separately walked by and peered into a store window half a dozen times, conferred between those visits, and met with a third man during a 10- to 12-minute interval. See 528 U.S. at 125. Beltran’s conduct here was not nearly so expansive. He did not engage in concerted actions over an extended period that an experienced law enforcement officer might aggregate into reasonable suspicion or more. He briefly engaged in evasive conduct consisting of walking away from McClay and keeping his hand in his pocket—circumstances that could provoke no more than reasonable suspicion. Had McClay seen Beltran pick up something from the house and place it in his pocket, the facts would move closer to and might substantiate probable cause, especially coupled with his refusal to take his hand out of his pocket and to stay put despite commands to do so. But MClay made no such observation.
The State mentions K.S.A. 22-2509 in a single sentence of its brief as supporting McClay’s search of Beltran for officer safety. The statute, however, really doesn’t advance the State’s position. Enacted in 1970, K.S.A. 22-2509 permits an officer executing a search warrant to “reasonably detain and search any person” found on the premises to “protect himself from attack” or to “prevent the disposal or concealment” of items identified in the warrant. By couching the authority extended to officers in terms of reasonableness, the Kansas Legislature effectively incorporated developing Fourth Amendment jurisprudence into the statute to define permissible conduct.
The Fourth Amendment, as we have noted, prohibits government agents from engaging in “unreasonable searches and seizures” generally. The statute codifies the authority of law enforcement officers to effect searches and seizures in the particular context of executing search warrants. But that statutoiy authority cannot exceed tire limitations on government action imposed in the Fourth Amendment. See Sibron, 392 U.S. at 60-61 (A state “may develop its own law of search and seizure to meet die needs of local law enforcement,” but it “may not authorize police conduct which trenches upon Fourth Amendment rights.”); see State v. Lawson, 296 Kan. 1084, Syl. ¶ 3, 297 P.3d 1164 (2013) (State law may impose greater restrictions on police activity than required to satisfy federal constitutional limitations.); 296 Kan. 1084, Syl. ¶ 4 (“[A] state may not deny, restrict, narrow, or interfere with any of the federally guaranteed constitutional rights.”)- The statute would otherwise be unconstitutional.
K.S.A. 22-2509 was adopted before Ybarra, 444 U.S. 85, and Summers, 452 U.S. 692, and must be applied in conformity with those decisions and other controlling Fourth Amendment precedent. Those rulings give legal meaning to what may be considered reasonable under the statute. The Illinois statute the United States Supreme Court found to have been unconstitutionally applied to search the defendant in Ybarra is virtually identical to K.S.A. 22-2509. Ybarra, 444 U.S. at 87 n.1. So K.S.A. 22-5509 must be similarly construed and cannot confer authority on law enforcement officers executing a search warrant to search anyone found on the premises for weapons absent particularized facts demonstrating reasonable suspicion a given individual is armed and poses a threat. And tiren officers are limited to a pat-down search. As we have discussed, the circumstances here did not establish probable cause to conclude Beltran was armed, a prerequisite to a warrantiess full-body search based on exigent circumstances.
The district court, therefore, erred in concluding the facts known to McClay at the time he reached into Beltran’s pocket established probable cause that Beltran had a weapon or illegal drugs. While McClay could have patted Beltran down, he exceeded the boundaries of a permissible Fourth Amendment search by doing more. The district court, however, buttressed its conclusion by finding, alternatively, that McClay inevitably would have discovered the drugs and money in Beltran’s pocket. We now turn to that secondary basis for the district court’s ruling.
Inevitable Discovery Doctrine Fails to Salvage Search
The inevitable discovery doctrine permits the admission of otherwise unconstitutionally seized evidence if law enforcement officers eventually would have found that evidence without violating the Fourth Amendment. See Nix v. Williams, 467 U.S. 431, 444-47, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984) (adopting doctrine in context of Sixth Amendment violation and noting comparable con siderations in applying inevitable discovery to Fourth Amendment violations); State v. Ingram, 279 Kan. 745, 750, 113 P.3d 228 (2005) (doctrine applied to Fourth Amendment violation); State v. Johnson, 46 Kan. App. 2d 387, 396-97, 264 P.3d 1025 (2011), rev. denied 293 Kan. 1111 (2012); United States v. Crespo-Rios, 645 F.3d 37, 42 (1st Cir. 2011). The prosecution must show by a preponderance of the evidence that the illegally seized objects otherwise would have turned up during the police investigation. Nix, 467 U.S. at 444; Ingram, 279 Kan. at 750. And the means of inevitable discovery must be independent of the police conduct tainting the evidence in the first instance. See Murray v. United States, 487 U.S. 533, 539, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988); 487 U.S. at 544-45 (Marshall, J., dissenting); Crespo-Rios, 645 F.3d at 42 (evidence admissible when its discovery would have occurred “without reference to the police error or misconduct” ’ ”); United States v. Jackson, 596 F.3d 236, 241 (5th Cir. 2010) (doctrine applicable if the evidence inevitably “would have been discovered by lawful means”).
In this case, the district court held that after the officers searching the house found marijuana in the living room, where McClay encountered Beltran, and a bedroom, having no apparent connection to Beltran whatsoever, they inevitably would have discovered the cocaine and money Beltran had in the pocket of his pants. The district court reasoned that the marijuana would have furnished enough additional information to support probable cause, apparently either to search or arrest Beltran, thus leading to the constitutionally permissible discovery of those items. The district court’s reasoning was flawed on that score in light of a string of Kansas appellate court decisions holding that illegal drugs found in the common area of a residence may not, without more, be attributed to a guest or nonresident. See State v. Beaver, 41 Kan. App. 2d 124, Syl. ¶ 6, 200 P.3d 490 (2009); State v. Marion, 29 Kan. App. 2d 287, 290, 27 P.3d 924, rev. denied 272 Kan. 1422 (2001); State v. Cruz, 15 Kan. App. 2d 476, 489, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991); cf. State v. Anthony, 242 Kan. 493, 502-03, 749 P.2d 37 (1988) (noting rule but finding it inapplicable where drug paraphernalia and evidence of trafficking were found in residence where defendant lived alone).
The Beaver court aptly summarized the Kansas authority this way:
“[W]here illicit drugs were found in a residence and where the evidence showed that a defendant was nothing more than a social guest on the premises, the defendant’s mere presence in die home and die defendant’s proximity to the illicit drugs were insufficient to show probable cause to believe diat the defendant was in constructive possession of the illicit drugs.” 41 Kan. App. 2d 124, Syl. ¶ 6.
In that case, law enforcement officers found illegal drugs and drug paraphernalia in plain view on the kitchen table, near where they seized Beaver in the residence. But tire court held that those circumstances were insufficient to establish probable cause to conclude Beaver had actual or constructive possession of the contraband in light of the countervailing facts that he was a social guest rather than a resident, nothing belonging to him was close to or intermingled with the illegal items, he was not known to the officers as a suspected drug trafficker, and he had not otherwise acted suspiciously. Beaver, 41 Kan. App. 2d at 131-32.
The facts here are roughly comparable. Beltran was a visitor to the house and had no apparent connection to the marijuana found there. McClay did not recognize Beltran to be someone law enforcement had already associated with drug trafficking. Based on the information the officers used to get the search warrant, they expected to find illegal drugs in the house when McClay seized Beltran and searched him. So the actual discovery of the marijuana may have confirmed their expectations but didn’t appreciably change their assessment of the overall situation. And Beltran’s evasive conduct alone is not enough to vault those circumstances into probable cause to reasonably conclude he had drugs or contraband in his pocket.
After the officers discovered the marijuana in the living room, Beltran’s evasive actions might have been construed as indicating his knowledge of the marijuana. But, as recognized in Beaver and the other case authority, those actions would not show a possessory interest. As we suggested earlier, Beltran’s conduct did not reflect some direct connection to the marijuana—in contrast to, say, his apparently grabbing something from the general vicinity of the marijuana and then placing his hand in his pocket. Rather, the discovery of the marijuana coupled with the evasive conduct would have given the officers reasonable suspicion for a Terry detention based on Beltran’s possible involvement in criminal activity, allowing them to briefly hold him and ask about his actions. The legal basis for holding Beltran at that point would be different from a Summers detention, since it would rest on a particularized reasonable suspicion in contrast to the categorical ground of simply being present during the execution of a search warrant. But any search of Beltran still would have been limited to a pat-down for weapons—something we have already recognized McClay could have done under Summers in light of Beltran’s refusal to remove his hand from his pocket.
Nothing in the record suggests a properly conducted pat-down would have caused McClay to reasonably mistake the plastic bags and their contents for a weapon or to correctly recognize them to be likely contraband. So the cocaine and money could not be admitted on the grounds that a proper pat-down search inevitably would have revealed them. See Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993) (plain-feel exception allows office to seize object reasonably believed to be contraband based on a constitutionally proper pat-down search); State v. Wonders, 263 Kan. 582, 590, 952 P.2d 1351 (1998) (same); see also United States v. Clay, 483 F.3d 739, 743-44 (11th Cir. 2007) (officer may continue Terry pat-down search if he or she “feels a concealed object that he [or she] reasonably believes may be a weapon”).
The district court erred in concluding the discovery of the marijuana would have sufficiently changed the Fourth Amendment calculus by establishing probable cause and, in turn, leading to the inevitable discovery of the cocaine and money in Beltran’s-pocket. And a pat-down search would not have inevitably revealed the items.
Objectively Reasonable Officer Had Probable Cause to Arrest Belt-ran for Obstruction, Rendering Search Constitutionally Proper
Both the district court’s primary and secondary rationales for upholding McClay s search of Beltran fail. That, however, does not end the inquiry. A district court reaching the right result may be affirmed even though it may have relied on a faulty legal analysis. See State v. Robinson, 293 Kan. 1002, 1025, 270 P.3d 1183 (2012); State v. Shaw, 242 Kan. 127, Syl. ¶ 4, 744 P.2d 824 (1987) (“Where a trial court reaches the correct result based upon the wrong reason, this court will affirm the trial court.”). This is such a case, based on a loose variant of. the district court’s inevitable discovery approach. An objectively reasonable law enforcement officer would have had probable cause to arrest Beltran for obstruction and, in turn, could have searched him incident to that arrest. Because the Fourth Amendment measures the reasonableness of searches and seizures using that objective standard, the search of Beltran was proper even though McClay did not subjectively intend to search him for that reason. We first explain why the facts establish probable cause to arrest and then review how the objective reasonableness standard renders the search acceptable under the Fourth Amendment.
The facts known to McClay at the point he grabbed Beltran and searched his pocket established probable cause for a reasonable law enforcement officer to conclude Beltran had committed the crime of obstruction in violation of K.S.A. 21-3808, the statute then in effect. As-provided in K.S.A. 21-3808(a), a person commits that offense by “obstructing, resisting, or opposing any person authorized by .law to. serve process in the service .or execution [of] any .. . warrant..... or in the discharge of any official duty.” The statute applies when law enforcement officers, execute a search warrant. State v. Seabury, 267 Kan. 431, 438, 985 P.2d 1162 (1999). The offense is tiren a misdemeanor, although obstructing law enforcement officers in other situations may be a felony. See K.S.A. 21-3808(b)(1), (2); Seabury, 267 Kan. at 438. The sort of conduct violating the statute has been broadly defined. State v. Lee, 242 Kan 38, 40, 744 P.2d 845 (1987). The classic characterization of the offense appears in State v. Merrifield, 180 Kan. 267, 270, 303 P.2d 155 (1956):
“The statute does not limit the offense to resistance alone. It includes also willful acts of obstruction or opposition, and to obstruct is to interpose obstacles or impediments, to hinder, impede or in any manner interrupt or prevent, and this term does not necessarily imply the employment of direct force, or the exercise of direct means. It includes any passive, indirect or circuitous impediments to the service or execution of process[.]”
See State v. Parker, 236 Kan. 353, 361, 690 P.2d 1353 (1984) (identifying Merrifield as the leading Kansas case on obstruction). The conduct, however, must have “substantially hindered or increased the burden of the officer” in cariying out the official task or duty at hand, so verbal criticism of the officer would likely not violate the statute. See Parker, 236 Kan. at 364.
Disregarding a law enforcement officer’s order to stop may violate K.S.A. 21-3808(a). See State v. Dugan, 47 Kan. App. 2d 582, 603, 276 P.3d 819 (2012); State v. Little, 116 Wash. 2d 488, 497-98, 806 P.2d 749 (1991). Similarly, refusing to obey an officer’s order to keep one’s hands in plain sight may support an obstruction charge. See Edwards v. State, 253 Ga. App. 837, 839, 560 S.E.2d 735 (2002) (refusal to remove hands from pockets in response to police command during encounter at site of suspected drug trafficking furnished probable cause to arrest for obstruction); State v. Hodges, 631 N.W.2d 206, 211 (S.D. 2001) (individual’s refusal to obey police commands to stop and to place hands in sight provided probable cause to arrest for obstruction); State v. Contreras, 92 Wash. App. 307, 315-17, 966 P.2d 915 (1998) (individual’s refusal to keep hands on dashboard and visible to officer during car stop would support arrest for obstruction, especially combined with refusing to then get out of the car and later giving a false name). Where, as here, an individual refuses to comply with those sorts of commands during the execution of a search warrant, probable cause to arrest for obstruction seems apparent.
Based on the undisputed facts, McClay clearly announced both his status as a sheriff s deputy—something that was also obvious from his dress and badge—and his purpose in entering the house. Under Summers, McClay also had die legal authority to detain Beltran to enhance officer safety and to facilitate the search. As the Kansas caselaw establishes, an individual need not physically oppose a law enforcement officer, in the sense of committing a civil or criminal battery, to be guilty of obstruction. Rather, the individual must in some material way oppose or impede the officer in canying out an official duty, here the execution of the warrant. Beltran’s refusal to stop and stay put alone was enough. Officers cannot effectively search a building if the occupants can move about with the freedom to hide or destroy potentially incriminating evidence. When Beltran disobeyed a direct order to display his hand, he only escalated the impediment. McClay was legitimately concerned that Beltran might be holding a handgun or another weapon. That uncertainty, cutting to the core of officer safety, interfered with McClay s ability to readily and efficiently search the house. For what seem to be obvious reasons, McClay chose not to allow the uncertainty to persist. He quickly intervened so he could see Beltran’s hand.
An able defense lawyer might argue that given the brevity of Beltran’s evasive actions in refusing to stop and to remove his hand from his pocket, the conduct failed to “substantially hinder” McClay. And we suppose a jury could agree depending on the full range of evidence at trial. But that isn’t the issue here. The controlling issue is whether the facts would lead a reasonably prudent person to believe a crime had occurred, i.e., was there probable cause to find Beltran had unlawfully obstructed McClay? On that point, we comfortably conclude the record evidence—McClay’s uncontroverted description of his encounter with Beltran—is good enough.
So we find that an objectively reasonable officer standing where McClay stood would have had probable cause to arrest Beltran for obstruction in violation of K.S.A. 21-3808(a). See Devenpeck v. Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004) (“Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.”). Based on his testimony at the suppression hearing, McClay didn’t size things up that way. He testified that in his opinion he hadn’t seen Beltran commit a crime.
As Fourth Amendment law has developed, at least since Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), McClay’s mistaken opinion is irrelevant. This court’s legal analysis of the undisputed facts rests on two related considerations: how an objectively reasonable law enforcement officer would have treated those facts; and the effect that treatment of McClay’s actions would have on Beltran’s Fourth Amendment rights. See Devenpeck, 543 U.S. at 153; Bond v. United States, 529 U.S. 334, 338 n.2, 120 S. Ct. 1462, 146 L. Ed. 2d 365 (2000); Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (The Court points out that “the normal test” under the Fourth Amendment considers “whether probable cause existed to justify the stop.”); Terry, 392 U.S. at 21-22 (In assessing the propriety of a search under the Fourth Amendment, a court must apply an objective standard to the facts, asking whether a police officer of “reasonable caution” would find the actions appropriate.). The Court has explained that “the subjective intent of the law enforcement officer is irrelevant in determining whether that officer’s actions violate the Fourth Amendment.” Bond, 529 U.S. at 338 n.2. What matters “is not [the officer’s] state of mind, but the objective effect of his [or her] actions.” 529 U.S. at 338 n.2.
The Whren Court addressed mixed-motive traffic stops, a somewhat different Fourth Amendment problem. There, detectives in plainclothes initiated a car stop for a minor traffic violation for which they had sufficient probable cause. But their real interest was to search the occupants and the vehicle for illegal drugs. The Court found no constitutional violation because the stop was based on genuine probable cause, although the officers had an ulterior objective. The Whren decision rests on the accepted proposition that an officer’s subjective state of mind does not drive Fourth Amendment analysis—a proposition equally applicable here. Whren, 517 U.S. at 812-13. Accordingly, “ ‘[s]ubje,ctive intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional.’ ” 517 U.S. at 813 (quoting Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 56 L. Ed. 2d 168 [1978]).
In Devenpeck, the Court repeated its often-stated articulation of the objective standard governing Fourth Amendment analysis: “ ‘ “[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” ’ ” 543 U.S. at 153 (quoting Whren, 517 U.S. at 813. Applied here, the rule would effectively say that although McClay did not entertain the idea he had probable cause to arrest Beltran for obstruction and then to search his pocket as part of that arrest, the search was valid nonetheless because the circumstances actually justified such a search.
Although Devenpeck was a civil suit in which Alford sought damages on the grounds he had been unlawfully seized, liability turned on whether the officers violated the Fourth Amendment when they arrested him for what amounted to a nonexistent offense even though the facts, as accepted for purposes of review, established probable cause to arrest for unrelated crimes. The Court held there was no constitutional violation because “[o]ur cases make clear that an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.” 543 U.S. at 153. Alford was arrested and charged with a criminal violation of Washington’s antieavesdropping statute for tape recording part of his encounter with the officers—an interpretation of diat law tire state’s appellate courts already had unequivocally rejected. A state court dismissed the charge against Alford, and he sued for damages. But the facts demonstrated probable cause that Alford had impersonated a law enforcement officer and had obstructed Devenpeck and his partner during their encounter. The Court found no Fourth Amendment violation although Alford had never been arrested or charged with impersonating an officer or with obstruction. 543 U.S. at 153. The Court held that an officer’s “subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” 543 U.S. at 153.
The Court explained that a contrary rule would make the protections of the Fourth Amendment “arbitrarily variable,” depending upon the ability of the arresting officer to identify the crime that fits the facts. 543 U.S. at 153-54. According to the Court, that would tend to insulate the actions of a “veteran officer” who, based on his or her experience, would be better able than a rookie to identify or label the facts as supporting some “general class of offenses for which probable cause exists.” 543 U.S. at 154. In turn, the Fourth Amendment might apply or not in essentially identical factual circumstances based only on an officers ability to affix the proper label to those facts, a result the Court deemed unacceptable. See 543 U.S. at 154-56 (Court provides examples of such unacceptably differing outcomes drawn from facts of Devenpeck). In short, the “[s]ubjective intent of die arresting officer ... is simply no basis for invalidating an arrest.” 543 U.S. at 154-55. So “[t]hose are lawfully arrested whom the facts known to the arresting officers give probable cause to arrest.” 543 U.S. at 155.
If, as Devenpeck recognizes, an arrest for a nonexistent crime may be salvaged for Fourth Amendment purposes because the facts support probable cause to arrest for an actual crime, then the same result should hold here, where McClay failed to recognize and label the crime of obstruction. And it follows that the search of Beltran doesn’t turn into a Fourth Amendment violation because of McClay’s subjective failure to identify or announce the basis for an arrest.
Indeed, the United States Supreme Court has consistently rejected a standard that would absolve law enforcement officers of Fourth Amendment violations when they subjectively believe in good faith, though quite mistakenly, the circumstances permit them to search or seize an individual. United States v. Leon, 468 U.S. 897, 918-20 & n.20, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (expressly reiterating subjective good faith to be inapplicable in Fourth Amendment analysis); Terry, 392 U.S. at 22; see United States v. Perea-Rey, 680 F.3d 1179 (9th Cir. 2012) (“[T]he Supreme Court has unequivocally disallowed reliance on the good faith or subjective beliefs of officers as part of the analysis of whether they violated the Fourth Amendment.”). With a subjective standard, a court would be obligated to 'disregard a genuine constitutional violation because an officer held a good-faith belief he or she arrested and searched an individual with probable cause, no matter how unreasonable that conclusion might be. The Court’s objective test eliminates that possibility by removing the officer s subjective assessment of the facts and his or her intent from the determination of reasonableness for Fourth Amendment purposes. But an objective standard, measured by the hypothetical reasonable law enforcement officer, cuts the other way as well. So if the actual officer incorrectly, though in good faith, believes he or she lacks probable cause to arrest (and, thus, to search incident to that arrest), that mistaken opinion doesn’t figure into a court’s Fourth Amendment analysis. The court, rather, must turn to the objectively reasonable officer for analytical purposes. And if that officer would have understood there was probable cause to arrest and to constitutionally search tire subject, the resulting evidence should not be suppressed.
Consistent with Terry, courts have regularly applied this principle in determining if tire facts support a stop based on reasonable suspicion. That is, the court asks whether an objectively reasonable officer would have formed that degree of suspicion based on the facts and, therefore, would have stopped and questioned tire individual. See United States v. Barnett, 505 F.3d 637, 639-40 (7th Cir. 2007) (citing Devenpeck, 543 U.S. at 153); United States v. Lopez-Moreno, 420 F.3d 420, 432 (5th Cir. 2005); United States v. Brown, 232 F.3d 589, 594 (7th Cir. 2000); United States v. McKie, 951 F.2d 399, 402 (D.C. Cir. 1991). The subjective reasoning of the officer malting the stop is constitutionally beside the point. The McKie court well stated the analytical standard this way:
“The Terry standard being one of objective reasonableness, we are not limited to what tire stopping officer says or to evidence of his subjective rationale; rather, we look to the record as a whole to determine what facts were known to the officer and then consider whether a reasonable officer in those circumstances would have been suspicious. [Citations omitted.]” McKie, 951 F.2d at 402.
Probable cause to arrest is likewise judged using objective reasonableness and, therefore, is measured in that same way. The District of Columbia Circuit Court of Appeals so held in United States v. Bookhardt, 277 F.3d 558, 560 (D.C. Cir. 2002), finding “if a police officer arrests a defendant on a ground that later proves invalid, tire arrest is nonetheless lawful if the same officer had probable cause to arrest the defendant for a different offense.” In that case, the appellate court found a search incident to an arrest to be constitutionally acceptable because the facts demonstrated probable cause for a reckless driving offense even though the driver s license violation on which tire officer actually relied turned out to be a civil infraction rather than a crime.
Although decided on an inevitable discovery argument, the Kansas Supreme Court’s opinion in State v. Ingram, 279 Kan. 745, 113 P.3d 228 (2005), lends substantial support both legally and factually to the same conclusion. A police officer stopped Ingram because he closely matched the description of a person wanted for a stabbing that happened earlier that morning. The officer then saw blood and other signs that Ingram had recently been in a fight. He instructed his back-up officer to handcuff Ingram and to check his pockets. The search of Ingram’s pockets turned up crack cocaine. The officer told Ingram he was under arrest for possession of drugs. Ingram was initially charged with felony drug possession; some weeks later, the prosecutor added an aggravated batteiy charge related to tire stabbing. Ingram filed a motion to suppress the drugs contending the officers lacked any constitutionally acceptable basis to search his pockets. The court held that the facts established probable cause to have arrested Ingram for aggravated battery. The court noted that circumstances must be viewed “from the standpoint of an objectively reasonable police officer.” 279 Kan. at 752. And “whether the officers themselves believed they had probable cause is not determinative” of that issue. 279 Kan. at 752. On that basis, the court concluded that the drugs inevitably would have been discovered after Ingram had been taken to the law enforcement center where he would have been booked on the aggravated batteiy charge and then searched. 279 Kan. at 753. The court did not consider the search-incident-to-arrest exception to the warrant requirement as a ground rendering the actual search of Ingram proper, although that would have been entirely compatible with the objective test it outlined.
We mention an arguably contrary decision from this court. A Court of Appeals panel granted a motion to suppress in State v. Schmitter, 23 Kan. App. 2d 547, 554-55, 933 P.2d 762 (1997), in part, because the officer testified he searched Schmitter during a traffic stop to find some form of identification, a constitutionally infirm justification. The officer had stopped the car, in which Schmitter was a passenger, for. illegally turning without a proper signal. Neither Schmitter nor the driver wore a seat belt, a separate traffic offense. The officer testified that he would have issued a warning or a citation for the seat belt violation and decided to make an arrest only after the search turned up illegal drugs in Schmitter’s pocket. The State argued that the seat belt violation was a general misdemeanor under K.S.A. 21-3105 and would have supported an arrest of Schmitter. The court declined to rule on that legal assertion, 23 Kan. App. 2d at 556, although it appears to be correct, and concluded the search could not be justified on that basis because “the officer had no intention of arresting Schmitter for failure to wear a seat belt.” 23 Kan. App. 2d at 555. That aspect of Schmitter has been overtaken by more recent Fourth Amendment authority looking at what an objectively reasonable officer would do under the circumstances. See Devenpeck, 543 U.S. at 153. The United States Supreme Court has also since held that an officer’s search incident to an arrest based on probable cause will be upheld as reasonable under the Fourth Amendment even if state law would not have authorized an arrest for die particular offense. Virginia v. Moore, 553 U.S. 164, 167, 176, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008) (search following arrest for driving with a suspended license based on probable cause comports with Fourth Amendment even though Virginia law required issuance of a summons for offense except in unusual and factually inapplicable circumstances); see Atwater v. City of Lago Vista, 532 U.S. 318, 323, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001) (no Fourth Amendment violation in arresting driver for failing to wear seat belt, even though offense punishable by only a fine under Texas law).
Applying the objective test here, McClay had probable cause to arrest Beltran for obstruction when Beltran refused the orders to stop and to take his hand out of his pocket—even though McClay didn’t recognize the legal import of the situation. The facts measured objectively then supported McClay’s action in reaching into Beltran’s pocket as a constitutionally acceptable search incident to an arrest based on probable cause. In turn, the search did not violate the Fourth Amendment, and the cocaine and money should be admissible.
The issue in the suppression hearing was whether Beltran’s Fourth Amendment right to be free of an unreasonable search had been violated. Using an objective standard, there was no violation. To suppress the evidence in this case would neither recognize nor remedy a Fourth Amendment violation so much as punish the State for a law enforcement officer s shortsighted legal assessment of the circumstances leading up to the search. The Supreme Court has refused to endorse Fourth Amendment analyses that would apply those constitutional protections in irregular, if not capricious, ways dependent upon how the officers involved subjectively viewed the relevant events. See Devenpeck, 543 U.S. at 156 (protections of the Fourth Amendment would be intolerably “haphazard” if the result turned on which of two officers effected an arrest where they had differing suspicions about the proper charges); Whren, 517 U.S. at 814-15 (“[T]he Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever tire subjective intentf,]” and to do otherwise would render the protections against unreasonable searches and seizures unacceptably “variable.”). Had the Reno County Sheriff sent tire “objectively reasonable deputy” along to help execute the search warrant, Beltran would be in exactly the same predicament he now finds himself. That deputy would have discerned probable cause to arrest Beltran for obstruction. He would have done so and then dutifully undertaken a full search of Beltran yielding the cocaine and money, all within the strictures of the Fourth Amendment. The outcome cannot and should not be any different because McClay was there without that assistance.
What This Case Is Not About
The result also seems appropriate because Beltran had been lawfully seized or detained based on die Summers rule. The search itself did not extend the detention, since the officers were still looking for evidence in the house. So the search was not arguably tainted in some way because it piggybacked on an illegal seizure, a circumstance that would implicate fruit-of-the-poisonous-tree concerns. See United States v. Jackson, 682 F.3d 448, 453 (6th Cir. 2012) (traffic stop constitutes seizure under Fourth Amendment; evidence obtained during illegal traffic stop must be suppressed); United States v. Villa-Gonzalez, 623 F.3d 526, 535 (8th Cir. 2010) (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 [1963]).
Under the objective standard, it doesn’t really matter that Belt-ran was never formally arrested for or charged with obstruction, as Devenpeck recognizes. The United States Supreme Court’s decision in Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998), does not point to a different result. In that short decision, the Court held that an Iowa statute allowing a law enforcement officer to search a motor vehicle if he or she issued a traffic citation to the driver violated the Fourth Amendment. In so ruling, tire Court brushed aside the rationale of the Iowa Supreme Court that the officer had the statutory authority to make an arrest, rather than issue a citation, so the car could have been searched incident to an arrest. The Court never directly discussed that rationale but essentially recognized the Fourth Amendment does not permit a motor vehicle search incident to a traffic citation, since that situation fails to implicate officer safety or the need to preserve evidence to the same degree as an arrest would. 525 U.S. at 116-19. The circumstances here are not analogous. Unlike the Iowa motorist, Beltran was otherwise lawfully detained under the Summers rule and then engaged in conduct that not only amounted to a criminal offense but particularly implicated possible concealment of a weapon and, thus, heightened concerns about officer safety. The Iowa driver did nothing that would have amounted to probable cause to arrest him for any criminal offense. And we are concerned with a search of Beltran based on that probable cause to arrest, rather than a search of his car.
To the extent Knowles could be read to suggest the search-incident-to-arrest exception to the warrant requirement cannot apply in the absence of any arrest, the facts here are otherwise as well. See 3 LaFave, Search and Seizure § 5.4(a), p. 252 (5th ed. 2012) (.Knowles “seems only to say” the exception “is inappropriate absent any contemporaneous arrest”). Beltran was arrested for pos session of the cocaine. The actual arrest, of course, was predicated on the search of his pocket and its illicit contents, rather than the other way around. But that doesn’t negate the justifications for upholding a search when the objectively reasonable-officer test establishes independent probable cause to arrest before the search. Assuming there is some requirement for an actual arrest, those justifications should prevail even though the stated grounds for the arrest fail to stand up legally—a result consistent with Devenpeck, where the arrest was for a nonexistent crime, and with Moore, where the arrest was based on an infraction that mandated issuance of a citation. In Bookhardt, a case decided before Devenpeck, the District of Columbia Circuit held Knowles inapplicable precisely because a law enforcement officer made an arrest, although on grounds that later proved invalid. The court upheld the incident search because the facts established probable cause to arrest for another offense. Bookhardt, 277 F.3d at 566-67.
Neither is the Fourth Amendment so formulaic that the search must precede a formal arrest, if the two are roughly contemporaneous. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); United States v. Torres-Castro, 470 F.3d 992, 997 (10th Cir. 2006). A search will be upheld so long as “there [is] a legitimate basis for the arrest prior to the search.” 470 F.3d at 997; see United States v. McKissick, 204 F.3d 1282, 1296 (10th Cir. 2000) (search before arrest constitutionally acceptable if “ ⅛ legitimate basis for the arrest existed before the search’ ” and “ ‘the arrest followed shortly after the search’ ”) (quoting United States v. Anchondo, 156 F.3d 1043, 1045 [10th Cir. 1998]). That the legitimate basis for the arrest may be different from the stated grounds is immaterial in light of Devenpeck and the objectively reasonable officer standard. 3 LaFave, Search and Seizure § 5.4(a), p. 252 (“[A] Devenpeck-style reliance on probable cause of another offense seems just as legitimate regarding a post-search arrest as it unquestionably is for a pre-search arrest.”).
The legal sufficiency of the stated grounds for Beltran’s arrest and the timing of that arrest impose no Fourth Amendment bar to the search and seizure in this case. What we have said doesn’t resolve the (possible) Knowles corollary that a search may be con stitutionally unacceptable when no arrest for any offense has been made even if the facts establish objectively reasonable grounds for probable cause to arrest for some offense. That issue belongs to another case directly presenting it.
Conclusion
The facts establish probable cause for a reasonable officer to have arrested Beltran for obstruction, rendering the search of his pocket constitutionally unobjectionable as an incident of arrest in conformity with the recognized exception to the warrant requirement of the Fourth Amendment. In the absence of a Fourth Amendment violation, the district court reached the correct result in denying Beltran’s motion to suppress. The cocaine was properly admitted at trial, and Beltran was duly convicted.
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Green, J.:
Robert E. Snover appeals from his jury trial convictions of nonresidential burglary, theft, and criminal damage to property. On appeal, Snover makes the following arguments: (1) that the State failed to present sufficient evidence on each alternative means to support a unanimous juiy decision for his criminal damage to property conviction; (2) that foe State failed to present sufficient evidence on each alternative means to support a unanimous jury decision for his theft conviction; (3) that foe trial court erred in instructing the jury that it could consider the “degree of certainty” demonstrated by foe witness at the time she identified him; and (4) that foe trial court unconstitutionally used his criminal history to increase his sentence without proving it to a jury. We disagree with Snover s arguments. Accordingly, we affirm the judgment of the trial court.
On the night'of January 29,2010, and in the early morning hours of January 30, 2010, Snover, Joshua Slocum, and Doran Wormell drove to Pome on the Range, an orchard in Franklin County, Kansas. Once Slocum, Snover, and Wormell arrived at the orchard, drey drove to a shed on the property. Because the shed was locked with a padlock, Slocum returned to his truck to retrieve a pair of bolt cutters. Once the three men were inside the shed, they took some items, placed them in Slocum’s truck, and left.
Slocum, Snover, and Wormell took the items to Ottawa, Kansas, where diey cleaned and refurbished them. Next, the three men went to Wormell’s ex-girlfriend’s residence to pick up a different vehicle. The men planned to use the vehicle to take some of die items to Quenemo, Kansas, to sell. On the way to Quenemo, the vehicle the three men were using broke down. Slocum then called his friend Desiree Blanton to pick them up. Once Blanton arrived, Wormell and Slocum left with Blanton while Snover stayed behind so he could tiy to fix the vehicle.
Later, the men’s plan was discovered by law enforcement and Snover was arrested and charged widi nonresidential burglary, theft, and criminal damage to property. At trial, Blanton testified that she recognized Snover as one of the men at the vehicle where she picked up Wormell and Slocum.
The jury found Snover guilty of nonresidential burglary, theft, and criminal damage to property. Snover received a controlling prison sentence of 29 months with 12 months of postrelease supervision.
Did the Aiding and Abetting Instruction Given by the Trial Court Create an Alternative Means for Committing the Crime of Criminal Damage to Property P
Snover first argues tiiat his conviction for criminal damage to property must be reversed because the aiding and abetting instruction given at trial created alternative means, and the State had failed to present sufficient evidence that he acted as a principal. In particular, Snover maintains that “the State presented absolutely no evidence to suggest that Mr. Snover intentionally. . . damaged, destroyed, or substantially impaired the use of the padlock himself.”
Alternative means essentially entail materially different ways of committing a particular crime based on the statutory definition or elements of the offense. In an alternative means case, the State is not required to elect one means or another when presenting its case to the jury or when requesting juiy instructions. State v. Stevens, 285 Kan. 307, 309, 172 P.3d 570 (2007). Nevertheless, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Wright, 290 Kan. at 202. This safeguard prevents a jury, partially or wholly, from reaching a finding of guilt based on insufficient evidence. As a matter of law, when the State provides inadequate evidence for a reasonable factfinder to reach guilt through a certain means, a conviction must be reversed. Wright, 290 Kan. at 203.
Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. Wright, 290 Kan. at 202 (quoting State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 [1994]). In reviewing an alternative means case, the court must determine if a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. Wright, 290 Kan. at 202.
In a challenge to the sufficiency of the evidence, we are guided by the following standard of review:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
Moreover, in determining if there is sufficient evidence to support a conviction, an appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009). A guilty verdict will be reversed only in the rare case where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt. State v. Matlock, 233 Kan. 1, 5-6, 660 P.3d 945 (1983).
The State’s complaint/information charged Snover as follows:
“That on, about, or between 30th day of January, 2010 and the 31st day of January, 2010, in the County of Franklin, State of Kansas, ROBERT E. SNOVER did then and there unlawfully and intentionally by means other than fire or explosive, injure, damage, mutilate, deface, destroy, or substantially impair the use of property, to-wit: padlocks to the extent of less than $1,000.00, in which another person had an interest, to-wit: Mike Gerhardt (a.k.a. Leland Gerhardt), without the consent of such person or business, a class B non-person misdemeanor, in violation of K.S.A. 21-3720(a)(1) and K.S.A. 21-4502(1)(b).”
Accepting the earlier stated alternative means concepts, we first must determine if this case truly presents an alternative means issue. If the statute that penalizes criminal damage to property— K.S.A. 21-3720—does not provide for more than one way to commit the crime, jury unanimity is not at issue and alternative means analysis is inapplicable. This issue involves statutory interpretation. Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
When Snover was charged, the crime of criminal damage to property was provided under K.S.A. 21-3720. In pertinent part, the statute states as follows:
“(a) Criminal damage to property is by means other than by fire or explosive:
(1) Intentionally injuring, damaging, mutilating, defacing, destroying, or substantially impairing tire use of any property in which another has an interest without the consent of such other person; or
(2) injuring, damaging, mutilating, defacing, destroying, or substantially impairing tire use of any property with intent to injure or defraud an insurer or lienholder.”
The State charged Snover under K.S.A. 21-3720(a)(1) of the statute.
K.S.A. 21-3720 presents alternative means because it creates two or more ways of committing the crime of criminal damage, to property. For instance, the statute describes markedly different acts: (1) criminal damage to property—without consent or (2) .criminal damage to properly—with intent to defraud an insurer or lien-holder. Yet, Snover does not make an alternative means argument under tírese statutory examples. Instead,. Snover argues that the aiding and abetting instruction given at trial created an alternative means for committing the crime of criminal damage to property.
Yet, the aiding and abetting statute, K.S.A. 21-3205(1), does not define a separate crime: “A person is criminally responsible for a crime committed by another person if such person intentionally aids, abets, advises, hires, counsels or procures tire other to commit the crime.” See State v. Robinson, 293 Kan. 1002, 1038, Syl. ¶ 22, 270 P.3d 1183 (2012) (“Aiding and abetting is not a separate crime in Kansas.”). As a result, K.S.A. 21-3205(1) merely “explains the circumstances under which a person may be criminally responsible for a crime committed by another person.” State v. Johnson, 46 Kan. App. 2d 870, 885, 265 P.3d 585 (2011). Moreover, our Supreme Court explained the well-established rule that one who has been charged as a principal may be convicted on evidence showing that he or she has merely aided and abetted the commission of the offense:
“It is well settled that all participants in a crime are equally guilty without regard to the extent of their participation, and .. . any person who counsels, aids or abets in the commission of an offense may be charged, tried and convicted in the same manner as though he were a principal. [Citation omitted.]” State v. Cunningham, 236 Kan. 842, 846, 695 P.2d 1280 (1985).
Although this court in State v. Boyd, 46 Kan. App. 2d 945, 268 P.3d 1210 (2011), petition for rev. filed January 23, 2012, recently held that aiding and abetting creates an alternative means for committing the crime charged, we disagree. Here, Snover was charged with criminal damage to property as a principal. He was not charged as an aider and abettor. The trial court then instructed the jury on both principal liability and aider and abettor liability. Thus, the issue is not whether Snover committed the crime in a different way, i.e., by aiding and abetting, but whether he committed the crime at all, albeit by participation.
In the absence of direct authority, we draw guidance from a decision by the Supreme Court of Washington—the same court our own Supreme Court relied on in State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994), for the alternative means doctrine. In State v. McDonald, 138 Wash. 2d 680, 687, 981 P.2d 443 (1999), the Washington Supreme Court held “principal and accomplice liability are not alternative means of committing a single offense.” The court noted its own cases “have turned . . . upon alternative means of principal liability: for example, premeditated murder and felony murder as alternative means.” 138 Wash. 2d at 687.
The Washington Supreme Court reasoned that extending the alternative means doctrine to “accomplice liability” would “contradict our holdings” concerning “the emptiness of any distinction between principal and accomplice liability.” 138 Wash. 2d at 687-88. As one example of such holdings, the Washington Court had held: “ ‘[A] verdict may be sustained upon evidence that the defendant participated ... as an aider or abettor, even though he was not expressly accused of aiding and abetting and even though he was the only person charged in tire information.’ [Citation omitted.]” 138 Wash. 2d at 688.
The same could be said of Kansas Supreme Court precedent. Applying alternative means doctrine here contradicts the well-settled law of our Supreme Court regarding criminal liability. Consequently, we hold that the aiding and abetting statute, K.S.A. 21-3205(1), does not enumerate one or more ways of committing a single offense. Thus this statute does not create an alternative means for committing criminal damage to property. Moreover, we determine that the evidence of Snover’s liability as an aider and abettor was sufficient to convict him for criminal damage to property.
Does Kansas’ Statutory Definition of “Obtaining” or “Exerting Control” Create Alternative Means for Committing the Crime of Theft?
Next, Snover argues that K.S.A. 21-3701(a)(1) provides alternative means by which the crime of theft can occur. Specifically, Snover maintains that “[obtaining unauthorized control over property and exerting unauthorized control over property constitute ‘more than one way’ to commit ‘a single offense,’ and thus constitute two alternative means of committing a crime.” On the other hand, the State argues that “obtaining” and “exerting” are indistinguishable in proving unauthorized control.
Jury unanimity is statutorily required in Kansas. K.S.A. 22-3421; State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010). In an alternative means case, the State is not required to elect one means or another when presenting its case to the jury or when requesting jury instructions. State v. Stevens, 285 Kan. 307, 309, 172 P.3d 570 (2007). Nevertheless, where a single offense maybe committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Wright, 290 Kan. at 202. This safeguard prevents a jury, partially or wholly, from reaching a finding of guilt based on insufficient evidence. As a matter of law, when the State provides inadequate evidence for a reasonable factfinder to reach guilt through a certain means, a conviction must be reversed. Wright, 290 Kan. at 203.
“Unanimity is not required, however, as to the means by which tire crime was committed so long as substantial evidence supports each alternative means.” Wright, 290 Kan. at 202 (quoting State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 [1994]). “In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.” Wright, 290 Kan. at 202.
Accepting these alternative means concepts, we first must determine if this case truly presents an alternative means issue. The State maintains that it does not. If the statute that penalizes theft, K.S.A. 21-3701(a)(1), does not provide for more than one way to commit the crime, jury unanimity is not at issue and alternative means analysis is inapplicable. This issue involves statutory interpretation. Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Alternative'means essentially involves materially different ways of committing a crime based on the elements or statutory definition of the crime. If a criminal statute creates two or more distinct ways of committing the crime, those ways reflect alternative means. State v. Schreiner, 46 Kan. App. 2d 778, Syl. ¶ 1, 264 P.3d 1033 (2011), petition for rev. filed December 5, 2011. Other criminal statutes establish only one way to commit an offense. 46 Kan. App. 2d 778, Syl. ¶ 1. For example, when a criminal statute uses synonyms to describe the same conduct, the synonyms do not form an alternative means for committing a crime. State v. Rollins, 46 Kan. App. 2d 17, 22, 257 P.3d 839 (2011), rev. denied February 17, 2012 (“There is no quantifiable difference between the actions that constitute obtaining or exerting; these words create a distinction without a difference .... Consequently, this is not an alternative means case.”); see also State v. Fawl, No. 103,004, 2011 WL 4563067 (Kan. App. 2011) (unpublished opinion), petition for rev. filed October 31, 2011.
Moreover, we are guided in this inquiry by another case that has considered whether “obtaining or exerting control” creates an alternative means for committing the crime of theft. In State v. Polk, No. 105,011, 2012 WL 1237880 (Kan. App. 2012), petition for rev. filed April 27, 2012, this court furnished an additional reasoning why “obtaining or exerting control” does not create an alternative means for committing the crime of theft. The Polk court considered the legislature’s definition of “obtaining or exerting control” under K.S.A. 2010 Supp. 21-3110(13), which states: “ ‘Obtains or exerts control’ over property includes but is not limited to, the taking, carrying away, or the sale, conveyance, or transfer of title to, interest in, or possession of properly.”
The Polk court held that there cannot be a difference between “obtains control” and “exerts control” since the legislature defined them to mean the same thing. We agree.
For the foregoing reasons, K.S.A. 21-3701(a)(1) does not present an alternative means issue. Consequendy, we find that Snover’s alternative means argument fails.
Was the Trial Court’s Use of the Phrase “Degree of Certainty” under Its Eyeioitness Identification Instruction ErroneousP
Snover next argues that the trial court erred in instructing the jury that it could consider Blanton’s “degree of certainty” when it weighed the reliability of Blanton’s eyewitness identification testimony. Specifically, Snover maintains “[bjecause scientific evidence demonstrates that an eyewitness’ confidence in . an identification has veiy little to do with the accuracy or reliability of that identi fication, the district court in the present case erred in instructing tire jury otherwise.”
Snover did not object to the trial court’s use of the “degree of certainty” language in the jury instructions. Thus, the applicable standard of review for us is clearly erroneous:
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly tire matter to which the party objects and tire grounds of the objection unless the instruction or tire failure to give an instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of tire jury.” K.S.A. 22-3414(3).
“Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the error had not occurred.” State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007). Thus, Snover’s argument will be successful only if he can show that the jury would have rendered a different verdict if the trial court had not given the identification instruction.
The jury instruction that Snover complains of on appeal reads as follows:
“This is a rather lengthy instruction on eyewitness identification. The law places tire burden upon the State to identify the defendant. The law does not require the defendant to prove he has been wrongly identified. In weighing the reliability of eyewitness identification testimony, you first should determine whether any of the following factors existed, and if so, the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are: ... 6. The degree of certainty demonstrated by the witness at the time of any identification of the accused.”
Snover contends that “[djespite its inclusion in PIK 52.20, ‘[t]he degree of certainty demonstrated by the witness at the time of any identification of the accused’ is actually a factor that, ‘at times,’ inversely correlates with the accuracy of a witness’ identification. [Citation omitted.]”
Our Supreme Court recently held that “the witness certainty factor in PIK Crim. 3d 52.20 should no longer be used because it prompts the juiy to conclude that eyewitness identification evidence is more rehable when the witness expresses greater cer tainty.” State v. Mitchell, 294 Kan. 469, 471, 275 P.3d 905 (2012); see also State v. Anderson, 294 Kan. 450, Syl. ¶ 2, 276 P.3d 200 (2012) (error to instruct jury on degree of certainty factor). In this case, the trial court’s eyewitness identification instruction followed PIK Crim. 3d 52.20 and therefore included die degree of certainty factor. Thus, the trial court erred when it gave diis instruction. Even so, the trial court’s use of the degree of certainty factor is not reversible error unless the jury instruction “could reasonably have misled the jury.” Mitchell, 294 Kan. at 481.
To determine if the degree of certainty instruction could reasonably have misled the jury, an appellate court must satisfy certain conditions:
“(a) decide whether an expression of certainty by the eyewitness was communicated to the jury and, if so, (b) the nature and extent of the certainty expressed. If the court determines there was no degree of certainty conveyed by the eyewitness wheii making tire identification, the jury could not have been misled by including this factor in the jury instructions.” 294 Kan. 469, Syl. ¶ 5.
“If an appellate court determines an eyewitness expressed a degree of certainty when making an identification of the defendant, the court next must determine: (a) whether the identification was a critical aspect of die prosecution’s case and (b) whether there is any serious question about the reliability of the witness’ identification.” 294 Kan. 469, Syl. ¶ 6. In addition, use of the degree of certainty factor in the jury instructions is not reversible error if the jury was “thoroughly exposed to the facts and circumstances both in favor of and against the accuracy” of the witness’ identification of the defendant and his or her expression of certainty about that identification. 294 Kan. 483. Finally, the normal concerns about eyewitness identification reliability are not present where the eyewitness knew the defendant. 294 Kan. 469, Syl. ¶ 8.
Here, although both Slocum and Blanton identified Snover in court during their trial testimony, neither witness expressed any degree of certainty when they testified to the events that happened on Januaxy 29 and 30, 2010. Thus, Slocum and Blanton’s testimony was not of the type generally associated with the certainty factor included in jury instructions. See Mitchell, 294 Kan. at 482 (witness indicating he was “100 per cent certain” in his identification). In other words, the jury could not have-been misled by Slocum or Blanton’s testimony because neither witness conveyed a degree of certainty in making dieir identification of Snover. Consequendy, die trial court did not commit reversible error in.including the degree of certainty language under PIK Crim. 3d 52.20 in the jury instructions.
But even if either Slocum or Blanton would have indicated a degree of certainty in their identification, Snover has failed to meet his burden to show that the jury could reasonably have been misled by the “degree of certainty” factor included in the jury instructions. At trial, Slocum testified to the events that occurred on January 29 and 30. Slocum’s testimony corroborated Blanton’s eyewitness identification testimony. For instance, both Slocum and Blanton testified that Snover was one of the men present when Blanton came to pick up the men from the broken down vehicle. Slocum and Blanton also both testified that Blanton picked up Slocum and Wormell while Snover stayed behind with the vehicle so that he could try to fix it.
In addition, Slocum’s testimony was supported by video' evidence presented by the State, which showed that three men broke into the victim’s shed. Moreover, both Slocum and Blanton testified that they personally knew Snover, although the extent of their relationships with Snover was disputed. Conversely, Snover did present some evidence to support his defensive theory that he was not one of the three men who had stolen the property. At trial, Snover’s fiancée testified that Snover was with her when the items were stolen from the shed. Nevertheless/there is substantial evidence in the record connecting Snover to the crimes with which he was charged. Thus, Snover has failed to meet his burden to show that the jury could reasonably have been misled by the “degree of certainty” factor in the jury instructions. Finally, the jury in this case was thoroughly exposed to tire facts and circumstances both in favor of and against the accuracy of the witnesses’ identification. For instance, Snover’s counsel cross-examined both Slocum and Blanton to try and show that Snover was not involved in the crime. The jury apparently did not believe Snover’s defensive theory.
The eyewitness identification instruction, which contained the phrase “degree of certainty” was not misleading. Although the trial court should not have given the instruction, Snover’s argument fails because neither Slocum nor Blanton expressed a degree of certainty to the jury and the juiy was exposed to the facts and circumstances surrounding their identification. Consequently, we determine that the trial court’s use of the phrase “degree of certainty” under its eyewitness identification instruction was not reversible error.
Did the Trial Court Unconstitutionally Use Snover s Criminal History to Increase His Sentence Without Proving It to a Jury P
Next, Snover argues that the trial court erred by using his criminal history to calculate his criminal history score and enhance his sentence without requiring the prior convictions to be proven to a juiy beyond a reasonable doubt. Snover concedes that our Supreme Court decided this issue against him in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).
Review of this issue involves a question of law over which appellate courts exercise unlimited review. Ivory, 273 Kan. at 46.
