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Per Curiam,-. This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator against Harold Scott Beims (respondent), an attorney admitted to the practice of law in Kansas on June 27, 1968. Respondent’s last registration address filed with the Clerk of the Appellate Courts of Kansas is in Atwood, Kansas. A formal complaint was filed against respondent by the office of the Disciplinary Administrator on March 12, 2008. The complaint contained two counts, corresponding to separate complaints by unrelated clients which were originally docketed as cases number DA9842 and DA10,064. Initially, the first count of the formal complaint charged respondent with violating Kansas Rules of Professional Misconduct (KRPC) 1.1 (2008 Kan. Ct. R. Annot. 400) (competence), KRPC 1.3 (2008 Kan. Ct. R. Annot. 415) (diligence), and KRPC 1.4 (2008 Kan. Ct. R. Annot. 432) (communication). The second count alleged violations of KRPC 1.3 (diligence), 1.4 (communication), and 1.15 (2008 Kan. Ct. R. Annot. 493) (safekeeping property), in addition to a violation of Supreme Court Rule 207 (2008 Kan. Ct. R. Annot. 295) (duty to assist Disciplinaiy Administrator). A panel of the Kansas Board for Discipline of Attorneys conducted a hearing on July 22, 2008, at which respondent appeared in person and through counsel, Charles E. Worden. At the hearing, the Disciplinary Administrator moved to amend the formal complaint pursuant to negotiations with and the consent of respondent and his attorney. Thereafter, respondent stipulated to violations of KRPC 1.3 (diligence) and 1.4 (communication) in Count I (DA9842) and to violating Supreme Court Rule 207 (failure to cooperate with a disciplinary investigation) in Count II (DA10,064). Further, respondent submitted a plan of probation, which was endorsed and recommended by the disciplinary administrator. HEARING PANEL’S FINDINGS OF FACT The hearing panel found the following facts by clear and convincing evidence: “DA9842 “2. The Respondent represented Bettie J. Bergling for many years. After her death, on February 23, 2002, the Respondent handled her estate. Ms. Bergling’s heirs were her three children, Denny Koch, Regan Koch, and Darrie Ann Schnee. “3. While working on the estate tax returns, the Respondent discovered additional investments which needed to be liquidated. After the Respondent assisted the heirs in liquidating the assets, in October, 2004, the heirs received a notice from the Internal Revenue Service that additional taxes, in excess of $10,000, were owing as a result of the liquidation of the additional investments. Denny Koch contacted the Respondent and informed him of the tax notice. The Respondent told Denny that he would assist the heirs in alleviating some of the tax. “4. Denny Koch and Regan Koch contacted the Respondent from time to time seeking updates regarding the Respondent’s efforts to address the assessment of the additional tax. The Respondent failed to respond to many of the communications. Additionally, the Respondent failed to take action in behalf of Ms. Berg-ling’s estate or her heirs regarding the assessment of the additional tax. As a result, the IRS assessed interest and penalties to Ms. Bergling’s heirs. “DA10064 “5. Denis and Wilma Tongish retained the Respondent to draft trust documents. The Respondent completed the trust documents and they were executed on November 8, 1993. “6. In August, 2004, Wilma Tongish died. Following her death, her son, Joe Tongish, contacted the Respondent regarding her estate. After some time passed and the Respondent did not make the progress that Joe Tongish believed was appropriate, he terminated the Respondent’s representation. “7. After Joe Tongish terminated the Respondent’s representation, he requested that the Respondent forward his file to him. The Respondent forwarded documents to Joe Tongish. However, Joe Tongish believed that the Respondent failed to forward a complete copy of his file. “8. Joe Tongish retained Stephen Cavanaugh to complete the work on the estate. Mr. Cavanaugh attempted to contact the Respondent to request a copy of the Respondent’s file. However, the Respondent failed to return Mr. Cavanaugh’s calls or respond to his written inquiries. “9. As a result, on November 1,2006, Mr. Cavanaugh filed a complaint against the Respondent with the Disciplinary Administrator’s office. Kari Gilliland was appointed to [investigate] Mr. Cavanaugh’s complaint. “10. The Disciplinary Administrator and Ms. Gilliland repeatedly contacted the Respondent in writing directing him to provide a written response to the complaint. The Respondent failed to provide a written response to the complaint.” HEARING PANEL’S CONCLUSIONS OF LAW The hearing panel then made the following conclusions of law: “1. Based upon the findings of fact and the Respondent’s stipulations, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.3, KRPC 1.4, and Kan. Sup. Ct. R. 207, as detailed below. “2. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Ms. Bergling’s estate and to her heirs, Denny Koch, Regan Koch, and Darrie Ann Schnee, when he failed to take action to assist them in addressing the additional tax assessment. Because die Respondent failed to act with reasonable diligence and promptness in representing Denny Koch, Regan Koch, and Darrie Ann Schnee, the Hearing Panel concludes that the Respondent violated KRPC 1.3. “3. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to respond to requests for information from Ms. Bergling’s heirs, Denny Koch and Regan Koch. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a). “4. Lawyers must cooperate in disciplinary investigations. Kan. Sup. Ct. R. 207(b) provides the requirements in this regard. ‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’ The Respondent knew that he was required to forward a written response to the initial complaint filed by Mr. Cavanaugh — he had been instructed to do so in writing by the Disciplinary Administrator and by Ms. Gilliland, the attorney investigator. Because the Respondent knowingly failed to provide a written response to the initial complaint filed by Mr. Cavanaugh as required by the Disciplinary Administrator and Ms. Gilliland, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 207(b).” HEARING PANEL’S RECOMMENDED SANCTION Factors In making its recommendations for discipline, the hearing panel considered the following factors outlined by the American Bar Association’s Standards for Imposing Lawyer Sanctions: “Duty Violated. The Respondent violated his duty to his clients to provide diligent representation and adequate communication. Further, die Respondent violated his duty to the legal profession to cooperate in die disciplinary investigation. “Mental State. The Respondent negligendy violated his duties. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual and potential injury. “Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in die degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present: “Prior Disciplinary Offenses. The Respondent has been previously disciplined on three occasions. First, on September 8, 1993, the Disciplinary Administrator informally admonished the Respondent for having violated MRPC 3.8(b) and MRPC 4.2. Next, on August 9, 2001, the Disciplinary Administrator informally admonished for having violated KRPC 1.5(b). Finally, in July, 2002, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 8.4(d). “Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent knew that he was required to provide written response to the complaint filed by Mr. Cavanaugh. While the Respondent drafted the response, die Respondent never completed the response nor did he forward the response to the Disciplinary Administrator or the attorney investigator. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1968. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 36 years. Accordingly, die Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct. “Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present: “Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case. “Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. The Respondent’s wife’s cognitive function has suffered a serious decline during the past three to four years. The deterioration of his wife’s health has placed additional emotional and physical strains on the Respondent. The pressures the Respondent experienced associated with the Respondent’s wife’s health contributed to the misconduct in this case. “Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of the bar in Atwood, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by several letters received by the Hearing Panel. “Remoteness of Prior Offenses. The discipline imposed in 1993,2001, and 2002 is remote in time and in character to the misconduct in this case.” Consideration of Probation In considering the joint recommendation of the respondent and the Disciplinary Administrator that respondent’s plan of probation be accepted, the hearing report recited: “In order for the Hearing Panel to consider recommending that the Respondent be placed on probation, the Respondent must first comply with Kan. Sup. Ct. R. 211(g)(1) and Kan. Sup. Ct. R. 211(g)(2). Additionally, the Hearing Panel must then consider, based upon the factors detailed in Kan. Sup. Ct. R. 211(g)(3), whether to recommend to the Court that the Respondent be placed on probation. “Kan. Sup. Ct. R. 211(g) provides: ‘(1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court. ‘(2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, tire Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan. ‘(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless: (i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint; (ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan; (iii) the misconduct can be corrected by probation; and (iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’ The Respondent provided each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detañed plan of probation at least ten days prior to