In Ivory, our Supreme Court held that the use of criminal history scores is not unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). 273 Kan. at 46. Additionally, our Supreme Court rejected the argument that prior convictions should be treated as essential elements to be presented and decided by a jury. 273 Kan. at 47.
The Court of Appeals is duty bound to follow our Supreme Court precedent, unless there is some indication that the court is departing from its previous position. State v. Singleton, 33 Kan. App. 2d 478, 488, 104 P.3d 424 (2005). There is no indication that our Supreme Court is departing from its decision in Ivory. Consequently, the trial court did not err when it included Snover’s prior convictions in its calculation of his criminal history score.
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Hill, J.;
Contending that the trial evidence was insufficient to support one or more of the alternative means of committing the crime, Quinten Cato-Perry appeals his aggravated robbery conviction. Following the reasoning of this court in a prior case, we reverse Cato-Perry’s conviction because there was insufficient proof of his participation in this crime as both an aider and abettor and as a principal. Because we are reversing Cato-Perry s conviction, we will not address the State’s cross-appeal concerning the departure sentence handed down in this case since that sentence is now set aside.
Two men jump the counter.
On June 25, 2007, two men, wearing hooded sweatshirts with the hoods up, walked into a Church’s Chicken restaurant in Wichita around 10 p.m. One of them asked for cups of ice (for ice water) from Church’s employee Shahid Uzzaman. After Uzzaman gave die man the cups, the two then sat near the counter and drank their ice water while Uzzaman continued working. Uzzaman never got a clear look at their faces. The witnesses described one of the men as fairly short; the other taller. The evidence suggests that Cato-Perry, at more than 6 feet tall, was the taller of the two men.
About 15 minutes after the two men entered, the taller man approached and struck Uzzaman on the left side of his face, knocking him to die ground. Uzzaman stood back up and was struck again by the same man, diis time on the front of his face, causing blood to dow. He fell to the floor a second time, injured, scared, and bleeding. He looked up, saw his assailants looking down at him, and he looked away. He considered getting back up, but he decided that he should not.
There were no other customers present in the restaurant when this happened. There were two other employees besides Uzzaman in the restaurant at the time, but they were not up front with Uz-zaman. The shift manager, Sandra Sells, was in the office counting money from one of the two cash registers and went to the front of the store when she heard Uzzaman “hollering for help.” She saw the shorter man taking money from the second cash register while the taller man stood nearby. The taller man pushed Sells up against a wall. The two men left the restaurant shortly thereafter by going out the back door. More than $200 had been taken from the cash register.
During the attack, Eddy Giron, dishwasher and cook, was in the back of the restaurant, but he overheard Uzzaman arguing with people in the front of the restaurant. The argument got louder. Giron then heard someone jump over die counter, followed by yelling. Giron went toward the front of the restaurant and saw that Uzzaman was getting “beat up.” As a result of this beating, Uzza-man sustained injuries to the left side of his face and to his nose.
The police investigation of the aggravated robbery was stalled because Uzzaman and his coworkers could not positively identify the robbers. The restaurant did not have any security cameras. None of the fingerprints, footprints, or other trace evidence initially proved useful. But 2 years later, in 2009, Wichita investigators were advised through a national database that DNA samples taken from one of the water cups the two men drank from matched the DNA of Cato-Perry.
Based on tire strength of this DNA evidence, the State charged Cato-Perry with aggravated robbery. A jury convicted him of aggravated robbery.
We repeat our standards on such questions.
Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). An appellate court first looks at the language of the statute, giving ordinary words their ordinary meaning. When a statute is plain and unambiguous, the appellate court will not read into the statute something not readily found in the statute. State v. Gacey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
As a general rule, criminal statutes must be strictly construed in favor of the accused. And any reasonable doubt as to the meaning of the statute is decided in favor of the accused. But this rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to achieve legislative design and intent. State v. Trautloff, 289 Kan. 793, 796-97, 217 P.3d 15 (2009).
To the extent that alternative means issues involve jury unanimity, an appellate court likewise has unlimited review. State v. Stevens, 285 Kan. 307, Syl. ¶ 1, 172 P.3d 570 (2007). And because alternative means questions are ultimately resolved on the sufficiency of the evidence, that standard of review is whether, after considering all of the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt on each of the alternative means presented. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011); State v. Becker, 290 Kan. 842, 855, 235 P.3d 424 (2010).
We look first at the alternative means claim concerning aiding and abetting.
Cato-Perry makes four distinct alternative means arguments in this case: (1) the alternative means of acting as a principal or aider and abettor; (2) the six alternative means by which one can aid and abet in the commission of a crime; (3) the alternative means of taking property from one’s person or presence in order to commit aggravated robbery; and (4) the alternative means of using force or the threat of bodily harm in order to commit aggravated robbery. He asserts that the State failed to present sufficient evidence at trial to support his conviction under one or more of the alternative means. Because we agree with his first argument and are reversing his conviction, we will not address the three other arguments, as they are now moot.
Most current discussions of alternative means law in Kansas begin with State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994). There, our Supreme Court cited with approval State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 (1988), in which that court said the following:
“In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]”
Then, in State v. Wright, 290 Kan. 194, 206, 224 P.3d 1159 (2010), the Supreme Court reaffirmed the Timley substantial evidence rule in alternative means cases: “We are now persuaded that the Timley alternative means rule is tire only choice to ensure a criminal defendant’s statutory entitlement to jury unanimity.”
Since that ruling, a panel of this court concluded that the principal and aider and abettor theories of liability are indeed alternative means of criminal liability. See State v. Boyd, 46 Kan. App. 2d 945, 268 P.3d 1210 (2011), petition for review filed January 23, 2012, cross-petition for review filed February 6,2012. Boyd initially observed the “actions of an aider and abettor may be sufficiently distinct from the actions of a principal to establish an alternative means of committing the crime.” 46 Kan. App. 2d at 953. Although Boyd acknowledged aider and abettor liability “applies to pretty much every substantive criminal offense,” the court ultimately determined “the danger postulated in Wright that exists when a jury has been instructed on alternative means of committing a particular crime also exists if the jury has been giving the options of convicting a defendant as an aider and abettor or as a principal.” 46 Kan. App. 2d at 953-54. We adopt the reasoning of the Boyd panel. Given the weight our Supreme Court now gives to jury unanimity, there is a distinct possibility that some of the jurors in this case could have found Cato-Perry guilty as one aiding in the crime or as a principal of the crime. We must therefore review the evidence presented at trial.
No witness identified Cato-Perry as one of the robbers. His DNA was found on a cup at the scene. We find evidence in the record that only the shorter man took money from the cash register. The evidence also indicates that Cato-Perry was the taller of the two. From this, we conclude that the State presented evidence that Cato-Perry aided in the crime by hitting Uzzaman twice and shoving the shift manager out of the way. But we find no evidence that he acted as a principal. The only taking here was done by the shorter man.
Because there was insufficient evidence to convict Cato-Perry as bodr an aider and abettor and as a principal, we reverse his conviction and remand the case for a new trial on the charge of aiding and abetting aggravated robbery. See State v. Shaw, 47 Kan. App. 2d 994, Syl. ¶ 5, 281 P.3d 576 (2012).
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The opinion of the court was delivered by
McFarland, J.:
This is a direct appeal from conviction by a jury of aggravated kidnapping (K.S.A. 21-3421) and rape (K.S.A. 21-3502).
William Griffith, Steven Corn, Sheryl Hutchison, and the defendant, David Corn, went to the home of the victim, Barbara Pitt, shortly after midnight, August 27, 1976. Barbara Pitt was working until midnight that evening. The group consumed aleo holic beverages. After about an hour, Steven and Sheryl left. Thereafter, the defendant and Barbara repeatedly embraced. While the couple were so occupied, William removed Barbara’s wallet from her purse. The two men left. Shortly thereafter Barbara discovered the theft of her billfold, and went to Sheryl’s house to talk to her about it. She was unable to rouse anyone at Sheryl’s house and returned home. Meanwhile, David and William had returned to Barbara’s home. William remained in the car. Barbara confronted David in the driveway about the stolen billfold. They argued on the driveway and then went inside the house. David denied taking the wallet and he and Barbara searched her house for it. David became angry and struck Barbara with a soft drink bottle and his fists. David then told her he intended to have sex with her and that he would kill her if she did not cooperate. Barbara’s clothes were removed. David was physically unable to complete the sexual act and Barbara laughed at him and ridiculed him for his lack of sexual prowess. David struck Barbara in the face, gagged her, and tied her hands together. He wrapped a blanket around her nude body, took her by the arm and walked to his car where she was placed in the trunk.
David drove to an isolated area outside of town, opened the trunk, and told Barbara to put the blanket on the ground. David had sexual intercourse with Barbara and then told William it was his turn. William had sexual intercourse with her and then David had intercourse with her a second time. David told her to get back into the trunk. She asked not to be put back into the trunk and she was allowed to get into the back seat. Barbara was concerned about the theft of her money as she had promised to give her daughter money for doughnuts in the morning. She was given two dollars by William. Barbara was returned to her home after she told David she would not call the police. Before he left, David told her not to call the police and that she had better cooperate next time he was in town. (She lived in Russell and he lived in Wichita.) Barbara called the police upon being returned to her home and both William and David were charged with aggravated kidnapping, rape, aggravated battery, aggravated assault, and theft. Through plea negotiations, William pled guilty to rape with the balance of the charges being dismissed as to him, and testified for the state at David’s trial. The defendant herein was tried on all counts except the theft charge which was dismissed on motion of the state at the beginning of the trial. The jury found the defendant guilty of rape and aggravated kidnapping and not guilty of aggravated battery and aggravated assault.
The defendant’s first claim of error is the trial court improperly restricted his cross-examination of Barbara Pitt and William Griffith. The claim as to Barbara Pitt will be dealt with first.
K.S.A. 60-447a(1) provides:
“Except as otherwise provided in subsection (2), in any prosecution for the crime of rape, as defined by K.S.A. 21-3502, or for aggravated assault with intent to commit rape, as provided in K.S.A. 21-3410, or for an attempt to commit rape, as provided in K.S.A. 21-3301, or for conspiracy to commit rape, as provided in K.S.A. 21-3302, evidence of the complaining witness’ previous sexual conduct with any person including the defendant shall not be admissible nor shall any reference be made thereto in the presence of the jury, except under the following conditions: A written motion by the defendant shall be made at least seven days before the commencement of the trial to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. The seven-day notice required herein may be waived by the court. The motion shall state the nature of such evidence or testimony and the relevancy thereof, and shall be accompanied by an affidavit in which an offer of proof of such previous sexual conduct of the complaining witness is stated. The court shall conduct a hearing on the motion in camera. At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court.”
The trial court permitted the defendant to depose Barbara Pitt prior to trial. In her deposition Barbara recounted her past sexual activities with almost photographic detail. The witness was further questioned as to movies seen and books read that involved the portrayal of explicit sexual acts. In the deposition no stones were left unturned and no furrows were left unplowed on this subject. Barbara was thirty years old at the time her one hundred and forty-eight page deposition was taken and had led an active life. The reason for all of this dredging into past activities was that the defendant was trying to establish that Barbara liked “kinky” sex and that, accordingly, she was not really an unwilling participant in the events of the night in question. The deposition does not support defendant’s theory as to Barbara’s willing participation. The trial court did not permit such latitude in the cross-examination of Barbara at the trial, but let the defense establish that she had had a variety of prior sexual experiences. We find there was no abuse of discretion in the limiting of the cross-examination of Barbara Pitt.
We turn now to the limitation placed on the defense as to the witness William Griffith. In his opening statement defense counsel said:
“Finally, we’re going to hear the testimony as I mentioned during voir dire, of David Corn’s friend, William Griffith, who pled guilty to rape. That’s going to be very interesting testimony, and a very interesting place to apply the theory, the standard of reasonable doubt.
“. . . and do you know that William Griffith was not convicted, as the county attorney said he was, he was not convicted, he pled guilty to rape; and do you know, when he pled guilty to rape, he was faced with aggravated kidnapping, aggravated battery, and aggravated assault charges, the same as Mr. Corn is facing right now. He faced the sentence that could be imposed of up to life in prison by the Court. Of course, he faced that sentence. He copped out. He didn’t have enough faith in the jury system to say, wait a minute, twelve people are going to say I didn’t rape her; David Corn does, and he’s going to prove it to you.
“William Griffith pled guilty. He applied for probation. Probation will be considered after this hearing. Now, whether Mr. Griffith goes free or not is going to depend a lot on his testimony.”
The cross-examination of William Griffith by defense counsel on this subject was as follows:
Q. “Now, you know, as an accomplice or a person going along with, you were facing the same kind of penalties that David Corn is facing if he is convicted?
A. “You mean previously.—
Q. “You know that you were charged with aggravated assault, aggravated kidnapping, and aggravated battery, and rape?
A. “Yes.
Q. “You know that the penalty was life imprisonment for kidnapping—
MR. EHRLICH: “Object, your Honor.
THE COURT: “Sustained. The jury will disregard that.
Q. (By Mr. Rupe) “You knew you were faced with those charges?
A. “I knew what I was charged with and what—
Q. “And you pled guilty to rape?
A. “Yes, I did.”
Counsel for the defendant continued on re-cross examination of the accomplice, William Griffith, with the following question:
Q. “You realize that you were charged, that you could have been convicted as an accomplice on all those counts, don’t you?
A. “Yes, I realize that.”
Immediately after the examination of William Griffith a recess was held and a hearing was held in the court’s chambers with the following comments being made relative to the reference to the penalty and sentence involved herein:
THE COURT: “One thing, Alan, that I think we need to get on the record. In your opening remarks you made the statement relative to life imprisonment, and you brought it out again here. I don’t want you to mention that any more.
MR. RUPE: “Okay.
THE COURT: “I don’t think it’s proper.
MR. RUPE: “For the record, there was no objection in my opening statement.
THE COURT: “No, I realize that, and I let it — I let go, and the county attorney didn’t object to it; but I’m just saying, at this stage, in giving you the advice that when it comes time to argue in closing, or whatever other witnesses you got on the stand, I don’t think it’s a proper area to go into.
MR. RUPE: “Okay.”
Later on in the trial the defendant indicated he desired to call William Griffith as a defense witness. The following conversation was had in chambers:
MR. RUPE: “Well, this whole trial has been a situation where I have to ask before I can introduce evidence; and I realize that I should inquire whether I can put William Griffith upon the stand, about your comments as to life imprisonment, whether or not I would be allowed to inquire whether or not he has been granted probation and when his—
MR. EHRLICH: “I object. Recause of the comments that Mr. Rupe has already made, I’m going to be requesting an instruction relative to sentencing now.
THE COURT: “I think if he were already granted probation, or if he were already sentenced, then you could say, aren’t you, bla, bla — but I think while this is still something that hasn’t happened, I don’t think that you can inquire into — •
MR. RUPE: “Then in that event, William Griffith will not be called as a witness.”
The credibility of an accomplice or informant is subject to attack. Great leeway should be accorded the defense in estabJishing such a witness’ subjective reason for testifying. (United States v. Harris, 462 F.2d 1033 [10th Cir. 1972].)
In State v. Wheeler, 215 Kan. 94, 523 P.2d 722, the trial court refused to allow defense counsel to question a witness as to whether he had made a deal with the attorney general’s office to avoid prosecution. In Wheeler we said:
“It appears to us this was a proper area to be plumbed by cross-examination. One of the legitimate uses of that handy tool is to test the veracity and credibility of those who take the witness stand. [Citation omitted.] While the extent of cross-examination for purposes of impeachment lies largely within the sound discretion of the trial court [citations omitted], we believe discretion was over reached in this case. Whether the state’s witness was under compulsion or special inducement to testify was, in our judgment, a proper subject to be explored. [Citation omitted.]” (pp. 99-100.)
In the case at hand the defense counsel did get the point to the jury that the witness who had been charged as a co-defendant had resolved his case through plea bargaining. The information that defendant had thereby avoided risk of conviction of the most serious charge was also before the jury. We hold that the limitation on the cross-examination was improper, but that under the totality of the circumstances of this case it was harmless error beyond a reasonable doubt.
The defendant’s next claim of error is that the trial court erred in not granting defendant a new trial as the evidence was insufficient for a conviction of rape.
The test for determining the sufficiency of the evidence in a criminal case is whether the evidence is sufficient to form the basis for a reasonable inference of guilt when viewed in the light most favorable to the state. (State v. Childers, 222 Kan. 32, 563 P.2d 999.) We have carefully reviewed the record and find there was sufficient evidence to support the conviction of rape.
The defendant’s next claim of error is that the trial court erred in not granting the defendant a new trial on the grounds that evidence outside the scope of the bill of particulars was admitted and that an improper instruction was given to the jury on the element of force required in the rape charge.
The defendant requested and received a bill of particulars. K.S.A. 1977 Supp. 22-3201(5) provides:
“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 his or her 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.”
The purpose of a bill of particulars was discussed in State v. Frames, 213 Kan. 113, 515 P.2d 751:
“The purpose of a bill of particulars in a criminal action is twofold: (1) To inform the defendant as to the nature of the charge and the evidence against him to enable him to prepare his defense, and (2) to enable the defendant to avoid further prosecution for the same offense.
“A bill of particulars is nothing more than a statement of facts which collectively describe the offense set forth generally in the complaint, information or indictment.” (Syl. 2, 3.)
The defendant contends the state went outside the bill of particulars in presenting evidence that, in the rape, the victim’s resistance was overcome by force and fear while the bill of particulars mentions only force. K.S.A. 21-3502 states the woman’s resistance must be overcome by force or fear. The defendant has little cause to complain. The amended bill of particulars incorporated all statements made by Barbara Pitt. The defendant had adequate notice of the offense with which he was charged and was not prejudiced by the slight variance. It should be noted that instruction No. 5 required the state to prove the victim’s resistance was overcome by both force and fear. The variance did not diminish the state’s burden of proof, it increased it. The state had to prove not only force, but fear as well.
The jury sent the following question to the court:
“By force and fear, was this at the house or on the blanket?”
The record shows the following occurred relative to the answer to be given:
“THE COURT: The question is, ‘By force and fear, was this at the house or at [sic] the blanket?’ I think they’re referring to instruction number 3, are they not?
“MR. RUPE: Number 5.
“THE COURT: Well, but that’s the third item on instruction — or rape, it’s the third element that they’re talking about.
“MR. EHRLICH: I see. Compared to number 5 on rape — what are they talking about, number 5 on rape?
“THE COURT: Well, he’s talking about instruction number 5. Okay, I’m listening, gentlemen. Have you got any ideas?
“MR. RUPE: I would suggest that giving them the same response you did on the last question.
“THE COURT: Well—
“MR. EHRLICH: I’ll have to agree.
“MR. RUPE: Now, if we want to use the bill of particulars, I think the response would have to be on the blanket.
“MR. EHRLICH: I don’t know what the bill of particulars would have to do with it, I don’t know. It would be another document for them to — try to read, and I wouldn’t see at all where that would be.
“MR. RUPE: I’m not [sic]
“THE COURT: Members of the jury, the Court acknowledges your question. “Why can’t I tell them that it’s their duty to decide the case from all of the evidence introduced, and all the instructions as given, not singling out any one, applying them as a whole to all of the evidence.
“MR. EHRLICH: I was just going to indicate to the Court, I think the instruction number 1, which in essence is what the Court has stated.
“THE COURT: Do you have any objection to that.
“MR. RUPE: Now, I’m going to object to that on the basis of the bill of particulars, and on the basis of the evidence.
“THE COURT: Well, all I’m in effect, telling them is that it’s their duty not to single out one instruction, but to consider all the instructions and all the evidence.
“Do you object to that?
“MR. RUPE: Well, I think you will admit that they can come back with a verdict of guilty on aggravated assault or guilty on aggravated battery. I think in terms of the specific question with regard to the blanket or the house, I think that the evidence has shown, and I think the bill of particulars defines that the force and fear, if we still impute fear into force, was on the blanket, if it was at all.
“THE COURT: Well, okay, anyway this is going to be the answer. This will be the way I’m going to answer this, and this is the way you’ll type it.
“Members of the jury, your question is acknowledged, and my answer to you is this:
“You must decide this case on the evidence admitted and the instructions given. You must not single out one or more instructions, but you should construe each in light and in harmony with the other instructions and should apply the instructions as a whole to the evidence. Respectfully. Please save.
“Now, you can note your objection if you want to.
“MR. EHRLICH: Your Honor, did you say the word construction or instruction?
"(Whereupon the reporter checked what was said and verified that it was the word instruction.)”
The above citation is included as the state contends the defendant did not object to the answer. On appeal the defendant is arguing that the answer went outside the scope of the bill of particulars and permitted the jury to look to the aggravated battery charge to support the force element of the rape charge. The answer given by the court does not actually answer the precise question posed by the jury. However the defense counsel did not lodge an objection to the final answer. We hold, under the totality of the circumstances, that this point is without merit.
The defendant’s next claim of error is the failure of the trial court to instruct on the lesser included offense of kidnapping. Kidnapping is defined in K.S.A. 21-3420 as follows:
“Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
“(a) For ransom, or as a shield or hostage; or
“(b) To facilitate flight or the commission of any crime; or
“(c) To inflict bodily injury or to terrorize the victim or another; or
“(d) To interfere with the performance of any governmental or political function.”
Aggravated kidnapping is defined in K.S.A. 21-3421 as follows:
“Aggravated kidnapping is kidnapping, as defined in section 21-3420, when bodily harm is inflicted upon the person kidnapped.”
The trial court has an affirmative duty to instruct on lesser included offenses whether or not requested to do so by the accused, but the duty arises only where there is at least some evidence on which the jury might convict of the lesser offense. Failure to instruct on some lesser degree of a crime is not grounds for reversal if the evidence at trial excludes a theory of guilt on the lesser offense. (State v. Wright, 221 Kan. 132, 557 P.2d 1267.) Bodily harm to the victim is the additional element elevating kidnapping to aggravated kidnapping.
In the case at hand, the beating of Barbara Pitt occurred prior to her transportation. The state relies on the rape of the victim as the requisite bodily harm to the victim. Rape supplies the element of bodily harm necessary to make a kidnapping aggravated kidnapping. (State v. Ponds and Garrett, 218 Kan. 416, Syl. 8, 543 P.2d 967.)
Identity is not an issue in the case. The party, the argument over the wallet, the beating of Barbara Pitt by the defendant, the attempted intercourse in the house, the taking her to the car, the ride to the country in the trunk, the two acts of sexual intercourse in the country, and the return of Barbara to the house are admitted by the defendant. The defendant contends the acts in the country were not rape as the victim was not unwilling, although he did not testify she orally agreed to anything. At most it can be said that he testified that at first she did not resist and that later she enjoyed herself. His testimony is not as strong in support of the point on appeal as his counsel would suggest in his brief.
As previously stated, failure to instruct on a lesser offense is not error unless there is some evidence on which the jury might reasonably convict the defendant of the lesser offense. In the posture of the case presented to the jury, the defendant could not have been convicted of aggravated kidnapping unless the jury found Barbara Pitt had been raped after being taken from her home. The jury found that the rape had occurred in convicting the defendant of the crime of rape. Accordingly, the only way the defendant could have been found guilty of kidnapping as opposed to aggravated kidnapping would be if the jury did not find a rape had occurred. We hold that it was improper not to instruct on kidnapping as a lesser included offense as there was some evidence on which a jury could have reasonably convicted the defendant of that offense. However, we do not find the failure to instruct on kidnapping to be prejudicial error under the totality of the circumstances of this case which circumstances include the finding of guilty on the rape charge which would negate any possibility of the jury finding the defendant guilty of kidnapping rather than aggravated kidnapping. An unusual circumstance is present in this case in that if this court were to find the failure to instruct on kidnapping was reversible error, then on retrial the defendant would not be entitled to the kidnapping instruction as the bodily harm element of aggravated kidnapping has already been determined by the conviction of rape in the former trial.
The defendant’s final claim of error is that the trial court invaded the province of the jury and thereby violated defendant’s constitutional rights. The basis for this claim of error is that the jury sent a note to the court that it had reached verdicts on three of the counts but could not agree on the fourth. The jury was brought back into court' in the presence of counsel. The record reflects the following:
“(Whereupon the following proceedings were had in the presence and hearing of the jury; the defendant was present.)
“THE COURT: Mr. Keller, it’s my understanding that you’re the foreman; is that correct, sir?
“MR. KELLER: Yes.
“THE COURT: The bailiff has indicated that the jury has arrived at a verdict on several of the charges, but at this time you cannot arrive at a verdict on one of them.
“MR. KELLER: That’s correct.
“THE COURT: Without telling me how you’ve been voting, have you been making any progress on the one you haven’t arrived at a verdict yet on?
“MR. KELLER: No.
“THE COURT: Do you feel like if you would go and eat and come back and consider that some more that you could make sufficient progress and arrive at a verdict relative to the one that you haven’t arrived at a verdict on?
“MR. KELLER: Well, as we discussed it, there is eleven to one in the agreement on this one part; agreement on three parts.
“THE COURT: On three of them you’ve arrived on a unanimous verdict; and on the other one, without indicating, that’s been your vote, eleven to one?
“MR. KELLER: Ten to two.
“THE COURT: Well, have you been making progress on the one charge that you haven’t come to an agreement on?
“MR. KELLER: No, your Honor, we’re at a standstill.
“THE COURT: You don’t think that any additional deliberations, that you could arrive at a verdict?
“MR. KELLER: I believe that would have to be questioned, your Honor, of the other jurors. I feel that’s all the answer I can give you on that. That’s the one point that we have been debating on for so long.
“THE COURT: I see. Well, would you hand the material that you have at this time to the bailiff?
“(Jury foreman responded.)
“THE COURT: Counsel, approach the bench.
“(Whereupon the following proceedings were had out of the hearing of the jury.)
“THE COURT: Well, they’ve deliberated three hours. I can send them in or send them out to eat, make them deliberate some more; but from what he’s saying, they’re not going to make any progress on the one that they are hung up on.
“MR. RUPE: For the record, I think he was saying eleven to one, and some of the jurors were saying ten to two, for the record.
“MR. EHRLICH: I don’t know. I suggest that possibly a break. It might do some good. They’ve been at it a long time.”
The trial judge then talked to the jury about taking a break and then continuing their deliberations.
The foreman volunteered the numerical split on the count on which they could not agree. The court did not try to coerce the jury into a unanimous verdict as was done in Berger v. United States, 62 F.2d 438 (10th Cir. 1932). We hold this did not constitute reversible error.
After the jury was sent on recess, the trial court examined the materials and told counsel what the verdicts they agreed on were. This turned out to be inaccurate. However, defense counsel relayed this information on to his client. This conduct by the trial court was highly improper and is not condoned by this court. However, it in no way affected the outcome of the trial and, accordingly, is not reversible error.
All points having been carefully considered, the judgment is affirmed.
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|
The opinion of the court was delivered by
Fromme, J.:
Rolf Gerchberg, a five-year-old boy, received burn injuries while playing on the premises of the neighbors, Mr. and Mrs. Roy Loney. At the close of plaintiff’s evidence the district court directed a verdict in favor of defendants. The Court of Appeals reversed the judgment and remanded the case for trial on the theory of attractive nuisance. See Gerchberg v. Loney, 1 Kan. App. 2d 84, 562 P.2d 464.
The plaintiff-appellant urged the Court of Appeals to discard the traditional classification of trespassers, licensees and invitees, and to abolish the distinctions in our law as to the duty of care owed to each class. In place thereof he urged the court to adopt one duty of care owed to all who are on the premises of another, i.e., a duty of reasonable care under all facts and circumstances of the case. The Court of Appeals declined to do so and plaintiff-appellant sought review in this court.
The Court of Appeals determined that the evidence of plaintiff made a submissible case on the theory of attractive nuisance. The defendants-appellees sought review in this court on the attractive nuisance question.
This area of premises law is one in which the opinions of the justices have and continue to differ. See Brittain v. Cubbon, 190 Kan. 641, 647, 378 P.2d 141, and Frazee v. St. Louis-San Francisco Rly. Co., 219 Kan. 661, 667; 549 P.2d 561. The petitions for review were granted and the case has been heard in this court on the record, briefs, supplemental briefs, and with oral arguments as provided in Rule No. 8.03, Rules of the Supreme Court (220 Kan. xlvi).
After careful consideration of the case a majority of the members of this court approve the disposition of the case by the Court of Appeals and approve the opinion as written for the majority. We need not set forth herein our re-examination of the evidence or apply the law to those facts. Suffice it to say, the plaintiff Rolf Gerchberg, a five-year-old boy, received serious burns when he returned to an unattended smoldering fire in a barrel used by the defendants as an incinerator. Rodney Loney, the ten-year-old neighbor boy, had previously been directed to burn papers and had started the fire. Rolf was with him and saw Rodney place a stack of papers near the incinerator and start the fire. After a short while both boys left the premises. The fire had not been extinguished and was still smoldering on the Loney premises when Rolf returned to the barrel. He began putting the papers into the barrel. The fire blazed and his clothing caught on fire. Serious injuries resulted.
We feel the evidence introduced in the trial court made a submissible case on the theory of attractive nuisance. (Carter v. Skelly Oil Co., 191 Kan. 474, 382 P.2d 277.) A possessor of land is subject to liability for bodily harm to children intruding thereon caused by some condition that he maintains on the premises if:
(1) the possessor knows, or in the exercise of ordinary care should know, that young children are likely to trespass upon the premises, and
(2) the possessor knows, or in the exercise of ordinary care should know, that the condition exists and that it involves an unreasonable risk of bodily harm to young children, and
(3) the children because of their youth either do not discover the condition or understand the danger involved in coming into the dangerous area, and
(4) one using ordinary care would not have maintained the condition when taking into consideration the usefulness of the condition and whether or not the expense or inconvenience to the defendant in remedying the condition would be slight in comparison to the risk of harm to children.
The foregoing rules governing the liability of the possessor of premises in cases where a submissible case has been made under the theory of attractive nuisance have been adopted by this court and generally follow the Restatement of the Law, Second, Torts, § 339, p. 205. See Brittain v. Cubbon, supra.
Now let us turn our attention to plaintiff’s argument that the traditional classification of trespassers, licensees and invitees should be discarded, and that the distinctions in our law covering the duty of care owed to each class be abandoned in favor of a single standard of reasonable care under the circumstances. Plaintiff contends there is no logical reason for protecting the possessor of premises by requiring his negligence to be wilful, wanton, or in reckless disregard for the safety of the trespasser or licensee before it is actionable.
Under the present law of Kansas a trespasser is one who enters on the premises of another without any right, lawful authority, or an express or implied invitation or license. The possessor of premises on which a trespasser intrudes owes a trespasser the duty to refrain from wilfully, wantonly, or recklessly injuring him. (Frazee v. St. Louis-San Francisco Ely. Co., supra. See also PIK 2d [Civil] 12.20 and 12.21.)
A licensee is one who enters or remains on the premises of another by virtue of either the express or implied consent of the possessor of the premises, or by operation of law, so that he is not a trespasser thereon. The possessor of premises on which a licensee intrudes owes a licensee the duty to refrain from wilfully or wantonly injuring him. (Graham v. Loper Electric Co., 192 Kan. 558, 561, 389 P.2d 750; Weil v. Smith, 205 Kan. 339, 469 P.2d 428. See also PIK 2d [Civil] 12.10 and 12.11.) The parties agree that Rolf Gerchberg was a licensee under the facts of this case.
Under the law in this jurisdiction a social guest has the status of a licensee and his host owes him only the duty to refrain from wilfully, intentionally, or recklessly injuring him. (Ralls v. Caliendo, 198 Kan. 84, Syl. ¶ 1, 422 P.2d 862; Duckers v. Lynch, 204 Kan. 649, 465 P.2d 945.)
An invitee is one who enters or remains on the premises of another at the express or implied invitation of the possessor of the premises for the benefit of the inviter, or for the mutual benefit and advantage of both inviter and invitee. The possessor of premises on which an invitee enters owes a higher degree of care, that of reasonable or ordinary care for the invitee’s safety. This duty is active and positive. It includes a duty to protect and warn an invitee against any danger that may be reasonably anticipated. (Weil v. Smith, supra, Syl. ¶ 3; Graham v. Loper Electric Co., supra, p. 563. See also PIK 2d [Civil] 12.01 and 12.02.)
Under the law in this and other jurisdictions a child may be presumed conclusively incapable of contributory negligence. (Williams v. Davis, 188 Kan. 385, 390, 362 P.2d 641.) Children are not held to the same strict accountability to appreciate a danger and to care for themselves as persons of full age. (Weber v. Wilson, 187 Kan. 214, 220, 356 P.2d 659.) Therefore the attractive nuisance exception has been recognized to accommodate for a child’s incapacity to understand and appreciate the possible dangers to which he may be attracted. The exception is not new in Kansas and was recognized as early as 1878 in the case of K. C. Rly. Co. v. Fitzsimmons, 22 Kan. 686, 31 A.R. 203.
The traditional classification of trespassers, licensees and invitees and the distinctions as to the duty of care owed to each came to this country with the common law and has been applied generally in this country. This system of classification which began in England was first discarded by that country in 1957 by way of a statute which imposed the same duty of care to licensees and invitees. The statute declared that the possessor of premises owes the same “common duty of care” to both, with reasonable care modified according to the circumstances of the entry. (Occupiers’ Liability Act, 5 & 6 Eliz. 2, c. 31. Discussed in Prosser, Law of Torts, 4th Ed., Ch. 10, § 62, p. 398.)
In considering the question of whether this state should discard all classifications and distinctions two things should be noted concerning the change in England. First, the change to a common duty of reasonable care did not extend to trespassers and second, the use of a jury in negligence actions had virtually disappeared in England and these actions were being tried to the court.
In the nine or ten states in this country which have discarded the traditional classifications it was concluded that their courts were confused by the classifications and would be better able to instruct their juries in premises cases if the standard of reasonable care were required under all circumstances. It was generally agreed in those states that a jury should determine the circumstances which would relieve a possessor of premises from liability to a trespasser, an invitee and a licensee. We doubt the validity of those conclusions. It should be kept in mind that in England negligence cases are tried to the court without a jury. This is not so in the United States.
It has been argued that additional instructions to the jury to the effect that it should consider the foreseeability of plaintiff’s presence on the premises, the foreseeability of possible harm, the likelihood that others would not appreciate or be aware of the danger, and the extent of the burden on the possessor to remove the danger or notify of the risk would sufficiently protect the possessor of the premises. These general admonitions to a lay jury may or may not suffice.
If the traditional classifications are discarded the legal distinctions which have heretofore governed the courts in imposing a particular standard of care are also discarded. In such case the standard, reasonable care under all the circumstances, would have to be applied by the jury to the specific facts of each case. Can a lay jury reasonably be expected to consider the proper relative effect of natural and artificial conditions on the premises which are or may be dangerous, the degree of danger inherent in such conditions, the extent of the burden which should be placed on the possessor of premises to alleviate the danger, the nature, use and location of the condition or force involved, the foreseeability of the presence of the plaintiff on the premises, the obviousness of such dangerous condition or the plaintiff’s actual knowledge of the condition or force which resulted in injury? It would appear these considerations should be imparted to the jury if it is to be placed in a position to decide whether reasonable care was exercised by the possessor of the premises. Otherwise the jury will have a free hand to impose or withhold liability.
A majority of the members of this court do not feel that the traditional classifications of trespassers, licensees and invitees should be jettisoned. The traditional classifications were worked out and the exceptions were spelled out with much thought, sweat and even tears by generations of Kansas legal scholars who have gone before us. Should this body of law be discarded completely in favor of a free hand by a lay jury? We feel at this time there is too much of value in our premises law with respect to rights of possessors of premises to warrant its abandonment.
It should be noted that the adoption of one standard of care not only will have the effect of lowering the standard of care owed to trespassers and licensees but also would lower the standard of care presently owed to invitees. Under our present law the duty owed to an invitee is active and positive. It includes a duty to protect and warn an invitee against any danger that may be reasonably anticipated. Not only does it extend to dangerous conditions known to the possessor but also to dangerous conditions discoverable in the exercise of a duty to inspect and keep the premises free of unreasonable risk of harm.
It has been suggested that the jury need not be left without guidance even though the traditional classifications are discarded. It is further suggested that after a jury is advised of the single standard of care the court can further instruct the jury by setting out the applicable rules found in the Restatement of the Law, Second, Torts, §§ 333 through 343B. The Restatement classifies these rules as follows: Title B. Liability of Possessors of Land to Trespassers; Title C. General Liability of Possessors of Land to Licensees and Invitees; Title D. Special Liability of Possessors of Land to Licensees; and Title E. Special Liability of Possessors of Land to Invitees. If such a suggestion is followed in advising the jury what if anything is gained by discarding the traditional rules? The traditional classifications (trespassers, licensees and invitees) are still to be considered by the court. If, as the appellant suggests, the traditional classifications are confusing, unreasonable and arbitrary any change which embraces the Restatement rules will be subject to similar charges. In such case we would be merely changing the extent of the duty owed by a possessor of premises. The extent of that duty would still be dictated by the circumstances surrounding entry on the premises, the danger involved and the burden to be placed on the possessor to make the premises reasonably safe. The traditional classifications would remain but the traditional rules worked out over so many years would be discarded and new rules governing a possessor's liability would have to be relearned.
A majority of this court feel if the mores and values of present society dictate changes such changes should be worked out individually as the circumstances of a particular case may warrant. Such changes will result in less general confusion and better understanding of each particular change.
Plaintiff-appellant calls our attention to the issues raised in four points which he presented to the Court of Appeals but which were not addressed in its opinion. We will address these points briefly. He argues that the traditional classifications must be abandoned because they deny licensees and trespassers injured by the negligence of the possessor of premises equal protection of the law under the 14th Amendment to the United States Constitution and §§ 1 and 2 of the Kansas Bill of Rights. In support he cites Henry v. Bander, 213 Kan. 751, 518 P.2d 362, in which this court examined the former provisions of K.S.A. 8-122b, the guest statute, and declared the separate classification of guests riding in automobiles arbitrary and discriminatory and without rational basis. Liability to an automobile guest under this statute depended on whether a person was a paying or nonpaying passenger. The case is not in point. No statute is involved in our present case and the classifications with which we are now dealing arose from the common law. They have a rational basis which has been recognized for hundreds of years and have served the courts of this country by providing a basis for instructing juries on the duty of care owed by the possessor to those coming upon his premises. Appellant is hardly in a position to complain in this case of a denial of his constitutional rights since we hold he is justified in presenting his case to a jury on the theory of attractive nuisance.
Appellant next argues that the case should be presented to the jury on the dangerous instrumentality theory, another exception to the status classification which has been recognized in Kansas. (See Wroth v. McKinney, 190 Kan. 127, 373 P.2d 216.) In Wroth, a loaded revolver left in plain view and easily accessible to a four-year-old boy was held to be a dangerous agency or instrumentality. It was noted the theory had been applied previously to dangerous explosives such as dynamite. Again the appellant can hardly complain that we do not view the unattended smoldering fire in the incinerator and the nearby papers as a dangerous instrumentality. We view it as a possible attractive nuisance and as such his case goes to a jury. The distinction between the two theories is nebulous at best and the terms have been used interchangeably in certain circumstances where children are involved. (62 Am. Jur. 2d, Premises Liability, § 137, p. 405.)
Appellant further argues that the evidence established a cause of action based on active negligence as distinguished from passive negligence. In support thereof he points to what was said in Morris v. Atchison, T. & S. F. Rly. Co., 198 Kan. 147, 422 P.2d 920. At page 160 of that opinion the argument of active negligence was made and rejected. The court did not embrace the theory proposed. It merely pointed out such a theory could not apply in the case because the presence of the licensee was neither known nor reasonably could have been known when the alleged acts of negligence occurred. There is at least one other case where an active negligence theory was mentioned. See Montague v. Burgerhoff, 150 Kan. 217, 92 P.2d 98. However, these two cases merely speak of wilful and wanton acts as active negligence which injure a person whose presence is known. In spite of what was said in the dissent in Lemon v. Busey, 204 Kan. 119, 128, 461 P.2d 145, this court has not adopted active negligence as an exception to the traditional classifications recognized in premises law. The term has been used only when wanton or wilful negligence may have been present. The argument of appellant is without merit.
The appellant contends that Mrs. Loney, the mother of Rodney, owed plaintiff an independent duty to assist the plaintiff when she discovered his plight, and having failed to do so she failed to exercise reasonable care to prevent further harm.
Under plaintiff’s evidence Mrs. Loney, an elderly lady, had lost one eye and the vision in her remaining eye was extremely limited. When she was called to her backdoor she saw the fire in her backyard and proceeded to extinguish the flames. However, there was no evidence she saw that the young boy’s clothes were burning. Mr. Williams, a neighbor, arrived in the Loney backyard and removed the burning trousers from the boy at about the same time. The boy’s mother and Mr. Williams carried the boy home. Mrs. Loney was in the backyard at that time and nothing was said to indicate Mrs. Loney had been aware of the boy’s condition.
In Prosser, Law of Torts, 4th Ed., Ch. 9, § 56, pp. 342-343, it is said:
“It also is recognized that if the defendant’s own negligence has been respon sible for the plaintiffs situation, a relation has arisen which imposes a duty to make a reasonable effort to give assistance, and avoid any further harm. Where the original danger is created by innocent conduct, involving no fault on the part of the defendant, it was formerly the rule that no such duty arose; but this appears to have given way, in recent decisions, to a recognition of the duty to take action, both where the prior innocent conduct has created an unreasonable risk of harm to the plaintiff, and where it has already injured him. . . .
“Where the duty is recognized, it is agreed that it calls for nothing more than reasonable care under the circumstances. The defendant is not liable when he neither knows nor should know of the unreasonable risk, or of the illness or injury. . . .” (Emphasis supplied.)
Under the allegations of the petition and evidence introduced by plaintiff such a cause of action is not supported. Assuming for the purposes of argument that the rule should be adopted in Kansas, the rule would not be applicable in the present case.
In conclusion we wish to acknowledge what has been referred to as a trend in this country toward abolition of the traditional classifications. Apparently the bellwether case in the United States was handed down in 1968, Rowland v. Christian, 69 Cal. 2d 108, 70 Cal. Rptr. 97, 443 P.2d 561. Our research indicates that in the ten years which have elapsed since Rowland only nine states have followed the lead. During this same period of time several states have elevated licensees to a common class with invitees, and five states have placed social guests in the category of invitees. During this same period of time a large majority of states have continued to follow the traditional common law classifications. At least six states have considered the advisability of following Rowland v. Christian, supra, and have declined to do so. The jurisdictions which have abolished all classifications are not sufficient in number to constitute a clear trend.
In the present case the plaintiff’s evidence was sufficient to require submitting the case to a jury on the theory of attractive nuisance and, even if a majority of this court were inclined to do so, this case is not a proper vehicle for discarding the traditional classifications. The case is one for the jury and we believe the members of the jury will be better informed as to the duty of the possessor of the premises toward this five-year-old plaintiff if it receives instructions on the law relating to an attractive nuisance as set forth in PIK 2d (Civil) 12.40.
Accordingly we approve the majority opinion of the Court of Appeals. The judgment of the District Court of Douglas County is reversed and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal by Kathleen V. Simmons (defendant-appellant), from the trial court’s order changing custody of the parties’ two minor children to James J. Simmons (plaintiff-appellee). The appellant contends the appellee failed to sustain the burden of proving a change in custody was necessary for the best interests of the children, and the trial court abused the exercise of its sound judicial discretion in ordering the change of custody.
On April 9, 1975, Kathleen v. Simmons (hereafter Vici) was granted a divorce from her husband James J. Simmons (hereafter Jim). Vici was awarded custody of the couple’s two adopted children, Matthew who was then four years of age and Tracy who was then one year old.
Jim is the president and principal stockholder in the National Oil Company, an independent oil and gas producer in Wichita, Kansas. He is a millionaire by his own admission. In addition to their house and a cash settlement of $26,250, Vici was awarded alimony in the amount of $1,500 per month for a period of three years unless she died or remarried. If she remarried or at the end of three years, whichever occurred first, her alimony decreased to $1,000 per month to continue for six years. She was also awarded $200 per month in child support for each child. Jim retained all the company stock.
Shortly after her divorce Vici began negotiations to purchase two Merle Norman Cosmetic Studios in Denton, Texas. She testified she wanted to secure an economically sound future for herself and for her children. Vici went to a training seminar for these businesses for three weeks in August and September of 1975. During this time she asked Jim to take care of both children. Jim kept Matthew; however, Tracy stayed with Vici’s parents. Jim made trips to Dallas and Houston during this three-week period and left Matthew with a girl friend and another friend in Kentucky. As a result of this visit on September 15, 1975, Jim filed a motion for change of custody in order to obtain Matthew. He subsequently withdrew this motion.
Vici moved with the children to Denton, Texas, in October of 1975, where she purchased a three-bedroom home with a detached garage converted into an apartment. She testified she wanted to employ a live-in housekeeper/baby-sitter in order to insure that her children would be properly cared for while she was at work.
Unfortunately Vici had less than a perfect record with housekeepers. From October until mid-July, when this change of custody suit was heard, Vici hired five housekeepers. The first two ladies each remained for less than two weeks and left before Vici started to work full-time. In January of 1976 Merle Root was hired. She remained until Jim’s motion to change custody was filed on March 10, 1976. After Mrs. Root left and before Dorothy Hunter, the last housekeeper, one employee left due to the emotional strain of the custody proceedings.
During this time Vici was also seeing Danny Blake. She met Danny when he was the assistant golf professional at the Rolling Hills Country Club in Wichita. The two became engaged after her divorce. Danny also moved to Denton, Texas, and began selling insurance. While he had his own apartment in Denton, he spent considerable time at Vici’s and stayed overnight on numerous occasions. Apparently Vici’s children were unaware of her sexual activities. Both Vici and Danny testified he stopped staying at Vici’s house in March when it was suggested their relationship might jeopardize Vici’s custody battle.
Jim Simmons visited his children on three separate occasions after their move to Denton, Texas. On two of these trips he took his 24-year-old girl friend, Linda Vincent. Jim and Linda were living together in Wichita. On these visits Jim and Linda shared a single hotel room overnight with the children. The two adamantly deny sleeping together in front of the children. Linda testified during these visits Tracy appeared to be unclean and Matt was starved for affection and attention.
Jim filed this change of custody suit on March 10, 1976. On March 15, 1976, he and Linda Vincent were married.
The voluminous record in this case reveals considerable testimony of the parties and their respective friends and neighbors. Some of the testimony was conflicting. In granting Jim’s motion for change of custody the trial court made the following findings:
“1. Plaintiff’s business obligations give her little time with the children.
“2. Images of authority are necessarily confused in this complicated arena which can only be detrimental to the children. Who holds the parental image.— various housekeepers — mother—fiance?
“3. Dan Blake did administer excessive corporal punishment to the minor daughter.
“4. The plaintiff and her fiance are trying to act out the role of mother and father without the benefit of marriage.
“5. The competency of all housekeepers hired by the plaintiff has to be considered below normal and the frequency of change has to be considered detrimental to the children.
“6. For all practical purposes Dan Blake is residing at the plaintiff’s place of residence at least five days a week or more.
“7. There have been five different housekeepers in eight months taking care of the children.
“8. The present housekeeper is not keeping proper care of the personal needs of the minor daughter as evidenced by failure to change underclothing and chafing of vital areas.
“9. The deposition of Dan Blake must be considered a noncooperative one and for an individual who has taken over fatherly obligations it indicates a lack of cooperation to get at all of the truth in this matter.
“10. The plaintiff does not intend to let her children interfere with either her business or her private life.
“11. The defendant has remarried and established a household.
“12. The defendant has arranged his business affairs so he can spend a normal working father’s time with the children and his present wife is not employed and would be at home to care for the children.
“13. The need of the children to identify themselves into a stable family situation is unquestionable and the defendant is in the best position to offer this stability.
“14. Parental authority in the home of the defendant would be more defined than it is in the home of the plaintiff. The present wife of the defendant is ready, willing and able to care for the minor children.
“15. The best interests of the children would be served if custody were changed, and it is hereby the order of the Court that the custody of the minor children be placed in the defendant, James J. Simmons. Mr. Simmons may proceed to Denton, Texas, and pick the children up on July 17th, 1976, at 10:00
The appellant first contends the evidence was insufficient to sustain the appellee’s burden of proving a change in custody was necessary for the best interests of the children.
The paramount question for determination of custody as between the parents is what best serves the interests and welfare of the children. All other issues are subordinate thereto. The court must determine which parent will do a better job of rearing the children and provide a better home environment. (Parish v. Parish, 220 Kan. 131, 551 P.2d 792 and cases cited therein.) The trial court may look at the availability and willingness of each parent to care for the children. (Lewis v. Lewis, 217 Kan. 366, 537 P.2d 204.)
In order to insure that the interests of the children are fully protected from an adverse change of circumstances, K.S.A. 60-1610(a) vests the trial court with continuing jurisdiction to modify a custody order. Therefore, a decree awarding child custody is res judicata with respect to the facts existing at the time of the decree. (Lewis v. Lewis, supra at 368.) However, when facts and circumstances change, custody may be changed. (Lewis v. Lewis, supra; and Hardenburger v. Hardenburger, 216 Kan. 322, 325, 532 P.2d 1106.)
Our court has repeatedly held the burden of proving a change in custody is warranted rests upon the movant. (Lewis v. Lewis, supra at 368; Bergen v. Bergen, 195 Kan. 103, 105, 403 P.2d 125; and Kimbell v. Kimbell, 190 Kan. 488, 376 P.2d 881.) Jim Simmons does not dispute that he had the burden of proving a change in custody was in the best interests of the children. To sustain his burden of proof Jim did not have to prove Vici was unfit to have custody of the children. (Lewis v. Lewis, supra at 369; Hardenburger v. Hardenburger, supra at 326; and Gardner v. Gardner, 192 Kan. 529, 533, 389 P.2d 746.) The question of unfitness arises only when the custody dispute is between one parent and a third party. (Trompeter v. Trompeter, 218 Kan. 535, 539, 545 P.2d 297; Schreiner v. Schreiner, 217 Kan. 337, 341, 537 P.2d 165; and In re Eden, 216 Kan. 784, 786, 533 P.2d 1222.) Instead, he had to show a change in the parties’ circumstances since the entry of the original custody order. (Goetz v. Goetz, 184 Kan. 174, 176, 334 P.2d 835.)
The trial court found Vici’s business and social interests, after her divorce, had priority over her concern for her children as well as her willingness to devote attention to Matthew and Tracy. Jim, on the other hand, had remarried and he and his wife were willing and able to offer the children a more stable home environment. Thus, the evidence was sufficient to sustain Jim’s burden of proving a change in circumstances.
The appellant also asserts the trial court abused the exercise of its sound judicial discretion in ordering a change in custody.
Certain basic principles apply in determining an abuse of the trial court’s discretion. The question of a change of custody is addressed to the sound judicial discretion of the trial court and the appellate court’s review of the trial court’s determination is very limited. (Lewis v. Lewis, supra at 368.) The trial court is in the most advantageous position to judge how the interests of the children may best be served. (Parish v. Parish, supra at 133; and Dalton v. Dalton, 214 Kan. 805, 808, 522 P.2d 378.) While an appellate court has only the printed page to consider, the trial court has the advantage of seeing the witnesses and parties, observing their demeanor, and assessing the character of the parties and quality of their affection and feeling for the children. (Greene v. Greene, 201 Kan. 701, 704, 443 P.2d 263.) The judgment of the trial court will not be disturbed without an affirmative showing of an abuse in the exercise of discretion. In Schreiner v. Schreiner, supra at 343, our court defined abuse of discretion in custody battles as follows:
“Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men 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. All judicial discretion may thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only to be abused when it plainly overpasses those bounds.”
The appellant argues the trial court applied a discriminatory double standard in reaching its conclusions. She states under the trial court’s double standard a working father may be away from the children during the day, but a working mother is prohibited from doing exactly the same thing. Moreover, she claims the double standard applies with respect to the living arrangements and life styles of the parties.
After a careful review of the entire record we cannot say the trial court abused its discretion in its custody award. The trial court’s numerous findings must be viewed in their proper perspective. The trial court was, in effect, faced with placing the children in the custody of a series of housekeepers or in the custody of the children’s stepmother. While Vici had increased her working hours away from the children during the year after the divorce, Jim had hired additional personnel to increase the number of hours he could spend with Matthew and Tracy. Furthermore, the trial court also felt Jim could offer the greater stability in the home environment. Thus, no abuse of discretion is shown under the facts and circumstances involved.
The judgment of the lower court is affirmed.
Holmes, J., not participating. | [
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The opinion of the court was delivered by
Fromme, J.:
The claimant, Harold F. Pike, appeals from the district court’s denial of workers’ compensation benefits. The examiner and the director granted an award. The district court denied an award and found . . that plaintiff [claimant] sustained injury or injuries arising out of and in the course of the employment with defendant [respondent] on August 3,1973, and prior thereto; that Notice of Injury, pursuant to K.S.A. 44-520 was not given to the defendant, and therefore, judgment should be entered for defendant.”
K.S.A. 44-520 provides:
“Proceedings for compensation under this act shall not be maintainable unless notice of the accident, stating the time and place and particulars thereof, and the name and address of the person injured, shall have been given to the employer within ten (10) days after the accident: Provided, That actual knowledge of the accident by the employer or his duly authorized agent shall render the giving of such notice unnecessary: Provided further, That want of notice or any defect therein shall not be a bar unless the employer prove that he has been prejudiced thereby.”
We have repeatedly held that lack of notice to the employer, which notice is required by K.S.A. 44-520, does not bar a claim for workers’ compensation unless the employer has been prejudiced thereby. (Andrews v. Bechtel Construction Co., 175 Kan. 885, 888, 267 P.2d 469; Gales v. Kiewit Sons’ Co., 184 Kan. 573, 337 P.2d 669; Cooper v. Morris, 186 Kan. 703, 705, 352 P.2d 35.) Before a workers’ compensation claim, otherwise valid, should be denied because of lack of the notice required by K.S.A. 44-520 the employer must successfully bear the burden of proving prejudice resulting from the lack of notice. (Phillips v. Helm’s Inc., 201 Kan. 69, 73, 439 P.2d 119.) Whether an employer is prejudiced by lack of notice is a question of fact to be determined by the trial court. (Andrews v. Bechtel, supra, Syl. 3.)
During the hearing before the examiner in this case the employer alleged prejudice from lack of notice. At the conclusion of the hearing the examiner found that notice of the injury had been given, and it therefore became unnecessary to consider the question of prejudice. The district court did not agree with the examiner and found the claim should be denied for failure to give notice of the injury.
Notice of the injury required by K.S.A. 44-520 is a question of fact and on appeal we accept the district court’s negative finding. The trial court was not required to adopt the evidence introduced by claimant bearing on this question. However, under the statute want of notice does not bar a claim “unless the employer prove that he has been prejudiced.”
A court when called on to inquire into the existence of prejudice from a defect in or lack of the notice required by K.S.A. 44-520 should consider that the purpose of this notice statute is to afford the employer an opportunity to investigate the accident and to furnish prompt medical treatment. (Paul v. Skelly Oil Co., 134 Kan. 636, 639, 7 P.2d 73.) Prejudice may arise if claimant’s injury is aggravated by reason of the inability of the employer to provide early diagnosis and treatment. Prejudice may also result if the employer is substantially hampered in making an investigation so as to prepare a defense. (3 Larson’s Workmen’s Compensation Law, §78.32, pp. 15-56 to 15-63.)
The four issues presented to the examiner at the hearing were:
“1. Did the claimant meet with personal injury by accident on the date alleged which arose out of and in the course of his employment?
“2. Did the claimant give notice of the accident and file his written claim as required by law?
“3. What was the nature and extent of the disability suffered as a result of the accident, if any?
“4. What amount of medical expenses, incurred, future and/or unauthorized, should be allowed and ordered paid?”
The district court found the first issue in favor of claimant. The second issue raised is in two parts: the first part concerns notice of the accident as required by 44-520 which we have discussed, and the second part concerns the requirement in K.S.A. 44-520a that written claim for compensation be served within two hundred (200) days after the accident, or within two hundred (200) days after the date of the last payment of compensation. The district court did not reach the question of whether the written claim for compensation had been timely filed.
The examiner after reviewing the respective positions of the parties on the question of the timeliness of the written claim found in favor of the claimant even though the claim was not filed until December 17, 1974, 501 days after the alleged injury occurred. There was evidence that certain hospital and medical expenses incurred by the claimant were paid from proceeds of an insurance policy obtained through the respondent employer. The policy had been issued incidental to the employment of the claimant. The time for filing a written claim under K.S.A. 44-520a may be extended under certain circumstances when it appears a claimant has been provided with payments for medical services under an insurance plan other than that required by the terms of the worker’s compensation act and at the time the payments are made is unaware of his rights under the act.
In Johnson v. Skelly Oil Company, 180 Kan. 275, 303 P.2d 172, an employee was covered by a group insurance plan. The employee was injured in the course of his employment but the trial court denied an award because of failure to file written claim within the time required by the statute. On appeal this court stated:
“. . . The hospital insurance plan covered only nonindustrial injuries and the assignment of benefits thereunder is of no significance in determining respondent’s rights and liabilities to claimant for compensable injury under the provisions of the Workmen’s Compensation Act. Except as provided in G.S. 1949, 44-537, an employer is either under the act and subject to its terms or he is not, and the act does not contemplate that an employer, being subject to its terms, may arrange some insurance plan, which would provide for payments other than those prescribed by the terms of the act, and by making a few payments under such plan, persuade a claimant to take a course of action inconsistent with his rights under the act and then take advantage of claimant’s position. (Wells v. Eagle-Picher M. & S. Co., 148 Kan. 794, 802, 85 P.2d 22.) . . .
“. . . Respondent cannot persuade claimant to take a course of action and then take advantage of his position. In Wells v. Eagle-Picher M. & S. Co., supra, this court held that payments made for medical care under an insurance plan, which did not conform to the act, were compensation and tolled the statute with respect to the time for filing claim. . . .” (p. 282.)
In the present case it is apparent that certain additional factual determinations must be made by the trial court. First, the issue of prejudice to the employer under K.S.A. 44-520 should be determined. Second, if no prejudice to the employer is found from the evidence introduced before the examiner, then the trial court must determine the timeliness of the written claim. Third, if the trial court should find the payments for hospital and medical services fall within the rule enunciated in Johnson and that written claim was filed within two hundred (200) days after the last payment was made, then the remaining issues raised before the examiner should be considered, i.e., the nature and extent of the disability suffered and the amount of medical expenses.
One additional argument of respondent in support of the trial court’s judgment should be considered. The respondent contends the evidence before the examiner established not only no notice of injury was given but also the employer received a claim under the hospital insurance policy advising it that claimant’s injuries were not work connected. It is urged that this notice which is in conflict with the later claim of coverage should remove the requirement in K.S.A. 44-520 that the employer prove he has been prejudiced by lack of notice. In other words we are urged to hold that when an employer receives notice from the worker that an injury is not work connected, proof of the giving of such erroneous notice should establish prejudice per se.
Again we must look to the purpose of this notice statute. There can be little doubt that such a notice would give an employer reason for not investigating an accident and reason for not offering to provide early diagnosis and treatment. The injury might be aggravated by reason of the employer’s inability to provide early diagnosis and treatment. The employer might be hampered in making a timely investigation of the accident so as to prejudice the preparation of a defense.
If the time, place or particulars of the injury are erroneously given, the statute provides that knowledge by the employer of the accident renders the giving of such notice unnecessary. See the first proviso in K.S.A. 44-520. Under the second proviso of the statute “any defect therein shall not be a bar unless the employer prove that he has been prejudiced thereby.” Notice that an injury is not work connected is a defective notice if in fact the injury arose out of and in the course of the employment. The examiner, director and the district court all determined that claimant sustained injury or injuries arising out of and in the course of the employment. It must have been fairly apparent in the present case that the notice to the employer was erroneous. The claimant was either mistaken, misled or ignorant of his rights under the act when the notice was given. Such an erroneous notice cannot be held to result in prejudice per se so as to bar a valid claim for compensation under the worker’s compensation act.
In summary we hold that although the district court found notice of the injury was not given to the employer as required by K.S.A. 44-520 it failed to determine whether the employer had been prejudiced. Such a finding of prejudice was required before judgment could be entered for the defendant. The judgment in favor of the defendant-employer is reversed and the case is remanded for further proceedings in accordance with the views expressed herein. | [
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Whereas, In a proceeding conducted by the State Board of Law Examiners to inquire into the complaint of alleged professional misconduct by John R. Elmborg, and
Whereas, Following a full hearing as to such complaint, the State Board of Law Examiners found that John R. Elmborg, Blue Rapids, Kansas, in several conservatorship estates failed, neglected and refused to file accountings or failed to furnish as a part of an accounting information required by the court as a condition to approval of accountings, and by reason thereof violated the following rules of the Code of Professional Responsibility: DR 1-102 (A) (6), DR 6-101 (A) (3), and DR 9-102 (B) (3) and (4) (214 Kan. lxxv, Ixxxyii, and xcii), and
Whereas, The State Board of Law Examiners made a written recommendation to this Court that said John R. Elmborg be disciplined by “Suspension” from the practice of law, as provided by Rule No. 203 (a) (2) (220 Kan. xxviii [Adv. Sheet No. 2]), for an indefinite period, and
Whereas, In accordance with Rule 213 (c) (220 Kan. xxxiii [Adv. Sheet No. 2]), a copy of the report, findings and recommendations of the Board was mailed to respondent on September 8, 1977, along with a citation directing him to file with the Court either a statement that he did not wish to file exceptions, or his exceptions to the report, and
Whereas, Since more than twenty days passed after the citation was mailed, and no response was received, said John R. Elmborg was notified to appear before this Court on November 4, 1977, for the imposition of discipline, pursuant to Rule 213 (d) (220 Kan. xxxiii [Adv. Sheet No. 2]), and
Whereas, On the 4th day of November, 1977, the matter came on for hearing before the Court, the State of Kansas appearing by Philip A. Harley, assistant attorney general, and respondent appearing not, and the Court, after consideration of the record and being fully advised in the premises, finds the recom mendation of the State Board of Law Examiners should be accepted.
It is, therefore, by the Court Considered, Ordered and Adjudged that the said John R. Elmborg be and he is hereby disciplined by suspension from the practice of law for an indefinite period, as of the 4th day of November, 1977, and that he pay the costs of the proceeding. It is further ordered that this Order of Suspension be published in the official Kansas Reports.
By Order of the Court, dated this 4th day of November, 1977. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an original action seeking a writ of mandamus to compel the opening of sealed bids which have been submitted for the construction of the Honey Bee Lodge and Hospital Care Facility at the Kansas Neurological Institute, a state owned and operated institution.
The specifications incorporated the provisions of K.S.A. 44-201 which require the contractor to pay its employees the “current rate of per diem wages,” as defined therein. Specific wage rates were not included in the specifications. The plaintiff and others submitted bids based on these specifications. Prior to the opening of the bids, the Attorney General advised the Director of Architectural Services and the Secretary of Administration that the specification requiring contractors to pay the “current rate of per diem wages” was not in compliance with K.S.A. 44-201 as the statute required the inclusion in the specifications of a detailed statement of the precise prevailing wage for each classification of workmen whose services would be required in the construction of the Honey Bee Lodge. The Attorney General further advised that the opening of the sealed bids should be deferred until the wage rates were determined, an appropriate addendum added to the specifications, and bidders afforded an opportunity to submit amended bids. The Director of Architectural Services subse quently returned the unopened bids. The plaintiff brings this action to compel the opening of the bids.
The plaintiff challenges both the constitutionality of K.S.A. 44-201 and the interpretation of the statute by the Attorney General which requires the inclusion of specific wage rates in the specifications.
Hearing of this matter has been expedited by a preferential setting for argument upon joinder of the issues and stipulation of the facts. The case has been briefed by the parties and amici curiae and was orally argued on March 28, 1978.
Upon due consideration by a unanimous court, we conclude that: (1) K.S.A. 44-201 is a constitutionally valid enactment of the legislature; (2) the requirement in the specification that the contractor pay the “current rate of per diem wages” without enumerating specific wage rates was a correct application of the statute; (3) the interpretation by the Attorney General that K.S.A. 44-201 requires the inclusion of specific wage rates in bid specifications is erroneous; and (4) a writ of mandamus should be issued. Defendant Director of Architectural Services is ordered to proceed forthwith with the bidding process on the Honey Bee Lodge and Hospital Care Facility in accordance with conclusions reached herein. This brief opinion announcing our decision will be augmented by a forthcoming formal opinion to be filed. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal from a summary judgment denying the right of a surviving spouse to inherit from her deceased husband’s estate by reason of a decree of separate maintenance entered June 14, 1972, by the District Court of Jefferson County.
The question is whether the decree of separate maintenance which made a division of the property is final in the sense that property set apart to one spouse cannot be inherited by the surviving spouse under the separate statutes governing intestate succession.
The Kansas Court of Appeals reversed the trial court in an opinion titled Linson v. Johnson, Executrix, 1 Kan. App. 2d 155, 563 P.2d 485, and we granted a petition for review. The facts are fully stated in the opinion of the Court of Appeals, and upon review we adopt and approve the opinion written by the Court of Appeals, which held:
“Nothing in the decree of separate maintenance indicates any clear intent of the trial court at that time to terminate rights of inheritance by either of these parties in the estate of the other, and we hold that under the circumstances set forth in this appeal, Ludie Linson as the surviving spouse of George Linson, deceased, is entitled under the provisions of K.S.A. 59-603 to make an election to take what she is entitled to by the laws of intestate succession and her right to inherit from the estate of her deceased husband was not barred by the decree of separate maintenance rendered June 14, 1972, by the District Court of Jefferson County, Kansas. Having so determined, any question as to Ludie’s entitlement to rights of homestead and the widow’s allowance remain with the district court to be resolved pursuant to law.” (pp. 162-163.)
We elaborate on the construction of K.S.A. 60-1610(c) to avoid confusion.
This provision relating to the disposition of property applies equally to cases where either separate maintenance or divorce is decreed. By the language in 60-1610(c), supra, the legislature intended to broaden the power of the trial court concerning the division of property. It brought about a change in the prior law. (LaRue v. LaRue, 216 Kan. 242, 531 P.2d 84.) The trial court can now set property apart to a husband or wife for a period of years until the children are grown or finish school, can place property in trust for the benefit of the wife or husband, as the case may be, can create a life estate in one of the parties with remainder over to the other, or can give property to one of the spouses with a lien in favor of the other, payable out of the proceeds at the expiration of a certain period of time when the property is to be sold. In other words, the trial court can now decree disposition of the property in such a manner as may be appropriate under the circumstances of the case. As 60-1610(c) now stands it does not prevent the trial court from awarding property to one of the parties absolutely by employing language to that effect — that the property, describing it, is awarded to one of the parties, naming the party, free and clear of any right, title, interest, lien, claim or estate of the other.
All the trial judge was required to do, where separate maintenance was decreed, as here, to cut off the right of inheritance of the survivor of the first of the parties to die was to provide in the decree that title to the real property awarded each of the parties be vested free and clear of any right, title, interest, lien, claim or estate of the other party.
When a decree of separate maintenance is entered, and the property is divided pursuant to 60-1610(c), the decree must be specific and clearly indicate an intent on the part of the trial court, when the decree is entered, to terminate the rights of inheritance by either of the parties to the marriage in the estate of the other.
The judgment of the trial court is reversed. | [
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Per Curiam:
Gerald Leon Cooper was convicted by a jury of the crime of burglary (K.S.A. 21-3715). On appeal the defendant contends the trial court erred in admitting into evidence the exhibits and items taken from the defendant at the time of his arrest because said items were taken as a result of an illegal search and seizure following an illegal arrest in the State of Oklahoma and that there was insufficient foundation presented for the admission of such items into evidence at trial.
Around 2:00 A.M. on September 15, 1971, a grocery store in Kismet, Kansas, was burglarized. Two witnesses saw a pickup truck leaving the grocery store. The owner of the store lived across an alley from the store and was awakened by noises from the store. The Seward county sheriff’s office was called to investigate. Cash from the safe and groceries were taken. One of the witnesses advised the vehicle was a light blue or light green Ford pickup with a “headache rack.” At about 5:12 A.M. in Woodward, Oklahoma, two officers heard a radio transmission regarding the Kismet burglary which included the general description of the vehicle. Shortly thereafter these officers saw defendant’s pickup. They stopped the truck as it had a loud exhaust system and no taillights. The officers warned the defendant about the defects, but issued no citation. Both officers observed a large quantity of groceries in the pickup bed. The defendant drove to the residence of the other occupants of the pickup and was followed by the officers. One officer was left to observe and the other went to bring a police captain to the scene. The defendant left for his own residence and was found there by the officers. The captain saw the grocery items in the pickup bed and defendant was arrested. The pickup was taken by a wrecker to a wrecking yard. There, officers inventoried the items in the truck and removed the same. Included in these items were a large chunk of beef, grocery items, cash, and a brown tool bag containing several punches, a hammer, and two screwdrivers. The safe in the store had been broken into and a sand-like material found near the tool bag was identified by a K.B.I. chemist as being essentially identical to insulating material near the safe. Defendant’s defense was alibi. The other occupants testified for him and he stated he purchased the grocery items from two strangers in a pickup.
The defendant first contends the arrest in Oklahoma was illegal. In the absence of an applicable federal statute the law of the state where an arrest without a warrant takes place determines its validity. See State v. Shienle, 218 Kan. 637, 640, 545 P.2d 1129.
“An arrest [in Oklahoma] is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer.” Okla. Stat. Ann. tit. 22, § 190.
“A peace officer may, without a warrant, arrest a person:
“1. For a public offense, committed or attempted in his presence.
“2. When the person arrested has committed a felony, although not in his presence.
“3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
“4. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.” Okla. Stat. Ann. tit. 22, § 196.
“A felony is a crime which is, or may be, punishable with death, or by imprisonment in the State prison.” Okla. Stat. Ann. tit. 21, § 5.
“The following persons are liable to punishment under the laws of this State:
“1. All persons who commit, in whole or in part, any crime within the State.
“2. All who commit theft out of this State, and bring, or are found with the property stolen, in this State. . . .” Okla. Stat. Ann. tit. 21, § 151.
The officers properly stopped defendant’s pickup in the first instance for observed muffler and taillight violations. There is no evidence of a sham stopping for imagined violations. The stop was proper so officers had a right to be where they were when the groceries were first observed.
When the defendant was later arrested at his home, the officers had probable cause to believe defendant had committed a burglary in Kansas and that the defendant had committed a crime in Oklahoma, i.e., violation of the aforecited Okla. Stat. Ann. tit. 21, §151. The defendant was charged in Oklahoma although the charge was not prosecuted. The court concludes the arrest was proper.
The defendant next claims an illegal search and seizure of the items in his vehicle. The officers did not have a search warrant. As in arrest we look to the state of search and seizure to determine validity. See State v. Blood, 190 Kan. 812, 816, 378 P.2d 548. It is not necessary to reach the issue of a “search” as the articles on which the probable cause arrest was based were in plain view before the inventory search began. See Satterlee v. State, 549 P.2d 104, 110 (Okla. Crim. App. 1976). Visual observation by police officers of contraband in plain view does not constitute a search. See Cheatham v. State, 483 P.2d 1172, 1175 (Okla. Crim. App. 1971). The subsequent seizure and inventory of the contraband were, accordingly, proper, including items not in plain view.
The remaining portion of the error claimed relating to insufficient foundation for admitting the seized items was not briefed. Points two and three in the statement of points were, likewise, not argued or briefed. These points will be deemed abandoned. See State v. Mims, 222 Kan. 335, Syl. 6, 564 P.2d 531.
The judgment is affirmed. | [
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Whereas, In a proceeding conducted by the State Board of Law Examiners to inquire into the complaint of alleged professional misconduct by Richard Gene Rossman, and
Whereas, Following a full hearing as to such complaint, the State Board of Law Examiners found that Richard Gene Rossman, Olathe, Kansas, neglected his duty in failing to conclude matters in an estate in a prompt and expeditious manner, thus delaying final settlement at least four years. His conduct constituted a violation of DR 6-101(A)(3) of the Code of Professional Responsibility (220 Kan. cxxi), and
Whereas, The State Board of Law Examiners has made a written recommendation to this Court that said Richard Gene Rossman be disciplined by “Public Censure” as provided by Rule 203 (a)(3) (220 Kan. lxxxiii), and
Whereas, In accordance with Rule 213 (c) (220 Kan. lxxxviii), a copy of the report, findings and recommendations of the Board was mailed to respondent on October 14, 1977, along with a citation directing respondent to file with the Court either a statement that he did not wish to file exceptions, or his exceptions to the report, and
Whereas, Since more than twenty days passed after the citation was mailed, and no response was received, said Richard Gene Rossman was notified to appear before this Court on February 24, 1978, for the imposition of discipline, pursuant to Rule 213(d) (220 Kan. lxxxviii), and
Whereas, On the 24th day of February, 1978, the matter came on for hearing before the Court, the State of Kansas appearing by Roger N. Walter, assistant attorney general, and respondent appearing not, and the Court, upon request of respondent, granted a continuance until March 1, 1978, when he was permitted to appear before the Court, and
Whereas, Upon consideration of the record and the statement by respondent, and being fully advised in the premises, the Court finds the recommendation of the State Board of Law Examiners should be accepted.
It is, therefore, by the Court Considered, Ordered and Adjudged that the said Richard Gene Rossman be and he is hereby disciplined by public censure and that he pay the costs of this proceeding. It is further ordered that this Order of Public Censure be published in the official Kansas Reports.
By Order of the Court, dated this 1st day of March, 1978. | [
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The opinion of the court was delivered by
Fromme, J.:
Joe B. Roach was convicted of aggravated robbery (K.S.A. 21-3427) of a candy store in Wichita, Kansas, on December 1, 1975. He appeals from that conviction and raises three points. All points concern the admission into evidence of polygraph test results.
In the state’s case in chief there was no mention of either an offer or refusal by the defendant to submit to a polygraph examination.
The defendant Roach took the stand in his defense and interjected into the record his prior willingness to take a polygraph examination. This testimony went into the record as a result of his unresponsive answer on direct examination as follows:
“Q. Your mother testified yesterday that you asked the police to take you down to Mrs. Rolfe’s store and see if she would identify you as not being the one present. Did you do that?
“A. Yeah, I asked him to take me down, and asked — and he asked me would I take a lie detector test, and I told him I would take that; and then they wouldn’t, and they didn’t say nothing about that. I thought I was going to take one, but I didn’t know, so I just sit there and I didn’t know what was going on then, that I know of.”
The defendant’s attorney permitted the unresponsive answer to stand without asking to have the inadmissible testimony stricken. On cross-examination the state questioned the defendant as follows:
“Q. Now, insofar as your conversation with Detective Sichley was concerned, you told him that you would take the lie detector test?
“A. Yep.
“Q. Does that offer still stand?
“A. Yep.
“Q. And you would still be willing at this time to take a lie detector test?
“A. Yep.
“Q. And would you be willing to let the jury hear the results of that test, whatever they may be?
“A. Yep.”
No objection was made to this line of questioning. The prosecuting attorney continued questioning defendant about other matters. He then stated he had no further questions, and the witness was asked to step down. Defense counsel requested a recess at which time the prosecution asked to approach the bench. Outside the hearing of the jury he requested permission to transport defendant to the police department to take a lie detector test, pursuant to the offer on cross-examination. The court stated it thought defendant was bound by his testimony on cross-examination. Defense counsel requested a couple of minutes to confer with the defendant, “ . . . just to make sure he understands what he’s up to.” The prosecutor agreed, adding that if defendant refused he thought he was entitled to have the refusal before the jury. Defense counsel agreed. Defense counsel conferred with the defendant, returned to the bench and reported: “We’re going to go. We’re ready.” The court then directed an order be prepared for his signature. The test was conducted that afternoon.
Over objection Detective Harold Malone, a polygraph examiner for the Wichita Police Department, testified in detail as to his qualifications and the examination of defendant. He testified he gave defendant two written forms to read, one a polygraph release form stating defendant was voluntarily taking the test, without duress or coercion; the other a rights form containing the Miranda rights, including the right to remain silent and the right to an attorney. He then asked defendant if he understood them to which defendant replied he did and defendant then signed both forms. Defense counsel did not see these forms until they were introduced at trial, at which time he objected to their admission. The objection was overruled.
Detective Malone testified that the results of the polygraph examination indicated defendant was not telling the truth when he said he was not in the candy store when the robbery occurred and he was not telling the truth when he said he did not point a gun at the proprietor. The examiner testified fully as to his qualifications, the manner in which the examination was conducted, and the way the machine reacted to changes in the normal body functions. He was cross-examined fully on the limitations inherent in polygraph examinations and the possibilities for error which were inherent in the results to be obtained.
We turn to the points raised on appeal. It should be noted at the outset, testimony in a criminal trial that a defendant either refused a polygraph test or offered to submit to one is not admissible into evidence. (State v. Emery, 218 Kan. 423, 425, 543 P.2d 897 [1975]. See also authorities cited at p. 760 of State v. Lassley, 218 Kan. 758, 545 P.2d 383 [1976].)
The first point on appeal is that the polygraph results were inadmissible in the absence of a written stipulation and a determination the stipulation was voluntarily and knowingly made.
A similar, though not identical, situation was present in State v. Lassley, supra. There the defendant moved the court, in the presence of the jury, to order the chief of police to arrange the test for him. He informed the court he would stipulate the results would be admissible into evidence. Upon resumption of the trial the examiner testified in detail as to the operation of the machine, the manner in which the test was given, and the results. No objection was raised. There was no separate written stipulation executed or filed.
On appeal the defendant claimed error because he was unaware of the numerous faults inherent in such a testing system. This court noted that in the absence of a stipulation, the results of a polygraph test would not be admissible. The court continued:
“A much different situation, however, is presented when the parties stipulate the results will be admissible in evidence. Despite the recognized flaws inherent in such a testing system, an accused cannot agree to the admissibility of such evidence, then object to its admission solely because of unfavorable results. We believe the better rule is to permit the introduction of the results of a polygraph examination upon the prior stipulation of the parties, after having satisfied the trial court that the examiner was qualified and the test was conducted under proper conditions. This is consistent with the holding in a growing number of cases which have considered the effect of a stipulation on the admission of polygraph tests. Proper weight is attached to the giving of a stipulation, but discretion is vested in the trial court to exclude the evidence if the test is not conducted fairly. [Citations omitted.]” (218 Kan. p. 760.)
The court then noted the defendant had stipulated to the admissibility; the examiner testified extensively as to his qualifications and the operation of the machine, as well as testifying to the questions he asked the defendant and his opinions as to the truthfulness of defendant’s answers, all present here. This court then held there was no error in admission of the results.
The defendant asks this court to establish certain procedural safeguards not present in Lassley. He states the stipulation should be reduced to writing, signed by counsel and the defendant, and filed of record. After examining the authorities set forth in Lassley it is apparent that the purposes of requiring a written stipulation are to prevent fraudulent claims of oral stipulations, to prevent disputes as to the existence and terms of such agreements, and to relieve the court of the necessity of determining such disputes. See also 83 C.J.S., Stipulations, § 4, p. 4. When a stipulation is made in court on the record it is unnecessary to require the writing. See State v. Bennett, 222 Kan. 358, 360, 564 P.2d 540 (1977); 83 C.J.S., supra, § 4, p. 6; 73 Am. Jur. 2d, Stipulations, § 2, p. 537.
Rule No. 163 of the supreme court states:
“A court is not required to give effect to stipulations between counsel, or oral admissions of counsel, which are not reduced to writing and signed by the counsel to be charged therewith, or which are not made a part of the record.” (220 Kan. lxvi. Emphasis supplied.)
A stipulation to admit into evidence polygraph test results entered in court and on the record is as binding on the parties as if the same had been reduced to writing, signed by the parties, and filed of record.
This court has previously recognized that a trial court may relieve the parties from the effect of any stipulation to prevent manifest injustice and assure the parties a fair trial. (State v. Bennett, supra, p. 360; State v. Gordon, 219 Kan. 643, 651, 549 P.2d 886 [1976]; State v. Craven, 215 Kan. 546, 548, 527 P.2d 1003 [1974].)
The appellant contends the court should have advised him of the reliability of the polygraph test and the possibilities for error in the results before such a stipulation should be permitted to bind him. The reliability of the test and possibilities for error are matters of individual opinion as pointed out in State v. Lassley, supra. Of course, it must appear that the stipulation to submit to the test and have the results admitted in evidence was freely entered into with full knowledge of the right to refuse the test and of the consequences involved in taking it. (State v. McDavitt, 62 N.J. 36, 297 A.2d 849 [1972].)
The court did question the appellant and counsel in this case. They were permitted to confer in private. It was counsel’s duty at that time to advise his client as to these matters. Then, when appellant was being prepared by the examiner to take the test he read and signed a polygraph examination release. The release recited that appellant was voluntarily submitting to the tests, that he understood the test involved the use of mechanical and electronical apparatus which recorded emotional and physiological responses, and that the general nature of the examination had been explained to him.
We have considered the foregoing matters. The results of a polygraph examination may be admitted into evidence when stipulated by both the state and the defendant provided: (1) The stipulation is in writing and filed for record or entered into in court and made a part of the record; (2) the defendant voluntarily and knowingly consents to such examination; (3) counsel and the defendant stipulate the results are to be admissible in evidence; (4) the trial court is satisfied that the examiner is properly qualified to administer such tests and that the examination has been conducted under proper conditions; and (5) the opposing party is given adequate opportunity to cross-examine the polygraph examiner on his qualifications and training, and on the limitations and the possibilities for error in the results obtained.
After reviewing the record we believe the foregoing guidelines for permitting the results of a polygraph examination to be admitted into evidence were substantially met in this case and no error has been shown.
Appellant’s next point concerns the failure of the trial court to sustain his motion to strike the initial testimony of appellant which mentioned his willingness to take the examination.
It should be noted that appellant’s counsel did not object to the testimony when it came into the record as an unresponsive answer to a question by his counsel. A defendant has nothing to lose by agreeing to such a test, knowing the results are not admissible without a later stipulation. (State v. Emery, supra.) It was not until after the polygraph test results were available and about to be introduced into evidence that this motion was lodged. The proper procedure would have been for appellant’s counsel to have made his request when the unresponsive answer improperly interjected the inadmissible testimony into the record.
It was the defendant who insisted on getting this offer to take a lie detector test before the jury in an effort to prove his innocence. Once this testimony was heard by the jury, its impact was obvious. A motion for a mistrial would probably have been denied in favor of the alternative, striking the testimony and instructing the jury to disregard it. However, in such case a question will always linger as to whether the testimony can be erased from the memories of the jurors. The prosecutor can hardly be faulted in the present case in asking the defendant if he was presently willing to take such a test. It is clear the defendant and his attorney provoked the situation. When a defendant opens up an otherwise inadmissible subject, the state may further explore the subject on cross-examination. (State v. Ralph, 217 Kan. 457, Syl. ¶ 8, 537 P.2d 200 [1975]; State v. McDavitt, supra.) Therefore, it was not error to refuse to strike defendant’s original testimony. The motion to strike was not made until after the polygraph test results had been obtained and were about to be introduced on stipulation. This was not the proper time to have made the motion.
Appellant’s third and final point is that his attorney was not present in the room when the polygraph examination was ad ministered and this denied him the assistance of counsel at a critical stage of the proceedings. Counsel was present at all times during the trial proceedings. He accompanied the defendant to the door of the examination room. Thereafter the defendant and the examiner were alone during the examination. Defendant read and signed the two forms; one was the Miranda rights form.
The Miranda form which he signed advised him he could remain silent and he had the right “to talk to a lawyer for advice before we ask you any questions. . . .” He was also advised he could refuse to answer questions and talk to a lawyer at any time. Defendant does not contend that he requested the assistance of his counsel during the testing. He cites no cases which would uphold this contention under these circumstances. The trial proceedings were recessed during the time the polygraph examination was being administered. This was not a critical stage in the criminal proceedings which requires the presence of counsel and we believe defendant could and did effectively waive counsel during this time. No unfair tactics are claimed and nothing has been pointed out in the test examination to show prejudice to the defendant other than the test results, which favored the prosecution. This point is without merit.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from convictions of first-degree murder (K.S.A. 21-3401) and aggravated assault on a law enforcement officer (K.S.A. 21-3411). This prosecution arose out of an occurrence which took place on October 19,1976, in Kansas City, Kansas. The defendant, John Wesley Turner, a young man of twenty-one years on parole from the Kansas State Reformatory, stabbed to death his parole officer with a. knife. On the same occasion the defendant attacked another law enforcement officer with the same knife. Following his arrest at the scene and the filing of charges of first-degree, murder and aggravated assault on a law enforcement officer, a preliminary hearing was held before the judge of the magistrate court of Wyandotte county. On November 30,1976, at the conclusion of the evidence, the magistrate judge ordered the defendant bound over for trial in the district court on the charge of murder in the second degree and aggravated assault on a law enforcement officer. On December 3, 1976, the district attorney, being dissatisfied with the magistrate’s rul ing, filed new charges of first-degree murder and aggravated assault on a law enforcement officer against the defendant in district court. On the same day he dismissed the charges against the defendant in the prior case. The defendant filed a motion to dis .iss the new charges, claiming the procedure to be in violation of K.S.A. 22-2905. After a hearing, the district judge overruled the defendant’s motion and ordered a second preliminary hearing on the new charges. Following that hearing, the defendant was bound over to the district court in the later case on charges of first-degree murder and aggravated assault on a law enforcement officer. Thereafter the defendant was tried and convicted by a jury.
On appeal the defendant contends that the district court erred in overruling his motion to dismiss the charges in the second case. In support of his position the defendant relies on K.S.A. 22-2905(1) and (2) which provide as follows:
“22-2905. Proceedings after the preliminary examination. (1) When a defendant is bound over to the district court, the magistrate shall forthwith prepare a transcript of all proceedings before him and shall certify and transmit such transcript, together with the appearance bond and any security taken by him, to the clerk of the district court in which the accused is ordered to appear.
“(2) When a defendant is bound over to the district court, the prosecuting attorney shall file an information in the office of the clerk of the district court, charging the crime for which the defendant was bound over.” (Emphasis supplied.)
It is the position of the defendant that under 22-2905(2), when a defendant is bound over to a district court for trial, the prosecuting attorney must file an information in the office of the clerk of the district court charging the crime for which the defendant was bound over. Defendant maintains that the use of the word “shall” makes such action mandatory. We do not agree with the defendant in his construction of the statute. In our view the statutory provision is directory rather than mandatory since it simply directs a mode of procedure to secure order, system, and dispatch in criminal proceedings. (Paul v. City of Manhattan, 212 Kan. 381, 511 P.2d 244; State v. Brown, 205 Kan. 457, 470 P.2d 815.) It has long been the law of this state that a preliminary examination is not a trial of the defendant’s guilt; it is rather an inquiry whether the defendant should be held for trial. (In re Mortimer, 192 Kan. 164, 386 P.2d 261.) Following a preliminary examination, the examining magistrate has no power to acquit but only the power to discharge from custody. Such a discharge is not a bar to another examination. (State v. Henry, 219 Kan. 310, 548 P.2d 808.) The district attorney is the representative of the state in criminal prosecutions. He controls criminal prosecutions. He has the authority to dismiss any charge or to reduce any charge. (State v. Pruett, 213 Kan. 41, 515 P.2d 1051; State v. Kilpatrick, 201 Kan. 6, 439 P.2d 99.)
The examining magistrate’s function at a preliminary examination is to determine probable cause. When the examining magistrate errs in this function by failing to bind the defendant over to the district court for trial on a charge which is warranted by the evidence, the state’s only remedy is to dismiss and file another case. There is nothing in the law which prohibits the course of action taken by the district attorney in this case. As long as a defendant has not been placed in jeopardy, he ordinarily has no cause for complaint in these circumstances. By way of a caveat it should be pointed out, however, that in a case of harassment resulting from the filing of groundless and vexatious prosecutions, a defendant may petition a district court and obtain injunctive relief. (Foley v. Ham, 102 Kan. 66, 169 Pac. 183.)
The other point raised on the appeal is that the verdicts of guilty were not supported by the evidence. We have no hesitancy in holding that the evidence was sufficient to support the verdicts of guilty of both offenses.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from convictions of five counts of kidnapping (K.S.A. 21-3420[h]), three counts of aggravated robbery (K.S.A. 21-3427), and one count of felony possession of a firearm (K.S.A. 21-4204). This case arose out of the armed robbery of the Mr. Steak restaurant in Lawrence, Kansas, on February 28, 1976. Three black males entered the restaurant separately. One robber forced the waitress to empty the cash register. A second robber forcefully took the wallet of a customer, Ronald F. Cade. After obtaining the money, one of the robbers ordered the waitress and four customers into a walk-in refrigerator. As this was occurring, the third robber forced the cook to unlock the safe. Having accomplished their business, the robbers left. The only real issue to be determined at the trial was the identity of the defendant, Clarence R. Jordan, as one of the robbers. The sufficiency of the evidence to convict the defendant Jordan is not an issue raised on the appeal.
The only point raised is that the defendant should be granted a new trial because the prosecutor cross-examined the defendant Jordan concerning his post-Miranda silence in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. The defendant relies primarily upon Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240 (1976); State v. Heath, 222 Kan. 50, 563 P.2d 418; and State v. Mims, 220 Kan. 726, 556 P.2d 387.
At the trial, highway patrolman Kearns testified that he heard a police radio dispatch about the robbery and shortly thereafter spotted a vehicle which answered the description of the getaway car. Patrolman Kearns turned on his flashing red light. The suspect vehicle immediately increased its speed and attempted to elude the highway patrol car. A high-speed chase ensued through a residential area of Lawrence. During the chase, patrolman Kearns observed the driver of the vehicle and the passenger, identified as the defendant, throwing various objects out of the speeding car. The vehicle was finally stopped by a police roadblock and the occupants were arrested. The objects thrown by the defendant Jordan were later identified as a paper sack containing the stolen money, a revolver, and also Mr. Cade’s wallet.
At the trial defendant Jordan took the stand to explain how he happened to be in the getaway vehicle and why he had possession of the fruits and instrumentalities of the crime. According to Jordan, on the afternoon of the robbery he rode as a passenger with his friend, Clarence Reed, from Topeka to Lawrence. Defendant had an argument with his girlfriend and wanted to “cool-off.” Reed dropped Jordan off at a 7-11 store near the turnpike entrance. According to Jordan, Reed returned with two men in about 30 to 45 minutes. Reed introduced Jordan to the two men. Reed then handed the other men a sawed-off shotgun wrapped in a blanket and which he had taken from the back seat floorboard of the Reed vehicle. The men then left. When the police chase began, Jordan assumed that Reed had drugs in his possession and that the police were pursuing Reed for that reason. As the car turned the corner, money spilled out from under the front seat. At that time Reed confessed that he had just committed a robbery. Reed refused to stop the car to let Jordan out. As the chase continued through a residential area, Jordan became afraid that the car would crash or injure a child. To get Reed to stop the car, Jordan threw the objects out the window. Reed finally stopped the car after encountering a police roadblock.
During the prosecutor’s cross-examination of Jordan the following exchange occurred:
“Q. Mr. Jordan, who else have you told that statement to?
“A. Told what statement?
“Q. Just what your story is here, what you just stated here today?
“A. I haven’t told nobody that I can remember.
“Q. What about the police officer who stopped the car?
“A. That stopped the car?
“Q. Yes. Why didn’t you tell him that?”
At this point defense counsel approached the bench and requested the court to declare a mistrial. The trial court refused to declare a mistrial but did sustain defendant’s objection and admonished the jury with the following statement:
“THE COURT: The last question asked is improper and it is stricken and the jury is admonished to disregard it.”
From that point on the matter was not brought up again, either during the examination of other witnesses or in arguments of counsel.
Counsel for the defendant Jordan relies upon Doyle and Mims claiming it was constitutional error for the prosecutor to inject before the jury the fact that Jordan had not told his story to the police officer who stopped the vehicle in which he was riding. Counsel further argues that the identification of Jordan as one of the robbers was questionable, and therefore the conduct of the prosecutor could not be considered harmless error.
Under all the circumstances shown in the record, we have concluded that the question asked by the prosecutor, although improper, constituted harmless error beyond a reasonable doubt. In reaching this conclusion we note that the rule of Doyle v. Ohio, supra, does not require an automatic reversal in every case where the prosecutor asks a defendant why he did not tell his story to a police officer at the time of arrest. In the case now before us we note that the defendant never answered the propounded question. On defendant’s objection the trial court promptly ordered the question stricken as improper, so advised the jury, and admonished the jury to disregard the question. The matter was never brought up again by the prosecutor during the trial. We further note that the evidence of guilt in this case was very strong. The defendant was captured shortly after the robbery in the getaway vehicle. During the chase the defendant threw various articles connected with the crime out the window of the speeding car. At the trial the defendant was positively identified by two eyewitnesses as being one of the robbers.
In Doyle v. Ohio, supra, the trial court, over defense counsel’s objections, permitted the prosecutor a wide-ranging cross-examination of the defendants on their silence after receiving Miranda warnings. The state of Ohio did not claim harmless error under the circumstances. In State v. Heath, supra, and also in State v. Clark, 223 Kan. 83, 574 P.2d 174, the prosecutor, in addition to cross-examining the defendant on his postarrest silence, commented thereon in his closing argument. In Health and Clark we held this to be reversible error under all the circumstances. In State v. Mims, supra, the prosecutor on cross-examination of defendant asked him why he didn’t tell his alibi story to the police. Defense counsel moved for a mistrial. The trial court denied the motion for a mistrial but sustained the objection to the question and the matter was not pursued further or mentioned again in the trial. We held that under all the circumstances the single question propounded by the prosecutor, which was never answered and to which an objection was sustained, constituted harmless error beyond a reasonable doubt and we declined to reverse the case.
Considering the totality of the circumstances in this case it is our judgment that the mere asking of the question by the prosecutor was not, in and of itself, sufficient to require the trial court to declare a mistrial or to justify this court’s setting aside the verdict of guilty and granting a new trial to the defendant.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict which found David Earl Smith (defendant-appellant) guilty of one count of felony murder (K.S.A. 21-3401), one count of burglary (K.S.A. 21-3412), and one count of felony theft (K.S.A. 21-3701).
The sole question on appeal is whether it was error for the trial court to instruct the jury regarding the defendant’s insanity defense using the M’Naghten rule, and overruling the defendant’s requested instruction using the American Law Institute Model Penal Code test.
On January 20, 1976, Greta Edwards was brutally beaten to death at her home in Overland Park, Kansas, by the defendant, who was her next door neighbor. The evidence is largely undisputed.
The defendant is a seventeen-year-old juvenile who was living at home with his parents and enrolled in a trade school in Kansas City, Missouri, when the murder occurred. On the day of the murder he left school shortly before noon and purchased an eight pack of seven-ounce beer. Thereafter, he consumed the entire eight pack in addition to taking “three hits” of amphetamines.
The defendant was next seen at a novelty store in a shopping area several blocks from his home around 1:15 p.m. While browsing in the store, he had no difficulty walking or speaking. The clerk became suspicious of him, however, and summoned the Mission, Kansas, police to the store. Officer Edwin McClain testified he did not notice anything unusual about the defendant at the time, which was around 2:20 in the afternoon.
At approximately 3:15 p.m. the defendant’s father, Bobby Smith, had just awakened and was dressing in order to pick his wife up at work. He testified when he went outside to his car he noticed several items of property lying on the ground in front of his son’s car including a coin collection, a C.B. radio, a lighted dresser mirror, and a small stereo. They appeared to have blood on them. These items were later identified at the trial as belonging to the Edwards family. Also at this time Mr. Smith saw his son in the backyard of the Edwards’ home, and he was walking in a northerly direction away from him.
Shortly thereafter, the defendant appeared from the north and walked down the street into his own home. His father testified he was walking in an uncharacteristic manner described as “bouncy and jumpy, faster than usual,” and his appearance was disheveled and unkempt. He had blood on himself and his clothing and cuts on his left hand.
The defendant told his father Mrs. Edwards was hurt and bleeding. He then proceeded to call the police and handed the telephone receiver to his father. Mr. Smith told the police dispatcher that officers should be sent to his home. The defendant then emptied his pockets and took a Colt pistol from under his belt. Mr. Smith went next door to the Edwards’ home and discovered Mrs. Edwards lying in a pool of blood on the floor on the front entryway.
The Overland Park Police Department arrested the defendant without any incident of resistance. Apparently, he originally entered the Edwards’ home with the intent to commit a burglary when he was discovered by Mrs. Edwards. In his statement to the police he admitted breaking into the Edwards’ home and related how Mrs. Edwards came home and called out “David” referring to her own son by the same name. The defendant liked Mrs. Edwards and had no reason for killing her. He stated, “I kept hitting her and hitting her. I started yelling ‘Stop breathing and I will quit.’ ” His explanation for hitting Mrs. Edwards was that the last time he had been to juvenile court his probation officer told him he would be put in a mental institution.
The defendant was certified to stand trial as an adult. At his trial the pathologist who conducted the autopsy on Greta Ed wards testified the cause of death was innumerable blows with a blunt object to the scalp area causing compound fractures of the skull, lacerations and avulsion of the brain. Mrs. Edwards’ hands were covered with lacerations and her left index finger was fractured. Mrs. Edwards’ wrist watch had stopped at 3:20. This fact, viewed in the light of the record, which disclosed devastating and forceful blows to the head area together with Mrs. Edwards’ obvious attempts to protect herself, rather solidly set the time of death.
The defendant offered testimony from a clinical psychologist, Dr. Edward P. Neufeld; an osteopathic physician specializing in general psychiatry, Dr. Donald Curran; and a medical doctor specializing in psychiatry, Dr. J. Scott Morrison, to support his defense of legal insanity at the time of the offense.
Dr. Neufeld first saw the defendant on January 27, 1976, when he administered a series of psychological tests to him. He testified the defendant had elevated feelings of people being against him which could be described as paranoid in nature. He said the defendant also had feelings of being strange or different from others, a fear of going crazy, and suffered from “personality disorders.” When asked his opinion whether the defendant could have stopped himself from hitting Mrs. Edwards he stated, “[G]iven the very unique circumstances, hypothesized anger with his outburst of rage, given his lack of internal controls, given the panic of the situation, given the nature of the crime, no, ... he could not have stopped on his own.”
Dr. Neufeld was unable to describe the defendant’s condition as “a disease of the mind” because in his professional usage that term meant an organic malady. He testified the defendant did know the nature and quality of his actions on some level, and on an “intellectual level” he did know the difference between right and wrong.
Dr. Curran agreed the defendant knew, the difference between right and wrong at the time of the murder. It was his opinion, however, the defendant could not control his behavior during the passion of the moment. He testified the added elements of beer and speed “compounded his poor capacity to delay and then to do what is culturally or socially right.”
Finally, Dr. Morrison conducted an extensive clinical psychological interview with the defendant. He testified about various incidents the defendant had related to him in which the defendant felt he had no control over himself. Dr. Morrison described this psychological state as “dissociation.” He stated in such a condition the defendant’s awareness of what he is doing is there but his ability to alter what he is doing is not there. Dr. Morrison admitted on cross-examination, however, “dissociation” is considered an ego defense and is not considered a classically defined mental disease. Dr. Morrison testified he presumed the combination of the defendant’s personality type, specifically the dissociative aspects of it, with the drugs converged at the moment he began to hit Mrs. Edwards and rendered him incapable of conforming his behavior with the law and with ethical and moral values. While he felt the defendant knew the burglary and theft were wrong and striking Mrs. Edwards was wrong, Dr. Morrison was not convinced the defendant knew he was killing Mrs. Edwards.
After the defendant’s experts testified, the state called Dr. William McKnelly, Jr., as its expert. Dr. McKnelly interviewed the defendant in order to determine his competency to stand trial and his legal insanity status under the M’Naghten test.
Dr. McKnelly testified in his opinion the defendant had characterological problems, but he did not find a mental disease in the legal sense. He too felt the defendant knew the nature and quality of his acts and knew his acts were wrong.
At the close of the state’s evidence and at the close of his own evidence, the defendant moved for a judgment of acquittal. On both occasions, the trial court overruled the defendant’s motion which was based upon the American Law Institute Model Penal Code test of insanity. The trial court also overruled the defendant’s objection to instructions setting out the M’Naghten rule.
During its deliberation, the jury asked the trial court for special instructions. Two questions were specifically presented:
“1) Must we return the same verdict on all three counts or may we separate and have different verdicts on the counts?
“2) Can insanity apply only to the time the defendant was striking the victim or does it have to include all three counts?”
The trial court refused to give any additional instructions and referred the jury to its original instructions. The jury subsequently returned a verdict of guilty on all three counts. The defendant’s motion for a new trial was denied, and appeal was thereafter duly perfected.
The sole point argued by the appellant is that the rule in this state as to criminal responsibility should be changed. He asks this court to adopt the American Law Institute Model Penal Code definition which provides:
“4.01. Mental Disease or Defect Excluding Responsibility
“(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.
“(2) As used in this Article, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.”