the hearing on the Formal Complaint. The Respondent’s plan contains adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court. The Respondent put the plan of probation into effect by complying with each of the terms and conditions of the probation plan. The Respondent’s misconduct can be corrected by probation. Finally, placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas. “Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Court suspend the imposition of discipline and place the Respondent on probation for a period of three years subject to the terms and conditions detaüed below: “1. Limitation of Practice. The Respondent shall limit his practice to a part-time practice and shall consist of cases assigned to him by Jared Holste. “2. Practice Supervision. The Respondent’s practice wñl be supervised by Jared Holste. The Respondent and Mr. Holste shall prepare a monthly report to the Disciplinary Administrator’s office regarding the Respondent’s status on probation. The monthly report shall include a current case list which shall identify each case by name, set forth aU deadlines scheduled by the court, a statement regarding whether each deadline for the month was met, and an explanation if a continuance was requested. In the event a deadline is missed, the Respondent and Mr. Holste shall immediately report the missed deadline to the Disciplinary Administrator’s office. “3. Office Procedures. The Respondent and Mr. Holste shañ develop written office procedures and provide a copy of the written office procedures to the Disciplinary Administrator within 30 days of the date of this report. The written office procedures shall address internal office procedures as weU as how Mr. Holste intends to monitor the Respondent’s compliance with the terms and conditions of probation, specificafiy including the limitation of the Respondent’s practice. “4. Communication. The Respondent shall make every effort to return telephone calls within two business days of receipt. “5. Professional Liability Insurance. The Respondent shall continue to maintain professional liability insurance. “6. Continued Cooperation. The Respondent shall continue to cooperate with the Disciplinary Administrator’s office. If the Disciplinary Administrator’s office requests any additional information, the Respondent shall timely provide such information. “7. Additional Violations. The Respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the Respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the Respondent shall immediately report such violation to the Disciplinary Administrator. The Disciplinary Administrator shall take immediate action directing the Respondent to show cause why the probation should not be revoked. “Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator and shall be paid within 90 days of the release of the Court’s opinion in this case.” DISCUSSION “In disciplinary proceedings, this court ‘considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. [Citation omitted.] Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. [Citations omitted.]’ In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003).” In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 (2008). Respondent stipulated to the violations and does not contest the allegations in the amended formal complaint. The record supports the hearing panel’s findings of fact and those findings support its conclusions of law. Accordingly, we adopt those findings and conclusions. The hearing panel and the Disciplinary Administrator recommend that we adopt respondent’s proposed probation plan, albeit such a recommendation is “advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended.” Supreme Court Rule 212(f) (2008 Kan. Ct. R. Annot. 328-29). We are firmly convinced that the proposed and implemented probation plan is an appropriate sanction for the respondent’s violations. The respondent urges us to impose the proposed probation plan but requests that the term of probation be 1 year instead of 3. Under the circumstances, the recommended 3-year term of probation appears to be in the best interests of the respondent as well as providing adequate protection for the public. Accordingly, we adopt the probation plan as submitted and recommended by the hearing panel. It Is Therefore Ordered that Harold Scott Beims be placed on probation for a period of 3 years from the date this opinion is filed under the terms and conditions set forth above in the hearing panel’s recommendations. It Is Further Ordered that if Harold Scott Beims fails to abide by the terms and conditions of his probation, a show cause order shall issue to the respondent, and this court will take whatever disciplinary action appears just and proper without further formal proceedings. It Is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein are assessed against the respondent. McFarland, C.J., not participating. Hill, J., assigned.