The M’Naghten rule has been followed in Kansas since statehood and has been the subject of judicial review on numerous occasions. (See State v. Barry, 216 Kan. 609, 533 P.2d 1308; State v. Randol, 212 Kan. 461, 513 P.2d 248; State v. Lamb, 209 Kan. 453, 497 P.2d 275; State v. Harden, 206 Kan. 365, 480 P.2d 53; Van Dusen v. State, 197 Kan. 718, 421 P.2d 197; State v. Andrews, 187 Kan. 458, 357 P.2d 739, cert. denied, 368 U.S. 868, 7 L.Ed.2d 65, 82 S.Ct. 80; State v. Mendzlewski, 180 Kan. 11, 299 P.2d 598; Fisher v. Fraser, 171 Kan. 472, 233 P.2d 1066; State v. McBride, 170 Kan. 377, 226 P.2d 246; State v. White, 112 Kan. 83, 209 Pac. 660; State v. Arnold, 79 Kan. 533, 100 Pac. 64; State v. O’Neil, 51 Kan. 651, 33 Pac. 287; and State v. Nixon, 32 Kan. 205, 4 Pac. 159.)
Here the trial court instructed on the precise language used in State v. Andrews, supra.
The leading case examining M’Naghten is State v. Andrews, supra, where this court defended the rule and sharply criticized a proposed adoption of Durham v. United States, 214 F.2d 862, 94 App. D.C. 228, 45 A.L.R.2d 1430 (1954). After analyzing the various arguments against M’Naghten the court said:
“It would appear to this court, that at the present time, there is no better rule for the protection of society than the one which was applied by the trial court in this case [M’Naghten], and which is still approved by the overwhelming weight of authority. . . .” (p. 469.)
We adhere to this view. In so holding we are mindful of the arguments against M’Naghten, many of which were advanced by the appellant. Rriefly summarized, these include attacks on the M’Naghten rule because it is outdated; it covers only the cogni tive aspects of personality which makes it too narrow; it does not serve any rehabilitative function; it makes expert testimony impossible because of the restrictions imposed upon psychiatrists; it incorporates an over-intellectualized concept of mental disorder; it lacks definition; it has been overruled by a majority of the federal circuits and an increasing minority of states; and finally, its requirement of total incapacity rarely characterizes even an advanced psychotic. (See Annot., 45 A.L.R.2d 1447, 1455 [1956]; and Note, Modern Insanity Tests - Alternatives, 15 Washburn L.J. 88, 93 [1976].)
Some of these arguments were discussed by this court in State v. Andrews, supra. To its critics we reply the M’Naghten rule has the merit of being well-established as well as practical. Although it is not scientifically perfect, we feel it is the best criteria yet devised for ascertaining criminal responsibility. Psychiatry is a science in which great uncertainty still exists. Moreover, criminal responsibility is a legal question and not a medical question. Finally, while a majority of the federal circuits may follow the American Law Institute test, a majority of the states follow M’Naghten. Attention is directed to the various states which have expressly rejected the American Law Institute test.
The State of Washington has steadfastly refused to abandon the M’Naghten rule. In State v. Reece, 79 Wash. 2d 453, 486 P.2d 1088 (1971), the appellant argued the courts and psychiatrists should not have two different definitions of insanity. The court answers:
“. . . [T]he appellant has cited us to no evidence that the A.L.I. test embodies a consensus of the medical profession on the nature of insanity. Our examination of recent literature in the controversy over M’Naghten and other proposed tests of insanity convinces us that there is no agreement among psychiatrists concerning a definition of insanity. . . .” (p. 455.)
The court was also reluctant to adopt the American Law Institute test because the state legislature had previously given some indication it did not consider the test a proper defense. (See also State v. Schantz, 98 Ariz. 200, 403 P.2d 521 [1965].)
In 1968 the Advisory Committee on Criminal Law Revision of the Kansas Judicial Council recommended the statutory enactment of the American Law Institute test. The committee identified four advantages of the American Law Institute test over M’Naghten. (Kansas Judicial Council Rulletin, April 1968.) Close scrutiny of the committee study reveals all “four” advantages are concerned with one matter, the capacity test. The advisory committee felt that replacing the total incapacity test of M’Naghten with the substantial incapacity test would permit broader testimony by the experts. But this recommendation attempts to answer only one criticism of M’Naghten — restrictiveness. It fails to address other issues, particularly the confusion of juries. The Kansas legislature, however, rejected the Kansas Judicial Council’s recommendation to legislatively accept the American Law Institute test, and thereby permitted our Kansas case law to prevail.
In State v. Harkness, 160 N.W.2d 324 (Iowa 1968), the court expressly rejects the American Law Institute test and notes:
“ ‘Perhaps a revision of the rules of criminal responsibility would be forthcoming if the law felt it could place greater trust and confidence in psychiatry. The spectacle not only of individual psychiatrists in disagreement, but also entire divergent schools of thought is not an inspiring one. As one authority stated, “[P]sychiatry is still more of an art than a science.” ’ Sauer v. United States (9 Cir.), 241 F.2d 640, 648-650.” (p. 336.)
The court goes on to hold:
“However, until such time as we are convinced by a firm foundation in scientific fact that a test for criminal responsibility other than M’Naghten will serve the basic end of our criminal jurisprudence, i.e., the protection of society from grievous anti-social acts, this court has decided to continue to submit the question of criminal responsibility on the issue of insanity to the jury by the time-tested M’Naghten rule . . . .” (p. 337.)
Finally, in Hill v. State,_Miss__, 339 So.2d 1382 (1976), the Mississippi court defends the M’Naghten rule stating:
“. . . Though the M’Naghten Rule may not be a perfect means to test criminal responsibility, as this Court (including this writer) has'said before, it is the safest of the rules proposed. M’Naghten better protects society’s needs than the American Law Institute’s proposed rule . . . .” (p. 1385.)
(See also State v. Miller,_S.Dak__, 248 N.W.2d 56 [1976]; People v. J. C. Lewis, Jr., 31 Mich. App. 91, 187 N.W.2d 571 [1971], aff’d, 386 Mich. 407, 192 N.W.2d 215 [1971], cert. denied, 408 U.S. 929, 33 L.Ed.2d 342, 92 S.Ct. 2505 [1972]; State v. Malumphy, 105 Ariz. 200, 461 P.2d 677 [1969]; State v. Poulson, 14 Utah 2d 213, 381 P.2d 93, cert. denied, 375 U.S. 898, 11 L.Ed.2d 126, 84 S.Ct. 177 [1963]; and State v. Lucas, 30 N.J. 37, 152 A.2d 50 [1959].)
Thus, the basic problem with any insanity test evolves from the inability, of the legal and medical professions to develop a mutual insanity standard. The legal profession functions from an objective, rhetorical base which seeks definitions and applies those definitions to the facts. It seeks the accountability of individual actions, the protection of society and the deterrence of crime. Conversely, the medical profession (in particular the psychiatric branch) functions from a subjective personality base which seeks behavioral nuances and analyzes those nuances by individual expertise. It seeks the discovery of mental illness, the rehabilitation of the patient and the abolition of punishment.
Indeed, agreement between the professions may be hopeless. Our goal is a test of criminal responsibility which offers a fair balance between competing considerations for the protection of society and the defendant as well as the rehabilitation and restoration of the defendant. We believe the M’Naghten rule comes the nearest to reaching this goal.
In his book, The Insanity Defense, Abraham Goldstein responds to the M’Naghten critics:
“This interpretation of M’Naghten has been dinned into the professional literature for so long that it is generally assumed there can be no other. As a result, the elimination of M’Naghten and willingness to adopt one of the newer rules, has been treated as a test of liberal faith. It is not at ali certain, however, that this picture is an accurate one. If an adequate assessment is to be made, M’Naghten must be seen as it is presented to the jury and as the jury is likely to understand it. . . "(p.47.)
It may be a jury considers the evidence in the same way regardless of which insanity instruction is used. Therefore, any change in tests becomes primarily one of form rather than substance.
In the case at bar, the use of the American Law Institute test would not have afforded the experts any more latitude. Moreover, the record shows no expert was restricted in his testimony. Further, confusion in terminology would not be diminished. The least defined terms and most confusing to all participants in this struggle are “defect of reason” and “disease of the mind.” The American Law Institute test uses virtually the same language with “mental illness, disease or defect.” This is simply a rhetorical alteration and does nothing to diminish the confusion. In addition, it adds “substantial capacity.”
Section (a) of the American Law Institute test, taken by itself, is simply a condensation of the M’Naghten rule. The cognitive feature is present. Knowledge of the act and its wrongfulness are present.
Section (b) of the American Law Institute test is simply a restatement of the irresistible impulse test. It recognizes the inability to conform one’s conduct at the time of the act. The only significant change is the requirement of less than total incapacity.
Confusion resulting from the adoption of the American Law Institute test has prompted comment by several experts. In the article, To Be Or Not To Be An Expert, 1973 Washington U. Law Quarterly, 57, Dr. Robert Schulman, of the Menninger Foundation, evaluates one federal circuit decision by stating:
“The majority views its decision as a step forward and as an effort to untangle the complicated rules of criminal responsibility; but from the expert’s view it may be a step backward, not because of restrictions placed on testimony but because of the complete lack of understanding by the court of the framework within which the expert works. This dismal abyss, after so many years of attempts at rapprochement between the law and its experts, brought the court to the point of castigating the expert, which was unnecessary if the court only wished to change the legal rule regarding insanity.-5 (p. 61.)
A companion article voices the same concern:
“I submit that today the psychiatrist is unable to perform effectively any of these tasks well; further, that he does them less well now than he did eighteen years ago when Durham, was adopted; and still further, that he is not going to do better under any variant of the American Law Institute formulation, no matter how legally sophisticated it may be presented.” (Diamond, From, Durham to Brawner, A Futile Journey, 1973 Washington U. Law Quarterly 109, 111.)
Finally, we note the testimony in this case failed to satisfy the American Law Institute test. The defendant failed to offer an expert witness who could conclusively state he suffered from a mental disease or defect. A “personality disorder” coupled with the voluntary intoxication of drugs and alcohol and the passion of the moment falls short of the American Law Institute’s standards for mental disease or defect.
We retain the M’Naghten rule in Kansas because no other test better protects society as well as serves its needs.
The judgment of the lower court is affirmed. | [
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|
The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict which found Gary Duvaul (defendant-appellant) guilty of aggravated kidnapping (K.S.A. 21-3421) and felony murder (K.S.A. 21-3401).
His principal contentions on appeal concern the constitutionality of the venue statute (K.S.A. 22-2603) and alleged misconduct by the prosecutors during the trial and closing argument. The appellant also claims the trial court erred in refusing to grant his motions for separate trial and judgment of acquittal and in submitting various instructions to the jury.
On the afternoon of July 6, 1974, Patricia Gindlesberger, Oma Ray King and Elizabeth (Beth) Kuschnereit went to a prearranged meeting at 1117 Dayton Street, Wichita, Kansas, in order to purchase cocaine from Steven Lockwood. Miss Gindlesberger and Mr. King planned to share the cost of the purchase equally; however, after receiving the cocaine Miss Gindlesberger discovered she had no money. She stated to the group she had left the money in the pocket of her jeans at home.
The threesome then left the Dayton address and went to a swimming party. Upon returning home in the late afternoon Miss Gindlesberger discovered someone had broken into her home and taken $27.50 from the pocket of her jeans. She immediately telephoned Steven Lockwood and accused him and his roommate, James Waltrip, of taking the money.
The next day Miss Gindlesberger contacted the appellant, Duvaul, told him of her suspicions, and asked for his aid in retrieving the money. He, in turn, telephoned James Bell to assist him. Thereafter, the appellant together with Miss Gindlesberger, Miss Kuschnereit, Mr. King and James Bell went to Lockwood’s house.
While Beth Kuschnereit remained in the appellant’s car, Miss Gindlesberger, Mr. King and the appellant entered the house through the front door and proceeded to the back bedroom where James Waltrip was talking on the telephone. Miss Gindlesberger accused Waltrip of stealing her money and the appellant pushed him to the bed and told him “just to wait and to talk it over” to find out about who took the money. At that time Bell entered the house through the back door and arrived in the bedroom with a .38-caliber pistol pointed at Waltrip. When Mr. Waltrip started to raise himself from the bed James Bell shot him in the face between his eyes. Waltrip was killed instantly.
Patricia Gindlesberger and Oma Ray King immediately ran from the bedroom to the front door. Bell then fired three shots. The first shot struck Oma Ray King in the back of the head and killed him instantly. The second shot went wild and the third shot struck Miss Gindlesberger in the back. Her throat was then cut with a butcher knife. The appellant assisted Bell by wiping away fingerprints and other incriminating evidence.
The appellant returned to his car and told Beth Kuschnereit “everything was all right.” When Bell arrived at the car approximately four minutes later he instructed the appellant to proceed to his residence. While Bell entered his house to reload his pistol the appellant and Miss Kuschnereit remained in the car. During this time an acquaintance of the appellant named Steve Snyder drove by the house and double-parked. The appellant told him not much was going on and stated he was planning to go to a drive-in. Snyder drove off as Bell and Robert Woolsey, a mutual friend, returned to the car.
Bell instructed the appellant to drive to a deserted farmhouse in the country located several miles from the Santa Fe Road in Butler County, Kansas. Miss Kuschnereit requested in vain to be taken home. Upon arriving at the farmhouse, the appellant parked his car beside a barn and Bell got out and instructed Miss Kuschnereit to accompany him. At this time he had his gun pointed at her. She said, “Come on, Ed.” The two then entered a shed located near the car where Bell pushed Miss Kuschnereit to her knees. At that time she stated, “Eddie, please. You known me better than that. You used to go with me. What are you doing with me?” Bell responded, “Beth, I have killed some people. I am going to have to kill you.” Miss Kuschnereit replied, “Ed — dear God, don’t kill me.” She also asked if she could pray. Bell allowed her to pray for several minutes and then put the gun approximately six inches from her face and “blew her head off.”
Woolsey helped Bell strip Miss Kuschnereit of her clothing and personal effects, and the two then rolled the body into the corner of the shed underneath steel drums into a pile of manure. Thereafter, the appellant drove Bell and Woolsey to a bridge on the Santa Fe Road, and the two took the clothing, two purses, the butcher knife, and various other items to the river bank where they burned the items and threw them into the river. During this time the appellant remained in the car. The three returned to Wichita late that night.
A neighbor and close friend of James Waltrip subsequently on July 7,1974, discovered the bodies at the Dayton Street home and summoned the Wichita Police Department to the scene. The appellant was first questioned by the police on July 11, 1974. After being advised of his Miranda rights he agreed to give a statement in which he fabricated an alibi. At his trial he recanted the entire statement. His codefendant Bell also testified at the joint trial on three separate occasions. His testimony implicated the appellant as an active participant in the crimes. The appellant was convicted of the aggravated kidnapping and felony murder of Elizabeth Kuschnereit. His motion for a new trial was denied and this appeal was duly perfected.
The appellant first contends our venue statute, K.S.A. 22-2603, which presumes to make murder transitory, is unconstitutional. While he raised this issue both at his trial and on appeal, he has failed to elaborate his grounds.
Certain basic principles apply when the constitutionality of a statute is under attack. The constitutionality of a statute is always presumed. All doubts must be resolved in favor of the statute’s validity. Before it can be stricken it must clearly appear the statute violates the constitution. Further, if there is any reasonable way to construe a statute to be constitutionally valid, the court should do so. (See State v. Roseberry, 222 Kan. 715, 567 P.2d 883 and State v. Kirby, 222 Kan. 1, 563 P.2d 408.)
K.S.A. 22-2603 provides:
“Where two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any of such acts occur.”
Our court upheld the constitutionality of the forerunner of the current venue statute, G.S. 1949, 62-404, in Addington v. State, 199 Kan. 554, 431 P.2d 532. That statute provided:
“When a public offense has been committed, partly in one county and partly in another, or the act or effects constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.”
This court held in Addington:
“It is the general rule that to satisfy the provision of K.S.A. 62-404, to the effect that when ‘the act or effects constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county,’ there must be an overt act in one county and the effect of such overt act, which is necessary to complete the offense, occurs in another.” (Syl. 10.)
Clearly under this rule no violation occurred here. The underlying felony of aggravated kidnapping was an overt act committed in Sedgwick County and the murder necessary to complete the charge of felony murder occurred in Butler County, Kansas.
Furthermore, the appellant’s attempt to distinguish State v. Pyle, 216 Kan. 423, 532 P.2d 1309 and State v. Zimmer, 198 Kan. 479, 426 P.2d 267, cert. denied 389 U.S. 933, 19 L.Ed.2d 286, 88 S.Ct. 298 (1967) from the situation in the case at bar is unavailing. He claims in those cases the lack or absence of factual evidence which would have determined where death occurred made both actions transitory. In Pyle we held:
“Under K.S.A. 22-2603 (Weeks 1974) venue lies in any county where an act requisite to the commission of the crime takes place.” (Syl. 7.)
Moreover, in Zimmer we stated:
“. . . Inasmuch as the initial abduction occurred in Shawnee county and the kidnaping was triable there, venue on the murder charge became permissible there under 62-404.” (p. 499.)
Thus, under the rules formulated in either case the appellant’s argument is without merit. We hold K.S.A. 22-2603 to be valid and the attack upon its constitutionality unconvincing.
The appellant also asserts the assistant district attorneys prosecuting the case, Mr. Barry Arbuckle and Mr. James Rumsey, were guilty of misconduct which prejudicially affected the appellant.
Generally, before an objectionable statement made by the prosecution will entitle the accused to a reversal of his conviction, it must first appear it was injurious to the accused and was likely to affect the jurors to his prejudice. (State v. Cunningham, 222 Kan. 704, 567 P.2d 879.) Suffice it to say the appellant’s allegations of misconduct and prejudice are not supported by the record or are frivolous in nature and immaterial.
The appellant claims the trial court erred in refusing to grant his motions for separate trial and judgment of acquittal.
The rules for granting a separate trial were discussed most recently in State v. Jackson, 223 Kan. 554, 575 P.2d 536. The granting of separate trials is purely a discretionary matter with the trial court. Absent an abuse of the exercise of the power of its discretion, the trial court’s action will not be set aside on appeal.
The appellant alleges prejudice because of pretrial publicity surrounding his codefendant Bell, but the record is silent how the media reports influenced any members of the jury. He further asserts his joint trial was a violation of the mandates of the United States Supreme Court as set forth in Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (1968). Bruton stands for the basic proposition that when a codefendant’s confession is admitted at the trial and the codefendant does not take the stand, the defendant is denied his constitutional right to confront his witnesses as guaranteed by the Sixth Amendment. Such is not the case here. The appellant had the opportunity and did conduct a full cross-examination of all the witnesses against him including his codefendant Bell, Gary Ames and Robert Woolsey. Thus, Bruton does not mandate a separate trial.
Moreover, the appellant’s motion for judgment of acquittal is controlled by the test reiterated by this court in State v. Watie, Heard and Heard, 223 Kan. 337, 346, 574 P.2d 1368. The record reflects the appellant willingly participated in the crime with his codefendant Bell. He failed to extricate himself despite several opportunities, and within four days after the offense fabricated an alibi to the police. The evidence was sufficient for the jury to find guilt beyond a reasonable doubt. The trial court did not err in overruling the appellant’s motion for acquittal.
Finally, the appellant asserts error in certain instructions given to the jury by the trial court. The various instructions questioned by the appellant all followed the language of PIK Criminal. The record reflects he failed to object to Instruction 9 on felony murder and Instruction 24 on aiding and abetting. Our review of these instructions, therefore, is limited to a determination whether they were clearly erroneous. The instructions followed PIK, Criminal, § 56.02 (Revised) and PIK, Criminal, § 54.05 (Revised) and were not clearly erroneous. We note the appellant also objects to Instruction 26 on compulsion which follows PIK, Criminal, § 54.13 and quotes language from State v. Milum, 213 Kan. 581, 516 P.2d 984. While he admits the instruction follows the law as it exists in this jurisdiction, the appellant argues such an instruction suggests to a jury that if a charge of murder is made, the defense of compulsion is not available to other acts of the defendant which are charged. This argument lacks merit and is not supported by the record. The instruction complied primarily with PIK, Criminal, § 54.13 and no prejudice is shown. Furthermore, the appellant has failed to show error in the submission of the various other instructions to the jury and his alleged claims of error on this point must fail.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal from a conviction and sentence of the trial court in Lyon County. The jury found Bobby D. Coe, Jr., (defendant-appellant) guilty of two counts of aggravated robbery (K.S.A. 21-3427). The trial court sentenced Coe to imprisonment for 45 years to life on each count and decreed the sentences to run consecutively.
The appellant asserts numerous trial errors on appeal.
Kathy Gibson and her husband own the Maverick Club, a private Class B club, located just outside the city limits of Emporia. At approximately 3:00 a.m. on September 17, 1975, shortly after closing hours, two men entered an open front door of the club and took a cash box containing $250, and $29 in cash, a draft card and various identification cards from Charles Stroud, a club musician.
The robbers were described as a black man and a white man or a “salt and pepper” team. They were wearing dark stocking caps and women’s hosiery over their heads. The white man carried a sawed-off shotgun. After the robbery, they left in a small, 4-cyl-inder car.
On September 19, 1975, J. Vernon Humphrey, a KBI agent investigating the robbery, and a local police officer stopped the appellant for speeding in downtown Emporia. Believing the appellant and his passenger, Carl Buckner, to be possible suspects in the Maverick robbery, Agent Humphrey asked them to accompany him to the Emporia Police Station for questioning. After being advised of his Miranda rights, the appellant was questioned and released. During the course of this conversation, he voluntarily allowed the officers to obtain a hair sample.
Early in the morning of September 21, 1975, the appellant, accompanied by Buckner and two women, drove to Utica, Kansas, to the home of a friend, Steven Dimitt. Dimitt testified the appellant feared they were “hot” and asked to stay with Dimitt and his wife for several weeks. While the two were reminiscing about old times, the appellant told Dimitt he had “pulled the Maverick Club robbery. ” Dimitt, who was on parole at the time, promptly notified local Ness County authorities, who contacted Agent Humphrey. After talking with Dimitt and his wife, Agent Humphrey and Lyon County Sheriff Daniel Andrews arrested the appellant and Carl Buckner at the Dimitts’ home on September 22, 1975.
A more detailed statement of the facts may be found in the companion case of State v. Buckner, 223 Kan. 138, 574 P.2d 918.
The appellant and Buckner were separately charged with the same counts of aggravated robbery. At the appellant’s preliminary hearing, Agent Humphrey testified the appellant, a white man, and Buckner, a black man, developed as possible suspects because a field investigation report from the Emporia Police Department stated these two individuals lived together, associated together, had access to a car similar in description to the one used in the robbery, and a cap had been found with the initials “BDC” on it along with other items known to have been taken in the robbery. Agent Humphrey had obtained a verbal report from the KBI laboratory that they had a possible match-up on hair samples taken from the cap and the appellant on September 19. Further, Humphrey testified following the arrest, he asked the appellant what he had done with the shotgun used in the robbery and the appellant replied he “threw it away.”
Subsequently, the appellant and Buckner were bound over for trial. Both men unsuccessfully moved the trial court to consolidate the two cases for trial. The appellant also moved, without success, to suppress as evidence the hair samples and his oral statements made to Agent Humphrey following the arrest, and to obtain a transcript of the suppression hearing.
Carl Buckner was tried prior to the appellant. Prior to Buckner’s trial, the appellant moved to obtain a transcript of the upcoming proceedings. This motion was denied as premature. At both Buckner’s preliminary hearing and trial Steven Dimitt invoked his Fifth Amendment privilege against self-incrimination, when asked if he was using marijuana at the time the appellant allegedly made incriminating statements to him.
At the appellant’s trial none of the witnesses to the Maverick robbery were able to positively identify the appellant, a man 6 feet 3 inches weighing 155 pounds, as the white robber.
Kathy Gibson, who was within fifteen to twenty feet of the men during the robbery, described the white robber as a blond man of fairly small build and average height of 5 feet 8 inches to 5 feet 9 inches, carrying a sawed-off shotgun.
Sheryl York, assistant manager of the Maverick Club, was cleaning tables when the robbery occurred. She testified the black man was “extremely taller than the white man.” She too described the white robber as 5 feet 8 inches to 5 feet 9 inches and was unable to identify the appellant as the man in the club. Similar testimony was given by Charles Stroud.
Thus, Steven Dimitt’s testimony became especially crucial to the appellant. By oral motion, he unsuccessfully moved to have Dimitt’s testimony limited to exclude the remarks relating to the confession of the robbery. The trial court also sustained an objection to the appellant’s question to Mr. Dimitt as to whether Mr. Dimitt was smoking marijuana at the time of the conversation. On January 8, 1976, the jury found the appellant guilty of both counts. His motion for a new trial was overruled.
After the appellant had been sentenced and while his case was pending on appeal to this court, his counsel learned of newly discovered evidence and a second motion for a new trial was made. Accordingly, the appeal was stayed and the case remanded to the district court of Lyon County for a hearing on this motion. The evidence consisted of a robbery by a similar “salt and pepper” team which took place in the Emporia area five months prior to the Maverick robbery. The appellant, who was incarcerated at the Kansas State Industrial Reformatory at the time of the earlier robbery, had an iron-clad alibi. The appellant suggested the same “salt and pepper” team committed both robberies. Thereafter, the motion was overruled and the appellant’s appeal reinstated.
I. Consolidation of Trials
The appellant first contends the trial court erred in ruling it was without authority to order a joint trial of the appellant and Carl Buckner.
After the appellant and Buckner were separately indicted on charges of aggravated robbery, , the two men moved the court to grant them a joint trial. The trial court denied the motion ruling it was without authority to order a consolidated trial.
K.S.A. 22-3204 specifically grants power to sever; however, the statute is silent concerning the power of the trial court to grant or to deny a motion to consolidate. It provides:
“When two or more defendants are jointly charged with any crime, the court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney.”
While the question has never been specifically presented to this court, authority exists in other jurisdictions that defendants jointly charged do not have the right to insist upon joint trials. In Wilkins v. The State, 112 Ala. 55, 21 So. 56, 70 A.L.R. 1177 (1895), the court first recognized what has become the general rule and said:
“. . . The statute, (Cr. Code of 1886, § 4451), confers on such defendants, the unqualified right to elect and demand separate trials; but it is incapable of any just construction, conferring the right to demand that the trial be joint. If a separate trial is not demanded, it rests, as at common law, in the sound discretion of the court, whether the trial be joint or several. . . .” (pp. 56-57.)
(See also 75 Am. Jur. 2d, Trials, § 17, p. 133, and 23 C.J.S., Criminal Law, § 934, p. 709.)
This court discussed the problem in State v. Rueckert, 221 Kan. 727, 561 P.2d 850, where it was said:
“. . . The granting of separate trials is a discretionary power which rests in the hands of the trial court. (K.S.A. 22-3204.) A defendant does not have the right to be tried with or separate from a codefendant if no prejudice to his rights can be shown. . . .” (pp. 730-731.)
Although 22-3204, supra, is silent concerning the power of the trial court to consolidate trials on the motion of one or more of the defendants, the trial court has such inherent authority. The underlying purpose of the statute is to provide the defendant a fair trial without undue delay. The trial court is vested with broad discretion to achieve this goal. On the record presented before us, we cannot say the appellant was prejudiced by failure to consolidate the trials.
II. Right to Free Transcript
The appellant argues the trial court erred in denying him a copy of the transcript of Carl Buckner’s trial and in overruling his motion for a copy of his own preliminary proceedings. These points will be discussed together because they raise the same basic legal issue.
The appellant and Carl Buckner were each charged separately with the offenses committed at the Maverick Club. The initial proceedings of first appearance, preliminary examination and arraignment were held the same day, and the prosecution subpoenaed the same witnesses for each preliminary examination. Thereafter, the joint proceedings terminated and each party’s suppression and other preliminary motions were conducted separately.
The appellant’s trial was held on January 7 and 8, 1976, while Carl Buckner was first tried on December 22, 1975. The appellant first sought a transcript of Buckner’s trial on December 5, 1975. This request was denied as premature. After Buckner’s first trial and before his own trial, the appellant again sought a copy of the transcript. The trial court denied the motion even though the appellant offered to waive his “speedy trial” rights to allow sufficient time to prepare the transcript.
The right to the transcript of a codefendant’s separate trial raises a question of first impression in Kansas. The appellant cites the Nevada case of Beasley v. State, 81 Nev. 431, 404 P.2d 911 (1965) as precedent. In Beasley, the trial court held it was prejudicial error to deny defendant’s request to be supplied a transcript of the separate trial of his codefendant.
We find the reasoning in State of New Jersey v. Cox, 101 N. J. Super. 470, 244 A.2d 693 (1968) more persuasive. There, the court distinguished the Beasley opinion and held the defendant had no constitutional right to a transcript, stating:
“Our attention has not been called to any case in which the doctrine of Griffin has been extended, without a showing of need, to a transcript of the separate trial of an indigent defendant’s codefendant. While such appears to have been the ruling in Beasley v. State, ... a reading of the opinion would seem to indicate that the real issue there was whether it was error to compel defendant to go to trial in advance of receipt of a free transcript of the separate trial of his codefendants which another judge had ordered to be furnished to him.” (p. 479.)
Similarly, in State v. Peterson, 46 Ohio St. 2d 425, 349 N.E.2d 308 (1976), the court denied a pretrial motion for a free transcript of his codefendant’s prior trial when the defendant made no showing the transcript was necessary for an adequate defense and alternative devices were available. (See also People v. Hudson, 7 Ill. App. 3d 333, 287 N.E.2d 297 [1972] where defendant’s motion for his codefendant’s prior trial transcript on the eve of trial was held untimely.)
We hold on the facts in this case the appellant had no right to a free transcript of his codefendant’s prior trial.
The appellant also asserts error in the trial court’s denial of his motion on December 15, 1975, for a copy of his own suppression hearing and other pretrial proceedings held on December 5 and 9, 1975.
Our court has discussed the indigent defendant’s right to a free copy of the transcript of his prior criminal proceedings on numerous occasions. (See State v. Jones, 222 Kan. 56, 563 P.2d 1021 and cases cited therein.) The cases generally allow a defendant access to a copy of his transcript in order to prepare an adequate defense; however, the state need not prepare a copy if available alternatives exist.
Here, the factual situation is analogous to the narrow circumstances presented in Britt v. North Carolina, 404 U.S. 226, 30 L.Ed.2d 400, 92 S.Ct. 431 (1971) and our own decision of State v. Kelley, 209 Kan. 699, 498 P.2d 87. The appellant’s proceedings were before the same judge, where the appellant was represented by the same counsel in the prior proceedings and the same court reporter recorded the proceedings well within the span of one month. It appears the court reporter was available as a witness. Further, the appellant shows no prejudice for failure to get a copy of his own preliminary proceedings. In fact, the record indicates the appellant had access to the Buckner transcripts as well as his own and introduced them at trial. Therefore, no error is shown.
III. Suppression of Statements
The appellant complains the trial court erred in overruling his motion, pursuant to K.S.A. 22-3215, to suppress as evidence any and all statements given by him and obtained as an incident to his arrest.
He contends his arrest in Ness County was not supported by probable cause; thus, statements made pursuant to the arrest should have been suppressed by the trial court.
Probable cause for an arrest without a warrant depends upon the facts of each case which would lead a reasonable and prudent officer to believe a felony has been or is being committed. (State v. Holthaus, 222 Kan. 361, 564 P.2d 542; State v. Brocato, 222 Kan. 201, 563 P.2d 470; State v. Brown, 220 Kan. 684, 556 P.2d 443; and State v. Barnes, 220 Kan. 25, 551 P.2d 815.)
The record reflects an abundance of evidence to establish probable cause. The robbery was committed by a “salt and pepper” team and the appellant is a white man who lived with a black man. The car used as the “get-away” car was described as a 4-cylinder model and the appellant often used a 4-cylinder car owned by a girl friend. Furthermore, a navy utility cap with the initials “BDC” had been found in a field south of Emporia with items identified as having been taken from the robbery scene. After interviewing the Dimitts concerning the alleged confession, Agent Humphrey testified he contacted the KBI laboratory where its agents reported a possible match-up of hair taken from the navy cap with appellant’s hair samples. Armed with this information, Agent Humphrey proceeded to the Dimitt residence in Utica, Kansas, where he arrested the appellant and Buckner. Time was of the essence. The appellant had already fled from Emporia and Agent Humphrey had more than enough evidence to establish probable cause for the arrest.
The appellant suggests each element should be examined individually for probative value and utility in establishing the necessary probable cause. We disagree.
In State v. Curtis, 217 Kan. 717, 538 P.2d 1383, our court recognized that the elements of information necessary to establish probable cause must be considered together. We cited with approval Adams v. Williams, 407 U.S. 143, 32 L.Ed.2d 612, 92 S.Ct. 1921, where the court stated probable cause does not require the same type of specific evidence for each element of the offense as would be needed to support a conviction.
Agent Humphrey testified that following the arrest and Miranda warnings, but before placing the appellant in the car for transport, he asked what was done with the shotgun used in the robbery. The appellant replied that he- “threw it away.” In response to questioning he also stated he didn’t know where he had thrown it, where he got it or who sawed it off.
Now the appellant complains the trial court improperly admitted the statements made to Agent Humphrey into evidence. On many occasions this court has stated uncoerced statements made to police officers by a defendant who has been given warnings as to his constitutional rights are admissible as evidence at his trial. (State v. Jones, supra; State v. Barnes, supra; State v. Melton, 207 Kan. 700, 486 P.2d 1361; and State v. Foster, 202 Kan. 259, 447 P.2d 405.)
IV. Hair Samples
The appellant asserts the trial court erred in overruling his motion pursuant to K.S.A. 22-3216 to suppress as evidence hair samples taken from him at the Emporia Police Department.
The record indicates during the time the appellant was under surveillance by the KBI as a possible suspect in the Maverick robbery, he was stopped for speeding in downtown Emporia. The appellant voluntarily accompanied Agent Humphrey to the Emporia Police Department. After Miranda warnings, Agent Humphrey questioned the appellant and asked for a hair sample. The appellant voluntarily removed his hat and Agent Humphrey proceeded to take a hair sample.
Appellant’s argument is threefold: first, he asserts an arrest was made; second, if the arrest was made for the armed robbery there was no probable cause; and third, if the arrest was made for the traffic offense, it was a sham.
He relies on cases from other jurisdictions which hold an arrest is invalid when it is merely used as a ploy to afford agents or police an opportunity to investigate and amass information for a second offense. (United States v. Martinez, 465 F.2d 79 [2d Cir. 1972]; Mills v. Wainwright, 415 F.2d 787 [5th Cir. 1969]; Amador-Gonzalez v. United States, 391 F.2d 308 [5th Cir. 1968]; United States v. Harris, 321 F.2d 739 [6th Cir. 1963]; and State v. Barwick, 94 Idaho 139, 483 P.2d 670 [1971].)
This argument lacks merit. A careful review of the record indicates no arrest was made. Furthermore, the appellant volun tarily went to the police station, and he makes no claim his consent to the taking of hair samples was not knowingly or understanding^ given. (See Oregon v. Mathiason, 429 U.S. 492, 50 L.Ed.2d 714, 97 S.Ct. 711.)
V. Drug Usage
Appellant next asserts error in relation to the testimony of Steven Dimitt. He contends:
“The Court erred in overruling Defendant’s motion to limit the scope of the testimony of Steve Dimitt; in sustaining Plaintiff’s objection to Defendant’s question of Steve Dimitt concerning his use of marijuana; or in not striking certain direct testimony of Steve Dimitt upon his repeated invocation of his right to not be a witness against himself; or in overruling Defendant’s motion for a new trial.”
The crux of the appellant’s argument is that it was error for the trial court to limit his cross-examination of Steven Dimitt as to his use of marijuana when the alleged confession took place. At this point it was the credibility of Dimitt’s testimony that was material.
Mr. Dimitt testified on direct examination about a conversation in the Dimitt home when the appellant allegedly stated he was “hot.” On cross-examination, the following exchange took place:
“Q. Mr. Dimitt, at the time of these conversations, which you testified, were you smoking marijuana at the time?
“Mr. Patton: Objection, Your Honor, that’s collateral to this case; whether or not he was or he wasn’t is irrelevant in this case.
“The Court: Sustained.”
Appellant maintains the evidence sought by the question was admissible as to Steven Dimitt’s credibility and ability to perceive. He asserts to exclude such evidence, without also striking Mr. Dimitt’s direct testimony as to the conversation, violated his Sixth Amendment right to effective cross-examination and confrontation of the witness.
Our court had occasion to discuss this problem in State v. Belote, 213 Kan. 291, 516 P.2d 159. In Belote, we recognized the general rule relating to the admissibility of drug use for impeachment purposes in order to show the witness was under the influence at the time of the events to which he testifies. We said:
“ ‘. . . [F]or the purpose of discrediting a witness, evidence is not admissible to show that he is a user of [drugs], or to show the effect of the use of such drugs, unless it is proven that the witness was under their influence at the time of the occurrences as to which he testifies, or at the time of the trial, or that his mind or memory or powers of observation were affected by the habit.’ ” (pp. 295-296.)
This court followed the Belote exception relating to drug influence at the time he testified in State v. Nix, 215 Kan. 880, 529 P.2d 147.
Numerous cases from other jurisdictions have dealt with this issue. We note in particular Isonhood v. State, 274 So.2d 685 (Miss. 1973), where the court held it was reversible error to limit the cross-examination of the state’s key witness relating to his use of drugs or alcohol on the day the robbery was planned. The witness’s testimony directly supported the defendant’s conviction.
In State v. Casey, 4 Ore. App. 243, 478 P.2d 414 (1970) the court overruled objections to questions asked of a witness found in a hotel with the defendant the night of arrest concerning her use of pills the day of the events in question. Finally, in State v. Ballesteros, 100 Ariz. 262, 413 P.2d 739 (1966), the defendant was asked:
“ ‘Q. Were you on or about the 18th or the 30th of October, Mr. Ballesteros, were you using narcotics then?’ ” (p. 266.)
The court found the defendant, like any witness, could be impeached by showing the use of drugs at the time of the purported offense because such testimony was unreliable and the jury should consider this in arriving at its verdict. (See also Anno., Use of Drugs As Affecting Competency or Credibility of Witness, 65 A.L.R. 3d 722, § 5[b]; 2 Wharton’s Criminal Evidence, § 434 [13th Ed. 1972]; McCormick on Evidence, § 45 [2d Ed. 1972]; and 3a Wigmore on Evidence, §§ 931-934 [Chadbourn Rev. 1970].)
In view of these cases we hold it was error for the trial court to deny the appellant the right to cross-examine Steven Dimitt concerning his use of marijuana at the time of the alleged confession. The record discloses that subsequent to the court’s ruling Dimitt was extensively cross-examined to test the witness’s recollection of events and statements on the occasion in question.
Our attention is drawn to West v. State, 74 Wis. 2d 390, 246 N.W.2d 675 (1976). The witness in that case refused to answer questions concerning his drug use on the night of the robbery by asserting his Fifth Amendment privilege. There it was held the exclusion of his testimony as to drug use did not deny the defendant charged with armed robbery the right to adequately confront his accuser, in light of the fact the witness’s recollection of events of the robbery was tested by detailed cross-examination.
Moreover, the Colorado Supreme Court in People v. Steele, 563 P.2d 6 (Colo. 1977), held in the absence of proper foundation showing how the general use of marijuana affects the capacity of a witness to observe and remember events, the trial court did not err in prohibiting defendant from impeaching three prosecution witnesses by showing the extent to which they used marijuana.
We have concluded it was improper for the trial court to limit the cross-examination of Steven Dimitt. As we have previously indicated, the circumstantial evidence in this case was abundant. The navy cap with the “BDC” initials, the matching hair samples and the admissions together with the general description of the robbers all implicated the appellant. In our judgment, in view of the overwhelming circumstantial evidence disclosed in the record, the limitation placed on Steven Dimitt’s testimony concerning his use of marijuana the night of the alleged confession was harmless error. Therefore, we decline to reverse the case and to grant a new trial on this point.
Finally, that part of appellant’s argument regarding the invocation of the Fifth Amendment privilege by Dimitt does not pertain here, because it was not invoiced at the appellant’s trial but, rather, at Carl Buckner’s trial.
VI. Witness’s Testimony
The appellant contends the trial court erred in sustaining an objection to his question of Steven Dimitt whether his recollection of a conversation with appellant was different from his wife’s recollection.
The record reflects this line of questioning was confusing to all the parties. The appellant’s attorney read from various transcripts and notes from the Buckner trial and preliminary proceedings as well as from the appellant’s own preliminary proceedings. The questions asked by appellant’s attorney did not relate to Mr. Dimitt’s testimony. Instead, the appellant’s attorney asked if the conversation as reflected in Mrs. Dimitt’s testimony at the preliminary hearing was, in fact, the same conversation that Mr. Dimitt remembered. While it would have been proper for the appellant’s attorney to have asked Mr. Dimitt if he had discussed the conversation with his wife and remembered such conversation as she remembered it, the question which was asked of Mr. Dimitt was improper and was not shown to be within Mr. Di-mitt’s knowledge. Accordingly, the point has no merit.
VII. Introduction of Transcripts
The appellant states the trial court erred in sustaining the state’s objection to the introduction of two transcripts of the prior testimony of Steven Dimitt. The issue raised here deals with the same circumstances surrounding the introduction of Mrs. Di-mitt’s testimony. The appellant attempted to have the transcripts from Carl Buckner’s preliminary hearing and trial together with his own preliminary proceedings admitted into evidence. In his brief, the appellant abandons his claim of error as to Buckner’s trial transcript, but he claims error as to the trial court’s failure to admit the transcript of the Buckner preliminary hearing into evidence.
Without laying a proper foundation, the appellant’s attorney questioned the witness by skipping from the various transcripts, and at the same time, he interposed questions of his own. He failed to properly identify the transcripts and his attempted introduction of the transcripts into evidence was not timely made. The trial court properly sustained the objections to the introduction of the transcript.
VIII. Sentencing
The next two points on appeal challenge the appellant’s sentence. First, the appellant contends the trial court erred in entering judgment of sentence in that it failed to comply with K.S.A. 22-3426 or K.S.A. 21-4603(3) (now K.S.A. 1976 Supp. 21-4603[3]). He also asserts the trial court abused its discretion in imposing sentence and in overruling his motion for modification of sentence.
K.S.A. 22-3426 provides in pertinent part:
“If the sentence is increased because defendant previously has been convicted of one or more felonies the record shall contain a statement of each of such previous convictions, showing the date, in what court, of what crime and a brief statement of the evidence relied upon by the court in finding such previous convictions. Defendant shall not be required to furnish such evidence.”
The statute makes two basic requirements when the habitual criminal act is involved. First, it calls for the record to include a statement of each previous conviction with the date, court, crime and a brief statement of the evidence relied upon by the court in finding such previous conviction. We have examined the entire transcript of the sentencing proceedings and find it meets this requirement.
The second requirement is that the defendant shall not be required to furnish such evidence under the statute. Here, the evidence relied upon by the trial court in finding the second prior conviction for a felony was the testimony of Ed Fisher, a parole officer. Mr. Fisher prepared a presentence report for the appellant. The appellant requested the presentence report because he had suffered three concussions within a five year period, and Mr. Fisher had previous experience with a similar case which had required special testing and diagnosis. There, the concussions had physically impaired the individual’s impulse control portions of the brain, and the solution was simple medicine.
On cross-examination, Mr. Fisher also testified while preparing the report, the appellant advised him of his record of criminal activities, including two prior felony convictions. The records and journal entry were then introduced by the state as evidence of previous convictions in order to invoke the habitual criminal act.
Upon careful examination, the statute provides the defendant shall not be required to furnish evidence against himself. Thus, the question becomes: When a defendant puts the probation officer on the stand and during the course of his testimony the state elicits evidence which it uses to increase the sentence, has the defendant been required to furnish such evidence? We think not.
The appellant chose to put Mr. Fisher on the stand in order to present evidence in support of his request for special tests. The state’s cross-examination was proper. We hold under the facts presented, the appellant was not required to furnish evidence against himself.
Additionally, K.S.A. 21-4603(3) (now K.S.A. 1976 Supp. 21-4603[3]) states:
“At the time of committing an offender to the custody of the secretary of corrections the court shall submit to said officer recommendations on a program of rehabilitation for said offender, based on presentence reports, medical and psychiatric evaluations and any other information available. Such recommendations shall include desirable treatment for correction of physical deformities or disfigurement that may, if possible, be corrected by medical or surgical procedures or by prosthesis. The court may recommend further evaluation at the reception and diagnostic center, even though defendant was committed for presentence evaluation.”
The record indicates the court, as part of its presentence report, ordered a neurological examination be made of the appellant. This examination was not made before the appellant’s hearing on sentence modification. The appellant contends the trial court disregarded his potential for rehabilitation and the evidence of his possible physical injury as well as its own prior order. The result, the appellant complains, was a total abuse of discretion.
Our court has commented upon the general rules relating to sentencing numerous times. Provided it is within statutory limits, a sentence fixed by the trial court will not be set aside on appeal unless it is so arbitrary and unreasonable it constitutes an abuse of judicial discretion. (State v. Steward, 219 Kan. 256, 547 P.2d 773; State v. Pettay, 216 Kan. 555, 532 P.2d 1289; and State v. Bradley, 215 Kan. 642, 527 P.2d 988.)
The classification of felonies for the purpose of sentencing is provided in K.S.A. 21-4501. It reads in part as follows:
“For the purpose of sentencing, the following classes of felonies and terms of imprisonment authorized for each class are established:
* # * * »
“(b) Class B, the sentence for which shall be an indeterminate term of imprisonment, the minimum of which shall be fixed by the court at not less than five (5) years nor more than fifteen (15) years and the maximum of which shall be life.”
Further, applicable provisions in our habitual criminal act, K.S.A. 21-4504, provide in pertinent part:
“Every person convicted' a second or more time of a felony, the punishment for which is confinement in the custody of the director of penal institutions, upon motion of the prosecuting attorney, may be by the trial judge sentenced to an increased punishment as follows:
# # # # #
“(2) If the defendant has previously been convicted of two (2) or more felonies:
“(a) The court may fix a minimum sentence of not less than the least nor more than three times the greatest minimum sentence authorized by K.S.A. 1972 Supp. 21-4501 for the crime for which the defendant stands convicted; and
“(b) Such court may fix a maximum sentence of not less than the maximum prescribed by K.S.A. 1972 Supp. 21-4501 for such crime, nor more than life.”
The record discloses the appellant stood convicted on two counts of aggravated robbery which were both class “B” felonies. Each carried a five to fifteen year minimum sentence with a maximum to life, and the trial judge proceeded to sentence the appellant by awarding the maximum minimum amount or fifteen years on each count. The trial court also had before it the evidence of two prior felonies from the parole officer’s report. Using this evidence, the trial judge tripled each count pursuant to K.S.A. 21-4504 and ordered consecutive sentences. Thus, the trial judge imposed a sentence on the appellant for 90 years to life.
Clearly, the sentence imposed by the trial court did not exceed the statutory limits. Moreover, we presume the trial court followed the statutory directive and considered the factors enumerated in K.S.A. 21-4606. Regardless, the trial court imposed the maximum sentence allowed by law (90 years to life) on the appellant, a twenty-year-old youth, for his conviction of two counts of aggravated robbery of the Maverick Club. In so doing, it used evidence of two prior convictions — one of which resulted in appellant’s probation and the other his incarceration at the Kansas State Industrial Reformatory at Hutchinson for less than one year.
Further, in reviewing the appellant’s sentence, this court had before it reports and findings of the Kansas State Reception and Diagnostic Center, the presentence report and a verbatim transcript of the sentencing hearing.
The appellant’s medical summary indicates he is an adequately oriented, cooperative young man with “no mental or physical distress.”
The report of his psychiatric examination dated April 1, 1976, reveals the appellant was not suffering from any “thought disorder.” He is described as an adult with an immature personality who tends to deny unpleasant realities. The report concludes in view of the appellant’s long sentence, plans for his rehabilitation are “not feasible.”
The appellant’s counseling report of March 31, 1976, indicates he has an above average intelligence, and he could derive some benefit from taking college courses. In view of his long sentence, however, vocational training was not indicated.
Finally, Mr. Fisher also felt the appellant was intellectually capable of obtaining a college degree. He notes the appellant’s difficulties stem from a marked lack of emotional maturity and an inability to control his impulsive behavior. While prison would curtail the potential for further difficulties with the law, Mr. Fisher felt it would do little to facilitate the appellant’s emotional maturity. He proposed extensive counseling programs combined with work and suggested the appellant had at least a “fifty-fifty” chance of being a successful probationer.
We are mindful of the general rules in relation to sentencing enunciated by this court and we adhere to them. In view of the special facts in this case, however, we find the sentence of the trial judge was so arbitrary and unreasonable, it constituted an abuse of judicial discretion.
The sentence imposed by the trial judge must be reversed. We note that when the appellant appears before the trial court for resentencing, its authority is not limited to the presentence report heretofore presented, although it is restricted to the prior convictions heretofore introduced in accordance with the rule set forth in State v. Daegele, 206 Kan. 379, 479 P.2d 891; and Jackson v. State, 204 Kan. 841, 466 P.2d 305.
IX. Newly Discovered Evidence
Finally, the appellant contends the trial court erred in overruling his motion on December 2, 1976, for a new trial based upon newly discovered evidence. The evidence consisted of a robbery of a gas station in the Emporia area by a “salt and pepper” team five months before the Maverick Club robbery.
The rules pertaining to the granting of a new trial for newly discovered evidence have often been stated. A new trial will not be granted unless the evidence is of such materiality, it would be likely to produce a different result upon retrial. (State v. Johnson, 222 Kan. 465, 565 P.2d 993 and cases cited therein; and State v. Jones, supra.)
Although both robberies were committed by an interracial team, no other similarities existed between the two. The state made no attempt to show the same individuals committed the two robberies, nor did it introduce the first robbery into evidence. In view of the overwhelming amount of circumstantial evidence implicating the appellant, the mere fact another robbery occurred by a black-white team while appellant was incarcerated in the Kansas Industrial Reformatory is simply not exculpatory. The evidence is insufficient to produce a different result on retrial.
The judgment of conviction is affirmed. However, based upon the facts and circumstances in this particular case, the sentence is set aside and vacated. The case is remanded to the lower court with directions that the appellant be resentenced in accordance with K.S.A. 21-4601 and 21-4606. It is further ordered that resentencing shall be administered by another trial judge to be designated by the Departmental Justice of the Fifth Judicial Department.
McFarland, J., dissenting. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal of a workers’ compensation claim. The hearing examiner entered an award for claimant, Drucilla Schubert, for 415 weeks of permanent total general bodily disability. The director modified the award and allowed 71 weeks of temporary total disability followed by a 25% loss of use of the right forearm. On appeal the district court held the claimant was entitled to permanent total general bodily disability not to exceed $50,000.
This is an occupational disease case brought under K.S.A. 1974 Supp. 44-5a01, et seq., where the occupational disease affects only a member of the body as opposed to the body as a whole. The factual situation forces the court to consider legal issues of first impression.
Claimant began working for Peerless Products in 1967 or 1968. Her job involved the continuous use of her hands and wrists, and oftentimes her wrists were bumped or struck as she worked. In June, 1971, claimant began having trouble with her right wrist. On June 28, 1971, she was examined by Dr. Michael McKenna and he noticed a knot on her wrist. She again went to the doctor on May 1,1972, complaining of wrist pain. The doctor diagnosed the problem as a cyst and gave her a cortisone shot. The pain persisted and her doctor referred her to Dr. Lynn Ketchum at the University of Kansas Medical Center. Claimant stopped working for respondent on April 27, 1973, and remained off work until July 23, 1973. On June 19, 1973, surgery was performed on claimant’s injured wrist. The surgery did not improve her wrist and she continued to have difficulties. Despite attempts to shift claimant to jobs less likely to aggravate her condition, respondent was unable to place claimant in a job she could perform and on July 17, 1974, claimant left her employment.
The condition causing claimant’s disability was diagnosed as DeQuervain’s disease, also known as tenosynovitis of the extensor tendon of the thumb, and was listed as a compensable occupational disease at the time the condition was diagnosed by claimant’s doctors. (See K.S.A. 44-5a02, sub-paragraph 11 [repealed L. 1974].)
Prior to the time claimant left her employment the legislature made changes in the benefits due an injured workman covered by the workmen’s compensation act. The parties dispute whether the amendments and concomitant benefits apply.
K.S.A. 1974 Supp. 44-505(c), effective July 1, 1974, stated:
“This act shall not apply in any case where the accident occurred prior to the effective date of this act. All rights which accrued by reason of any such accident shall be governed by the laws in effect at that time.”
K.S.A. 1974 Supp. 44-5a01(a), also effective July 1,1974, stated:
“Where the employer and employee or workman are subject by law or election to the provisions of the workmen’s compensation act, the disablement or death of an employee or workman resulting from an occupational disease as defined in this section shall be treated as the happening of an injury by accident, and the employee or workman or, in case of death, his dependents shall be entitled to compensation for such disablement or death resulting from an occupational disease, in accordance with the provisions of the workmen’s compensation act as in cases of injuries by accident which are compensable thereunder, except as specifically provided otherwise for occupational diseases.”
Disability caused by occupational disease means actually becoming incapacitated from performing the work in the last occupation held by the employee in which he was injuriously exposed to the hazards of the disease. (K.S.A. 44-5a04.) The date of incapacity because of an occupational disease becomes the date of accident under the act. (K.S.A. 1974 Supp. 44-5a06.)
Considering all these sections together we conclude that in a claim arising from an occupational disease, the date of accident or disablement arises on the date an employee leaves his employment because the occupational disease renders him unable to continue his work. In the case at bar claimant continued and was able to work for respondent until July 17, 1974, when it was determined she was unable to work. That being the case, claimant’s “accident” occurred on July 17, 1974, and the provisions of the 1974 amendments applied. (Ross v. Beech Aircraft Corporation, 214 Kan. 888, 522 P.2d 369.)
The primary issue on appeal is whether an injury to a workman, caused solely.by an occupational.disease which affects only a member of the body, is subject to compensation in the same manner as any other injury under the act which is subject to the scheduled injury provisions of the act.
The issue is one of first impression in this state. Each of the parties argues that what we said in Knight v. Hudiburg-Smith Chevrolet, Olds., Inc., 200 Kan. 205, 435 P.2d 3, and Hill v. General Motors Corporation, 214 Kan. 279, 519 P.2d 608, supports its position.
In Knight, the claimant developed an allergy to solvents and other materials in his employment as a front line, factory-trained General Motors mechanic. His weekly wage was $92.09. Reing forced out of this type of work by the allergy, he was working at the time of the hearing as a warehouseman and truck driver at a weekly wage of $85.60. The claimant had no functional disability other than the allergy.
The trial court applied K.S.A. 44-510, sub-paragraph 24 [Cor-rick], and fixed claimant’s compensation rate at $3.89 per week ($92.09 less $85.60=$6.49; 60% of $6.49=$3.89). The claimant argued on appeal that his present earning ability should be based on the general labor market in the area rather than the amount he was actually earning. He cited Puckett v. Minter Drilling Co., 196 Kan. 196, 410 P.2d 414, in support of his position, wherein this court upheld the trial court’s finding of partial disability and reaffirmed the applicable principles, stating:
“ ‘The correct standard for determining the loss in earning capacity of an injured workman is the extent to which his ability has been impaired to procure in the open labor market, and to perform and retain, work of the same type and character he was able to perform before he was injured.’ ” (p. 208.)
We disposed of the claimant’s argument in the following language in Knight:
“We cannot say, then, there is any requirement that the capacity of the workman, after sustaining the allergy, is to be measured by his ability to perform work of the same type and character he was able to perform before he was injured. To that, extent, in occupational disease cases such as here, there is deliberate legislative departure from the rule expressed in the Puckett c. Minter line of cases applicable to injury by accident. This disposes of appellant’s only contention of error here.” (pp. 209-10.)
The Knight case reaches only two conclusions: (1) The capacity to earn wages from any trade or employment is relatable to the amount of compensation due, and (2) an award for an occupational disease is not measured by the workman’s ability to perform work of the same type and character he was able to perform before he was injured.
In Hill v. General Motors Corporation, supra, the claimant was engaged in placing molding on the back windows of automobiles, which required repeated use of a hammer with a rubber mallet. She developed chronic synovitis, commonly referred to as “tennis elbow.” Following an operation a hearing was held before an examiner resulting in an award of nine weeks of temporary total and, based on a functional disability of 71/2%, an additional award of fifteen weeks permanent partial. On appeal, respondent argued that because claimant was earning more after contracting the disease than before, the award should be cancelled, citing K.S.A. 44-5a04. The court concluded the statute provided a discretion in the director and that his refusal to set aside the award was not an abuse of that discretion. It is apparent this award was computed on the basis of a scheduled injury. The question of whether its application was correct was not raised or discussed. Because the issue was not considered we find little precedential value in that opinion on the question we must decide.
K.S.A. 44-5a04 defines disablement and disability and provides:
“. . . If the director shall find that the workman has returned to work for the same employer in whose employ he was disabled or for another employer and is capable of earning the same or higher wages than he did at the time of disablement, or is capable of gaining an income from any trade or employment which is equal to or greater than the wages he was earning at the time of the disablement, or shall find that the workman has absented himself and continues to absent himself so that a reasonable examination cannot be made of him by a physician or surgeon selected by the employer, or has departed beyond the boundaries of the United States, the director may cancel the award and end the compensation.”
In Hill, we considered this statute and held the power of the director to cancel an award and end compensation was discretionary. In Gross v. Herb Lungren Chevrolet, Inc., 220 Kan. 585, 552 P.2d 1360, we concluded that the test for determining an award for a scheduled injury is functional disability. It naturally follows that in the Gross factual situation the claimant was entitled to his percentage of functional disability of a member of the body, regardless of his subsequent employment and what he might be earning. The provision of K.S.A. 44-5a04 giving the examiner power to cancel an award is in conflict with our holding in Gross. As we view it, the occupational disease section of the workers’ compensation act is designed to handle disablement or disability distinctive to occupational diseases, as contrasted with general disability by accident, either scheduled or unscheduled. We reiterate that the occupational disease statute refers back to the workers’ compensation act for computation of an award “except as specifically provided otherwise for occupational diseases.” Because the occupational disease statute particularizes the discretionary power of the director to cancel an award when the workman is capable of earning the same or higher wages, we believe the provision should be controlling over the conclusion in Gross that functional disability controls, regardless of earning capacity.
This position is supported by the following from Knight:
“If the capacity of the workman to earn the same or higher wages than he did at the time of the disablement, from any trade or employment, is relatable to the amount of compensation due, so that the award may be cancelled, then it logically follows that his capacity to earn wages from any trade or employment is relatable to the amount of compensation due, to the extent the award may be diminished accordingly. We believe K.S.A. 44-510(3)(c)(24), as herein construed in connection with other provisions of Chapter 44, Article 5a, provides a practicable and a fair method for such computation.” (p. 209.)
Although Knight did not discuss the issue of the application of scheduled injuries to occupational diseases, we have concluded that the schedule should not be applied. The reason for this is obvious. The application of the schedule carries a requirement of applying functional disability only as stated in Gross. We have carefully analyzed respondent’s argument that the schedule should be applied to occupational diseases when limited to a member of the body. Such-an application would create an injustice, particularly in a situation where a claimant is found to have no functional disability as far as other trades or employments are concerned, but cannot return to the same or like employment. A typical case is an allergy which prevents the employee from returning to a job which aggravates such allergy. We feel the act contemplates a recovery for an occupational disease where there is no functional disability.
It is the holding of this court that scheduled injuries as listed in K.S.A. 1974 Supp. 44-510d (now K.S.A. 1976 Supp. 44-510d) are not applicable to occupational disease cases. If the capacity of the workman to earn wages in any trade or employment is less than the amount the workman was earning at the time of the disability, the difference represents the diminution of earning capacity and is a basis for applying the statutory 66%% to reach the compensation rate. (K.S.A. 1974 Supp. 44-510e [now K.S.A. 1976 Supp. 44-510e].)
The trial court’s conclusion that “since Claimant is totally and permanently disabled from returning to her former employment, she is permanently and totally disabled as provided by K.S.A. 1975 Supp. 44-510c and (a)(1) of said statute,” is manifestly erroneous.
We reverse and remand this case to the district court with directions to return it to the director of workers’ compensation for a hearing on the issue of earning capacity of the claimant and, when determined, to compute claimant’s recovery in accordance with this opinion. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the defendant, Washington Sales Company, Inc. (Washington), and the surety on its bond, Hartford Accident and Indemnity Company, from a directed verdict granted in favor of the plaintiff, North Central Kansas Production Credit Association (PCA), in an action for conversion brought by PCA to enforce its perfected security interest in cattle sold by the debtor, Denneth Uffman, through Washington’s livestock auction sales barn. The principal question presented here is whether PCA authorized these sales of cattle by the specific language of the security agreements or by its course of dealing with Uffman.
The principal facts are not disputed. PCA loaned Denneth Uffman more than one hundred thousand dollars on March 2, 1972. Uffman executed a promissory note, a security agreement, and a financing statement to PCA on that date. The financing statement was promptly filed with the register of deeds of Washington County, Kansas, on March 8, 1972.
The security agreement specifically covers 80 Holstein cows of various ages, 1 Holstein bull, 20 Holstein calves of various weights, 5 Angus cows, and 5 Angus calves, together with all property similar to that listed which may at any time be acquired by the debtor, including all natural increase thereof, all milk produced by any cows, and various other property. The security agreement provides that:
“(5) The Debtor . . . will not . . . dispose of [the property herein described] without the written consent of the Secured Party; however, permission is granted for the Debtor to sell the property described herein for the fair market value thereof, providing that payment for the same is made jointly to the Debtor and to the Secured Party . . . (Emphasis supplied.)
The financing statement, signed by Uffman, described “livestock of every kind and description whether or not marked or branded,” and specifically provided that: “Proceeds of Collateral are also covered.”
A few months later, Uffman applied to PCA for an additional loan. He executed a second security agreement, the terms of which are similar to those in the initial security agreement, and since they raise no additional questions, need not be detailed here.
Both PCA and Uffman intended that Uffman should sell milk regularly during the course of the loan, that he would sell wheat, and that from time to time he would cull cows from his dairy herd and sell them, together with calves. The milk, wheat, cows and calves were all included as collateral under the terms of the security agreements and financing statement; payment, upon sales of those items, was, under the terms of the security agreement, to be “made jointly to the Debtor [Uffman] and to the Secured Party [PCA].” The provision covering all milk produced by any cows was part of the printed security agreement. PCA’s president testified, however, that: “We do not claim a security interest in the milk payment proceeds . . .,” and that the security agreement covered only the milk base.
Uffman sold wheat at a local elevator twice. In each instance the elevator issued checks made payable to Uffman. Uffman deposited one check from the elevator in his personal checking account, then wrote a personal check to PCA; be endorsed the other elevator check directly to PCA.
Uffman sold his milk to AMPI. PCA knew that Uffman had already made an assignment of $300 per month to FHA from his milk checks, and had filed that assignment with AMPI. PCA did not feel that AMPI would honor a second assignment, and none was requested. AMPI sent the milk checks directly to Uffman, payable to him only, and he endorsed them over to PCA until December, at which time PCA called Uffman’s loan, for reasons not important now. Thereafter, and although PCA protested, Uffman retained the milk checks. PCA did not admonish Uffman when it learned that he had sold wheat and was selling milk, and taking payment in his name only, in violation of the express terms of the security agreement.
It takes a number of consecutive years of production and sale of milk to acquire what is known in the industry as a milk base. Uffman never acquired one.
On March 15, 1972, only 13 days after the loan was made, Uffman first sold cattle which were collateral for the loan. Thereafter, and through March 28, 1973, he sold a total of 35 head of cattle through Washington on ten separate occasions. The total sale proceeds amounted to $7,563.65. Uffman did not report those sales to PCA, and did not remit the proceeds. Washington had no actual knowledge of the loan, the financing statement, or the security agreements. Edwin Burt, president and manager of Washington, testified in substance that he had no knowledge of PCA’s lien, and that he was never advised that the cattle were mortgaged or subject to the security agreement. He was aware that financing statements on livestock were recorded with the register of deeds in the county where the owner lives, but he never checked the records on anyone who sold livestock at his sales barn. PCA had no knowledge of these cattle sales until sometime in April, 1973.
The trial judge’s decision reads in pertinent part as follows:
“The primary issue is whether the plaintiff waived its security interest in the cattle by consenting to the sale by the provision of its security agreement.
“While there appears to be a division of authority on this question, and the Kansas Supreme Court appears not to have ruled on it, it appears to the Court that the purpose and intent of the Uniform Commercial Code is best served by the reasoning of the cases holding that the secured party did not waive its security interest in the cattle by the provision quoted from the security agreement.
“While a sale by a debtor cuts off a security interest in the collateral if the secured party has authorized the debtor’s actions in the security agreement or otherwise, the plaintiff did not waive its security interest by consenting to the sale of the cattle in return for drafts of the buyer payable to the plaintiff. Nothing in the Uniform Commercial Code prevents a secured party from attaching conditions or limitations to its consent to sales of collateral by a debtor. If such conditions are imposed, a sale by the debtor in violation of those conditions is an unauthorized sale and the security interest continues.
“Nor can we find a waiver in the course of dealings between the plaintiff and Uffman. As long as the checks for wheat and milk were turned over to plaintiff, it had no reason to object and the conduct is entirely consistent with the conditional consent to sell.
“The Court follows the rationale of Baker Production Credit Ass’n v. Long Creek Meat Co., 513 P.2d 1129, an Oregon case; and Garden City Production Credit Ass’n v. Lannan, 186 Nebraska 668.”
We turn first to the following provisions of the Uniform Commercial Code, each of which has application to the dispute before us:
K.S.A. 84-1-205 (4). “The express terms of an agreement and an applicable course of dealing or usage of trade shall be construed wherever reasonable as consistent with each other; but when such construction is unreasonable express terms control both course of dealing and usage of trade and course of dealing controls usage of trade.
K.S.A. 84-9-306 (2). “Except where this article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.” (This section has been slightly altered and presently appears as K.S.A. 1977 Supp. 84-9-306 [2]; modifications enacted in 1975 do not effect the impact of the original section, which is before us here.)
K.S.A. 1972 Supp. 84-9-307. “A buyer in ordinary course of business (subsection [9] of section 84-1-201) other than a person buying farm products from a person engaged in farming operations takes free of a security interest created by his seller even though the buyer knows of its existence. For purposes of this section only, ‘farm products’ does not include milk, cream and eggs.” (Now K.S.A. 1977 Supp. 84-9-307 [1].)
Before examining the issues in detail, we pause to note that we deal here with a controversy between a lender and a third party, neither of whom had actual knowledge of the dealings of the other with the debtor. Washington had constructive notice of PCA’s interest in the cattle by virtue of the recorded financing statement. No claim of estoppel is before us, since there was no reliance by Washington upon the acts of PCA, and so far as the record indicates, there was no contact between PCA and Washington, with reference to the matters here at issue, until after the last cattle sales by Uffman.
The first issue is whether the specific terms of the security agreement, authorizing Uffman to sell collateral (1) with the prior written consent of PCA, or (2) with payment for the collateral being made jointly to Uffman and PCA, constitute a waiver of the security interest or a consent to the sales made through Washington.
In Baker Prod. Credit v. Long Cr. Meat, 266 Ore. 643, 513 P.2d 1129 (1973), the court said:
“If the consent or authorization to sell is unconditional, . . . then clearly the purchaser takes free of the security interest. We have found no cases decided under the Code which deal with conditional consents. There is nothing in the Code, however, to prevent a secured party from attaching conditions or limitations to its consent to sales of collateral by a debtor. If such conditions are imposed, then a sale by the debtor in violation of those conditions is an unauthorized sale and the security interest, under ORS 79.3060 (2), continues in the collateral.
“The purchaser, of course, can protect himself by ascertaining whether a security interest exists and by requiring that he be furnished with proof of the secured party’s consent. In this way he can learn whether there are any conditions attached to the consent which could prevent him from taking free of the security interest.” (p. 654.)
We likewise know of no provision in the UCC as enacted in this state, and none have been cited, which prevents a secured party from authorizing a sale of collateral by the debtor under specific conditions. We conclude that the provisions before us are not violative of the code and do not effect either a waiver of the security interest or a consent to sale in violation of the stated terras.
The next issue is whether PCA impliedly consented to the sales of the livestock by Uffman, and impliedly waived its security interest, by its course of conduct in allowing Uffman to sell wheat and milk in his own name, receive payment therefor, and remit the proceeds to PCA, without admonishing him for violating the security agreement. There were but two sales of wheat; Uffman remitted promptly on both occasions. PCA, therefore, had no reason to complain. The proceeds from the sale of milk were regularly paid to Uffman; he remitted those proceeds to PCA from the inception of the loan until December, 1972. PCA, however, did. not in fact claim a security interest in these milk checks; this is clear from the cited testimony of PCA’s president. PCA contended that it had a claim only upon the milk base, which was never realized.
We have carefully examined the cases and authorities cited by industrious counsel in the original briefs and those amicus curiae (all of whose briefs were most helpful), as well as others which our research uncovered. The division of authority is sharp. Some cases support the rationale of Clovis National Bank v. Thomas, 77 N.M. 554, 425 P.2d 726 (1967); others—and most writers on the subject—follow Garden City Production Credit Assn. v. Lannan, 186 Neb. 668, 186 N.W.2d 99 (1971).
In Clovis, the bank held a security interest in cattle belonging to one Bunch. Bunch twice sold cattle which were covered by the security agreement, deposited the proceeds with the bank, and had all or a greater portion of that amount applied upon the loan. A later and much larger sale of cattle was made by Bunch through the defendant commission company, without the bank’s knowledge or consent. The proceeds from that sale were not remitted to the bank. There was also some evidence to show that the bank permitted other debtors to sell cattle and remit directly to the bank. Upon this record, the Clovis court held that the bank, by common, practice, custom, usage, and procedure, had acquiesced in and consented to the sale, and that it had waived its security interest. Shortly thereafter, the New Mexico legislature repudiated the Clovis doctrine by adding the following sentence to 9-306 (2):
“50A-9-306 (2), N.M.S.A. 1975 ... A security interest in farm products and the proceeds thereof shall not be considered waived by the secured party by any course of dealing between the parties or by any trade usage.”
The facts in Lannan are somewhat similar. Garden City PCA held a security interest in the cattle of one Carter. On several occasions, Carter sold cattle and endorsed the drafts over to Garden City, to be applied upon Carter’s indebtedness. Later Carter arranged a large cattle sale. The purchaser, Western, gave Carter a small draft in part payment. Carter endorsed it over to Garden City. The draft included a notation that it was given as part payment for 165 head of cattle. Garden City therefore had knowledge of the intended sale. The second sight draft, for the major portion of the purchase price, was dishonored, and was returned for insufficient funds. Western, meanwhile, sold the cattle to defendant Lannan. Garden City PCA then brought action against Lannan to enforce its security agreement. The Lannan court said:
“There is no evidence in the record to support the defendant’s allegation in his amended answer that P.C.A. had orally or in writing waived its security interest under the terms of the financing agreement. In essence, then, the defense to this action, in violation of the express terms of the security financing agreement, is based on the doctrine of implied consent or authorization (§ 9-306(2), U.C.C.) flowing from P.C.A.’s acknowledgement of the sale, and its failure to rebuke or object and require compliance with the express terms of the agreement when it accepted and applied the proceeds of the sale on the loan.
“The evidence reveals a typical farm-ranch operation contemplating a course of dealing in the sale of farm products, and the necessity of securing credit financing for such an operation. The Uniform Commercial Code, whatever else its objects may be, was designed to close the gap in the classic conflict between the lender and the innocent purchaser and furnish acceptable, certain, and suitable standards which would promote the necessity of and the fluidity of farm credit financing in the modern context, and at the same time facilitate the sale and exchange of collateral by furnishing a definable and ascertainable standard which purchasers could rely on. . . .
“. . . It is uncontested in the present case that there was strict compliance with the filing and notice provisions of the code. Lannan, the purchaser, was bound by the provisions of the code and must ordinarily take the risk of a failure to make the appropriate investigation contemplated by its provisions.
“In this case we have a coupling of a provision prohibiting disposition of the collateral without written consent, together with a reservation of a security interest in the proceeds of any sale. These provisions cannot be construed otherwise than a further protection for the security holder under the terms of the code, and cannot be construed as provisions which open up the door to an expanded permissiveness or consent to the borrower, or a purchaser bound by the filing and notice provisions of the code. See Overland Nat. Bank v. Aurora Coop. Elevator Co., supra.
“Lannan, defendant here, must necessarily rely upon a previous course of dealing between the lender and the debtor, amounting to nothing more than a failure to object or rebuke the debtor for selling without written consent. At the same time P.C.A. was entitled to rely upon its agreement and the provisions of the code giving it a continuing perfected security interest in the identifiable proceeds of the sale. Considering the realities involved in accomplishing a simultaneous exchange of property for money, we can find nothing in P.C.A.’s choice of alternatives in its previous course of dealing from which an inference could be drawn that it had waived its security agreement or that Lannan was entitled to ignore the provisions of the code because of a private and undisclosed arrangement or course of dealing between the debtor and the lender alone. It must be borne in mind that in this case we are dealing with a controversy between the lender and a third party purchaser who had no knowledge of the course of dealing between the debtor and borrower. We are not called upon here to resolve a controversy between the lender and the debtor in which such agreement or arrangement or course of dealing might be relevant to the enforcement of a security interest against the debtor’s property.
“We are aware that section 1-205, U.C.C., provides that a course of dealing which by previous conduct between the parties, may alter an agreement by fact recognition. But, as we have said, we fail to see how a failure to rebuke or object contemporaneous with a delivery by the debtor and acceptance of the proceeds to which the security agreement attaches, can be construed as a voluntary and intelligent waiver by the lender of its right under a perfected security agreement against a third party purchaser, and this is particularly true when the security agreement itself provides a specific means for obtaining such waiver.” (pp. 671-674.)
The Clovis decision, as we pointed out earlier, is no longer applicable in the jurisdiction where it was adopted. Be that as it may, we do not think its rationale follows the intent of the framers of the Uniform Commercial Code, particularly as expressed in the sections of the code set forth above. We conclude that a ruling, following the Clovis doctrine, would hinder “the granting of credit to the capital-intensive agricultural industry” in this state; that such a holding is not in the spirit of the UCC, is not required by its terms, and would not be in the public interest. We therefore follow the rationale of Lannan, supra, and find no waiver of a security interest, and no consent to the sales here involved, by PCA’s failure to remonstrate with Uffman, following his sales of milk and wheat.
Certainly there was no waiver as that term is generally understood in contract law. Waiver generally implies “that a party has voluntarily and intentionally renounced or given up a known right, or has caused or done some positive act or positive inaction which is inconsistent with the contractual right.” United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan. 523, 526, 561 P.2d 792 (1977), quoting from Proctor Trust Co. v. Neihart, 130 Kan. 698, 705, 288 Pac. 574 (1930). The action of PCA, in accepting payment for the isolated wheat sales, and the milk (in which it claimed no security interest) can hardly be construed as a voluntary and intentional renouncement of its interest in all of the collateral included in the Uffman security agreement.
We also conclude that the equitable doctrine of waiver should not be utilized in favor of one who has constructive notice of a lien, and admittedly has been remiss in checking public records maintained, at least in part, for his protection.
While we hold that PCA did not, by the terms of its security agreement, or by its conduct recited above, expressly or impliedly waive its security interest in the collateral, we are faced with a far more serious question: Did PCA, through its officers, expressly consent to the sale of collateral by Uffman, with payment to Uffman? We think it did. PCA’s president, James D. Ganson, was called as a witness on behalf of the plaintiff. On direct examination, he testified as follows:
“Q. Did you, Mr. Ganson, ever have any conversation at all with Mr. Uffman regarding his not selling cattle?
“A. We told him he could sell cattle providing he applied the proceeds from that sale or had the check made jointly.
“Q. When was he told that, sir?
“A. He was told at the beginning of the loan when Mr. Rightmeier was out there, and I can remember visiting with him in that regard on one of my visits out there.”
In other words, Uffman was told by the president of the lending association that he could sell cattle “providing he applied the proceeds from that sale.” Thus, Uffman was specifically authorized to sell cattle, and he was entrusted to apply the proceeds. The direction to him, by Ganson, was in the alternative; Uffman could apply the proceeds himself, or he could have the check made jointly.
The basis of PCA’s claim against Washington is conversion— the exercising of unauthorized control over property. When the debtor was given the right to sell collateral and to collect the money, the sale barn, as his agent, acquired that same right. Since PCA expressly consented to a sale by Uffman with payment to Uffman, we hold that PCA’s cause of action against Washington, for conversion, must fail.
In DeVore v. McClure Livestock Commission Co., Inc., 207 Kan. 499, 485 P.2d 1013 (1971), an action for conversion against a cattle sales barn, we said:
“. . . [W]e start with the common law rule that a factor or commission merchant who receives property from his principal, sells it under the latter’s instructions and pays him the proceeds of the sale, is guilty of a conversion if his principal had no title thereto or right to sell the property, and generally the factor may not escape liability to the true owner for the value of the property by asserting he acted in good faith and in ignorance of his principal’s want of title .... The basis for the factor’s liability if he assists in a conversion, even though innocent, is the fact he stands in the shoes of his principal . . . .” (p. 503.)
In DeVore, Young and DeVore were joint venturers; Young was clothed with full indicia of title, and was directed by DeVore to sell the hogs through the defendant livestock commission. We there held that the livestock commission could not be held guilty of conversion if the one joint adventurer failed, after receiving the proceeds from the commission company, to account to his coventurer for his share of the proceeds.
Likewise, in the case at hand, Uffman was specifically authorized to sell the cattle and receive the proceeds. Washington, derivatively, was authorized to sell the livestock and make payment to Uffman. Under the peculiar and specific facts of this case, we conclude that there was no conversion.
Washington has raised one further point. It contends that PCA benefited from the receipts from the sale of the cattle because those proceeds were used for the maintenance and operations of Uffman’s dairy farm and equipment. The trial judge concluded that this contention was wholly unsupported by the evidence. We agree. The proceeds were deposited in Uffman’s personal bank account, from which he paid living and other expenses. There is nothing in the evidence to support a finding that PCA benefited from those funds. Further, the point is moot in view of our disposition of this case.
For the reasons above stated, the judgment of the district court is reversed with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Holmes, J.;
This is a direct appeal by defendant-appellant from convictions, by a jury, of (1) aggravated assault (K.S.A. 21-3410), (2) aggravated burglary (K.S.A. 21-3716), (3) rape (K.S.A. 21-3502), and (4) aggravated sodomy (K.S.A. 21-3506). In the information defendant was charged in count one with aggravated assault “. . . with a deadly weapon, to-wit: a knife, and with the intention to commit the crime of rape and aggravated sodomy . . in count two with aggravated burglary . . with the intent to commit rape and aggravated sodomy . . in count three with rape; and in count four with aggravated sodomy.
The events leading to count one of the information took place on September 4, 1976, and involved Mrs. S, while the events leading to counts two, three and four took place August 27, 1976, and involved Mrs. P. Defendant’s main point on appeal is that the court committed error in not granting a separate trial as to count one from the trial on the other three counts.
On August 27, 1976, Mrs. P and her young son and daughter were living in a southeast area of Sedgwick County. Between 12:00 and 12:30 a.m. Mrs. P was sleeping on the couch in her living room when she heard a knock at the front door. Her children were asleep in their bedrooms. She went to the front door and found a young man standing on the front porch. At trial, she identified this person as the defendant.
The defendant asked Mrs. P for a drink of water. At first she refused but then relented after the defendant argued with her. Mrs. P went to the kitchen, got a glass of water, and returned to the living room where she found the defendant now standing inside the house. The defendant was holding a small paring knife in his hand; it was pointed at Mrs. P. The blade of the knife was two or three inches long and it had a wooden handle. The defendant said, “I want to go into the other part of the house and let’s check each room.” The defendant followed Mrs. P through each room of the house and then told her to go to her bedroom.
Once they were in the bedroom, the defendant ordered Mrs. P to take her clothes off and, while still holding the knife, had sexual intercourse with Mrs. P. He then forced her to perform oral sodomy. After announcing, “I’ll be back at 7:00 tomorrow night,” the defendant left the house.
Mrs. P immediately got her children out of bed and drove to her sister’s house a few blocks away where her brother-in-law called the sheriff’s department. On the way to her sister’s house, Mrs. P saw the defendant on a street corner two blocks from her home. It was later determined that defendant lived in the immediate area.
Eight days later, on September 4, 1976, and two blocks from Mrs. P’s home, Mrs. S was standing in her front yard when she saw a young man talking to her neighbor. Mrs. S watched the man walk across the street and knock on the doors of two homes. There was no response at those homes. She then saw him walk back across the street and go to the doors of several more houses. Mrs. S entered her house and shortly after there was a knock at her front door. Her ten-year-old son answered the door.
Mrs. S’s son came to the bedroom and said there was a young man at the door who had asked to speak with her. She told her son to say she could not come to the door. Her son left the bedroom but returned in a few seconds saying, “Mother, he says that it’s an emergency.” Mrs. S then went to the front door. The young man was standing in the doorway partially in the house. When he saw Mrs. S he stepped back onto the porch, between the screen door and the inside door. Mrs. S partially closed the inside door and inquired what he wanted, and he then asked if she had a gas can. Mrs. S said she did not and suggested he try across the street. The man then told Mrs. S to look down. When she did, she saw he was holding a paring knife, with a three inch blade and a wooden handle, pointed at her. She immediately slammed the door, called the sheriff’s department and reported what had happened. The man was arrested a few minutes later by a sheriff’s officer and immediately taken back to Mrs. S’s home. She identified the young man as the defendant.
Defendant made timely motions to sever count one from the others and for separate trials but such motions were overruled. He took the stand during trial to present testimony in support of his alibi defense as to counts two, three and four and exercised his right to remain silent as to count one. This course was greatly facilitated by counsel for both parties in that neither counsel asked any questions of the defendant about the events of September 4, 1976. Defendant, therefore, was not required to affirmatively assert his fifth amendment rights in front of the jury.
Defendant contends that when he desired to take the witness stand in support of his alibi defense as to counts two, three and four but desired to assert his right to remain silent as to count one, he was prejudiced when he was forced to defend both cases in one trial.
The dangers inherent in such a situation are set out in Cross v. United States, 335 F.2d 987 (D.C. Cir. 1964) where the court states at page 989:
“Prejudice may develop when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence. His decision whether to testify will reflect a balancing of several factors with respect to each count: the evidence against him, the availability of defense evidence other than his testimony, the plausibility and substantiality of his testimony, the possible effects of demeanor, impeachment, and cross-examination. But if the two charges are joined for trial, it is not possible for him to weigh these factors separately as to each count. If he testifies on one count, he runs the risk that any adverse effects will influence the jury’s consideration of the other count. Thus he bears the risk on both counts, although he may benefit on only one. Moreover, a defendant’s silence on one count would be damaging in the face of his express denial of the other. Thus he may be coerced into testifying on the count upon which he wished to remain silent.”
The same court has been careful to point out that the accused’s election to testify on some but not all of the charges at trial does nof automatically require a severance. (Bradley v. United States, 433 F.2d 1113, 1122 [D.C. Cir. 1969]; Blunt v. United States, 404 F.2d 1283, 1289 [D.C. Cir. 1968], cert. den., 394 U.S. 909, 22 L.Ed.2d 221, 89 S.Ct. 1021 [1969]; Baker v. United States, 401 F.2d 958, 976 [1968].) “Such a rule, in fact, would divest the court of all control over the matter of severance and entrust it to the defendant.” (Baker v. United States, id.)
Joinder of counts in the same complaint or information is governed by K.S.A. 22-3202(1), which reads:
“(1) Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
The test to determine proper joinder has been set forth numerous times.
. . When all of the offenses are of the same general character, require the same mode of trial, the same kind of evidence and occur in the same jurisdiction the defendant may be tried upon several counts of one information or if separate informations have been filed they may be consolidated for trial at one and the same trial. (Citing cases)” (State v. Ralls, 213 Kan. 249, 256-257, 515 P.2d 1205.)
“. . . Whether a defendant may be tried on all separate charges at one trial rests in the sound discretion of the trial court and its holding will not be disturbed on appeal, absent a clear showing of abuse. (Citing authorities)” (State v. Adams, 218 Kan. 495, 506, 545 P.2d 1134.)
In this jurisdiction the question of joinder of separate felonies in one information is viewed largely as a question of procedure resting in the sound discretion of the trial court. (State v. Caldrone, 202 Kan. 651, 653, 451 P.2d 205 [1969]; State v. Brown, 181 Kan. 375, 312 P.2d 832 [1957]; State v. Aspinwall, 173 Kan. 699, 252 P.2d 841 [1953]; State v. Neff, 169 Kan. 116, 218 P.2d 248 [1950], cert. den., 340 U.S. 866, 95 L.Ed 632, 71 S.Ct. 90.)
While there are certain recognized dangers which may prejudice a defendant when joinder is allowed, a careful examination of the record in this case leads to the conclusion that the prejudice, if any, resulting from non-severance was minimal. The judicious handling of the trial by both judge and counsel avoided any possibility of prejudice which might otherwise have arisen if defendant had been required to affirmatively assert his fifth amendment rights before the jury.
Even if separate trials had been granted it is quite possible that evidence of one event could have been used in the trial of the other under K.S.A. 60-455. Defendant’s defense of alibi put his identity squarely in issue as to counts two, three and four. There were numerous similarities in the two cases. Both victims lived within a few blocks of each other and of the defendant; defendant approached the houses and attempted to gain entrance in much the same manner; a small paring knife was used in both instances and a trial judge could logically have found probative value in allowing admission of evidence under K.S.A. 60-455. (State v. Gonzales, 217 Kan. 159, 535 P.2d 988; State v. Hampton, 215 Kan. 907, 529 P.2d 127.) In such case nothing would have been gained by severance, and the defendant cannot be said to have been prejudiced by the combined trial of the charges.
Under our statutes the charges as set forth in the information could be properly joined and we find no abuse of discretion in not granting separate trials.
One matter that does merit additional comment is there is no evidence in the record which would support the allegation in count one that the defendant had “. . . the intention to commit the crime of rape and aggravated sodomy. . . The conclusion is inescapable that this surplusage in the information was inserted solely for the purpose of avoiding a possible severance and separate trials. In view of what has been previously said we do not find this prejudiced the defendant but the practice, as such, is not to be condoned.
Defendant raises a second issue alleging there was insufficient evidence to support his conviction on counts two, three and four. He argues that there was insufficient evidence as to identity in that descriptions given by Mrs. P to the police and in the preliminary hearing varied somewhat from defendant’s actual physical characteristics. Mrs. P, however, made a positive identification of the defendant in open court during the trial. The jury, obviously, did not believe defendant’s defense of alibi.
The issue on appeal in a criminal case is not whether the evidence establishes guilt beyond a reasonable doubt, but whether there is sufficient evidence to form a basis for a reasonable inference of guilt when viewed in a light most favorable to the state. (State v. Collins, 215 Kan. 789, 790, 528 P.2d 1221.)
As held in State v. Calvert, 211 Kan. 174, Syl. 1, 505 P.2d 1110,, “It is the function of the trier of facts, not that of a court of appellate review, to weigh the evidence and pass upon the credibility of witnesses, and where the sufficiency of the evidence is being reviewed the function of an appellate court is limited to ascertaining whether there was a basis for a reasonable inference of guilt.”
We find there was sufficient evidence to sustain the conviction.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
This is a class action brought by Helena Sterling and others (plaintiffs-appellees and cross-appellants) individually and on behalf of a class of some 560 royalty owners, including those who do not reside in Kansas or have leases covering lands in Kansas, or both, against their producer, Marathon Oil Company, for recovery of interest on “suspense royalties.” This is another in a series of cases involving the same or similar facts and issues. (See Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, 567 P.2d 1292 [1977]; Maddox v. Gulf Oil Corporation, 222 Kan. 733, 567 P.2d 1326 [1977]; Sterling v. Superior Oil Co., 222 Kan. 737, 567 P.2d 1325 [1977]; Nix v. The Northern Natural Gas Producing Co., 222 Kan. 739, 567 P.2d 1322 [1977]; Helmley v. Ashland Oil, Inc., 1 Kan. App. 2d 532, 571 P.2d 345 [1977].)
Except for the size of the class membership, the dates of withholding, the judgment of the trial court on Janhary 29, 1976, and the points and facts hereinafter discussed, the facts and issues are the same as in Shutts, supra.
Appellant, Marathon Oil Co. (Marathon) raises points not covered in our prior decisions and we will limit our discussion to those points. For a detailed recitation of the facts and determination of the common issues, we would refer the reader to Shutts, supra.
The first point is the contention venue did not lie in Rice County. The individual plaintiffs were residents of Barber County and owned no land in Rice County. Marathon did not maintain a registered office in Rice County and its only connection with Rice County is as owner of working interests in two oil leases operated by Phillips Petroleum Co. Marathon contends that it is not “doing business” within the purview of K.S.A. 60-604(3), our statute upon which venue was based in this action. The record discloses Marathon owns a 37.5% working interest in two Rice County oil leases operated by Phillips.
The trial court, in its memorandum of decision, found:
“. . . . The defendant company makes itself amenable to the Kansas court by virtue of the interest owned and the benefits reaped in and from the oil and gas interests in Rice County, Kansas. . . .”
The operating agreement between Marathon and Phillips gives Marathon certain rights and duties in the operation and development of the leases covered by the agreement. For example, Marathon pays its share of the costs and expenses, its consent is required under certain conditions for the drilling, reworking, plugging back or deepening of wells and its consent is required for expenditures by Phillips in excess of $10,000.00. There are others. We agree with the trial court that Marathon is doing business in Rice County, venue was properly laid in Rice County and the trial court had jurisdiction of the case. See Intercontinental Leasing, Inc. v. Anderson, 410 F.2d 303 (1969).
Defendant-appellant next contends there is a well-defined trade custom and usage in the gas industry that royalty payments held in suspense do not draw interest until the amount or ownership becomes certain and not subject to dispute. We have reviewed the authorities cited by appellant and find no merit in its argument. As stated in Shutts:
“When a party retains and makes actual use of money belonging to another, equitable principles require that it pay interest on the money so retained and used.” Syl. ¶ 20.
The final point not specifically before the court in Shutts, and the other cases, is that if equitable principles apply then Marathon is entitled to set off one-eighth of its expenses and attorneys’ fees incurred in obtaining the increased gas prices and its administrative costs incurred in handling the “suspense royalties.” Historically, the landowners’ share of the oil and gas royalty is free and clear of all costs of administration, production, marketing, etc. The leases specifically so provide and we find no reasonable basis for a determination in this case that the landowners’ royalty should be burdened with any portion of such expense. (Schupbach v. Continental Oil Co., 193 Kan. 401, 394 P.2d 1 [1964]; Gilmore v. Superior Oil Co., 192 Kan. 388, 388 P.2d 602 [1964].)
The only remaining issue is raised by plaintiffs-cross-appellants as to the method utilized by the trial court in computing the interest due plaintiffs on the suspense royalties. The trial court allowed interest at the rate of 6% per annum based upon K.S.A. 16-201. This point was adequately covered in Shutts, supra.
Accordingly, as held in Shutts, (1) this action was properly tried as a class action even though involving nonresident plaintiffs, including some who own no land in Kansas, (2) the producers were liable for interest on equitable principles, (3) the class members had not waived any claim for interest nor were they estopped from claiming such interest, and (4) the action was not barred by the statute of limitations. We further hold: (1) venue of this action was properly laid in Rice County, (2) the recovery of interest was not barred by custom and usage in the industry, (3) Marathon is not entitled to an equitable set-off of a portion of its costs, expenses and attorney fees and (4) the method of computation of the award of interest should be modified to conform to Shutts.
The judgment is affirmed except as to the computation of interest. We hold that Marathon Oil Company was obligated to pay interest as follows: 7% per annum simple interest on suspense royalties from the date suspense royalties were received by it until October 1, 1970 (the effective date of F.P.C. opinion No. 586); and 8% thereafter, computed as directed in Shutts, supra, pp. 568-569.
The case is remanded to the trial court for further proceedings in conformity with this opinion. | [
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The opinion of the court was delivered by
Holmes, J.:
This is a direct appeal from a jury verdict finding the defendant guilty of first degree murder under the felony murder rule. (K.S.A. 21-3401.)
In the early morning hours of January 13, 1977, defendant, a I6-year-old minor, and Richard Perez, age 18, burglarized a tavern in Kansas City. They gained access to the building by removing a window air conditioner and entering through the resulting opening; broke into the jukebox, pool table, cigarette machine and cash register; took money and cigarettes out of the machines, drank beer and ate potato chips. Upon leaving, the two youths gained access in the same manner to a refrigeration shop located next door to the tavern. After being in the shop for some time they came across an elderly man sleeping on a cot in a back room. Richard Perez testified he and defendant went outside, talked it over and decided to go back in, beat the man and rob him. According to Perez, the defendant was to hit the man in the head with a table leg picked up off the floor, but once back inside, defendant said he couldn’t hit the man. Perez admits striking the first blows but claims defendant also struck the victim a number of blows. The man died from multiple blows to the head.
When the victim stopped struggling, Richard Perez searched him and found fifty-two cents. Perez and defendant then went to a friend’s house and split the money taken from the deceased and the tavern with each youth receiving approximately ten to twenty dollars.
Defendant also took the stand and told much the same story except he testified that at no time did he strike the victim on the head. He claims the victim grabbed Perez as Perez was striking him and defendant only struck the victim on the arms in an attempt to free Perez.
On February 3, 1977, defendant was being held in the Wyandotte County juvenile annex on an auto theft charge, which also involved Richard Perez. While in custody, defendant indicated he wanted to talk with Clyde Blood, an officer with the Kansas City Police Department Youth Bureau. Defendant told Sgt. Blood that he had witnessed a homicide of an old man at a refrigeration shop and asked Sgt. Blood if he could help him. Blood advised defendant of his rights and then asked to what extent he was involved. Defendant replied, “Well, I was there and I saw it. Can you help me?” Sgt. Blood immediately contacted the district attorney and defendant’s parents “because I felt under the circumstances they should be there to advise him and decide which way they would want to go regarding the legal aspects of the case.” There was no further questioning of defendant at that time.
When defendant’s parents arrived, the Miranda warning was read to defendant and his father simultaneously. A written Miranda Waiver was signed by defendant and his father. A statement was then taken from defendant in the presence of his parents and the statement, after being transcribed, was signed by defendant and his father.
Defendant was certified by the juvenile court to stand trial as an adult and both defendant and Perez were charged with first degree murder under the felony murder theory. Richard Perez, after a preliminary hearing, pled guilty to murder in the first degree and subsequently testified for the state at defendant’s trial.
In his first point on appeal, defendant contends the trial court erred in refusing to suppress his statement given at a time when defendant was a minor and in custody. Defendant argues the statement was taken in violation of K.S.A. 38-839, which provides in part:
“When any child under the age of eighteen (18) years has been taken into custody by a law enforcement official, and such child indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, he shall not be questioned until he has had an opportunity to consult with retained or appointed counsel. . . (Emphasis added.)
The factual circumstances upon which defendant relies were brought out during testimony at a pretrial suppression hearing.
During cross-examination of Sgt. Blood, the following dialogue occurred:
“Q. He told you he felt like he needed some help?
“A. Yes, sir, he did.
“Q. All right. Did he tell you anything else?
“A. Not at that time.
“Q. Okay, so he told you at that time that he had seen a serious crime, it made him sick and he needed help?
“A. Yes, sir.
“Q. All right. Did you proceed under the assumption that he had come to you for help?
“A. Yes, at that time I asked him what was the nature of the incident that he had observed and what type of help he felt he needed.
“Q. Did he tell you what type of help he felt he needed?
“A. Well, he said at that time that he had witnessed a homicide and he wasn’t sure where he stood legally, whether he would be charged with a homicide or be a witness.
“Q. So he had — obviously, in your mind or from what you observed and heard, he had legal questions?
“A. He did at that time, right.
“Q. All right. And in response to this, you called Kenny’s parents?
“A. We did.”
Defendant concedes that he did not ask Sgt. Blood to get him an attorney, however he contends that the conversation with Sgt. Blood constitutes an unmistakable indication of his recognized need and desire for counsel as contemplated by the statute. Assuming that the conversation between the defendant and Sgt. Blood could be considered a request for counsel under K.S.A. 38-839, was the subsequent taking of defendant’s statement a violation of the statute? We think not.
The starting point for an analysis of the constitutional rights of juveniles is In Re Gault, 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428 (1967), where the United States Supreme Court held that in juvenile proceedings minors were entitled to the benefit of certain constitutional rights previously accorded only to adults in criminal proceedings. In Gault the court held certain Bill of Rights safeguards, including notice, the right to counsel, and the right to confrontation guaranteed by the Sixth Amendment, along with the right against self-incrimination guaranteed by the Fifth Amendment, apply to protect a juvenile accused in a juvenile court on a charge which may lead to commitment to a state institution.
A confession is not inadmissible merely because the person making it is a juvenile. State v. Young, 220 Kan. 541, 552 P.2d 905 (1976); State v. Hinkle, 206 Kan. 472, 479 P.2d 841 (1971). See also Annot., “Voluntariness and Admissibility of Minor’s Confess'on,” 87 A.L.R.2d 624 (1963). This court has also said that a determination of whether a confession of a juvenile was freely and voluntarily given is to be based upon a consideration of the totality of the circumstances. State v. Young, supra.
“. . . The age of the juvenile, the length of the questioning, the juvenile’s education, the juvenile’s prior experience with the police, and the juvenile’s mental state are all factors to be considered in determining the voluntariness and admissibility of a juvenile’s confession into evidence.” Id., Syl. f 2.
Confessions or admissions voluntarily made are not inadmissible because made at a time when the accused in a criminal action did not have counsel. State v. Johnson, 223 Kan. 237, 573 P.2d 994 (1977); State v. Hinkle, supra; State v. Weinman, 201 Kan. 190, 440 P.2d 575 (1968).
We have examined the entire record applying the criteria set forth in Young. The trial court, after a lengthy suppression hearing, found defendant’s statement was voluntarily given:
“May 26, 1977
“Mr. David W. Boal Mr. Nick A. Tomasic
Attorney at Law District Attorney
302 Brotherhood Building Wyandotte County Courthouse
Kansas City, Kansas 66101 Kansas City, Kansas 66101
Re: State v. Cross. No. 77-CR-0164 ‘A’
“Gentlemen:
“Defendant’s motion to suppress the statement which the defendant gave to members of the Kansas City, Kansas, Police Department was argued to the Court-yesterday afternoon and was taken under advisement.
“It is the function of the Court to make a preliminary determination as to whether a confession has been freely and voluntarily made, without force or coercion being used, and then if the Court finds that it has been freely and voluntarily made, to allow the confession in evidence to be considered by the jury under proper instruction.
“Based on a totality of the evidence which I heard yesterday, and taking into account the factors which the Supreme Court says in the Young case are to be considered, I do find that the State’s Exhibit No. 2 is proper for the jury to consider, and the motion to suppress it is denied.
“In making this ruling, I place particular emphasis on the fact that Cross set in motion the events leading up to the signing of the statement by asking to see Clyde Blood; the fact that Mr. and Mrs. Cross were present before any questioning commenced, and the total lack of even a suggestion that there was coercion or intimidation of any kind. I do not believe that K.S.A. 38-839 has been violated.
Yours very truly,
(Signed) O.Q. Claflin O.Q. Claflin III Judge, Division 1”
We concur in the trial court’s finding.
The defendant’s other points on appeal are that the trial court erred in its instruction on aiding and abetting and in the instruction setting forth the elements of the crime charged. We have examined the record and find no error in the instructions as given.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from a conviction of theft by deception (K.S.A. 21-3701[¿].) The basic issue presented is essentially this: In order to prove a defendant guilty of theft by deception under 21-3701(b), must the state prove that the intended victim was actually deceived and actually relied on the false representation?
The state’s evidence disclosed the following factual circumstances: On January 4, 1976, at approximately 1:00 p.m. the defendant, Charlotte Finch, was observed in the Richman-Gordman store in Topeka by a security guard, Donna Snyder. For some reason Snyder became suspicious of the defendant and followed her as she made her way to the store’s baby department. Snyder positioned herself behind a one-way mirror directly behind the baby rack where she could observe the defendant looking through baby dresses. Snyder testified that she observed the defendant take a baby dress from one side of the rack, go to the other side, and then remove a sales tag from a dress that was on sale and pin it to another dress. The dress on which she pinned the tag was not on sale. She observed the defendant repeat the procedure with another dress. The security guard then alerted the cashier, Carol Grandstaff, informing her that a customer had switched the price tags on some merchandise, was proceeding toward the checkout counter, and would probably be going through the line. Grandstaff was instructed by Snyder to let the defendant through the checkout and to charge her the sale price as indicated by the switched sale tags, unless the defendant asked her to check the correctness of the price. When the defendant went to Grandstaff’s checkout counter with the dresses, Grand-staff noticed that the sales price tags had been removed and reinserted. Pursuant to her instructions, the cashier let defendant pay the $2 sales tag price for each of the dresses and permitted her to pass through the checkout counter with the dresses. Defendant then proceeded to leave the store. The defendant was stopped by Donna Snyder. Snyder introduced herself and asked the defendant to come back into the store. The defendant did so. Snyder then called the police. The defendant was arrested.