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The opinion of the court was delivered by Nuss, J.: Steven M. McCarley was convicted by a jury of reckless aggravated battery, a severity level 5 person felony. The conviction, however, was erroneously classified as a severity level 8 person felony in the presentence investigation report. Because no one caught the error, the trial court sentenced McCarley to the appropriate grid sentence under the Kansas Sentencing Guidelines Act for a level 8 offense — 23 months’ imprisonment — rather than the level 5 offense — 122 to 136 months’ imprisonment. When the State discovered the error, it filed a motion to correct an illegal sentence. When that motion was denied, the State appealed and McCarley cross-appealed. A split Court of Appeals rejected all allegations of error in State v. McCarley, 38 Kan. App. 2d 165, 166 P.3d 418 (2007). This court granted the respective petitions and cross-petitions for review under K.S.A. 20-3018(b). The issues on appeal, and this court’s accompanying holdings, are as follows: 1. Did the trial court have jurisdiction to correct a purported illegal sentence when the illegality favored McCarley? Yes. 2. Did the trial court lack jurisdiction to convict McCarley of level 5 reckless aggravated battery because that crime was never charged in the complaint and purportedly is not a lesser included offense of intentional aggravated battery? No. 3. Did the trial court err when it failed to instruct the jury that McCarley’s actions had to be the proximate cause of the victim’s injuries to find him guilty of reckless aggravated battery? No. Accordingly, we reverse the judgments of the Court of Appeals and trial court on issue 1 and remand to the trial court to correct McCarley’s illegal sentence. We affirm their judgments on issues 2 and 3. FACTS The essential facts are not in dispute. Steven M. McCarley backed his pickup into Nick and Sonya Cosentino’s car in a Wichita parking lot. When McCarley refused to provide the Cosentinos with his name or insurance information, Sonya left to call the police. As McCarley was backing out to leave, Sonya ran to place herself directly behind the pickup, and it bumped her in the chest. When McCarley started to pull forward, Nick jumped partway into the pickup cab and then fell out or was pushed. McCarley was charged with two counts of aggravated battery, one against Sonya, and one against Nick. The jury also was instructed on lesser included offenses and, on count two involving Nick, was instructed on the elements of reckless aggravated battery, which required a finding that “McCarley recklessly caused great bodily harm or disfigurement to Nicola Nick’ Cosentino.” This instruction thus described aggravated battery as contained in K.S.A. 21-3414(a)(2)(A), a severity level 5 person felony. The jury acquitted McCarley of the charges involving Sonya, but convicted him of reckless aggravated battery against Nick. At sentencing, the presentence investigation (PSI) report incorrectly listed the conviction pursuant to K.S.A. 21-3414(a)(2)(B), reckless aggravated battery, but a severity level 8 person felony. Unlike the level 5 aggravated battery, which requires great bodily harm to be caused, the level 8 crime is defined as “recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm . . . can be inflicted.” (Emphasis added.) K.S.A. 21-3414(a)(2)(B). When the trial court inquired of counsel whether there was any question as to the severity level or criminal histoiy shown in the PSI report, both counsel agreed that the report was correct. McCarley was then sentenced to 23 months’ incarceration — an appropriate grid sentence under the Kansas Sentencing Guidelines Act, K.S.A. 21-4704, for a severity level 8 person felony with a criminal history score of A. After time for appeal had expired, and approximately 34 days after sentencing, the State filed a motion to correct an illegal sentence under the authority of K.S.A. 22-3504. It argued that McCarley’s sentence for a severity level 8 offense of aggravated battery under K.S.A. 21-3414(a)(2)(B) did not conform with the statutory provisions of a level 5 offense under K.S.A. 21-3414(a)(2)(A), the offense of conviction. It observed that those guidelines for the latter offense call for a sentence of 122 to 136 months. See K.S.A. 21-4704. After a hearing, the trial court denied the motion, opining that it could not correct an illegal sentence if the correct sentence would be harsher than the original one imposed. The State appealed and McCarley cross-appealed, arguing that the trial court lacked jurisdiction to convict him of the level 5 offense and that the court erred in failing to instruct the jury on proximate cause. The Court of Appeals affirmed McCarley’s convictions and denied the cross-appeal. However, with Judge Knud son dissenting, it refused to remand to correct the sentence. McCarley, 38 Kan. App. 2d 165. ANALYSIS Issue 1: District courts have jurisdiction to correct purported illegal sentences when the illegality favors the defendant. McCarley generally adopts the position of the Court of Appeals majority opinion. The majority first held that the State had no right to appeal die denial of a motion to correct an illegal sentence under K.S.A. 21-4721(e)(3) (appellate court may review a claim that the sentencing court erred in ranking the crime severity level of the current crime). It correctiy noted that the statute deals with appeals; neither party had preserved a direct appeal of the sentence. The majority ultimately allowed the appeal under K.S.A. 22-3602(b)(3), however, by construing the State’s motion and argument as a question reserved. Included in the reserved question was whether the sentence was illegal. 