The defendant’s testimony conflicted with the above narrative. She testified that, as she was browsing through the baby department, she noticed a rack marked “Clearance.” Assuming that the entire rack was on sale, she browsed through the baby dresses and selected two dresses that were on sale for $2 each. Defendant testified that she did not switch any price tags on any dresses. Assuming, however, that there was a switch of price tags, it is clear from the evidence that the employees of Richman-Gordman were not deceived by such action. It is undisputed that the defendant Finch was permitted by the cashier to go through the checkout stand with the merchandise after paying the price marked on the sales tag at a time when the cashier had been informed that the sales tags had been switched.
At the outset we should examine the Kansas statutes which pertain to the crime of theft by deception to determine the elements of the crime. K.S.A. 21-3701 was enacted in 1969 (effective July 1, 1970) as a consolidated theft statute to combine the former crimes of larceny, embezzlement, false pretenses, extortion, receiving stolen property and the like into a single crime of theft. There is a comprehensive discussion of the historical background of the statute and the objective sought in the consolidation of the state’s theft laws in an excellent article by Professor Paul E. Wilson. (Thou Shalt Not Steal: Ruminations on the New Kansas Theft Law, 20 Kan. L. Rev. 385 [1972].) The statute is also discussed in State v. Bandt, 219 Kan. 816, 549 P.2d 936. The crime of theft by deception is covered under K.S.A. 21-3701(b) which states in pertinent part as follows:
“21-3701. Theft. Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property:
“(b) Obtaining by deception control over property; . . .”
K.S.A. 21-3110 defines several of the words used in the theft statute:
“21-3110. General definitions. The following definitions shall apply when the words and phrases defined are used in this code, except when a particular context clearly requires a different meaning.
“(5) ‘Deception’ means knowingly and willfully making a false statement or representation, express or implied, pertaining to a present or past existing fact.
“(11) ‘Obtain’ means to bring about a transfer of interest in or possession of property, whether to the offender or to another.
“(12) ‘Obtains or exerts control’ over property includes but is not limited to, the taking, carrying away, or the sale, conveyance, or transfer of title to, interest in, or possession of property.”
Because section (b) of 21-3701 is the only provision in the 1970 criminal code dealing with the crime of obtaining property by deception or fraud, it is clear that that subsection incorporates therein the former crime of obtaining property by false pretenses. That offense was previously defined and made a crime in K.S.A. 21-551 (Corrick 1964) which was repealed when the new criminal code became effective. In prosecutions under the former statute the state was required to prove the following four elements to establish the crime of obtaining property by false pretenses:
(1) There must be an intent to defraud;
(2) there must be an actual fraud committed;
(3) false pretenses must have been used for the purpose of perpetrating the fraud; and
(4) the fraud must be accomplished by means of the false pretenses made use of for the purpose, that is, they must be the cause, in whole or in part, which induced the owner' to part with his money or property. (State v. Handke, 185 Kan. 38, 340 P.2d 877; State v. Matthews, 44 Kan. 596, 25 Pac. 36; State v. Metsch, 37 Kan. 222, 15 Pac. 251.)
The requirement of a reliance upon the false pretenses which induced the owner to part with his property is generally considered to be an essential element of the crime of false pretenses throughout this country. In State v. Handke, supra, the court noted the following general rule as stated in 35 C.J.S. False Pretenses § 6, p. 811:
“Generally speaking, to constitute the crime of obtaining property by false pretenses there must be a false representation or statement of a past or existing fact, made by accused or someone instigated by him, with knowledge of its falsity and with intent to deceive and defraud, and adapted to deceive the person to whom it is made; and there must be, further, a reliance on such false representation or statement, an actual defrauding, and an obtaining of something of value by accused or someone in his behalf, without compensation to the person from whom it is obtained. . . .”
It is clear that under the facts of this case, the defendant could not have been convicted of the crime of false pretenses under the former statute. The state’s failure to show actual deception and reliance would sustain, at most, a conviction of an attempt to obtain property by false pretenses. (State v. Visco, 183 Kan. 562, 331 P.2d 318.)
The first question which we must determine is whethér the legislature, by incorporating the former crime of obtaining property by false pretenses within the crime of theft by deception in K.S.A. 21-3701(b), intended to require the state to prove as an element of the crime of theft by deception that the defendant’s false representation was the instrumentality or means by which he received or obtained possession of the property, that is, that the owner was genuinely deceived by the defendant’s representations, and relied thereon in surrendering control over his property to the defendant. An examination of the cases from other jurisdictions which have enacted consolidated theft acts leads to the conclusion that in every such jurisdiction the basic elements of the various theft crimes included within the particular consolidated theft statute have not been changed, absent a clear showing of a contrary legislative intent. (People v. Ashley, 42 Cal. 2d 246, 267 P.2d 271, 279 [1954], cert. den. 348 U.S. 900 [1954]; State v. Gale, 322 S.W.2d 852 [Mo. 1959]; People v. Karp, 298 N.Y. 213, 81 N.E.2d 817 [1948]; State v. McCormick, 7 Ariz. App. 576, 442 P.2d 134, 139, vacated on other grounds, 104 Ariz. 18, 448 P.2d 74 [1968].)
Professor Paul E. Wilson, in his article on the consolidated theft act, makes the following observations:
“ ‘Theft’ is a term that was not employed by the common law of crimes; at least, the term was not used to identify a common law offense. By the definition of a statutory crime of theft, was it intended to broaden significantly the scope of the traditional crimes within its purview? Consolidation does not mean enlargement. There is authority that simplified stealing statutes neither broaden the crime of larceny nor proscribe conduct previously legal and that the fact of consolidation does not change the elements of the several offenses consolidated. The drafters of the Kansas statute did not generally intend to prohibit conduct that was not criminal prior to the enactment of the code. . . .
“. . . [Tjhere was no intent, nor is there evidence of an intent, to change the basic natures of the crimes the new act comprehends. . . .
“. . . At the same time, the elements of the several types of theft merged together have not been changed, and a judgment of conviction based on a general verdict of guilty can be sustained only if the evidence discloses elements of one of the consolidated offenses.” (20 Kan. L. Rev. 398-400.)
Professor Wilson’s conclusions in this regard are referred to in State v. Bandt, supra. The issue involved here was not before us in State v. Adair, 215 Kan. 54, 523 P.2d 360. We find no language in the statute which demonstrates a legislative intention to change the elements of the several offenses which were consolidated in the new theft statute.
On the contrary, it is our judgment that the words contained in the statute, when construed in accordance with the statutory definitions or when given their natural and ordinary meanings, show clearly that the legislature intended to require the state to prove that the intended victim was actually deceived and actually relied upon the false representation in order for the defendant to be found guilty of theft by deception. K.S.A. 21-3701 requires that the defendant obtain by deception control over property with the intent to deprive the owner permanently of the possession, use, or ownership of his property. The state in the present case was required to show that the defendant obtained control over the property of Richman-Gordman by deception. The word “by” has several natural and ordinary meanings which are universally accepted. (Webster’s Third New International Dictionary, unabridged, pp. 306-307.) The word “by” is sometimes used to express a relation of time and sometimes to signify place or position. (12 C.J.S. By, p. 865.) Here it is clear that the word “by” is not used in the statute to express a relation of time or place. It is obviously used as indicating an agency or instrumentality as a causative factor. See for example Ballentine, Law Dictionary with Pronunciations, Second Edition, where the word “by” is defined as follows:
“The word may mean ‘through the means, act, or instrumentality of.’ . . . Thus, ‘an injury by accident’ is synonymous with ‘an injury caused by accident.’ See Carroll v. Industrial Commission, 69 Colo. 473, 19 A.L.R. 107, 109, 195 Pac. Rep. 1097.” (p. 180.)
The term “by” has been judicially construed where it is used in statutes making it a crime to obtain property by false pretenses. In Commonwealth v. Walker, 108 Mass. 309 (1871), the Supreme Judicial Court of Massachusetts states that the words “by a false pretense” as used in the criminal statute were substantially equivalent to the words “by means of a false pretense.” A California statute was construed in a similar manner in People v. Harrington, 92 Cal. App. 245, 267 Pac. 942 (1928) and most recently in People v. Lorenzo, 64 Cal. App. 3d Supp. 43, 135 Cal. Rptr. 337 (1976).
The factual circumstances in Lorenzo are quite similar to those in the present case. There the defendant was observed by the manager of a supermarket to switch price tags from one kind of glove to another kind of glove and also to switch price tags placed on chickens. He was arrested by the manager in the parking lot after having paid the amount indicated on the switched price tags. He was charged with the offense of theft by false pretenses. In setting aside a conviction of theft by false pretenses, the Court of Appeals held that the defendant could not have been convicted of theft by false pretenses since the manager of the supermarket at no time relied upon the defendant’s conduct. Since the manager was the agent of the market owner, his knowledge was held to be that of the market owner. The California Court of Appeals determined, however, that the offense of attempted theft by false pretenses had been established.
Another quite similar case is State v. Hauck, 190 Neb. 534, 209 N.W.2d 580, 60 A.L.R.3d 1286 (1973). In Hauck the defendant, with the knowledge of the owner, changed price tags between two cartons, placing the lower price tag on the carton which he took to the checkout counter and attempted to purchase at that price. He was immediately arrested. In the course of the opinion the Supreme Court of Nebraska observed that, if the defendant had been successful in carrying out and completing the transaction as intended, he would have been guilty of obtaining property by false pretenses in violation of the state statute. The court pointed out, however, that an essential element of obtaining property by false pretenses is that there is reliance upon the representations made and stated that “the pretense must be an effective cause in inducing the owner to part with his property, and if the owner has knowledge of the truth, the offense has not been completed.” (State v. Bohannon, 187 Neb. 594, 598, 193 N.W.2d 153 [1971].)
We have concluded that in order to convict a defendant of theft by deception under K.S.A. 21-3701(fc) the state must prove that the defendant with the required intent obtained control over another’s property by means of a false statement or representation. To do so the state must prove that the victim was actually deceived and relied in whole or in part upon the false representation.
At the trial in this case, at the conclusion of the state’s evidence, the defendant moved for her discharge on the grounds that the state had failed to establish that the owner of the property was actually deceived and in fact relied upon the defendant’s alleged act of deception in surrendering control over the merchandise. Under the evidence the defendant was not entitled to an absolute discharge from further prosecution. However, the trial court erred in failing to submit the case to the jury under proper instructions on the lesser included offense of attempt to commit theft by deception as defined in K.S.A. 21-3301(1). In this case substantial evidence was introduced tending to show the defendant committed an overt act toward the perpetration of a theft by deception with the intent to commit such crime but failed in the perpetration thereof. As to the other points raised on the appeal we find that either they are resolved by the determination of the issue discussed above or are without merit.
The judgment of the district court is reversed and the case is remanded with directions to grant the defendant a new trial on the lesser included offense of attempt to commit theft by deception.
McFarland, J., not participating. | [
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The opinion of the court was delivered by
Wertz, J.:
Michael F. Green, defendant (appellant), was charged, convicted and sentenced on two counts of an information: (1) in procuring one Fran L. Mace, a female, for the purpose of prostitution and to remain in a place where prostitution was permitted, and (2) in procuring said female for the purpose of prostitution to go from one place to another within the state, all in violation of G. S. 1949, 21-937.
From an order overruling his motion for a new trial, the defendant appeals and asserts there was not sufficient evidence to support a conviction and that the trial court erred in admitting illegal testimony prejudicial to the rights of the defendant.
We will not burden our reports with the detailed facts involved in this criminal prosecution. Only a brief resumé of the most pertinent facts necessary to determine the issues involved will be narrated.
About January 1, 1963, Fran Mace telephoned from Denver, Colorado, to the defendant, a bellboy at a Great Bend hotel about whom she had learned from other prostitutes. During the conversation she told the defendant she was a prostitute and needed some money and wanted a place to work. The defendant made an appointment for her for January 13 for one week. He told her to be at the hotel in Great Bend by 2:00 p. m., to come in through the back door of the hotel, go to the second floor, ring the elevator button, and he would come down. During this conversation they agreed on a sixty-forty split of her earnings.
On January 12 Fran Mace arrived in Great Bend on flight 92 from Denver. She called a taxicab and went to the back entrance of the hotel. She went to the second floor, as previously directed by the defendant, and rang for the elevator. The defendant responded to her call with the elevator. Mrs. Mace introduced herself and the defendant gave her room 217. Later that evening she and the defendant talked at length, discussing the different "dates” and how much time to take with the customers; defendant also said he would tell her how much the different customers would pay.
The following day Mrs. Mace filled out a registration card in the fictitious name of "Holden.” On the card she gave her business as "Delco Remy” and her address as Dallas, Texas.
Fran Mace commenced practicing her vocation as a prostitute on January 13. She had “dates” during each day and night thereafter for a period of five days. About 75 percent of the customers came to her room and the remainder of the time she went to the customers’ rooms. Each time a customer came to her room either he would be accompanied by the defendant or would tell her that the defendant had sent him. When Mrs. Mace went to a customer’s room the defendant would always tell her where to go by giving her the room number.
On January 15, two days after Mrs. Mace had started to work, the defendant moved her from room 217 to room 327 in the hotel because he thought others in the hotel were becoming suspicious of her activities.
A written record of each “date” and the earnings therefrom was kept by Mrs. Mace from January 13 to January 18, which indicated she had sixty-two separate prostitution dates from which she grossed approximately $957, of which amount she retained 60 percent and gave the other 40 percent to the defendant in accordance with their previous agreement.
The sequence of events leading up to the arrest of the defendant and Mrs. Mace began on the evening of January 17 when two investigating officers checked into the hotel. The officers were assigned adjoining rooms. During the evening they made contact with the defendant and inquired of him if there were any parties or girls available. About 1:00 a. m. on January 18 the defendant informed one of the officers, who was in room 201, that a girl would be down in a few minutes. Subsequently Fran Mace entered the officer’s room and introduced herself. After the “date” had been paid for and the necessary preparations for the “date” were completed, the officer informed Mrs. Mace he was a police officer and that she was under arrest. The other officer then entered from the adjoining room, 202, where he had stationed himself and had overheard the entire proceedings.
Following the arrest of Fran Mace, the officers, at her request, accompanied her to room 327 where she removed an envelope containing $540 from the lining of her coat that was hanging in the room. The officers and Mrs. Mace then went to the elevator. Defendant came up on the elevator and was advised he was under arrest. The group then went to the police station.
The written record of Fran Mace’s prostitution earnings was taken from her hotel room, 327, by police officers following her arrest and subsequently introduced into evidence at the trial of the instant case.
The statute (G. S. 1949, 21-937) provides no conviction shall be had on the uncorroborated testimony of the woman. It is contended that the evidence was wanting in this case. We find no merit in this contention. There could seldom be a conviction for any crime involving illicit sexual intimacy if corroborating eyewitnesses were indispensable. The statutory requirement of corroboration can readily be satisfied by evidentiary facts and circumstances, if they are of sufficient potency to satisfy the jury. (State v. White, 111 Kan. 196, 206 Pac. 903; State v. Rieman, 118 Kan. 577, 235 Pac. 1050; State v. Bonskowski, 180 Kan. 726, 730, 308 P. 2d 168.)
Also, defendant’s argument that no evidence was introduced to show the woman engaged in prostitution is without merit. A review of the record discloses there was ample evidence, not only parol and written but also circumstantial, to sustain the conviction on both counts. In State v. White, supra (p. 197), it was said if a woman is induced to go from one room occupied by her in a hotel to another room in the same hotel for the purpose of prostitution, the statute would be violated. In addition to Mrs. Mace’s testimony the records of the hotel disclose she was transferred from one room in the hotel to another.
Defendant also contends the court erred in admitting over his objection a police court record showing the conviction for prostitution of a person in violation of a city ordinance of Great Rend supposedly committed at the same hotel some six months previously. The exhibit did not involve the defendant, was not relevant to the case and should not have been admitted. It neither tended to prove nor disprove any offense with which the defendant was charged. However, we fail to find where the admission of the exhibit in any way prejudiced the defendant.
We concede the admission of the testimony was irrelevant in the instant case; however, it does not follow that the judgment should be reversed and a new trial ordered. In the first place, we are directed by statute (G. S. 1949, 62-1718) to disregard technical errors or defects not prejudicial to the substantial rights of the parties. In compliance with the mentioned statute many judgments have been affirmed in spite of technical errors. In the second place, the errors must be appraised in the light of the whole record to determine whether substantial rights have been prejudiced. (State v. Appleby, 155 Kan. 871, 874, 130 P. 2d 568; City of Wichita v. Hibbs, 158 Kan. 185, 187, 146 P. 2d 397.) In considering the entire record we find no prejudice to the defendant resulted.
Other matters discussed have not been overlooked but are found to be without substantial merit to warrant a reversal of the judgment. The judgment of the trial court is affirmed.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover damages for personal injuries sustained by the plaintiff who was burned by electric shock and severely and permanently injured on July 1, 1961, when he came in contact with the defendant’s 7200-volt uninsulated trans mission line. The action was tried to a jury which answered special questions and returned a general verdict in favor of the defendant. The plaintiff has appealed.
The plaintiff’s petition contained two causes of action. The factual allegations of the petition are not here set forth since the plaintiff’s evidence which tended to support them is hereafter summarized. Reduced to an essential minimum, the first cause of action alleged that the defendant was careless and negligent in the following particulars: (1) constructing and maintaining its transmission line at a height below a safe height under the circumstances when it knew, or in the exercise of due care should have known, that construction work was being carried on in the immediate area; (2) failing to insulate its two electric wires for the protection of workmen and others in the area; (3) failing to inspect the area to determine the condition of its installation when it knew of the existence of construction work in close proximity; (4) failing to isolate, that is, raise or move the dangerous wires out of proximity to the work area when it knew that workmen were in daily use of the area; (5) failing to de-energize the dangerous wires; and (6) failing to warn construction workers and others lawfully in the area of the dangerous condition of the installation.
The plaintiff’s second cause of action incorporated pertinent allegations of the first cause of action, and alleged the defendant committed extremely gross and wanton conduct by its failure to insulate, inspect, isolate or de-energize its installations, or warn those lawfully in the area of the extreme hazardousness and dangerousness involved in working in the area. Allegations of the very serious injuries and the dreadful permanent disfigurement sustained by plaintiff, the physical pain and mental anquish which he underwent and the period of his hospitalization will not be detailed. The prayer was that the plaintiff recover both actual and punitive damages.
Issues were formed by defendant’s general denial and allegations of plaintiff’s contributory negligence and wanton conduct in seven specific instances, and plaintiff’s reply.
The trial commenced on January 7, 1963, and the evidence was completed on January 10, 1963. At the close of court on that day, a conference was held in chambers to discuss instructions and final amendments to the pleadings. Certain requested instructions of both parties were denied over their objections, and, as hereafter noted, the trial court struck plaintiff’s second cause of action concerning gross and wanton negligence. On the following morning, January 11, 1963, before court convened, another conference was held in chambers at which time the trial court announced that it was adding instruction No. 13 which it denied the evening before. The plaintiff strenuously objected to the giving of the instruction.
The case was submitted to the jury on that date and its general verdict and answers to special questions read:
“General Verdict
“We the jury duly impaneled do find for the defendant.
“Special Questions
1. Do you find the defendant company guilty of any negligence which proximately caused the injuries of plaintiff?
“Answer: Yes.
“2. If your answer to Number 1 is in the affirmative, state of what such negligence consisted.
“Answer: Power line not high enough for construction work.
“3. Do you find that the plaintiff Cope was guilty of any negligence which was the proximate cause or a contributing proximate cause of his injuries?
“Answer: Yes.
“4. If your answer to the foregoing is in the affirmative, state of what such negligence consisted.
“Answer: Did not exercise ordinary care for his own safety in proximity to electricity.”
The plaintiff’s evidence is summarized: On the afternoon of his injury, July 1, 1961, plaintiff was an employee of the Reno Construction Company which had a contract with the State Highway Department to perform the necessary grading for the relocation of Highway K 213 north of Manhattan and a short distance west of Tuttle Creek Dam. At the point where the accident occurred, the highway ran in an easterly and westerly direction. Defendant’s 7200-volt line ran across the highway generally in a northerly and southerly direction and the area immediately under the transmission line at the point where plaintiff was injured was a deep ravine. The installation was of relative long standing, and in April, 1961, the defendant, being advised of the proposed construction, attempted to provide additional clearance across the highway by changing the installation. The defendant’s line pole immediately south of the proposed highway was not changed, but the 40-foot pole north of the proposed highway in the ravine was replaced with a 45-foot pole. The Southwestern Bell Telephone Company, through arrangements with the defendant, attached its line to the defendant’s pole some three feet below the defendant’s lowest wire.
Plaintiff was a member of the rock crew of the construction company, which was made up of heavy construction workers such as truck drivers, bulldozer operators, crane operators and the like. To provide a roadbed for the highway in the area below defendant’s line, the crew had to cut down high ground to the east of tire line by the use of two Northwest 80-D shovels, and load the rock and dirt into large dump trucks known as Athey wagons. The rock and dirt was hauled and dumped into the ravine area and bulldozed level. The procedure was to raise the fill two feet at a time all the way across the ravine, and start the whole process over again. As the level of the fill rose, the power line came into closer proximity with the ground level.
About two weeks before plaintiff’s accident, the proximity of the power line to the level of the fill which was then near completion, became a matter of concern to those in the area who worked under and around it. About a week before plaintiff’s accident, and while he was driving an Athey wagon on the fill, he knocked down the telephone wire which was strung on defendant’s poles. It was never actually necessary to drive the Athey wagons under the power line in full dump position since the dirt and rock was deposited on either side of the line and then leveled by bulldozers.
There was evidence that the state highway engineer for the project and the foreman of the construction company notified the defendant company regarding the imminent danger of the power line installation. The foreman testified he called defendant’s Manhattan office to request that something be done about the power line; that he spoke to a female voice which assured him that the proper parties would be notified. The highway engineer testified he could not remember calling the company about this particular line but that it was his usual procedure in cases of this type to do so. The defendant’s employees at the Manhattan office denied receiving any telephone call or notification of the offending power line by telephone.
The telephone company received a complaint about the lack of telephone service and its engineer and the defendant’s field engineer visited the work area on June 29, 1961, two days before plaintiff’s accident. At the time of that visit, two shovels were being operated east of the power line and Athey wagons were being. o'perated back and forth along the power line in a load position and bulldozers were leveling the dirt under the line. The purpose of the defendant field engineer’s visit to the site was to observe the situation and determine what could be done in cooperation with the telephone company to raise the defendant’s poles so that the telephone company could obtain the required 19 feet of clearance when replacing the knocked down telephone wire.
On July 1, 1961, it was necessary to move the shovels westward on the unfinished highway beyond the power line. As the first shovel neared the power line it became apparent that the fine was too low to admit passage. The operator turned it around and began backing under the line. At that time the boom had been lowered to about the height of the gantry, although in ten or fifteen minutes time it could have been lowered to the height of the bucket, and the gantry could have been lowered in an hour or an hour and a half. However, the evidence was undisputed that in moving a shovel from one place to another on a job, the gantry was never lowered. There was evidence that had the gantry and the boom been lowered, it would have been a safer method to move the shovel under the line, but the evidence of the construction company employees was uncontradicted that the plaintiff had no responsibility to make adjustments in the shovels. Their testimony was likewise uncontradicted that the various classifications of employees were expected to pitch in and help on any job where they were needed.
Observing the difficulty the operator was having in backing the shovel, the plaintiff stopped his Athey wagon nearby and voluntarily approached the shovel. He asked the mechanic and oiler who was responsible for assisting the operator, if he intended to go up and poke the wires over the gantry. When the plaintiff received a negative reply, he told the mechanic and oiler, “I will do it.” He picked up a piece of lath, broke it in two pieces, and climbed up the gantry of the shovel which is a steel structure affixed to the top of the cab and rising above it. After raising the wire with the pieces of lath, the plaintiff nodded to the operator who backed the gantry portion of the shovel under the wire. When it was apparent that the end of the boom of the shovel would not pass the wire, the plaintiff crawled through the cab and up to the end of the boom and balanced himself at that point with his feet and knees; he raised the wires with the lath and nodded to the operator to back the shovel. As the shovel moved back, it went over a hump or mound of dirt, causing the front end to raise into the air. This raised the end of the boom a foot or so and the plaintiff lost his balance and control of the wire on the end of each lath, causing the power line to strike him on the back of the neck, bum him severely, and knock him to the ground.
At the point where the accident occurred, defendant’s lower line measured approximately 19% feet high. The height of an Athey wagon in dump position is approximately 20 feet. The height of the gantry on the shovel in question was 20 feet and nine inches from its top to the base of the track on the shovel.
There were no warning signs in the area concerning the voltage of the line, nor was any information or warning given the construction workers by the defendant’s employees that the power line was in fact energized, or how much voltage it carried.
The plaintiff first contends that the trial court erred in removing the question of defendant’s wanton conduct from the consideration of the jury. In concluding that the question should not be submitted, the court stated:
“In this state for practical purposes recklessness or wantonness puts the wrongdoer in the same class with a willful wrongdoer. Failure to exercise due care towards one discovering position of peril is not wantonness. In our case at hand I know of no solid evidence in this case that clearly shows that the Kansas Power and Light Company saw anybody in any position of peril. The lines were plainly visible to any human being with two eyes or even one eye. People walking under these lines every day, and every hour, hundreds of times in this state, and I don’t think the fact situation that you want to construe as wantonness is anything more than ordinary negligence. You have an ordinary negligence case here on both sides, and you are trying to make it semi-criminal. . . . there is no wantonness in this case.”
Considering language used by the trial court that “wantonness puts the wrongdoer in the same class with a willful wrongdoer,” and that the plaintiff was “trying to make it [defendant’s conduct] semi-criminal,” it is evident the trial court misconceived the law of this state relating to gross and wanton conduct. The rule is too well settled to admit of modification or change, that in all actions to recover damages for negligence, where actual damages are recoverable, the plaintiff is entitled to recover exemplary damages if the negligence be so gross as to amount to wantonness. The term “wantonness” as here used does not necessarily mean malice, but a reckless disregard of the rights of others. (Telegraph Co. v. Lawson, 66 Kan. 660, 72 Pac. 283.) In Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P. 2d 822, in defining gross and wanton negligence, it was held:
“To constitute wantonness, the acts complained of must show not simply lack of due care, but that the actor must be deemed to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because indifferent to whether it occurred or not. If the actor has reason to believe his act may injure another, and does it being indifferent to whether it does nor not, he is guilty of wanton conduct.” <SyLf5.)
Other cases to the same effect are: Kniffen v. Hercules Powder Co., 164 Kan. 196, 206, 188 P. 2d 980; Baker v. Western Cas. & Surety Co., 164 Kan. 376, 382, 190 P. 2d 850; Bailey v. Resner, 168 Kan. 439, 442, 214 P. 2d 323; In re Estate of Wright, 170 Kan. 600, 607, 228 P. 2d 911; Fyne v. Emmett, 171 Kan. 383, 386, 233 P. 2d 496; In re Estate of Bisoni, 171 Kan. 631, 635, 237 P. 2d 404; MacDougall v. Walthall, 174 Kan. 663, 667, 257 P. 2d 1107; Clark v. Hildreth, 179 Kan. 243, 246, 293 P. 2d 989; Watkins v. Layton, 182 Kan. 702, 708, 324 P. 2d 130; Johnson, Administrator v. Huskey, 186 Kan. 282, 285, 350 P. 2d 14; Allman v. Bird, 186 Kan. 802, 806, 353 P. 2d 216; Horn v. Chicago, R. I. & Pac. Rld. Co., 187 Kan. 423, 427, 357 P. 2d 815, and Kohler v. Kansas Power & Light Co., 192 Kan. 226, 229, 387 P. 2d 149.
From the beginning, it has been the rule that a high-voltage line is one of the most dangerous things known to man; that not only is the current deadly, but the ordinary person has no means of knowing whether any particular wire is carrying a deadly current or is harmless, and that distributors of electricity which erect and maintain electric power lines are under a duty to exercise the highest degree of care to protect the public from danger. (Railway Co. v. Gilbert, 70 Kan. 261, 78 Pac. 807; Wade v. Electric Co., 94 Kan. 462, 465, 147 Pac. 63; Snyder v. Light Co., 98 Kan. 157, 160, 165, 157 Pac. 442; Worley v. Kansas Electric Power Co., 138 Kan. 69, 23 P. 2d 494; Jackson v. Kansas Gas & Electric Co., 152 Kan. 90, 97, 102 P. 2d 1038.)
Despite the defendant’s duty to exercise the highest degree of care to protect the plaintiff and others in the work area, and disregarding the reasons given by the trial court in striking the second cause of action, we are of the opinion plaintiff’s evidence failed to show that the defendant realized the imminence of injury to the plaintiff and others under the circumstances disclosed by the evidence, and that it refrained from taking steps to prevent the injury because of indifference to whether it occurred or not. More specifically, we drink the plaintiff’s evidence failed to disclose an indifferent attitude on the part of the defendant to prevent injury to the plaintiff.
In this connection we note the trial court instructed on all grounds of ordinary negligence alleged by plaintiff and the jury found the defendant negligent only with respect to ground (1) as alleged in the first cause of action — “Power line not high enough for construction work.” The jury’s finding of negligence on only ground (1) as alleged absolved the defendant of all other acts of negligence as alleged in grounds (2) through (6) of the first cause of action. It is further noted the specific grounds of gross and wanton conduct contained in the second cause of action are identical to the specific acts of ordinary negligence contained in grounds (2) through (6) in the first cause of action, that is, the allegation of gross and wanton conduct did not charge the defendant with maintaining the power line at too low a height.
The jury’s answer to special questions absolved the defendant of all grounds of ordinary negligence which were also specified as grounds of gross and wanton conduct.
The basic facts of this case, as shown by plaintiff’s evidence, have been set forth, and we are of the opinion they do not establish a case of wanton conduct on the part of the defendant, and no error was committed in refusing to submit issues of the second cause of action to the jury.
The plaintiff next contends that the trial court committed prejudicial error in giving instruction No. 13 which reads:
“You are instructed that a person to whom two courses of conduct are open is required to exercise ordinary care in choosing which course he will pursue. If, under the same or similar circumstances, an ordinarily prudent person would not have so chosen, one having a choice is negligent in pursuing a course which is dangerous rather than one which is safe, or even less dangerous. This is true, even though the course pursued is easier or more convenient, and even though the risk of injury involved is not so great but that an ordinarily prudent person would have incurred it had the safer course been unavailable.”
The instruction was given pursuant to the request of the defendant and was taken from the instruction which appears in the opinion of Jones v. A., T. & S. F. Rly. Co., 148 Kan. 686, 695, 85 P. 2d 15. However, it is significant to note that the following portion of the in? struction from which the trial court borrowed its language was omitted.
“However, ordinary care in making a choice between courses of conduct is all that is required. While the existence of a safe or safer course is to be considered in determining whether ordinary care was exercised, ordinary care does not require that every act be done in the safest way, and regard is to be had to all the other surrounding circumstances.” (Emphasis supplied.) (l. c. 695.)
Under the facts of this case, it is apparent that instruction No. 13 was given on the theory that if a safer method of moving the shovel under the line existed and the plaintiff took a less safe method and was injured, he was negligent per se. Instruction No. 13 so qualified the instruction dealing with plaintiff’s duty to exercise ordinary care for his own safety as to render the latter instruction meaningless.
We cannot approve the giving of instruction No. 13 — even had it been given in the same language as appears in the Jones case. In common-law actions of this type where the plaintiff seeks damages alleged to have resulted from defendant’s negligence and the defendant has pleaded contributory negligence of the plaintiff, the question is whether, under all the circumstances, the plaintiff’s conduct fell below the standard to which a reasonable man should have conformed for his own protection and to save himself from harm, and not in the selection of alternative means in accomplishing the task at hand. (Schroeder v. Nelson, 157, Kan. 320, 324, 325, 139 P. 2d 868). There is hardly a case involving personal injury where a plaintiff could not have avoided injury had he taken a different course. The question is, was the plaintiff’s conduct the conduct of an ordinary prudent person under all the circumstances. Moreover, this court has not approved the instruction given in the Jones case. In that opinion, three justices dissenting, the majority of the court said: “That instruction became the law of this case, so far as the plaintiff was concerned, since he made no complaint of it.” (Emphasis supplied.) (l. c. 695.)
We disapprove the giving of instruction No. 13, but did the giving of that instruction mislead the jury and prejudice the rights of the plaintiff and prevent his getting a fair trial. We think not. Among the instructions given the jury was instruction No. 14, which reads:
“An individual in the position of the plaintiff, although not necessarily bound to know the amount of electricity traveling through high-voltage lines, is required to exercise at least ordinary care for his own safety in proximity to electricity, and in all situations he is required to exercise the care that an ordinary prudent person would exercise under like circumstances and conditions. If he fails to do this, he is said to be negligent. If you find that the plaintiff was thus negligent, contributorily negligent in the case at hand, he cannot recover.”
The jury, in answer to special question No. 4, found the plaintiff negligent on the ground that he “Did not exercise ordinary care for his own safety in proximity to electricity.” The language of the jury’s answer to special question No. 4 follows the language of instruction No. 14, and as observed, it has nothing to do with the “safe way rule” purported to be covered by instruction No. 13. The plaintiff made no objection to instruction No. 14 nor did he object to the jury’s answer to special question No. 4. Assuming, arguendo, that instruction No. 13 was erroneous as heretofore concluded, the jury did not find the plaintiff guilty of negligence under the “safe way rule,” and we do not believe it can be said that the giving of that instruction prejudiced the rights of the plaintiff.
The plaintiff lastly contends that the trial court erred in refusing to give certain requested instructions. One of the plaintiff’s requested instructions pertained to the definition of “wantonness,” and was based upon the case of Frazier v. Cities Service Oil Co., supra. As previously indicated, we have concluded the trial court did not err in refusing to submit the issue of defendant’s wanton conduct to the jury, and no error was committed in refusing to give the requested instruction.
Two other requested instructions pertained to contributory negligence and were based upon the cases of Wainscott v. Carlson Construction Co., 179 Kan. 410, 295 P. 2d 649, and Nave v. Hixenbaugh, 180 Kan. 370, 304 P. 2d 482. The jury was fully instructed concerning plaintiff’s duty to exercise ordinary care for his own safety and the care that an ordinary prudent person would exercise under like circumstances. After being so instructed, the jury returned a general verdict for the defendant and answered special question No. 4 finding contributory negligence on the part of the plaintiff for his failure to exercise ordinary care for his own safety in proximity to electricity. That answer was based upon instruction No. 14 which was not objected to, and it cannot be said that it was prejudicial error to refuse to give the requested instructions.
This case was tried for several days to a jury, and after being instructed, it returned a finding of contributory negligence on the part of the plaintiff and a general verdict in favor of the defendant. The finding and verdict were approved by the trial court and the plaintiff has failed to make it affirmatively appear that prejudicial error occurred during the trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This appeal arises out of a claim against a decedent’s estate.
On June 29, 1960, an administratrix of the estate was appointed and qualified, and her statutory notice to creditors (G. S. 1949, 59-2236) was first published on July 1, 1960. On December 12, 1960, and well within the nine-months’ nonclaim statute (G. S. 1949, 59-2239), claimant filed a verified demand against the estate based on an alleged indebtedness of decedent to claimant arising out of commissions on the sale of livestock.
The demand was attacked by the administratrix with a motion to make definite and certain. Pursuant thereto, claimant, after the expiration of nine months from July 1, 1960, filed an amended petition for the allowance of his demand — and which was not verified. The matter was eventually transferred to the district court for hearing and some question was raised concerning the fact the amended petition for allowance of demand was not verified. The court found such pleading to be defective in that respect and upon application being made therefor permitted claimant to file a second amended petition. Pursuant to that order claimant filed a second amended petition and it was verified.
The administratrix then moved to strike the second amended petition from the files, demurred orally thereto, and moved for judgment on the pleadings. The demurrer and motions were overruled, and the court’s ruling is shown by the following excerpt from the journal entry:
“The court after hearing the argument of counsel and considering the pleadings filed in said action finds that the first petition for allowance of claim filed in the Probate Court by the claimant, Victor Koenig, did state a cause of action and in substance constituted a claim against the estate of J. I. Wilkison a/k/a John I. Wilkison, deceased; that subsequently said claimant filed a first amended petition for allowance of claim in said estate and this court at the pretrial hearing heretofore held found that said first amended petition was not verified and did not within itself constitute a complete petition, but it was and is the holding of the Court that this did not within itself nullify the original petition which did in the opinion of this Court constitute and actually state a cause of action and claim against said estate; that claimant requested permission to verify the first amended petition and that request was granted and claimant did verify his first amended petition; that claimant at the pre-trail hearing requested permission to file his second amended petition which was duly verified and the Court finds that claimant should be permitted to file his second amended petition herein.
“The Court further finds that defendant’s motion to strike the second amended petition for allowance of demand as appears on file herein, should be overruled and further finds that the demurrer to the second amended petition should be overruled, and further finds that defendant’s motion for judgment on the pleadings should be overruled.”
From this ruling the administratrix has appealed.
It is contended by the administratrix that, notwithstanding the fact the original petition for allowance of demand was filed within the nine-months’ period allowed by statute, it, for practical purposes, is to be eliminated from consideration, and the first amended petition, being unverified and being filed after the expiration of the period provided by the nonclaim statute, was not subject to amendment and therefore claimant did not have on file within the time permitted by statute a legally sufficient demand.
We believe the contention is without merit and will state our reasons very briefly.
G. S. 1949, 59-2201, provides that every application in a probate proceeding shall be by petition signed and verified by or on behalf of the petitioner, and that no defect in form shall impair substantial rights. When this matter was transferred to the district court that tribunal was authorized to require pleadings to be filed or amended (G. S. 1949, 59-2408) as though it had had original jurisdiction of the matter. Under the broad power given by G. S. 1949, 60-759, the court was authorized to permit the amendment of the first amended petition by verification. Examination of the original petition which was filed within the statutory time for filing claims establishes that it fully apprised the administratrix of the facts and nature of the claim against the estate. The two amended petitions were merely an enlargement and amplification of the original petition, and all were based upon the same claim for relief. The findings and rulings of the trial court, above quoted, were, under the facts and circumstances, correct. As bearing on the general principles involved see Roberts v. Setty, 154 Kan. 505, 119 P. 2d 539, and In re Estate of Shirk, 186 Kan. 311, syl. 3, 350 P. 2d 1.
We find no error in the record and the orders appealed from are affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a judgment sustaining a demurrer to an amended complaint for forcible detainer.
The only issue involved is the sufficiency of the notice to leave the premises.
The facts essential to a proper understanding of what this case is about will be highly summarized.
On September 4, 1945, plaintiff leased a business property located in the City of Wichita to the defendant. The lease was for a period of five years, ending September 3, 1950, for the sum of Six Hundred Dollars, rentals to be paid at the beginning of the lease period. Defendant had the option to renew the lease, running in three and five year periods up to twenty years, by paying the rentals at the beginning of the lease period at the same rental rate but through an error in dating a check failed to pay the rent in advance for the three years beginning September 4, 1962.
On September 5, 1962, plaintiff mailed the following letter to the defendant:
“Received your check # 2385 payable to the order of ‘Joe Goodin’ in the sum of $360.00, drawn on The Fourth National Bank and Trust Company, Wichita, Kansas, which, on its face, purports to be in payment of ‘Rent from Sept. 3d 1962 to Sep. 3d 1965.’
“The check is not acceptable and is returned herewith for the reason our contract dated September 4, 1945, provides that payments of any renewal ‘is to be paid at the beginning of the lease period.’ And said check does not comply with the terms of said contract and demand is hereby made for immediate possession of the property ‘known as reserve “B” of McCormick’s Addition located at the beginning of the 1400 Block on South Washington, running Southward thereon to Lots No. 28 and 30.’ ”
This was the only notice given to defendant to leave the premises.
Plaintiff commenced a forcible detainer action for possession of the property in the court of common pleas of the City of Wichita on September 12, 1962. Judgment was there rendered in his favor. Defendant appealed to the district court.
In district court, following a controversy over the sufficiency of the complaint, plaintiff was directed to amend that pleading by attaching thereto a copy of the notice notifying the defendant that the relation of landlord and tenant did not exist and demanding immediate possession of the property. In the same order defendant was directed to file a demurrer to such complaint upon receipt of a copy of the amended complaint.
Plaintiff complied with the foregoing order by attaching a copy of the heretofore quoted notice to his amended complaint. Defendant complied with such order by filing a demurrer based solely on the ground that such notice was not sufficient to support a cause of action for forcible detainer under the provisions of G. S. 1949, 61-1304.
Subsequently the district court sustained defendant’s demurrer and plaintiff perfected this appeal from that ruling.
Disposition of the controlling issue involved requires a historical review of our statutes and decisions dealing with the rights of parties to commence and maintain an action under existing laws relating to forcible entry and detainer.
In the early days of statehood G. S. 1868, Chapter 81, Section 161, so far as here pertinent, provided:
“It shall be the duty of the party desiring to commence an action under this article, to notify the adverse party to leave the premises, for the possession of which the action is about to be brought, which notice shall be served at least three days before commencing the action by leaving a written copy with the defendant, . . (Emphasis supplied.)
No changes were made in provisions of the foregoing section of the statute until the legislature enacted Section 1, Laws of 1905, Chapter 338, now G. S. 1949, 61-1304, which reads:
“It shall be the duty of the party desiring to commence an action under this article to notify the adverse party to leave the premises for the possession of which the action is about to be brought, which notice shall be served at least three days before commencing the action, by leaving a written copy with the defendant, . . .: Provided, however, If the action is brought for the purpose of ejecting a tenant for the nonpayment of rent, no notice shall be required, if a statement is included in the notice terminating the tenancy for such nonpayment of rent that unless the tenant shall vacate in the time provided in said notice that suit will be brought to eject him.” (Emphasis supplied.)
Decisions dealing with the force and effect to be given provisions of the section of the 1868 statute, heretofore quoted, and like provisions to be found in subsequent revisions of the statute up to 1905, will now be considered.
Long ago, as early as 1877, this court in Nason v. Best, 17 Kan. [2nd. Ed.] 408, held:
“A party desiring to commence an action of forcible entry and detainer should, at least three days before commencing his action, notify the adverse party, by a notice in writing, to leave the premises in dispute; and if he does not give such notice he cannot maintain the action. . . .” (Syl.)
Later, in 1884, in Douglass v. Whitaker, 32 Kan. [2nd Ed.] 381, 4 Pac. 874, it was held:
It is the duty of the party desiring to commence an action under art. 13, ch. 81, Comp. Laws of 1879, relating to forcible entry and detainer, to notify the adverse party to leave the premises for the possession of which the action is about to be brought, which notice must be served at least three days before commencing the action, by leaving a written copy thereof with the defendant, or at his usual place of abode if he cannot be found. . . .” (Syl.)
And in the opinion said:
“. . . The statute is mandatory that a party desiring to commence an action for forcible entry and detainer must notify the adverse party to leave the premises, for the possession of which the action is about to be brought, and that this notice notice shall be served at least three days before commencing the action. (§161, supra.) . . .” (p. 382.)
Still later in Stuller v. Sparks, 51 Kan. 19, 31 Pac. 301, the court held:
“A plaintiff cannot maintain an action of forcible entry and detainer, if the three-days notice to leave the premises, prescribed by § 161 of the justices act, is not given, and the plaintiff, to obtain judgment in such a case, must affirmatively show the service of the notice.” (Syl.)
A recent, and we may add controlling, decision dealing with the force and effect to be given the notification requirements of what is now G. S. 1949, 61-1304, is Gunter v. Eiznhamer, 165 Kan. 510, 196 P. 2d 177, which holds:
“A forcible detainer action is summary in character. It is purely statutory and a party desiring to avail himself of the remedy must bring himself clearly within the provisions of the law in order to vest the court with jurisdiction.
The three-day notice required by G. S. 1935, 61-1304, before an action for possession of the premises may be commenced is a condition precedent to the right to institute the action.” (Syl. ¶¶ 3, 4.)
And states:
“This case turns on the question whether appellee complied with the forcible detainer statute providing for notice of commencement of an action for possession of the premises. (G. S. 1935, 61-1304.) A forcible detainer action is summary in character. It is purely statutory and a party desiring to avail himself of the remedy must bring himself clearly within its provisions. Otherwise the court acquires no jurisdiction, (citing case.)” (p. 514.)
That the Gunter case is in accord with the general rule becomes apparent upon resort to 36A C. J. S., Forcible Entry & Detainer, p. 996, § 31, which reads:
“Since, . . ., the action of forcible entry and detainer is a special statutory proceeding, summary in its nature, and in derogation of the common law, it follows that the statute conferring jurisdiction must be strictly pursued in the method of procedure prescribed by it, or the jurisdiction will fail to attach, and the proceeding will be coram non judice and void, unless the defects in procedure may be, and are, waived. There is no presumption in favor of the record. It must appear that the statutory remedy was strictly pursued and the facts which give jurisdiction must appear affirmatively on the face of the record, otherwise the proceedings will be not merely voidable, but absolutely void, as being coram non judice.”
To the same effect is 22 Am. Jur., Forcible Entry And Detainer, p. 934, § 35.
Inasmuch as the heretofore emphasized portion of G. S. 1868, Ch. 81, Sec. 161, and the first emphasized portion of G. S. 1949, 61-1304, heretofore quoted, contain identical language, with respect to the notice required in order to commence and maintain a forcible detainer action, it can now be stated that the above cited Kansas cases, none of which have ever been disapproved or reversed, are all entitled to consideration in our determination of the notification requirements imposed by the existing provisions of 61-1304, supra, to which we have just referred. So far as here material those requirements, as we understand them, under the foregoing decisions, to which we adhere, are that the party desiring to commence an action for forcible detainer must first notify the adverse party to leave the premises for the possession of which the action is about to be brought, which notice shall be in writing; and if he does not give such notice he cannot maintain the action.
Keeping in mind that the legislature enacted Section 1, Chapter 338, Laws of 1905, now G. S. 1949, 61-1304, with the early decisions to which we have referred in force and effect, there can be no doubt regarding its purpose in adding the heretofore quoted proviso appearing in 61-1304 without any other material change in the forcible entry and detainer law which had been in force and effect since 1868. By the amendment it intended to make one exception to the notification requirements of the old statute. This intention was recognized and the new statute construed by this court in Bell v. Dennis, 158 Kan. 35, 144 P. 2d 938, where it is said and held:
“Under our statute, G. S. 1935, 61-1304, one of the conditions precedent to the institution and maintenance of a forcible detainer action is the service on the adverse party of a notice to quit, which notice must be served at least three days before the commencement of such action, unless it is brought for the purpose of ejecting a tenant for the nonpayment of rent, in which event, no notice is required if a statement is included in the notice terminating the tenancy that unless the tenant shall vacate in the time provided therein suit will be brought to eject him. So in a case where a party seeks to terminate a tenacy for nonpayment of rent, the notice to quit — in the instant case a three-day notice in writing as required by G. S. 1935, 67-508 — must be given, and service of such notice as required is a condition precedent to the institution of a forcible detainer action. Such was the effect of our decision in Stuller v. Sparks, surpa.” (pp. 37, 38.) (Emphasis supplied.)
A glance at the notice, which has been heretofore set forth at length and ,will not be requoted, makes it obvious that it did not “notify the adverse party to leave the premises for the possession of which the action is about to be brought,” nor did it contain a statement “that unless the tenant [appellant] shall vacate in the time provided in said notice that suit will be brought to eject him.”
Thus, under the authorities previously cited in the opinion, it clearly appears that, whether we regard this action as one where a notice was required under the first emphasized portion, heretofore quoted, of 61-1304, or whether it be regarded as an action brought for the purpose of ejecting a tenant for the nonpayment of rent, under the proviso, heretofore quoted, of such section, the notice in either situation was wholly insufficient to authorize the appellee to commence and maintain the involved forcible detainer action.
In an obvious attempt to forestall the results flowing from the conclusions just announced, appellant directs our attention to Art. 5, Ch. 67 of G. S. 1949, dealing with the rights and obligations of Landlords and Tenants, particularly 67-509, providing that where the time for the termination of a tenancy is specified in the contract no notice to quit shall be necessary. He then insists that this section of the statute, which we pause to note has been in force and effect since 1868, supersedes and does away with all necessity for any compliance whatsoever with the requirements of notice set forth in 61-1304, which, under our repeated decisions, have long been held to be mandatory and conditions precedent to the rights of litigants to institute and maintain forcible detainer actions. There are several reasons why appellant’s contentions on this point are wholly fallacious and cannot be upheld. In the first place the notice to quit referred to in 67-509, as it appears in the Landlords and Tenants provisions of our statute, relates solely to the notice required in order to terminate a tenancy, not to the rights of litigants to commence and maintain a forcible detainer action. In the next to uphold appellant’s position would require the disapproval and repudiation of the decisions, to which we have just referred, dealing with the notification requirements of our forcible entry and detainer statute. And finally we are cited to, and know of, no decisions which warrant or tend to sustain appellant’s position.
Appellant’s claim the question raised by appellee in his demurrer to appellant’s amended complaint is res judicata, by reason of the trial court having previously overruled appellee’s motion for judgment on that pleading on condition appellant would amend such pleading by attaching a copy of the only notice given appellee, has been rejected, not overlooked. Under the provisions of G. S. 1949, 61-1003, the district court had the right in its discretion to order further and amended pleadings to be filed in the action. Moreover, the appellant acquiesced in that ruling and cannot now be heard to complain.
We have carefully reviewed the record and considered all contentions advanced by appellant and find nothing which warrants or permits a conclusion the trial court erred in sustaining appellee’s demurrer to his amended complaint.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Robb, J.:
This is an appeal by the plaintiff from the orders and judgment of the trial court that certain instruments, a contract and two instruments designated as “Sale of Oil and Gas Royalty,” were recorded in compliance with G. S. 1949, 79-420, quieting title of the Mid-American Oil Company and the Gulf Coast Western Oil Company, as owners of an undivided 14/32 interest in the minerals in place in and under the following real estate: “The South Half (S/2) of Section 26 Township 23 South, Range 26 West of the Sixth Principal Meridian, Hodgeman County, Kansas, . . and finally, from the order overruling plaintiff’s motion for new trial.
The parties stipulated that Gulf Coast and Mid-American were both Delaware corporations and were successors to the Farmers Mutual Royalty Snydicate and Equal Royalty Company, respectively. Mid-American claimed a 13/32 undivided interest and Gulf Coast claimed a 1/32 undivided interest in the minerals in place. The court had jurisdiction and the petition stated a cause of action against the defendants. As to the southeast quarter Preston M. Steele and Harry B. Steele and their wives gave a general warranty deed to Francis E. Ochs on September 12, 1916, and on December 25, 1933, Francis and his wife, plaintiff’s father and mother, gave to plaintiff a general warranty deed therefor which was recorded on June 1,1937.
As to tire southwest quarter, H. J. Steele and wife gave a general warranty deed to Francis E. Ochs which was recorded on June 25, 1904. Francis died testate on August 30, 1954, with title to this quarter section assigned to Stella I. Ochs, surviving spouse of Francis, who transferred title to plaintiff by quit claim deed recorded March 21,1956, as a gift.
It was further stipulated that defendants claimed title as a result of the following transactions:
On January 23, 1929, Francis and Stella Ochs contracted and agreed to convey to G. T. Blankenship an undivided Va interest in the minerals in and under the real property here involved and an undivided % interest to the Equal Royalty Company, or some other company of a suitable name to be organized. On May 3, 1929, the two mineral deeds set out in and dated the same date as the contract were recorded. On May 12, 1937, Blankenship and his wife conveyed an undivided 1/32 interest by mineral deed recorded May 26, 1937, to the Equal Royalty Company. On March 31, 1934, Blankenship had conveyed an undivided 1/32 interest by mineral deed, recorded December 9, 1937, to the Farmers Mutual Royalty Syndicate. At this point there is no dispute about the facts.
The stipulation then proceeded to show that plaintiff contended that defendants’ title was void under G. S. 1949, 79-420 because their mineral deeds were not recorded within ninety days after execution and were not listed for taxation. Defendants admitted such deeds were not recorded within ninety days after their execu Ron on January 23,1929. In compliance with the terms thereof, the contract of January 23, 1929, and the mineral deeds were placed in escrow with the Spearman Abstract Company, a partnership, of Spearman, Texas, where they remained at least unRl March 5, 1929, which was less than ninety days from the date of their recording on May 3,1929. Defendants claimed plaintiff was barred by our statute of limitations (G. S. 1949, 60-304) and that plaintiff was estopped from denying ownership because (1) such ownership was recognized by him in 1937 when he, Equal Royalty, Farmers Mutual, with others, as lessors, executed an oil and gas lease on the property here involved, (2) that plaintiff’s attorney recognized the rights and ownership of these defendants in a letter dated March 20, 1957, to Mid-American, and (3) that Francis E. Ochs expressly reserved defendants’ mineral interests in his deed to plaintiff. Both plaintiff and the defendants contended they were in possession of the mineral interests. The foregoing were the issues before the court.
It was also sRpulated that defendant would introduce an affidavit of Blankenship executed on March 5, 1929, and recorded on March 6, 1929, and that identfficaRon of instruments duly recorded was to be waived and subsRtuRon of copies would be allowed but the right to object to the introduction of such instruments on the basis of their being incompetent, irrelevant, and immaterial was reserved. Orally, the parries stipulated that no transfers of mineral interests for tax purposes were recorded on this property from October 6, 1916, to June 1, 1937. The tax rolls of 1929 and 1930 showed no mineral interests listed for taxation on this real property. The entire fee Rtle was assessed to Francis.
The instrument dated January 23, 1929, was denominated as follows:
“Contract
“Employment for Pooling Royalty”
In pertinent part thereof Francis E. Ochs and Stella I. Ochs agreed to employ Blankenship to sell or pool oil and gas and mineral rights to the Equal Royalty Company or to some other company of a suitable name to he organized, and as full compensaRon for his services and full payment of his part of the expenses while organizing the company they agreed to convey to him an undivided V» interest in the minerals in and under the land. Francis and Stella further agreed to convey to the company by good and sufficient deed an undivided % interest in and to all the minerals lying or situated in and under the land. They agreed to accept as full payment for such conveyance shares in the company of the par value of $1.00 and “$10 per acre in shares at the par value for the number of acres covered by this contract.”
Blankenship’s contracts with other landowners were to have the same values applied. Landowners in Texas, Oklahoma, Kansas, Colorado, and New Mexico, were to be allowed to make similar contracts with Blankenship in the aggregate of not less than 4,000 acres or more than 80,000 acres of land. When all deeds were placed in escrow, then Blankenship was to organize the company at his expense and upon completion of the organization, the executed deeds to the company together with the contract were to be delivered to the company. Blankenship was to pay his own expenses until the company was organized but when it was completed and ready for business, such expenses were to come out of the % interest conveyed to the company. Francis and Stella were not to be liable in any respect whatsoever for any expenses in organizing or operating the company. After organization of the company, Blankenship could continue to pool royalties to the limit of 80,000 acres. The deed to Blankenship, as well as the deed to the company, was directed to be placed in escrow in the Spearman Abstract Company at Spearman, Texas. If the company name, Equal Royalty Company, was not available, Francis and Stella agreed to execute “another deed in the name of such Company as may be organized” under the employment contract. Time was the essence of the contract and if 4,000 acres or more had not been procured and the company organized on or before December 1, 1929, the contract would be null and void. The contract was binding on the parties, their heirs, executors, administrators and assigns.
Pursuant to the contract, two written instruments were executed by Francis and Stella which were denominated “Sale of Oil and Gas Royalty.” Both were mineral deeds. The first conveyed to the Equal Royalty Company an undivided % interest in all of the oil, gas, coal, and other minerals lying in or under the land in question, and the second conveyed to Blankenship an undivided Is interest in all of the oil, gas, coal, and other minerals lying in or under the same land. Thus these two instruments conveyed real property as mineral deeds and the main issue in the case arises as to when the ninety-day period required by G. S. 1949, 79-420, began to run. Plaintiff contends the statute came into operation on January 23,1929, the date of the contract and deeds. Defendants, on the other hand, contend that due to the escrow agreement and the duties placed upon Blankenship in forming the royalty pool, the statute did not commence to run until his duties were performed and the deeds released by the escrow holder.
After completion of the pool by Blankenship in full accordance with the contract, the Spearman Abstract Company delivered the deeds and the contract to the Equal Royalty Company and it is undisputed the deeds were recorded within ninety days thereafter.
An affidavit by Blankenship was filed of record on March 6, 1929, at 3:20 p. m. in the register of deed’s office of Hodgeman county. The pertinent portions portions thereof reflect that a number of landowners had employed Blankenship to pool royalties under certain lands and to compensate him for his services, he was to receive certain interests therein. The deeds to such interests were placed in escrow pursuant to the employment contracts. Although approximately thirty-three quarter sections of land were pooled, our concern here is only with the land in question.
Blankenship received the contract and the deeds on January 23, 1929, from Francis and Stella Ochs. On February 9, 1929, the Spearman Abstract Company of Spearman, Texas, issued its receipt therefor to Blankenship, whose office was in the Petroleum Building, Oklahoma City, Oklahoma, in which receipt it was stated, “. . . mineral Deeds to be held for the following named persons together in escrow until the stipulations in said contracts are fulfilled.” The contracts, or a copy thereof, were attached to each deed.
With respect to the Spearman receipt, it is not disputed that Blankenship did so place in escrow the contract and both deeds covering the land in question. On April 17, 1929, Francis and Stella received certificate No. 36 for 1200 shares in the company.
The only oral testimony was that of M. L. McLain, who was co-owner and manager of the Spearman Abstract Company. From McLain’s testimony concerning his business operations with Blankenship, plaintiff seems to infer there was an opportunity for Blankenship and McLain to be guilty of some malfeasance or misfeasance. However, the evidence before us shows nothing to support such a contention. We cannot speculate on pure conjecture.
The record discloses two instruments were subsequently executed from which transactions plaintiff could not have been unaware of the legal existence o£ the mineral deeds. This first was a general warranty deed dated December 25, 1933, by which Francis and Stella conveyed to plaintiff the land in question with the following exception:
“This deed is made subject to terms and conditions of certain mineral deeds now on record in favor of G. T. Blankenship, Equal Royalty Company and Dean M. Stacy, and all rights accrued or accruing thereunder in favor of the grantors herein are hereby assigned to the grantee herein, his heirs or assigns.”
The second instrument was an oil and gas lease executed to Richard E. Garrett on April 15, 1937, by plaintiff and his wife, Equal Royalty Company, Farmers Mutual Royalty Syndicate, Incorporated, Dean M. Stacy, and Eva L. Stacy, as co-lessors.
The trial court briefly summarized the facts and in its formal journal entry of judgment stated:
“The court further finds that when said conditions were complied with by the grantee, then and only then, did said deeds become effective and subject to the provisions of what is now G. S. 1949, 79-420; that said conditions were fulfilled within 90 days before said deeds were recorded.”
The court quieted title in Mid-American to a 13/32 interest and in Gulf Coast to a 1/32 interest in the minerals in and under the land in question. In due time plaintiff filed a motion for new trial which was overruled. Hence this appeal.
G. S. 1949, 79-420, in substance, provides that where the fee to the surface of land is in one person and the right or title to any minerals therein is in another, the right to the minerals shall be separately taxed to the owner, or owners thereof. The register of deeds has the duty to furnish to the county clerk (now to the county assessor, G. S. 1961 Supp., 79-420) a certified description of all such reserves. That portion of the statute with which we are presently concerned states: “Provided, That when such reserves or leases are not recorded within ninety days after execution, they shall become void if not listed for taxation.”
In Mining Co. v Crawford County, 71 Kan. 276, 80 Pac. 601, the above statute was construed to be a part of llie general tax law and in the discussion it was stated that tax laws are the growth of experience and the development of property, and that changes in laws from time to time by amendments, repeals, alterations, or additions, as new conditions require, must be made in order that all classes of property will bear a just proportion of the public burden. Absent the above-quoted provision a very large and highly valuable class of real estate could escape taxation, (p. 278.)
An authority relied upon by both parties is Burgin v. Newman, 160 Kan. 592, 164 P. 2d 119, wherein the same statute was again referred to as a tax statute and its purpose was stated thus:
“The provisions of G. S. 1935, 79-420, a tax statute, construed and held: The purpose thereof was to provide for the separate listing, valuation and taxation of mineral interests in lands when severed from the fee to the surface of the land and owned by another or others.” (Syl. f 1.)
In the Burgin case the mineral deed conveying Y¡ interest in the minerals in place was executed by the Burgins, husband and wife, to the defendants, Newman and Trock. By reason of a subsequent transfer by the Burgins, the question presented in the appeal was whether the grantees’ failure to list the deed for taxation under 79-420 made the grantees’ deed void. Newman had originally conveyed to Burgin but neglected to reserve title to the minerals in place and the Burgins by their mineral deed had conveyed back the minerals in place to Newman. Burgins’ deed to Newman was executed July 11, 1936, in the bank and the bank became escrow holder until a certain mortgage extension agreement was consummated and recorded. Trock was an officer of the escrow bank. The mortgage extension agreement was recorded on April 8, 1937, and the mineral deed was recorded on June 17, 1937. On the point of plaintiffs contention the deed was delivered to the grantees on the day it was executed, July 11,1936, this court stated:
“Before a deed can operate as a valid transfer of title it must be delivered. Delivery is largely a matter of the grantor’s intention to divest himself of title.” (Syl. ¶ 2.)
The opinion further stated that delivery may be presumed when,
“Possession by a grantee of a deed absolute in form is prima facie evidence of delivery which can be overthrown only by clear and convincing evidence and the burden of showing nondelivery is upon the party who questions the delivery.” (Syl. f 3.)
Further qualifying delivery of a mineral deed, the opinion held:
“The failure of grantees in a mineral deed to record it within ninety days after execution, or to list the mineral interests conveyed for taxation, does not render the deed void where custody and control thereof are given to a bank and delivery is withheld for the benefit of the grantors, pursuant to agreement of the parties, until the occurrence of a designated event and not for the purpose of avoiding taxation.” (Syl. ¶ 4.)
The opinion in the Burgin case includes the following clear and unequivocal statement as to the application of 79-420:
“Manifestly . . . the mere execution of a mineral deed does not constitute a severance of the surface and mineral rights nor does it create a separa tion in the ownership of such interests so that they can be listed, valued and taxed separately. Such severance of interests and passing of title do not occur until delivery of the instrument to the grantee.” (pp. 595, 596.)
In the Burgin opinion the situation was summarized by this court to be one where the parties had orally agreed there would be no severance of the surface and the mineral rights until the renewal mortgage was recorded and such construction had been placed upon the agreement by all parties. The bank held the mineral deed until the contractual contingency occurred and the deed was recorded less than ninety days from its intended delivery. All that was needed was to determine the effect intended and what was actually done. The parties had agreed upon their course of conduct and the result to be achieved. They acted in mutual good faith and avoidance of taxation was in nowise considered. The trial court was satisfied defendants’ evidence convincingly met the burden of proof.
We cannot ignore the rulings of the Burgin case and under our present facts, where the escrow agreement was in writing, we believe this is a much stronger case than the Burgin case where the escrow agreement was oral. We are convinced the mineral deeds executed to Blankenship and the company were conditionally delivered to him to be placed in escrow until he could perfect the pooling arrangement and the organization of the company. From his actions Blankenship also placed this interpretation on the delivery of January 23, 1929, because he immediately deposited the deeds and contract in escrow. We are further convinced that plaintiff’s grantors and the plaintiff also construed the contract and the deeds as constituting a conditional delivery. Thus the recording of the deeds at a time within ninety days of the release thereof by the escrow holder did not violate G. S. 1949, 79-420.
The foregoing is the principal question before us and we do not deem it necessary to discuss other propositions argued by counsel and authorities cited in support thereof. We may say that various problems relating to royalty pooling contracts have previously been considered by our court. A few of our cases are Fitch v. United Royalty Co., 143 Kan. 486, 55 P. 2d 409; Johnson v. Allen, 178 Kan. 348, 285 P. 2d 764; Fox v. Flag Oil Corporation, 179 Kan. 781, 298 P. 2d 260; State, ex rel., v. United Royalty Co., 188 Kan. 443, 363 P. 2d 397.
The judgment is affirmed.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a judgment of the district court of Leavenworth County denying petitioner a writ of habeas corpus.
The undisputed facts required for a proper understanding of the appellate issues involved will be stated briefly.
On July 16, 1959, the petitioner, Fred E. Dexter, while on parole from the State Penitentiary under a felony sentence by the district court of Montgomery County, appeared before the district court of Elle County, accompanied by Laurence M. Turner his court appointed counsel, and, after waiving formal arraignment, entered a plea of guilty to an information which charged him with burglary in the second degree and grand larceny in violation of G. S. 1949, 21-524 and G. S. 1957 Supp., 21-520 and 21-533 [now G. S. 1961 Supp., 21-520 and 21-533], Subsequently the court sentenced petitioner to the State Penitentiary on his plea of guilty to the crimes charged in the information under the provisions of G. S. 1949, 21-523 and 21-524 and G. S. 1957 Supp., 21-520 and 62-2239 [now G. S. 1961 Supp., 21-520 and 62-2239], notwithstanding that, by virtue of his prior conviction of a felony, a more severe sentence could have been imposed against him under the habitual criminal act (G. S. 1949, 21-107a).
No appeal was ever perfected from the foregoing judgment and sentence.
More than three years after his incarceration in the penitentiary under the judgment rendered by the district court of Elk County petitioner filed a petition for a writ of habeas corpus in the district court of Leavenworth County against the respondent, Sherman H. Crouse, Warden of the Penitentiary, charging he was being illegally restrained of his liberty under such judgment which was unconstitutional and invalid. In due time respondent filed an answer in which he denied all allegations of the petition and alleged that petitioner was in his custody under the valid judgment and unexpired sentence of the district court of Elk County.
With issues joined as related the cause came on for hearing in the district court of Leavenworth County. Thereupon after a full and complete hearing, at which time petitioner was represented by competent counsel of his own choosing and the respondent by an assistant attorney general, both parties adduced evidence and the case was taken under advisement. On January 2, 1963, the district court determined all issues joined by the pleadings in favor of respondent and denied the writ. Petitioner did not see fit to file a motion for a new trial.
Later, and on January 15, 1963, petitioner gave a pro se notice of appeal from the judgment denying the writ and since bringing the case to this court has prosecuted such appeal in that capacity.
The first and principal contention advanced by appellant as affording a ground for reversal of the trial court’s action in denying the writ is that his Elk County judgment and sentence was founded on evidence alleged to have been obtained through illegal search and seizure. The fallacy in all claims made by him on this point rests in the fact that such judgment was based on his voluntary plea of guilty to the crimes charged in the information without the introduction of any evidence whatsoever.
It has long been the law of this state that once a plea of guilty has been voluntarily entered by a defendant in a criminal action there is absolutely no need to introduce any evidence to maintain a conviction. (Berger v. Hand, 190 Kan. 220, 221, 373 P. 2d 175; Peay v. Hand, 184 Kan. 182, 334 P. 2d 369; Carrier v. Hand, 183 Kan. 350, 351, 327 P. 2d 895; Darling v. Hoffman, 180 Kan. 137, 138, 299 P. 2d 594.)
Moreover, this court has repeatedly held that a defendant’s voluntary plea of guilty,in a criminal case is a confession of guilt of the crime charged and of every fact alleged in the charge, and that, legally speaking, it is the most formal and binding confession possible for him to make. (See, e. g., State v. [Fred E.] Dexter, 191 Kan. 577, 580, 382 P. 2d 462; State v. Downs, 185 Kan. 168, 170, 341 P. 2d 957; State v. Nichols, 167 Kan. 565, 577, 207 P. 2d 469.)
What has just been stated and held is sufficient to establish that appellant’s first contention lacks merit and cannot be upheld.
Further support for the conclusion just announced is to be found in Miller v. Hudspeth, 164 Kan. 688, 708, Syl. ¶ 9, 192 P. 2d 147, holding that where a plea of guilty has been entered there can be no review of the sufficiency of evidence to support the judgment of conviction. See, also, Crisp v. Hudspeth, 162 Kan. 567, 178 P. 2d 228.
Appellant also contends that his constitutional rights were infringed upon by an illegal arrest without a warrant. If true, which appellee denies, this contention is devoid of merit even if appellant had seen fit to file a motion for a new trial in the case presented by the instant appeal, which he did not do. See Engling v. Edmondson, 175 Kan. 883, 267 P. 2d 487, where it is said:
“And finally, petitioner’s contention that no complaint or warrant was served at the time of his arrest, even if true, is of no avail to him in view of his plea of guilty which had the effect of waiving any and all irregularities prior to the entry of such plea.” (p. 885.)
For other decisions of like import see Uhock v. Hand, 182 Kan. 419, 424, 320 P. 2d 794, and McGee v. Crouse, 190 Kan. 615, 617, 376 P. 2d 792.
A further claim advanced by appellant is that he did not commit the offense of burglary in the nighttime, even though he was specifically charged in the information with that crime and entered a plea of guilty thereto. This claim lacks merit and cannot be upheld. Under our decisions title guilt or innocence of one accused or convicted of crime is not justiciable in a habeas corpus proceeding. (See Fisher v. Fraser, 171 Kan 472, 233 P. 2d 1066; Martin v. Edmondson, 176 Kan. 374, 270 P. 2d 791; Hartman v. Edmondson, 178 Kan. 164, 283 P. 2d 397.)
Appellant devotes much time and space to a charge regarding the failure of his court appointed counsel to faithfully, conscientiously, intelligently and honestly perform his obligations as his attorney in the Elk County district court. Except to say it was all based upon his own uncorroborated statements in the court below, and com pletely refuted by other facts and circumstances of record, we are not disposed to burden our reports with a detailed statement of the evidence adduced by him in support of this position.
A further short and simple answer to this claim is that under our decisions (see, e. g., McGee v. Crouse, supra), it is presumed an attorney appointed to represent an accused in a criminal case discharged all duties imposed upon him by our statute (G. S. 1949, 62-1304), and this presumption is not overcome by the uncorroborated statements of the petitioner in a habeas corpus proceeding.
Another answer, equally decisive, is to be found in our numerous decisions holding that the unsupported and uncorroborated statements of the petitioner in a habeas corpus proceeding do not sustain the burden of proof or justify the granting of a writ where — as here — the judgment rendered is regular on its face and entitled to a presumption of regularity and validity. For just a few of our cases so holding see Johnson v. Crouse, 191 Kan. 694, 697, 383 P. 2d 978; Uhock v. Hand, 426, supra; Prater v. Hand, 185 Kan. 405, 407, 345 P. 2d 634; Engling v. Edmondson, 885, supra.
In conclusion it may be stated that, after careful examination of a confusing and unsatisfactory record, we find nothing in this appeal which warrants or permits a conclusion the trial court erred in denying the application for a writ of habeas corpus and remanding the petitioner to the custody of the respondent.
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The opinion of the court was delivered by
Schroeder, J.;
This is an appeal in a workmen’s compensation case by the employer from an award of death benefits to the dependents of a deceased workman, who died of a heart attack which is described in the death certificate as a myocardial infarction.
The primary question is whether the record contains substantial, competent evidence to support the findings of the district court.
The claimant is the widow of William Gus Geurian, Sr., hereafter called Geurian, and the duly appointed guardian of their minor son. The claimant and her son were dependent upon Geurian at the time of his death on November 5, 1958.
The parties stipulated to essential facts which were not in issue, among which was that the parties were governed by the workmen’s compensation act of Kansas. Other stipulations need not be stated.
The claim for compensation, among other things, gave the date of the accident as October 15, 1958, at 1:30 a. m.; the date of death as November 5, 1958; and described how the accident occurred as follows: “Strain and over-exertion in making service call as troubleshooter and being jolted and jarred in service truck.”
Geurian was an employee of the Kansas City Power & Light Company (appellant) from 1946 until his death, starting as a groundman, then working as an apprentice lineman, then as a journeyman lineman, and then as a troubleshooter for a year or so immediately before his death. In addition, he worked as an inspector and on other light jobs created for him by the appellant for a period of time following a heart attack on October 23, 1954. For about a year following a heart attack on October 23, 1954, he was under the care of a company doctor and had periodic EKG’s. Thereafter, he was under the care of and had periodic EKG’s by Drs. Hibbard and Ballard, heart specialists in Kansas City, Missouri, for a period of time, his last consultation with them before entering St. Luke’s Hospital on October 15, 1958, being three weeks before he entered this hospital.
Between the time he last saw the company doctor and three weeks before he entered the hospital, he complained to his wife of pain at least once a month after heavy labor. During the three-week period immediately preceding his entry into the hospital on October 15, 1958, his symptoms increased and almost every day included pains through the chest, numbness in both arms and a burning sensation all through the chest and vomiting. However, he did not miss any time from work during this three-week interval.
On Tuesday morning, October 14,1958, when Geurian came home after his midnight to 8:00 a. m. shift, he complained that he did not feel well and that he had felt pain all evening. He felt bad all morning and napped on the divan. At 10:00 a. m. he began feeling much worse and decided to see a doctor, and at 11:00 a. m. called and made an appointment with E. C. Altenbernd, M. D., a general practitioner. About 12:30 p. m. he vomited. He went to Dr. Altenbernd’s office for his first visit in the afternoon. At that time he complained of substemal pain under the breast bone and pain running down the left arm, particularly on the inner aspects. This had been going on approximately three weeks. He gave a history of a coronary some three or four years previously. Dr. Altenbernd stated that his examination revealed irregularities of the heart, normal blood pressure and normal pulse rate; that he then believed Geurian was having some circulation problems with the arteries of his heart or what normally would be called angina, and that the muscles of the heart were under a certain amount of abnormal stress.
Dr. Altenbernd wanted to hospitalize Geurian at that time, but Geurian refused. He then told Geurian, “the next best thing he could do was give him medication to help circulation,” the medication being nitroglycerin, and he told Geurian to go home and go to bed and to be sure and report to his own doctor the following morning.
After returning home from Dr. Altenbernd’s office Geurian was sick the entire evening, was pale and still had chest pains and took a nitroglycerin pill because of company they were having for the evening.
At midnight that evening Geurian reported to work at the company’s Overland Park garage where he joined a fellow workman named Leroy Stocks. Stocks believed Geurian was not feeling well when he came to work, and suggested he go home if he did not feel well, but Geurian did not go home. Shortly after 1:00 a. m. on October 15, 1958, Stocks left the garage driving the company’s ton Chevrolet ladder truck with Geurian as a passenger. Both Geurian and Stocks worked for the appellant as troubleshooters. While away from the company’s garage in the truck Stocks stopped five times and changed street lights, but Geurian did not perform any labor and did not help in any way at all, but just sat in or was lying in the front seat of the truck. Stocks stopped the truck three other times, the first being at Highway 10 and Nieman Road when they talked with a policeman and where Stocks noticed Geurian took a pill; the second at Merriam, Kansas, where Geurian vomited and became white after vomiting; and the third at 71st and Antioch where Geurian got out and vomited and laid down at the side of the road for not more than three to five minutes. Stocks did not help Geurian back into the cab of the truck as he was able to get in by himself. Geurian, who had worked regularly with Stocks for over a year, had made no complaints of any illness to Stocks in the two-week period prior to that evening. Stocks drove approximately ten miles, all in Johnson County, before returning to the garage at around 3:00 p. m. so Geurian could get home.
On the previous shift Geurian had performed all of his duties which were “pretty well routine, just changed a few street lights.”
The company ladder truck in which Geurian was riding on October 15, 1958, was described by two witnesses who had ridden in it on other occasions as being a rough-riding truck, but no more rough-riding than any other truck.
After being returned to the garage, Geurian drove his own automobile home, arriving there sometime between 3:00 and 4:00 a. m. He told his wife he was very sick, whereupon she helped him to bed. He was very short of breath, was pale and in terrific pain, and between 4:30 and 4:45 a. m. claimant called Dr. Altenbernd who prescribed relief measures and told claimant to check Geurian’s symptoms further and call him back.
According to Dr. Altenbernd, on the second call claimant told him that Geurian was perspiring heavily, felt chilly and cold, had a clamminess about him, was in quite a bit of chest pain and had shortness of breath, which were symptoms that alarmed Dr. Altenbemd to be concerned about a myocardial infarction. After approximately twenty to twenty-five minutes Dr. Altenbernd arrived at the Geurian home. Geurian was then lying in the living room, was nauseated, had chest pains, was short of breath, was ashen color, had great beads of sweat on his face and was breathing heavily and irregularly. After making a preliminary examination, Dr. Altenbernd administered morphine and anabasine for nausea. He found Geurian’s blood pressure below 90, systolic, and could not get a diastolic pressure which indicated to him that the myocardium was not functioning at all well and he concluded Geurian was in profound shock. Geurian’s regular doctor, Dr. Ballard, was then called immediately, and he instructed that Geurian be taken by ambulance to the St. Luke’s Hospital where he would meet him. This was done. At the hospital, an EKG was made upon his arrival, and Geurian was then placed in a room. He was under oxygen for two days and thereafter showed improvement. After the third day Geurian was permitted visitors, and claimant was advised, apparently around November 4, that it was anticipated Geurian would be discharged from the hospital on November 7. At approximately 10:00 p. m. on November 5, 1958, Geurian had a sudden relapse and died.
The diagnosis as shown by the hospital records was “Acute anteroseptual myocardial infarction due to coronary thrombosis. Coronary arteriosclerosis. Hypercholia Perolemia,”
There was no testimony by Drs. Hibbard and Ballard who attended Geurian in his last illness. Dr. Altenbernd testified in person, and Dr. Hughes W. Day, an expert in cardiology and heart disease, who never examined or treated Geurian, testified by deposition.
The examiner’s findings and award of a death benefit in favor of the claimant in the amount of $13,500 payable at the rate of $38 per week, etc., were approved by the director and adopted by the district court on appeal. In addition thereto the district court specifically found:
“(1) that the deceased William Gus Geurian on October 15, 1958, sustained a personal injury by accident arising out of and in the course of his employment, and (2) that the death of William Gus Geurian on November 5, 1958, resulted therefrom.”
Appeal has been duly perfected to this court by the Kansas City Power & Light Company presenting the matters hereafter discussed.
The appellant contends the claimants (appellees) failed to prove by any substantial, competent evidence that Geurian, the deceased workman, sustained “personal injury by accident arising out of and in the course of employment” as required by G. S. 1949, 44-501.
The workmen s compensation examiner found:
“. . . The deceased did nothing during this period [referring to the period while Geurian was at the job on the early morning of October 15, 1958, his last day of work] except lay on the seat of the truck. His fellow workman performed all the activity that was performed. . . .”
The appellant calls our attention to the fact that this finding was approved by the director and adopted by the trial court, and there is no evidence in the record to disclose that Geurian performed any “job task” for the appellant on his last day of work, October 15, 1958.
The appellant argues the most reasonable inference from the evidence is that Geurian was too sick when he came to work for his shift on October 15, 1958, to perform any work.
There was also a finding by the examiner, which was approved by the director and adopted by the trial court, that Geurian s “riding in the truck and getting down from the cab of the truck to the ground on two occasions during the two hour period between 1:00 and 3:00 a. m., October 15, 1958” constituted exertion which precipitated the heart attack that caused the death of Geurian.
The appellant contends the evidence is clear that Geurian’s physical exertion at the job was so minimal as to be de-minimus. Upon the evidence presented by the record the appellant argues that as a matter of law Geurian did not sustain “personal injury by accident arising out of and in the course of employment” and that his death did not and could not have resulted therefrom.
On appellate review of workmen’s compensation cases, particularly with respect to heart cases, the law has been rather fully stated in Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 347 P. 2d 235, commencing at the bottom of page 733 and concluding at the top of page 735 of the official report. The rules of law there stated are incorporated herein by reference.
The rules are also summarized in Rorabaugh v. General Mills, 187 Kan. 363, 356 P. 2d 796, commencing at the middle of page 366 and terminating near the end of page 367 of the official report.
In the Rorabaugh case it was said:
“The rule that this court will review all of the evidence in the light most favorable to the prevailing party below, and affirm the trial court’s judgment, if there is any evidence which supports it, applies with equal force whether compensation has been allowed or denied by title trial court. . . .” (p.367.)
The workmen’s compensation examiner began his findings as follows: “The arbiter of the facts is again presented with the question of the degree of exertion needed to precipitate a heart attack.
Two closely analogous workmen’s compensation cases involving the death of a workman caused by a heart attack have been before this court. In each case an award of compensation was made to the dependents of the deceased, and the question presented on appeal was whether the record disclosed sufficient evidence to sustain a finding that the decedent’s death was a result of accidental injury arising out of and in the course of employment.
The first case, in course of time, was Workman v. Johnson Bros. Construction Co., 164 Kan. 478, 190 P. 2d 863. There the decedent was a carpenter, and on the day of his death was employed in setting nails, a process by which he held a punch over a nail that had already been driven into the wood and struck the punch with an ordinary carpenter’s hammer, driving the nail a little further into the wood. He was working in a basement on some shelves or bins which required him to stoop down to the floor at times and at other times to stand up and raise his hands as high as his shoulders. On the evening before his death, the deceased came home from work and while washing complained of a severe pain in his chest. His face was pale and his lips blue. In the course of the hearing this was sometimes referred to by the doctors as a coronary occlusion or coronary thrombosis. He went to work the next morning. The last time he was seen alive was about 3:00 o’clock in the afternoon. About 4:00 o’clock the same afternoon he was found lying down in one of the aisles in which he had been working.
In answer to hypothetical questions both the doctors testified that the deceased had a coronary occlusion on the evening before his death, the next day, and died from heart failure following coronary thrombosis. Both testified that he should have been put to bed and kept quiet, and that when a man is in that condition a very slight activity would result in his collapse.
The court, after reciting familiar rules to which reference has heretofore been made and upon medical testimony favorable to the claimant, affirmed an award of compensation. After reviewing the evidence the court held that a reasonable conclusion to be drawn therefrom was that the deceased had been working at the time, or about the time, of the fatal attack, and concluded there was substantial, competent evidence on which to base an award of compensation to the claimant.
The other case is Bohanan v. Schlozman Ford, Inc., 188 Kan. 795, 366 P. 2d 28. The evidence disclosed that the decedent reported for work at 7:30 a. m. and performed his labors as a mechanic for the respondent between the hours of 8:00 a. m. and 12:00 o’clock noon, and then collapsed while eating lunch on the respondent’s premises at approximately 12:05 p. m. During the morning the decedent was working on a Ford automobile putting rings and bearings in the car.
When he reported to work in the morning he complained of not feeling too well, and later told the respondent’s service manager that he did not feel very well but did not want to go to a doctor. During the morning the deceased was sick at his stomach, and on one occasion went to the back door. At noon, the regular lunch hour, he and a fellow employee sat down for lunch on the premises, as was their usual custom. The decedent suddenly lost his facial color and started to get up from his seat, but fell over on the floor and collapsed. He died enroute to the hospital.
A medical doctor testified the decedent had definite evidence of coronary disease, definite evidence of myocardium damage of an acute type and that he was, in fact, suffering from incipient myocardial infarction with histological evidence of myocardial damage, and that whether he was aware of it or not, any activity that he would have engaged in, including certainly his work, would have aggravated the situation, and did so. He further testified that in his opinion the decedent’s performance of the labor on the morning in question was the actual cause or contributed to the cause of his death. Upon other medical evidence favorable to the claimants an award in favor of the claimants was affirmed.
In the Bohanan opinion the court said:
“Did the record show or tend to show decedent’s death was a result of accidental injury arising out of and in the course of employment? It is a well- established rule in this state that accidental injuries are compensable where the accident only serves to aggravate or accelerate an existing disease, intensifies the affliction, or contributes to the death of the workman. . . .
“The term ‘personal injury’ as used in our workmen’s compensation act (G. S. 1949, 44-501) is generally construed as meaning any lesion or change in the physical structure of the body, causing damage or harm thereto, so that it gives way under the stress of a workman’s usual labor; and, it is not essential that the disorder be of such character as to present external or visible signs of its existence. . . .
“The term ‘accident’ as used in the same statute was long ago construed and applied by Mr. Justice Burch, speaking for this court, in Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793, and consistently followed since that time, as meaning an occurrence or event which is undesigned, sudden and unexpected, usually of an afflictive or unfortunate character and often, but not necessarily, accompanied by a manifestation of force. . . .
“Only recently in the Thuillez case [Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 358 P. 2d 676] we again reiterated, without deviation, the elementary, long-standing rule of this court that coronary occlusion, coronary thrombosis, cerebral hemorrhage or heart failure-acute, which resulted in death or disability to a workman, was personal injury by accident when it arose out of and was received in the course of employment.
“Did the accident arise out of the workman’s employment? The phrase ‘out of employment’ points to the cause of origin of the accident and requires some causal connection between the injury and the employment. In determining whether there was a causal connection between the work done and the injury suffered, we must, of necessity, consider the existing physical condition of the workman at the time of the injury. An injuiy arises out of employment if it arises out of the nature, conditions, obligations, and incidents of employment. . . .
“If a workman s existing physical structure, whatever it may be, gives way under the stress of his usual labor, his death is an accident which arises out of his employment. In Gilliland v. Cement Co., supra, it was stated, ‘An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health. . . .’” (pp. 797, 798.) (Emphasis added.)
The appellant, making reference to the above definition of “accident,” says the only event or occurrence shown by the evidence during the time Geurian was at the job on October 15, 1958, was his illness as manifested by his vomiting and complexion at one stop, and his vomiting and lying down on the road for three to five minutes at another stop. This, the appellant contends, was not “unexpected” because he had vomited in the last three-week period immediately prior to October 15.
The appellant further argues that Dr. Altenbemd told him on the afternoon of October 14 that he was seriously ill, and warned him that anything he did other than lying in bed would aggravate his condition; that Dr. Altenbernd recommended Guerian be hospitalized and when Geurian refused, he gave him medicine and told him to go home and go to bed and get in touch with his regular doctor the next morning; and that Geurian had sustained a previous heart attack and had considerable knowledge about such illness. By reason thereof the appellant argues, when Geurian went to work on October 15, that which occurred was not unexpected.
The foregoing argument tends to define the term “accident” in a strict and technical sense. The elements of the term “accident,” as well as other provisions of the workmen’s compensation act, must not be construed in a strict and technical sense but liberally in a manner designed to effectuate the true intent and purpose of the act. (Kauffman v. Co-operative Refinery Assn., 170 Kan. 325, 225 P. 2d 129). Various types of heart failure which result in death or disability to a workman have been held to be personal injury by accident when they arose out of and were received in the course of employment.
We think Geurian’s return to work on October 15, 1958, contrary to Dr. Altenbernd’s advice, is immaterial to a consideration of the question presented on appellate review. On the facts presented by the record in this case, it is apparent Geurian worked with substernal pain on many occasions after having suffered his initial heart attack in 1954, apparently, insofar as he was concerned, without ill effects.
In Barker v. Shell Petroleum Corp., 132 Kan. 776, 297 Pac. 418, it was stated: “. . . it would never do to say that a courageous workman who sticks to his task notwithstanding his pain and injury is to be penalized for so doing.” (p. 784.)
The same would be true where the workman died from the injury and his dependents claim compensation.
Was there any causal connection between the personal injury of Geurian and his employment? The appellant contends there was no causal relation between Geurian’s injury and his employment, and, if so, that there was no causal relation between his injury and his death on November 5, 1958.
The crux of the appellant’s argument is that while Geurian was on the job riding in the appellant’s truck for two hours on the morning of October 15, 1958, he was not engaged in any “job task” which caused or precipitated the injury. It is argued the cases heretofore decided by the court all involve instances where the employee was engaged in considerable job exertion at tbe time of the accidental injury.
The language employed in the decided cases is usually confined to the facts of the particular case, and it has not been difficult for the appellant to find language in cases that seems to bear out such argument, but appellant’s argument is not technically correct. In Kauffman v. Co-operative Refinery Assn., supra, the injury, a strangulated hernia, sustained while the workman was changing his clothes in the employer’s building provided for that purpose, preparatory for work, was held to constitute an accident within the contemplation of the workmen’s compensation act, and the injury arose out of and in the course of employment. It cannot be successfully argued the workman was performing a “job task” for the employer in this situation and yet an award of compensation was affirmed.
Refore proceeding further with the appellant’s argument, it must be established that the accidental injury of Geurian arose in the course of his employment.
Without reviewing all of the evidence in detail it may be said, after a careful examination of the record, there was sufficient evidence to sustain the finding that Geurian suffered a myocardial infarction while riding in the truck and getting down from the cab of the truck to the ground on two occasions between 1:00 and 3:00 a. m. on October 15, 1958.
Dr. Altenbemd saw Geurian for the first time at his office on October 14, 1958, at approximately 6:00 p. m. with complaints of substernal pain, and he next saw Geurian after 3:00 a. m. on October 15, 1958. In response to a proper hypothetical question, which included the personal knowledge acquired by him in seeing and treating Geurian on both October 14 and 15, Dr. Altenbemd testified as follows:
“I believe this man had a very severe progressive case of arteriosclerosis involving tire coronary. I felt after examining him on October 14, 1958, he did have a very severe case of angina which is a pre-existing condition for myocardium infarction. On this bases I did advise him to go home and go to bed and not to do any type of exertional type of activity, and even warned him against going to the bathroom and straining and I feel any type of sitting up or traveling would definitely jeopardize his cardiac condition and this can be pre-existing or aggravated cause of myocardial infarction. I feel after examining him on 10-15-58, that he had had a myocardial infarction and he did die from it.”
Dr. Altenbemd testified that any exertional type of activity could aggravate a myocardial infarction. He said nausea and perspiration are evidence of shock which follow a myocardial infarction.
Dr. Altenbernd, after considering the condition of Geurian on October 14 as a result of an examination, did not think Geurian had suffered a myocardial infarction, and, after seeing Geurian in the early morning hours of October 15, there was no doubt in his mind that Geurian had suffered a myocardial infarction. It was Dr. Altenbernd’s opinion that the effort exerted by Geurian on the job caused it.
Dr. Day, a cardiac specialist, testified it was his opinion from examining EKG’s that the death of Geurian resulted directly from ventricular fibrillation which is associated with myocardial infarction. From his examination of Geurian’s EKG’s taken October 15, 1958, it was his opinion that an infarction was occurring or had occurred at such date, such EKG’s having been taken after the deceased entered St. Luke’s Hospital the morning of October 15, 1958.
Having concluded that there was sufficient evidence presented in the record to sustain the finding that Geurian suffered personal injury by accident in the course of his employment, can it be said that the injury arose out of the employment?
As heretofore quoted in the Bohanan case an injury arises out of employment if it arises out of the nature, conditions, obligations and incidents of employment. On the facts in this case Geurian was riding in the appellant’s truck, which was described as a rough-riding truck, for a period of two hours in the early morning horns of October 15. It may be said riding in a truck was the nature of his employment, was one of the conditions of his employment, was an obligation of his employment and was one of the incidents of his employment. The same may be said of mounting into the cab of the truck and dismounting from the truck. (See, Kauffman v. Co-operative Refinery Assn., supra.)
The medical evidence was sufficient to establish that any exertion, such as sitting or lying on the seat of a rough-riding truck, or getting in and out of a truck, would be sufficient to aggravate or precipitate a myocardial infarction with an employee in Geurian’s physical condition. There was also medical evidence to support the finding that Geurian’s death resulted from the injury he sustained while riding in the truck on the morning of October 15, 1958.
The appellant relies on Rorabaugh v. General Mills, supra, and contends the medical evidence presented by the record in the in stant case was not as favorable on the point of causal connection as was the medical evidence in the Rorabaugh case. This point need not be pursued because the trial court there denied an award of compensation, and the evidence was reviewed to determine whether the judgment of the district court was supported by the evidence, considered most favorably to the prevailing party, and whether the judgment was contrary to the evidence. In the instant case the reverse is true because the district court found a causal connection between Geurian s work and his heart attack and the subsequent death.
The appellant asks whether the phrase “personal injury by accident arising out of and in the course of employment” encompasses merely illness or increased illness, while at the job during working hours. If an award is sustained the appellant contends the answer must be in the affirmative. This question assumes that heart cases are treated as an illness rather than personal injury by accident, and requires no further attention in view of the numerous heart cases which this court has decided contrary to such assumption.
The appellant also asks:
“Is an employer a life insurer in the amount of tíre Kansas Workmen’s Compensation Death Benefits of each employee who has had and recovered from a heart attack and is able to return to work and thereafter does work and sustains another heart attack and dies as a result?”
The workmen s compensation act prescribes no standard of health necessary to bring the workman under the law, and accidental injuries are compensable thereunder where the accident only serves to aggravate a pre-existing condition. (Workman v. Johnson Bros. Construction Co., supra; Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197; and Kronig v. Nolan Motor Co., 186 Kan. 534, 351 P. 2d 1.)
The argument is simply directed against the many decisions of this court holding that cases involving a heart attack fall in the category of personal injury by accident if the injury arises out of and in the course of the workmans employment.
The trial court awarded death benefits to the claimants in amounts as prescribed in G. S. 1961 Supp., 44-510. At the time of Geurian’s death in November, 1958, Chapter 293 of the Laws of 1957 (G. S. 1957 Supp., 44-510) was in effect, wherein the total death benefit was limited to $12,500 and the burial award to $450, rather than $13,500 and $600, respectively, awarded. In Johnson v. Warren, 192 Kan. 310, 387 P. 2d 213, it was held where parties are under the workmen s compensation act their substantive rights are determined by the law in effect on the date of the employee’s injuries.
In view of this error the award is modified accordingly to reduce the death benefit to $12,500 and the burial award to $450.
After careful examination and review, we hold the record contains substantial, competent evidence to support the findings of the district court that Geurian suffered personal injury by accident arising out of and in the course of employment and that his death resulted therefrom.
The judgment of the lower court is affirmed as modified.
Pbice, J., dissents from paragraph two of the syllabus and the corresponding portion of the opinion.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the trial court’s judgments and orders of October 22, 1962, and November 8, 1962, sustaining defendant’s demurrer to plaintiffs’ amended petition and granting judgment for defendant.
A petition was filed on June 28, 1962, and on September 7, 1962, the trial court permitted amendments to paragraphs 4, 11, and 13 (c), and on October 22, 1962, permitted plaintiffs to amend paragraphs 5 and 6 and attach thereto exhibits “C” and “D.”
Pertinent allegations of the amended petition were that on December 6, 1946, plaintiffs and their husbands made, executed, and delivered oil and gas leases to defendant covering certain described land. Certified copies of the leases were attached and marked exhibits “A” and “B.” All royalties from the land were owned by plaintiffs. Within the primary term of the leases, oil and gas were discovered and this action pertains to the royalties on the gas.
Prior to November, 1956, large amounts of gas were vented and wasted by defendant’s production of oil from the wells on the land. There was market demand for such gas and complaints had been made by some of the royalty owners to producing companies which resulted in an investigation by the state corporation commission concerning the waste of such gas.
In November, 1956, defendant installed a large compressor station on the leased premises in order to compress thereby all the gas produced from such premises rather than installing small compressors at the mouth of each well and at that time defendant commenced compressing such gas and selling it to Cities Service Gas Company at twelve cents per 1,000 cubic feet. In May, 1957, defendant, for the first time, sent to each of the royalty owners an instrument designated as a division order whereby they were requested to contribute to the cost of compressing the gas estimated at three cents per 1,000 cubic feet. A photostatic copy of the letter and one of the gas division orders were attached to the petition, made a part thereof and marked exhibit “C.”
At the time the trial court heard and sustained defendant’s general demurrer to plaintiffs’ petition as then amended, it entered judgment for defendant and made some comments which, in pertinent part, were that prior to the installation of the compressor, there was no market for the gas; the gas was being vented and wasted and the state corporation commission was conducting an investigation of such waste; defendant thereafter installed a compressor station whereby the gas was made marketable; under the terms of the lease the lessee was required to pay one-eighth of the proceeds from the sale of gas at the mouth of the well where gas only was found; at the mouth of the well the gas was unmarketable and had no market value; it was only after the gas was taken from the mouth of the well, either immediately into a compressor or at a gathering compressor farther out in the field, that it became marketable; the agreed price was “what it was worth at the mouth of the well” or, as in this case, “what it was worth when made marketable as the defendant did through his compressor system;” other oil companies, including the Barbara Oil Company, may have created a custom and practice of paying compression charges insofar as those companies were concerned, but the trial court did not believe that such custom and practice was binding upon this defendant under the lease; the only issue involved was whether defendant was entitled to deduct three cents per 1,000 cubic feet for taking the gas from the mouth of the well to the compressor and making it marketable.
The trial court further stated it did not know what more could be shown relative to the issue since counsel candidly admitted the amended petition presented the sole issue.
The trial court stated it recognized this case as a very close one but under Matzen v. Hugoton Production Co., 182 Kan. 456, 321 P. 2d 576, 73 A. L. R. 2d 1045, and other authorities cited, the court concluded the weight thereof was to the effect that defendant was entitled to deduct the cost of making the gas marketable and was liable only for the remainder of the proceeds after making the gas marketable. The court stated a second time that the question was a close one but it would be best to decide it as early as possible and that “probably the cheapest way to get a determination of this is to appeal the demurrer to the supreme court and let them decide it.” The trial court entered its formal journal entry of judgment on November 8, 1962, sustaining the general demurrer of defendant to plaintiffs’ amended petition and entered judgment for defendant for costs. It is from this order sustaining the demurrer, and the judgment for defendant that plaintiffs appeal.
The leases in question were the same as to both plaintiffs and the pertinent provision thereof is:
“The lessee shall pay to lessor for gas produced from any oil well and used by the lessee for the manufacture of gasoline or any other product as royalty Is of the market value of such gas at the mouth of the well; if said gas is sold by the lessee, then as royalty Is of the proceeds of the sale thereof at the mouth of the well. The lessee shall pay lessor as royalty Is of the proceeds from the sale of gas as such at the mouth of the well where gas only is found . .
Botb parties and the trial court rely on the Matzen case, supra, but that case is not applicable here for the very cogent reason the parties there had stipulated in court that the lessee could and had properly deducted costs of a large gathering system to transport the gas from the leased property to a far distant pipeline. We need not extend this opinion by discussing the pros and cons of the Mateen case.
Construction of oil and gas leases containing ambiguities shall be in favor of the lessor and against the lessee. (2 Summers on Oil and Gas, perm. ed., § 372, p. 485; Stady v. The Texas Company, 150 Kan. 420, Syl. ¶ 2, 94 P. 2d 322.) It is puzzling to understand why tihe above textwriter had such difficulty with this rule for the reason that the lessee of an oil and gas lease usually provides the lease form or dictates the terms thereof, and if such lessee is desirous of a more complete coverage of the marketing of oil, gas, liquid hydrocarbons, or even helium gas, which has recently been found to exist in the minerals underlying the vast Hugoton field, the lessee has the opportunity to protect itself by the manner in which it draws the lease. Much more could be said on this point but extension of the discussion would be pure dictum and of no benefit to the bench, the bar, or the oil and gas industry.
The lessee here had the right under the terms of its lease to extract oil and gas from the ground. In extracting the oil it was necessary to extract the gas. If that gas was separated from the oil and sold, lessee had title and possession thereof as personal property, and if it sold the gas, it was required to pay the lessor as royalty Is of the proceeds of the sale thereof at the mouth of the well. In Scott v. Steinberger, 113 Kan. 67, 213 Pac. 646, it was stated a lessor was entitled to % of the gas introduced in the pipes without having it diminished by the leakage in transportation through the pipes (p. 70) and it was there held:
“. . . the lessor was entitled to receive his share as measured into a pipe line which connected with the wells at the price or value of gas at that place and not the price or value that was obtained for it at some distant place on the pipe line to which it was transported and sold.” (Syl.)
In 2 Summers on Oil and Gas, perm. ed., § 415, p. 631, may be found a discussion to the effect that the duty to market oil and gas rests constantly upon the lessee, and if under such circumstances as we have here, it fails to use reasonable diligence in so marketing the oil and gas, the lessee may be in difficulty by reason of being subject to investigation by the state corporation commission. Where such reasonable diligence is not expressed in the lease, it generally is implied.
In Skaggs v. Heard, 172 F. Supp. 813, a separator and also a compressor were installed by the lessee. After the expiration of approximately eleven months, the lessee assigned his interest to an assignee who continued to operate in the same manner as the lessee had operated except that the assignee undertook to charge back against the lessor a part of the cost of operating the compressor. The federal district court analyzed the meaning of the words at the well and defined them as meaning the same as well head or the mouth of the well and, as there interpreted, meant on the lease. While a careful reading of the language of the Skaggs case shows the factual situation therein was sufficiently different from our case to make it indecisive of our present issue, portions of the general discussion are somewhat helpful. The separator was located on the leased premises 320 feet from the well and the compressor was ten feet beyond the separator. The compressed gas, therefore, was delivered to the purchasers pipeline from the compressor on the leased premises 330 feet from the well.
The lessee in our case did not consult with the lessor on any details pertaining to the location of the compressing station but on its own responsibility placed it on the Gilmore lease which was a part of the overall lease including the property of both plaintiffs. The only purpose for the compressing station was to put enough force behind the gas to enable it to enter the pipeline on the lease. This made the gas marketable and was in satisfaction of the duties of the lessee so to do.
Kansas has always recognized the duty of the lessee under an oil and gas lease not only to find if there is oil and gas but to use reasonable diligence in finding a market for the product, or run the risk of causing the lease to lapse. (Gas Co. v. Jones, 75 Kan. 18, 22, 88 Pac. 537; Howerton v. Gas Co., 81 Kan. 553, 106 Pac. 47.)
In 3A Summers on Oil and Gas, perm. ed., § 589, pp. 109-127, and 1962 Cumulative Pocket Part, § 589, pp. 9-12, a comprehensive discourse with citation of supporting authorities may be found on the duty of the lessee under different provisions of various leases including how royalty payments are to be made, how the gas is to be measured by meter, and what price the lessee is to pay for such gas, and further, that where a lease provides for a royalty for gas, which may be paid in a number of ways (p. 113), in the absence of an express provision of the lease creating such duty, the lessee is under an implied obligation to exercise reasonable diligence in marketing the gas produced. If a market value for the gas produced does not actually exist, the basis of the reasonable value thereof may be established by competent evidence, (p. 114.)
The record discloses the gas here involved was put into pipelines already existing on the leases in question and we, therefore, need not consider that the lessee was put to any great expense in building miles of pipelines for that purpose.
Our attention has been called to Merrill on Covenants Implied in Oil and Gas Leases, 2d ed., § 85, p. 214, where the author makes the unqualified statement that,
“If it is the lessee’s obligation to market the product, it seems necessarily to follow that his is the task also to prepare it for market, if it is unmerchantable in its natural form. No part of the costs of marketing or of preparation for sale is chargeable to the lessor. This is supported by the general current of authority." (pp. 214, 215.)
In the 1959 Pocket Supplement to the above work, § 85, p. 61, we find the most recent authorities on the subject of the duty to prepare for market and what is necessary in such preparation, and finally, that the lessee is required to bear the expense because such preparation is necessary to make the gas marketable.
Plaintiffs, in an effort to set up an enlargement of the duty of the lessee, call our attention to the two oil and gas division orders sent to them by the lessee. However, we are inclined to agree with the trial court and the defendant that consideration of such division orders is not necessary to a determination of this case, and we shall, therefore, not discuss them.
Other authorities cited and discussed by the parties are recognized but we fail to see how they may be applicable in this case. It is admitted by everyone concerned this is a novel question in our oil and gas industry, and while the law is not a static thing, and especially is this true of the law of oil and gas, we are of the opinion the trial court erred both in sustaining the demurrer to plaintiffs’ amended petition and also in entering judgment for defendant for costs.
The judgment is reversed and the case remanded with directions to overrule the demurrer and the trial court to proceed with the trial in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Horton, C. J.:
This case is in this court for the second time;' and for a statement of the facts, we refer to Taylor v. Thomas, 13 Kas. 217. Upon the trial had subsequent to the said decision, testimony was offered tending to show the delivery of the 200,000 hedge plants, and the acceptance of the same by Taylor. Judgment was rendered for Thomas & Co. for $432.35, and costs.
I. Plaintiffs in error claim that they are entitled to a new. trial on the ground of surprise. The surprise for which the demand was made for a new trial, was, that one B. M. Montgomery, a witness produced by Thomas & Co. for the first time on the second trial, testified, “he was present when Thomas and Taylor came to the nursery. Morris and Taylor’s men counted some of the plants before Taylor got there. They had counted over 100,000. He heard Thomas tell Taylor that he had come down to turn over the plants. Morris told Taylor that they were to take 50,000 out of the other lot. They then went over to the other lot, and counted the 50,000. They then went and finished counting the 150,000 in the orchard. The plants were all tied up in bunches of 200. He couldn’t tell whether the plants were all alive or not. He set the same kind of plants in Sumner county, and they appeared to do well — taken from Morris’ place, and treated in the same manner as Taylor’s. He set them out for P. Foutz. There were 17,000 of them. He counted them in the fall of the same year, and only 27 plants in one-and-a-half miles were dead.” And two of the plaintiffs in error, Taylor and Moser, made affidavit, that they were present at the former trial, and heard the evidence of Thomas and the other witnesses, and no mention was made that said Montgomery was present when the hedge plants were claimed to have been accepted, and they had no knowledge of Montgomery or his evidence until Thomas mentioned Montgomery in his evidence at the last trial; that Montgomery was not present at the time stated by him; that he did not hear the conversation narrated; and if they had known of said person being produced as a witness to give such testimony,- they could and would have shown by two or three witnesses that Montgomery was not present or about at the time alleged. S. M. Tucker and B. H. Eisher, attorneys of defendants in the court below, also filed an affidavit of like character as to said Montgomery’s name not. being mentioned in the first trial; that they were surprised at his evidence, and expected to be able to disprove the same if “a new trial was granted.” We hold that the affidavits filed on the question of surprise do not’ show any sufficient cause for a new trial. The witness testified substantially as W. L. Thomas and L. C. Morris. His evidence was only cumulative. On the trial, Warren Longley and O. H. Taylor contradicted the witness Montgomery as to his presence at the nursery as stated by him. The affidavits fail to disclose the names or residence of the two or three witnesses by whom the testimony of Montgomery could be disproved; for aught that appears, they may have lived at Wichita, the place of trial, and a mei’e request to the court for a few hours adjournment might have been granted, and thus the attendance of the witnesses needed could have been obtained. Again, if Montgomery had been duly subpoenaed, and there is nothing appearing to contradict this presumption, the plaintiffs in error may have had ample time to ascertain what was going to be the purport of his testimony, and thus been more fully prepared to meet the same, if preparation was requisite, and they could successfully show he was not present at the time and place he testified to on the trial. In fact, the only showing made upon this point is, the absence of Montgomery on the former .trial, and his appearance on the second trial, as a material witness for Thomas & Co. There is nothing particularly strange or unusual in this procedure. The plaintiffs in the court below may have supposed the testimony of themselves sufficient to sustain their case, without any additional evidence. When they ascertained that they were flatly contradicted, it was their right to produce upon the second trial all other witnesses having knowledge of the facts in controversy, and, if Montgomery could corroborate the claim of Thomas & Co., no rule of law would force them to relinquish his use as a witness, or acquaint the opposing party with the facts they intended to prove, before placing such witness on examination. Montgomery’s evidence may have been unexpected to the plaintiffs in error, may have astonished them, and they may have been unprepared to meet the same at the time; but it was not of the character, under the circumstances, which the law denominates “a surprise which ordinary prudence could not have guarded against.” In such a case, there remains only the best use of the evidence at hand, and an appeal to the jury with fitting comments on the circumstances under which the witness is produced, and the character of the testimony. Any different rule would work great injustice.
II. A claim is also made, that the court erred because a new trial was not granted for newly-discovered evidence. L. C. Morris had testified on this trial, as a witness for Thomas & Co., to the delivery of 200,000 hedge plants to Taylor on or about April 9th 1873, his acceptance thereof, and also to their being in good condition at the time. As newly-discovered evidence, plaintiffs in error stated that since # the trial, they had ascertained that one Hope would testify, that said Morris told him, in the latter part of April 1873, that Taylor had refused to accept the hedge plants, with the exception of 75,000, because they were damaged; that Morris then said they were damaged by frost, and wanted him (Hope) to see Taylor, and try to have him come and get the rest of the plants. The question is, whether, for this additional evidence, the court, in the exercise of a proper discretion, ought to open the controversy by granting a new trial. The object of the evidence of Hope is to discredit Morris — to destroy the effect of his testimony with the jury. We do not think the newly-discovered evidence sufficiently material to grant a new trial. Thomas and Montgomery testified substantially as Morris — hence his evidence did not stand alone. It is sometimes difficult to determine the exact point where a court should interfere and open a case to give an opportunity to a defeated party to give additional testimony; but on the facts presented in the record, we are of the opinion in this case, that the evidence of Hope is not of that kind upon the discovery of which a new trial should be granted. Counsel for plaintiffs in error refer us to Klopp v. Jill, 4 Kas. 482, as an authority in point, and allege they have brought themselves within the rule 'therein adopted by this court. Such is not the case. In that case, the parties litigant were their own best witnesses; each party swore distinctly and circumstantially to a state of facts denied by the other, and the case rested almost entirely upon the individual testimony of Jill. The newly-discovered evidence was certain admissions of Jill, directly opposite to the testimony given by him on the trial. Nor does the case at bar, come within the rule of the decision cited in Klopp v. Jill, of Kane v. Barrus, 2 Smedes & Marsh. 313. In the latter case, an action was brought upon a promissory note against the maker, in favor of the plaintiff’s intestate. After verdict for plaintiff, defendant produced the affidavit of witnesses that they had heard the intestate acknowledge the payment of^ $900 on the note, and due diligence being shown, the maker was awarded a new trial upon this newly-discovered evidence. In both of these cases, the newly-discovered evidence tended to destroy completely all the testimony upon which the^verdicts were based. In the case under review, although ^Morris was an important witness, and the parties to the suit swore contrary to each other, there was so much other material proof that we cannot say the newly-discovered evidence would change the result, nor that it would likely have such an effect. It is even doubtful as to what influence it would have upon the jury, in connection with the other testimony, even if a new trial had been granted.
III. Error is also alleged in the action of the court below in permitting the following questions to be asked, against the objections of the. plaintiffs in error: “State whether or not said plants were delivered?” and, “What was to be considered the delivery of the plants?” To the first question the witness answered, “They were: after they were counted, as stated in my answer to question No. 5, Mr. Taylor proceeded to pull out certain bunches and see if the count was full in the bunches. He said that he found that the count would overrun from sis to twelve in each bunch.” To the second he replied, “I was to tie them up in bunches of two hundred each. He was to take them from my nursery in that shape.” As the important question in litigation was, whether there had been any delivery of the 200,000 hedge plants to Taylor, the proper ruling would have been for the court to have sustained the objections to these questions, and only allowed such interrogatories as would have called forth all the particulars and minor details of the transaction. The witness however did not confine himself to any opinion, or conclusion of law, in his answers. He stated the facts, as he claimed them to be, and we see no substantial error committed.
Error is further alleged in the charge of the court, and in the action of the court in refusing certain instructions asked by plaintiffs in error. The instructions given by the court are substantially in accordance with the law as laid down in the opinion of this court when this case was first under review here, (13 Kas. 217,) and as no new principle of law is now raised it is unnecessary to comment thereon. As the court gave the law in its instructions, it was useless to repeat them in a different form.
We think there was no error in any of the proceedings that would authorize a reversal of the judgment of the court below. The judgment will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by plaintiff in error, plaintiff below, to recover usurious interest. The record contains these matters — first, the pleadings; then a bill of exceptions, showing the testimony given on the trial, and stating that the court gave its finding and judgment for plaintiff for $192.80; that the plaintiff excepted thereto, and filed his motion for a new trial, which motion was continued to the next term of the court; that the court then overruled said motion, and modified its judgment, finding now for the defendants, on the ground that the previous computation was erroneous, and giving judgment against the plaintiff for costs. After the bill of exceptions appear certain findings of fact and conclusions of law, and the judgment of the court, and then a journal entry showing that the motion of both parties for a new trial came on for hearing, and that the court sustained the same to the extent of modifying the judgment, by changing it to a judgment for defendants. ' No motion for a new trial on the part of either party is copied into the record, and nothing to indicate what grounds, were presented in any such motion, other than may be inferred from the statement in the bill of exceptions as to the error in computation. All that we are informed is, that the court took certain action on motions filed. Of course then, we cannot say that there was any error in overruling or sustaining the motions. Furguson v. Graves, 12 Kas. 39; Nesbit v. Hines, ante, p. 317.
Nor can we consider any question in the admission or rejection of testimony, nor whether the findings are supported by the evidence. The only inquiries open to us are, whether the petition states a cause of action, and whether under the pleadings and findings of fact a judgment in favor of the defendants appears to be so erroneous as to compel a reversal. And upon those inquiries it is clear that the judgment must stand. The error made by the court in the first computation is patent. As a part of the computation it became necessary to find the present worth, at the time of sale, of several notes due respectively in one, two, three, and four years thereafter. To ascertain this, the court computed the interest on the 'face of the notes for such years, and subtracted that amount from the principal and called the result the present worth, while the correct rule is, to divide the face of the debt by the amount of $1.00 for the given rate and time, and the quotient will be the present worth. The difference in' favor of the defendants between the two methods of computation more than exceeded the amount found due the plaintiff, and therefore the court properly changed the judgment.
It is unnecessary to consider any other questions in the case, though we may remark that it seems very doubtful whether the petition states facts sufficient to constitute a cause of action..
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Thomas Casey and Patrick McCristal against the city of Leavenworth, to recover damage for alleged negligence on the part of the city in failing to collect $12,976.84 claimed to be due the plaintiffs for grading Lawrence Avenue, a public street in said city. The grading was done under a contract between the plaintiffs and the defendant, by which contract the defendant agreed on its part to pay for said grading by levying “a special tax upon the lots and parcels of ground adjoining said work” for the cost of said grading* and the plaintiffs on their part agreed, that they would “look exclusively to the said special tax for their pay.” Everything seems to have been done to the entire satisfaction of both parties, in exact accordance with the contract, except that about a year after the work was completed it was discovered that the city engineer had made a mistake in making the apportionment of the said special tax. The cost of the grading amounted to $12,976.84; and the city, by an ordinance, levied a “special tax” for that amount “upon the lots and parcels of ground adjoining said work.” The city engineer then apportioned said special tax, as he believed, in accordance with the statute. (Gen. Stat. 137, § 26.) All necessary and proper proceedings for the collection of said tax then followed in supposed conformity to law; and so far as anything is shown by the record of this case, everything from first to last was done to the entire satisfaction of all the parties, and everything was done correctly, and in exact accordance with law and with said contract, except the said mistake made in said apportionment; and as soon as said mistake was discovered the city engineer corrected the same by making a new and a correct and legal apportionment. Said work was completed October 20th 1873. Said second apportionment was made March 2d 1875. And this suit was commenced March 22d 1875. On the trial of this case in the court below the plaintiffs introduced as a witness, G. W. Vaughn, who was then city engineer of said city. He was also the city engineer who made the second apportionment, and was the successor of the city engineer who made the first apportionment. He was introduced for the purpose among other things of proving that said mistake had been made in making the first apportionment. During his examination-in-chief the following among other evidence was elicited, to-wit:
“Question-Can you tell what mistake there is in that [the first] apportionment of the city engineer? Answer. — I could not undertake to say what mistakes there are, without comparing it.
“Question-You subsequently made another? Answer.Yes, sir.”
The witness then testified in detail with reference to said supposed mistakes, made in the first apportionment. Then on cross-examination of the witness the following additional evidence was elicited, to-wit:
“ Question — Is this the apportionment you made ? Answer.— I made this.
“ Question.-When did you make it ? Answer .-This is dated March 2d 1875.”
The defendant then with the permission of the court, but over the objections and exceptions of the plaintiffs, introduced this last apportionment in evidence, and this the plaintiffs now assign for error. They claim, first, that a second apportionment could not legally be made, and therefore that said second apportionment could not be competent evidence at any time in the case; and second, that even if said second apportionment could be legally made, and was competent evidence in the case, that still it was not proper to introduce it in evidence on cross-examination of the plaintiffs’ witness, but that it should have been reserved and introduced by the defendant after it opened its case. Now that said second apportionment could be legally made, and was competent evidence in the case, we think there can scarcely be any room to doubt, and we shall hereafter give our reasons for so thinking. But could it properly be introduced in evidence on cross-examination of the plaintiffs’ witness ? We are inclined to think that it could, in the discretion of the court below. The plaintiffs themselves showed that it had been made, and it itself showed just where the witness believed mistakes had been made in the original apportionment. It was really the witness himself, explaining his own testimony with regard to said mistakes. But without deciding this question definitely, we would say, that no harm could have been done to the plaintiffs by its introduction, and therefore, no substantial error was committed. The plaintiffs had already proved that said second apportionment had been, made, and without any showing to the contrary it would be presumed that the same was a correct apportionment. And this is as much as the defendant could have wanted to prove by the introduction of the same in evidence.
When the plaintiffs rested in the introduction of their evidence, the defendant demurred to the plaintiffs’ evidence on the ground that it did not prove any cause of action against the defendant; and the court below sustained the demurrer. And this the plaintiff also assigns for error. We are inclined to think that the court below did not err in this ruling. The evidence did not, as we think, prove any cause of action against the defendant. No wrong or laches is imputed to the city except said mistake of the city engineer. And such a mistake we hardly think is a sufficient foundation for a cause of action against, the city. The city merely agreed to levy said special tax, and this the city did; and the plaintiffs agreed to “ look exclusively to said special tax for their pay.” Now, under the circumstances of this case we would think that when the city levied said special tax it was as much the duty of the plaintiffs to see that the same was properly apportioned, as it was that of the city; and the plaintiffs had vastly more interest in the matter than the city had. And therefore it would seem, that if the plaintiffs did not use due diligence in endeavoring to have a proper apportionment made, their negligence would be greater than that of the city. The law prescribes how the apportionment should be made, and who should make it. (Gen. Stat. 137, § 26.) And the city has nothing whatever to do with it, unless it can be'said that what is done by the city engineer is done by the city. Aside from the acts of the city engineer the city has done all that it could possibly do for the collection of said special tax; and in this respect this case differs widely from the case of Leavenworth City v. Mills, 6 Kas. 288. In that case the city after levying a special tax wholly neglected to provide any means for its collection, and at that time there was no law or ordinance under which the tax could be collected without further action by the city itself. In this case, if the city had prevented the collection of said special tax, or if it had diverted the same to some other use, it would of course have made itself liable to the plaintiffs. But the city has not done any such, thing. On the contrary, it has done all that it could do.to assist the plaintiffs in getting the benefit of said special tax.
It is claimed however that the city engineer is the agent of the city; that an assistant engineer is still more the agent of the city; and therefore, that the city is responsible for the acts or omissions of the city engineer and his assistant. It is also claimed that said incorrect apportionment was in fact made by the assistant engineer, and not by the engineer himself. Now this is not sufficiently shown; but if it were shown we suppose it would make no difference. Tli’e-apportionment purports to have been made by the engineer himself, and in law it is his, even if the assistant did do the work on it. It is probably true, that in some cases the city engineer acts as the agent of the city; but in many cases he does not. In many of his official acts the city has no possible interest whatever, and is not responsible for them. In this particular case he may have acted as the agent of both of the parties, and if so, then the mistake made in the apportionment was the mutual mistake of all the parties, and no particular one should be held responsible for it. All parties supposed that the apportionment was correct; and the plaintiffs, who were more interested in its correctness than any of the other parties, accepted it, acquiesced in it, and adopted it as correct. We therefore hardly think that they are the proper parties to now complain of it. Besides, the city engineer corrected the mistake as soon as he discovered it, and therefore the only injury that resulted from such mistake was a little delay.
But it is claimed that the city engineer had no power to correct said mistake. We think he had. Sec. 30 of the act of 1868 relating to cities of the first class, as it originally stood, (Gen. Stat. 138,) and as it was afterward amended in 1870, (Laws of 1870, p. 122,) and as it was again amended in 1871, (Laws of 1871, p. 167,) and § 24 of the act of 1874 relating to cities of the first class as it now stands on the .statute book, (Laws of 1874, p. 67,) provide for just such a thing being done. Section 30 as amended in 1871 we think has never been repealed. But even if it has been repealed, it has been so repealed impliedly only by the said act of 1874. And that act provides that “all proceedings relating to the levy and collection of general and special taxes, and the sale and conveyance of land for the nonpayment thereof, shall remain in full force and be completed under existing laws.” (Laws of 1874, p. 56, §1.) This we think is a sufficient saving-clause. Said special tax is now in process of collection, and some of it has been collected; and we think the plaintiffs in accordance with their contract should be left to “look exclusively to the said special tax for their pay.”
Entertaining these views, we think the judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
But a single question is presented in this case, and that is as to the admissibility in evidence of a certain memorandum in writing. The action was for wages. The matter of dispute was the rate at which Walters had agreed to pay YanDerveer. And the following quotation from the record presents the alleged error:
In rebuttal the plaintiff testified: “One day in the hotel Mr. Walters was speaking about his expenses, and said he must cut them down, and then took paper and pencil and made memorandum of what his help had been costing him. He left the memorandum on the desk. I picked it up, and have kept it ever since. It is all in his handwriting. This is the paper. The names written thereon are the names of various employés in the hotel, and the figures opposite are the wages he was paying. No other employé than myself was receiving $30 per month at that time.” The plaintiff offered in evidence a slip of paper upon which was written in pencil-marks the following, to-wit:
“Van, ... 30. Jordon, ... 15. Wash, ... 17.
Cook, ... 22. Mollie, . . . 17. Carrie, . . . 10.
Jerry, . . . 12. Ben, .... 12. .
135.”
To which the defendant objected on account of its incompetency, irrelevancy, and immateriality, the plaintiff not having shown any connection therewith to his'employment by said defendant. The court overruled the objections of the defendant, to which ruling defendant duly excepted.
We see no error in the ruling. The testimony was the written statement of the defendaiít, and therefore competent. Interpreted by the accompanying testimony, it referred to the exact matter of dispute, and was therefore both relevant and material. That standing alone, and unaided by extrinsic facts, it is comparatively unintelligible, does not necessarily destroy either its competency or its value. Statements, both oral and written, are daily admitted in evidence in trials, which have meaning and value as testimony only in the light of and as explained by extrinsic matters. The monosyllable, “yes,” standing by itself may be wholly destitute of signification; but when shown to have been the answer to a question, may be absolutely decisive of the controversy. So here this row of figures opposite to certain names by itself may be, in the language of counsel, “ as devoid of meaning as the picture-writing on the rocks of Mexico; ” but read in the light of VanDerveer’s testimony, it is impossible not to perceive that it is both intelligible and significant. ' Indeed, an examination of the evidence given in this case almost justifies the assertion that it was the pivotal fact.
This being the only matter presented by counsel in his brief, the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought by Robert Forbes to recover from John J. Oliver and Emily L. Oliver a certain piece of land. Judgment was rendered in favor of the plaintiff, and the defendants now as plaintiffs in error bring the case to this courts The facts of the case as shown by the record are substantially as follows: The land in controversy was originally a part of the Pottawatomie Indian reservation. Under the provisions of article 2 of the Pottawatomie treaty of 1861, (12 U. S. Stat. at Large, 1192,) said land was allotted to John Riley, a Cherokee Indian by birth, but a Pottawatomie Indian by adoption, and the proper certificate for said land was duly issued to him by the commissioner of Indian affairs. Said article 2 provides among other things as follows:
“When such assignments shall have been completed, certificates shall be issued by the commissioner of Indian affairs for the tracts assigned in severalty, specifying the names of the individuals to whom they have been assigned, respectively, and that said tracts are set apart for the perpetual and exclusive use and benefit of such assignees and their heirs. Until otherwise provided by law, such tracts shall be exempt from levy, taxation, or sale, and shall be alienable in fee or leased or otherwise disposed of only to the United States, or to persons then being members of the Pottawatomie tribe and of Indian blood, with the permission of the president, and under such regulations as the secretary of the interior shall provide, except as may be hereinafter provided.”
The last clause refers to the following provisions of article 3 of the treaty:
“At any time hereafter, when the president of the United States shall have become satisfied that any adults, being males and heads 'of families, who may be allottees under the provisions of the foregoing article, are sufficiently intelligent and prudent to control their affairs and interests, he may, at the requests of such persons, cause the lands severally held by them to be conveyed to them by patent in fee simple, with power of alienation.” “And on such patents being issued, * * * such competent persons shall cease to be members of said tribe, and shall become citizens of the United States; and thereafter the lands so patented to them shall be subject to levy, taxation, and sale, in like manner with the property of other citizens; Provided, that, before making any such application to the president, they shall appear in open court, in the district court of the United States for the district of Kansas, and make the same proof and take the same oath of allegiance as is provided by law for the naturalization of aliens, and shall also make proof to the satisfaction of said court that they are sufficiently intelligent and prudent to control their affairs and interests, that they have adopted the habits of civilized life, and have been able to support, for at least five years, themselves and families.”
Now John Eiley was a male, and a head of a family; but he was the head of a family only two years and four months, and not five years. He was married to Mary Beaubien, a Pottawatomie Indian woman, on May 1st 1862, ánd died September 1st 1864. It is not shown that he ever made any application to the president for a patent for said land, or that he ever made any such proof as is required by said article 3, or that he ever took said oath of allegiance, or that he ever did anything else for the purpose of removing restrictions and disabilities from himself, or of perfecting and completing his inchoate title to said land. It is not shown that he ever had the least desire to become a citizen of the United States, or to sell his said land, or to be able to sell the same. In 1864, when he died, he left a widow (said Mary Beaubien Eiley) and two minor children, both girls, and daughters of himself and said Mary. Said widow and children are still living. In 1865 the widow married David Bostick, a white man, a citizen of the United States, and a resident of Kansas. By the provisions of the Pottawatomie treaty of 1866, the provisions of the third article of the treaty of 1861 were “extended to all adult persons of said tribe without distinction of sex, whether such persons are or shall be heads of families or otherwise, in the same manner, to the same extent, and upon the same terms, conditions, and stipulations as are contained in said third article of said treaty with reference to ‘males and heads of families/ ” (14 U. S. Stat. at Large, 763.) On July 27th 1867, said David and Mary Bostick executed a general warranty deed for an undivided-half of said land to Thomas J. Lazzelle and Julia Lazzelle his wife, Julia being a half-breed Pottawatomie Indian woman; and on the same day the Lazzelles executed the same kind of a deed for the same land to said John J. and Emily L. Oliver, the plaintiffs in- error* defendants below. Article 6 of the Pottawatomie treaty of 1867, which took effect in August 1868, provides, that—
“The provisions of article third of the treaty of April 19th 1862, relative to Pottawatomies who desire to become citizens, shall continue in force, with the additional provision that, before patents shall issue to such persons, a certificate shall be necessary from the agent and business committee that the applicant is competent to manage his own affairs; * * * and where any member of the tribe shall become a citizen under the provisions of the said treaty of 1862, the families of said parties shall also be considered as citizens, and the head of the family shall be entitled to patents; * * * and women who are also heads of families, and single women of adult age, may become citizens in the same manner as males.” (15 U. S. Stat. at Large, 533.)
The said treaty of April 19th 1862, is the treaty that we have denominated the treaty of 1861. It was concluded November 15th 1861; consented to, with amendments, by the senate, April 15th 1862; again consented to by the Indians April 17th 1862, and affirmed and proclaimed by the president April 19th 1862. Article 8 of the treaty of 1867, which took effect in August 1868, provides that—
“Where allottees under the treaty of 1861 shall have died, or shall hereafter decease, such allottees shall be regarded, for the purpose of a careful and just settlement of their estates, as citizens of the United States, and of the state of Kansas; and it shall be competent for the proper courts to take charge of the settlement of their estates under all the forms and in accordance with the laws of the state, as in the case of other citizens deceased; and in cases where there are children of allottees, left orphans, guardians for such orphans may be appointed by the probate court of the county in which such orphans may reside, and such guardians shall'give bonds, to be approved by the said court, for the proper care of the per son and estate of such orphans, as provided by law.” (15 U. S. Stat. at Large, 536.)
The said treaty of 1861 is the same as the said treaty of April 19th 1862. (See above explanation.) On October 27th 1868, said David and Mary Bostick executed a general warranty deed for the undivided-half of said land to said John J. and Emily L. Oliver; and on April-10th 1869, the said Olivers took possession of said land, have continued to occupy the same ever since, and have made improvements thereon worth from $1,250 to $1,500. On the 16th of May 1870, the United States issued a patent for said land to the allottee, John Riley, and his heirs. Now the John Riley to whom this land was allotted had been dead for more than five and-a-half years when this patent was issued. On February 3d 1872, said David and Mary Bostick executed a general warranty deed for said land to Robert Forbes, defendant in error, plaintiff below. All the foregoing deeds were duly recorded in the order of their execution.
Did Forbes get any title to said land by virtue of said last-mentioned deed, as against-the said Olivers? This is the only question in the case. Now in order to determine this question in the affirmative, it is necessary to hold that the Bostieks had no power to execute deeds for said land, or to bind themselves by covenants concerning' the land at the times when they executed said deeds to the Lazzelles and to the Olivers, but that they.had such power when they executed said deed to Forbes. Now why had they such power in the latter case, and no such power in the former cases? No sufficient reason can be given; and no reason at all can be given except the mere issuance of said patent. Now how can that be considered a sufficient reason? We cannot tell. Originally, the land in question belonged to John Riley; but he had no power to sell or to incumber the land, except in a certain manner, and except upon certain terms and conditions. He died, and it descended to his heirs, one-half to his widow, and the other half to his two children. Now if the restrictions upon the sale of said land were merely personal to John Riley, then of course his widow after his death could sell and convey her interest in the land, and in that case the deed she and her husband David Bostick executed to the Lazzelles would be considered good and valid. But suppose that said restrictions were not merely personal to John Riley, but that they followed the land to his heirs, to his widow and children: then, if, by a legal fiction, under article 8 of the treaty of 1867, John Riley because of his death was to be considered as a citizen of the United States, and his estate as that of a citizen, and if, by a like legal fiction, under article 6 of the same treaty, his family, his wife and children, were to be considered as citizens, then the deed executed in 1868 by his widow, Mary Bostick, to the Olivers, must be considered as valid and binding. But suppose that the said widow, the said Mary Bostick, is not to be considered as having become a citizen by virtue of the death of Riley, and the provisions of said treaty of 1867, and that the restrictions upon the sale of said land were still in force when she and her husband executed said deed to the Olivers, so that said deed is void: then what has happened since that time to remove said restrictions, and to give her such ample power to make a valid deed for said land that we must now consider the deed made by her and her husband to Forbes as a good and valid deed ? We know of nothing. She has never made any application to become a citizen of the United States, or to have any said restrictions removed. She has never made the necessary proofs, nor obtained the necessary certificates, nor taken the necessary oath, for any such purpose. Then how could she make a valid deed in 1872, if she could not have done so in 1868 ? The only answer that can be given is, that said patent was issued in 1870. Said patent recites that “John Riley” was the allottee for said land, and then it grants the land to John Riley and to his heirs, “to have and to hold” the same-“to said John Riley and to his heirs and assigns forever.” Now, how can this patent give to Mary Bostick the power to convey said land? It does not purport to give her any such power. It does not purport to make her a citizen. It is not issued to her by name. Indeed, her name is not mentioned in the patent at all. And while she must take as an heir of John Riley, if she takes anything under the patent, yet she is not designated .in the patent as an heir. The word “heirs,” as used in a conveyance, is not a word of purchase, but is merely a word qualifying the title of the grantee mentioned in the conveyance. (Hunter v. Watson, 12 Cal. 363.) We should judge from recitals in said patent that it was issued because of the following provisions of said treaty of 1867, to-wit: “Where allottees under the treaty of 1861 shall have died or shall hereafter decease, such allottees shall be regarded, for the purposes of a careful and just settlement of their estates, as citizens of the United States, and of the state of Kansas.” (15 U. S. Stat. at Large, 536, art. 8.) “And where any member of the tribe shall become a citizen under the provisions of the said treaty of 1862 [1861] the families of said parties shall also be considered as citizens.” (15 U. S. Stat. at Large, 533, art. 6.) And these provisions of said treaty were probably taken in connection with the act of congress of May 20th 1836, entitled “An act to give effect to patents for public lands issued in the names of deceased persons.” Said act reads as follows:
“Be it enacted, That in all cases where patents for public lands have been or may hereafter be issued, in pursuance of any law of the United States, to a person who had died, or who shall hereafter die, before the date of such patent, the title to the land designated therein shall inure to and become vested in the heirs, devisees, or assigns of such deceased patentee, as if the patent had been issued to the deceased person during life.” (5 U. S. Stat. at Large, 31.)
Now whether this patent is valid or invalid, we hardly think it is necessary to determine; for we think we should reach the same final conclusion in either case. (With respect to patents issued after the death of the patentee, see Galt v. Galloway, 4 Peters, 333; McDonald’s Heirs v. Smally, 6 Peters, 261; Galloway v. Finley, 12 Peters, 264; Landes v. Brant, 10 How. 348; Price v. Johnston, 1 Ohio St. 390.) If the patent is valid, it is so merely because it is in confirm ation of preexisting rights, and not because it created any new rights. And every right existing at the time it was issued, existed at the time and before Mary Bostick and her husband executed said deed to the Olivers. From the time she executed said deed to the Olivers until said patent was issued, nothing transpired to give her any greater rights, powers, or privileges than she previously possessed. If said patent was rightfully and legally issued, then it should have been issued at the latest as early as August 1868, at the time when the treaty of 1867 took effect, which was before Mary Bostick executed said deed to the Olivers; and it is a general rule of law, that when a patent is issued it relates back to the earliest moment when it ought to have been issued. It must also be remembered that the said deed to the Olivers was a general warranty deed. Now, John Riley in his lifetime had the equitable title to said land; and his certificate of allotment was sufficient evidence thereof. When he died, his wife and children succeeded to his rights by inheritance, and not by purchase. But we do not see that it would make any material difference, so far as this case is concerned, whether we should consider that they succeeded to his rights by purchase or by inheritance. In either case, his widow was either restricted in the sale of said land, or she was not so restricted. If she was restricted, then her deed to Forbes was void. But if she was not restricted, then either, her deed to the Lazzelles, or her deed to the Olivers, was valid, and in either case Forbes by his subsequent deed would get no title. In any case, therefore, the plaintiff Forbes must be defeated. If Mary Bostick was at any time free from all restrictions in the sale of said land, it was either because the restrictions imposed by the treaty of 1861 were merely personal to their original allottees, or because such restrictions were in the present case removed by the death of the allottee and by the provisions of the treaty of 1867. Nothing else ever transpired to remove them. We suppose that it will not be claimed that the patent changed the status or condition of John Riley, for he had been dead for several years before it was issued. And we hardly suppose it can be claimed that it changed the status or condition of his widow, Mary Bostick, for it does not purport to do so, even indirectly; and her name is not even mentioned therein.
The judgment of the court below will be reversed, and cause remanded for a new trial.
Kingman, C. J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin for a horse, buggy, and harness. The defendants (now plaintiffs in error) gave a bond under §182 of the civil code, and retained possession of the property pending the action.- At the trial of the case the court below gave to the jury the following among other instructions, to-wit:.
“If you find for the plaintiff in said cause, you will assess his damages at the value of the use of the property taken by the defendants from the time of the taking of the same up to the present time.”
The jury did find in favor of the plaintiff and against the defendants, and assessed the value of the property in controversy at $475. They also, in accordance with said instruction, assessed the plaintiff’s damages for the unlawful detention of the property at $210. Seven per cent, interest on the value of the property for the time it was unlawfully detained would have amounted to $87.27. The plaintiff then remitted all the damages in excess of $87.27, and the court below then rendered judgment in favor of the plaintiff (now defendant in error) and against the defendants for a recovery of the property in controversy, or in case the property could not be obtained then for the value thereof, to-wit, $475, and for said $87.27 damages, and also for costs of suit.
The plaintiffs in error claim that the court below erred as to the measure of damages. They claim that the true rule for the measure of damages in such cases as this is the inter est on the value of the property while wrongfully detained, and is never the value of the use of such property. We think however the court below did not err in this respect. We have just decided two eases in which we have substantially sustained the ruling of the court below in this particular. (Yandle v. Kingsbury, ante, 195, and Ladd v. Brewer, ante, 204.) It is true, that interest on the value of the property wrongfully detained is sometimes, in replevin cases, considered as the proper measure of damages. But it never was considered as the only damages which might be allowed in replevin cases. And in the nature of things it should not be. In some cases deterioration of the property from injury, neglect, etc., while wrongfully detained, must' be considered as an element in the allowance of damages. In ■ other cases, the decrease in the market value of the property must be taken into consideration. In other cases, perhaps few, gross malice, fraud, and oppression may be taken into consideration for the purpose of giving exemplary damages. (Herdick v. Young, 55 Penn. St. 176; Cable v. Dakin, 20 Wend. 172.) In other cases, the value of the use of the property must be taken into consideration for the purpose of giving compensatory damages. Allen v. Fox, 51 N. Y. 562; Morgan v. Reynolds, 1 Montana, 163; Butler v. Mehrling, 15 Ill. 488; Robbins v. Walters, 2 Texas, 130; Dorsey v. Gassaway, 2 Har. & Johns. 402, 413; Gibbs v. Cruikshank, 8 C. P. 454; Williams v. Phelps, 16 Wis. 81; Glascock v. Hayes, 4 Dana (Ky.) 58; Hall v. Edrington, 8 B. Mon. 47, 48; Hudson v. Young, 25 Ala. 376. The last three relate to detinue, the others to replevin. And still in other cases other damages than those above mentioned are sometimes allowed in actions of replevin. In Massachusetts, in an action of replevin, where part of a manufacturer’s machinery was taken and wrongfully detained, it was said by the court that the damages “ would be made up of, 1st, interest on the money-value; 2d, the general inconvenience and loss resulting from the interruption of his possession; and 3d, the expense, trouble and delay attending the operation of replacing everything, and restoring the establishment to its original condition.” (Stevens v. Truite, 104 Mass. 328, 335.) Indeed, in every action of replevin the plaintiff or the defendant, as the case may be, should be allowed to recover all the damages, not too remote, which he has actually sustained by reason of the wrongful detention of the property,-in whatever way such damages may have resulted. Exact compensation for his loss is the true rule. In a late case in England, decided in 1873, Bret, J., says; “ Replevin is a common-law action for the taking of goods. By the course of procedure in that action the goods are returned in the course of the action. It was argued by Mr. Foard that the action was for the mere purpose of recovering back the goods. I do not think that can be so, for if so the plaintiff could never have recovered what in every action of replevin he does recover, the expenses of the> bond. It seems, to me that whenever, in a common-law action, the plaintiff can recover damages, he must be entitled to recover all the legal damages he has sustained.” (Gibbs v. Cruikshank, 8 L. R., C. P. 463.) And in the same case, Bovill, C. J., says: “When the goods were not redelivered by the sheriff, according to the books it would appear that the plaintiff could recover the full amownt of the damages that he had sustained by the taking of the goods. I am not aware of any authority to the contrary, and I see no reason in principle why there should be any limitation as to the amount of the damages recoverable in such a case. I do not know of any ground in law for confining the damages to the amount of the expenses of the replevin bond. In practice these expenses are all that are recovered, merely because there is generally no other damage. The form of the declaration in replevin states that a wrongful act has been committed by taking the goods, and claims for the damages that have accrued to the plaintiff by reason' of such wrongful taking. It appears to me that whatever damages have been actually sustained may be recovered.” (Same case, pp. 459, 460.) The decision of this last-mentioned case was in accordance with the opinions of the above-named judges. In a late case in New York, decided in 1873, Earl, C., who delivered the opinion of the court, says: “I have found no case, unless it be the case in 4 Lansing, where it has been held that the value of the use may not be recovered as damages for the detention in case the property has (what I have for brevity called) a usable value.” (Allen v. Fox, 51 N. Y. 567.)
The plaintiffs in error claim that in trover the plaintiff can recover only for the value of the property taken, and interest thereon; that replevin is governed by the same rules as trover, and therefore, that the plaintiff can recover in replevin merely the property taken or the value thereof and interest on such value. Now admitting, for the purposes of this case, that the plaintiffs in error are correct so far as trover is concerned, still they are certainly mistaken with respect to replevin. The two actions are very dissimilar. In trover the plaintiff elects to consider the property taken (if the property is still in existence,) as having become the property of the defendant, and he himself is owner of nothing but the mere value of such property, which value he seeks to recover. While in replevin the plaintiff continues to be the absolute owner of the property itself, (if he was the owner previously,) and he cannot elect in such action to take the value of the property instead of the property itself. (Wilson v. Fuller, 9 Kas. 193; Hall v. Jenness, 6 Kas. 365.) In trover the defendant detains nothing from the plaintiff but the value of the property, that is, money; while in replevin he detains the property itself. In either action the plaintiff is entitled to recover for the use of the exact thing which the defendant detains from him;. but the great difference is in the thing detained. In trover, it is substantially money. In replevin, it is not money, but is some kind of property different from money. Now the law fixes the value of the use of money, but it does not fix the value of the use of any other kind of property. Therefore, in trover it would be proper to give the plaintiff seven per cent, interest on the value which he recovers, for that is the legal value of the use of money; but in replevin, the value of the use of the property cannot be known except by evidence. In trover, a plaintiff should not be allowed to recover for the use of the property taken, for the property by his own election , does not belong to him, but belongs to the defendant. In trover, he should be allowed to recover merely for the value of the property, and the use of such value. But in replevin it is different. There the plaintiff owns the property itself, 'and therefore should be entitled to recover for the use of the property, and not merely for the use of the value thereof. In trover the plaintiff never expects to recover the property back again, for it has already become the property of the defendant, and that by the plaintiff’s own election, if the property is still in existence. And « therefore, in trover it may fairly be. inferred that the plaintiff does not need the property, or that he could.go into the market without inconvenience and purchase like property. But this is not so in' replevin. In replevin the plaintiff expects to recover his original property back again; and hence it is fair to infer that he needs the property, and that he could not without great inconvenience (if he could at all) go into 'the market and purchase other property like'it. But even if he could purchase other property like it, he should not be required to do só, for. afterward when he recovers his own he would have duplicates of the same property, and might therefore be subject to further and additional inconvenience and loss. Very few persons would want to own two reapers, two pianos, two fine carriages, or two fine stallions, at the same time, even if they were able to do so. Besides, interest on the value of such property would generally be very inadequate compensation for the loss of the use of the property. The services of a fine stallion for a single month might be worth one or two hundred dollars, while interest on his value for the same length of time might not be five dollars. The same with reference to a reaper, or mower, and probably several other kinds of property. The services of even a farm-horse worth one hundred dollars, for the months of April, May and June, would probably be worth fifty dollars, while the interest on his value for the same time would be only one dollar and seventy-five cents. Who ever heard of a livery stable keeper hiring a horse out for the interest on his value? The interest on a horse worth two hundred dollars, would be less than four cents per day. The interest on a carriage worth five hundred dollars, would be less than ten cents per day. The interest on a farm-wagon worth one hundred dollars, would be less than two cents per day. Would such rates be adequate compensation for the loss of the use of property? Would the aggrieved party who should receive as compensation such rates feel that he had been amply paid for the wrong inflicted upon him ? Would damages at such rates be sufficient to discourage wrongdoing of this kind? Would not such damages rather encourage such wrongdoing? It would be a very cheap way to get the use of property if it could be got at such rates.
But even if we should concede that the plaintiffs in error are correct, and that interest merely on the value of the property should be allowed as damages, still we do not see how they expect to have the judgment in this case reversed. The judgment was rendered in the court below precisely in accordance with their views of what is the correct measure of damages. Therefore, taking any view of the case, the judgment of the court below must be affirmed.
Kingman, C. J., concurring.
. Brewer, J.: I concur in the judgment, but only upon the ground last mentioned in the opinion. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action on three promissory notes. The defense was, that the notes were given for intoxi eating liquors sold in this state, without a license. A jury was impanneled by the court. Upon the completion of the evidence the court charged the jury “to figure up the amount of principal and interest due on the notes, and to find a verdict for plaintiff for that amount.” The evidence produced .by' the plaintiffs in error in the court below, and the undisputed facts, bring the case clearly within the decisions heretofore rendered by this court in Haug v. Gillett, and Williams v. Feiniman, 14 Kas. 140, 288, McCarty v. Gordon, and Gill v. Kaufman & Co., 16 Kas. 35, 571. The court below committed no error in instructing the jury to return the verdict stated in the record, as the evidence did not tend to establish any defense to the notes sued on.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion, of the court was delivered by
Price, J.:
This is a workmen s compensation case.
An award was made for medical expenses. The legislature subsequently amended the statute by increasing the maximum amount allowable for that purpose.
The question presented is: Which statute applies — the one in force at the time of the injury — or the statute as amended? Stated another way — is the amendment to be given retrospective application?
The trial court held that the parties were governed by the statute in force at the time of the injury, and the workman has appealed. Highly summarized — the facts are:
On January 11, 1960, the workman sustained a severe injury to his spine. On July 18, 1960, an award was entered for weekly payments not to exceed 415 weeks on the basis of temporary total disability. Claimant was in need of surgery, and the award further provided for payment of all medical expenses not to exceed $2,500 —such amount being the maximum provided for that purpose by the statute in force at the time of the injury. In August, 1960, claimant underwent a spinal fusion operation, but it was not successful. In May, 1962, a second operation was performed, but it also was unsuccessful. Medical expenses incurred in the two operations— and which were paid by the employer’s insurance carrier — totalled $2,329.33.
In January, 1963, the attending physician recommended that claimant undergo a third operation. In March, 1963, claimant filed an application seeking a review and modification of the award previously entered which provided for payment of medical expenses not to exceed $2,500. The basis of the application was this:
Claimant was in need of a third operation. Medical expenses incurred in the two operations approached the sum of $2,500, leaving a balance insufficient to cover the expenses of another operation. In 1961 the statute providing for payment of medical expenses was amended by increasing the maximum amount allowable therefor to the sum of $4,000; that such increase in the limitation was procedural rather than substantíve, and, therefore, claimant was entitled to be furnished medical treatment to the extent of $4,000.
The application was resisted by the insurance carrier — the contention being that the extent of its liability for medical expenses was $2,500 — as provided by the statute in force at the time of the injury.
The director, in denying the application, ruled that the rights and obligations of the parties were fixed and governed by the statute in force at the time of the injury, and held that the $2,500 limitation applied.
The district court upheld and affirmed that order, and claimant has appealed.
Although it is conceded by claimant that the compensation act is a part of the contract of employment and that the furnishing of medical expenses to an injured employee is payment of compensation, it is contended that the contractual obligation of the employer is to furnish all reasonable medical, surgical and hospitalization expenses required by the circumstances of the case; that the entire act is to be liberally interpreted and applied to accomplish its recognized purpose in favor of the employee; that dollar amounts fixed by the act pertaining to medical expenses should be held to be remedial and procedural in nature rather than substantive; that remedial and procedural statutes or amendments are entitled to liberal construction and should be held to apply to proceedings pending at the time of their enactment; that it is reasonable to assume that the legislative intent in amending the statute in 1961 by increasing the maximum amount for medical expenses was that such increase should apply to existing claims, and therefore the district court erroneously held that the $2,500 limitation was applica ble. In support thereof he cites the case of Lahti v. Fosterling, 357 Mich. 578, 99 NW 2d 490 (1959), as substantiating his position.
Consideration of applicable statutes and several of our decisions, however, convinces us that claimant’s contentions are not sound, and that the judgment of the district court was correct.
G. S. 1949, 44-501, sets forth the “obligation” under the workmen’s compensation act and provides:
“If in any employment to which this act applies, personal injury by accident arising out of and in the course of employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation to the workman in accordance with the provisions of this act. . .
G. S. 1949, 44-535, in material part, provides: “The right to compensation shall be deemed in every case ... to have accrued to the injured workman ... at the time of the accident, . . .”
On January 11, 1960 — the date of claimant’s injury — G. S. 1959 Supp. 44-510, was in full force and effect. In material part, it provides for hospitalization and medical expenses for an injured workman — ‘Taut the cost thereof shall not be more than twenty-five hundred dollar's ($2,500); . . . No employer shall be liable for any medical, surgical or hospital treatment, ... in excess of the amounts hereinbefore expressed. . . .”
In 1961 the statute was amended — effective June 30, 1961, (G. S. 1961 Supp. 44-510). Insofar as here material, the only change was to increase the limitation for medical expenses from $2,500 to $4,000.
The applicable statute providing for review and modification of an award (G. S. 1959 Supp. 44-528) states that an award may be modified — “. . . upon such terms as may be just by increasing or diminishing the compensation subject to the limitations herein-before provided in this act; . . .”
The furnishing of medical aid to an injured employee is payment of compensation within the meaning of the compensation act. (Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 288, syl. 2, 303 P. 2d 168; Shepherd v. Gas Service Co., 186 Kan. 699, 703, syl. 3, 352 P. 2d 48.)
The liability of an employer to an injured employee is a liability arising out of a contract between them, and the terms of the statute are embodied in the contract (Leslie v. Reynolds, 179 Kan. 422, 427, 295 P. 2d 1076); the injured employee must therefore recover upon the contract with his employer, and the cause of action accrues on the date of the injury. (Workman v. Kansas City Bridge Co., 144 Kan. 139, 141, 58 P. 2d 90; G. S. 1949, 44-535, above.) Where par ties are under the compensation act their substantive rights are determined by the law in effect on the date of the workman s injury. (Ellis v. Kroger Grocery Co., 159 Kan. 213, 218, 152 P. 2d 860, 155 A. L. R. 546.)
It has been held that amendments to the compensation act which are merely procedural and remedial in nature, and which do not prejudicially affect substantive rights of the parties, apply to pending causes. (Ward v. Marzolf Hardwood Floors, Inc., 190 Kan. 809, 811, 378 P. 2d 80, and see syl. 3 of the Ellis case, above.) The general rule, however, is that a statute operates only in the future from its effective date; that it has no retrospective effect unless its language clearly indicates that the legislature so intended, and that retrospective application is not to be given where vested rights will be impaired. (Bulger v. West, 155 Kan. 426, 430, syl. 1, 125 P. 2d 404, and see syllabi 1 and 2 of the Ellis case, above.)
From the foregoing it is clear that claimant’s cause of action for compensation accrued on the date of Ins injury. On that date the statute in full force and effect set a limitation of $2,500 for medical expenses. The respective rights and obligations of the parties became fixed on that date. The 1961 amendment, which raised the limitation of liability for medical expenses to the sum of $4,000, contains nothing to indicate an intention that it should be applied retrospectively. The amendment was not procedural and remedial in nature — but affected substantive rights of parties under the compensation act with respect to injuries sustained subsequent to its effective date.
As applied to the facts of this case, therefore, the employer and its insurance carrier were liable for the payment of medical expenses in an amount not to exceed the sum of $2,500. The district court was correct in so concluding, and the judgment is affirmed. | [
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