38 Kan. App. 2d at 171. With this framework in mind, the Court of Appeals majority then held that the sentence was not illegal under K.S.A. 22-3504(1) for any of the three reasons recognized by case law. See, e.g., State v. Nash, 281 Kan. 600, Syl. ¶ 1, 133 P.3d 836 (2006). First, it was not imposed by a court without jurisdiction. Second, the sentence did not fail to conform with the offense of aggravated battery as to its character and term of punishment authorized. Third, the sentence was not ambiguous as to time or manner in which it was to be served. The majority further held that even if the sentence were illegal, the State had agreed to the severity level; the doctrine of invited error therefore precluded any challenge. McCarley, 38 Kan. App. 2d at 176-77. Judge Knudson dissented, for reasons the State generally adopts on appeal to this court. He opined that because an illegal sentence was alleged, this court had jurisdiction to review under State v. Vanwey, 262 Kan. 524, Syl. ¶ 1, 941 P.2d 365 (1997), thereby rendering unnecessary the majority’s characterization and discussion as a question reserved. He further opined that an illegal sentence had been imposed, suggesting that the trial court had no jurisdiction and expressly concluding that the sentence failed to conform to the one required for the conviction of record, i.e., level 5 aggravated batteiy. He contended that an illegal sentence may be corrected at any time; that the doctrine of invited error was inapplicable because the sentence was illegal; and that there was no evidence to support an agreement to circumvent the jury verdict or the requirements of law. As discussed below, we specifically agree with the dissent’s holding and generally with its rationale. Our agreement is primarily based upon two cases of this court: Chambers v. State, 199 Kan. 483, 430 P.2d 241 (1967), and Vanwey, 262 Kan. 524. They establish, among other things, that this court clearly has jurisdiction to consider the matter of McCarley’s purported illegal sentence and further that his sentence indeed is illegal because it was imposed by a trial court without jurisdiction. In other words, we conclude that this court has jurisdiction to conclude that the trial court had no jurisdiction. In Chambers, this court addressed a fact pattern similar to that of the instant case: the trial court mistakenly imposed sentence on a crime for which the defendant was not convicted. There, the defendants pled guilty to robbeiy in the first degree. However, they were erroneously sentenced for burglary in the second degree: indeterminate sentences of 5-10 years. After the error was discovered, the defendants were brought back to the court for resentencing. The trial court set aside the sentences and resentenced for robbery: 10-21 years. Defendant Chambers later brought a motion under K.S.A. 60-1507 attacking the validity of the second sentence. This court affirmed the trial court’s denial of his motion and made short work of his argument: “The plaintiff next argues that once the court had imposed a sentence against him it could not later resentence him. This contention is without merit. The first sentence was void, since the penalty imposed was that required hy law for second-degree burglary, not [first-degree] robbery. Accordingly, it was the court’s clear duty to set the original sentence aside and impose a valid sentence.” (Emphasis added.) 199 Kan. at 485. Thirty years after Chambers, this court in Vanwey dealt with a slightly different fact pattern. It provided a more complete frame work than Chambers, however, for its analysis and holding — both of which are of use in the instant case. In Vanwey, the defendant committed a crime while on parole. The trial court properly made Vanwey s new sentence consecutive to the one originally imposed, as required under K.S.A. 1991 Supp. 21-4608. Three years later, the defense counsel and the prosecutor apparently agreed to a nunc pro tunc order correcting a clerical error because a sentencing mistake had allegedly been made. Per the court’s order, the consecutive sentences became concurrent. The State later moved to set aside the order, arguing that the modification had been misrepresented as necessary to correct a clerical error and that the trial court had no jurisdiction to modify. The trial court denied the motion, ruling that “relief would have to be through appeal.” Vanwey, 262 Kan. at 526. As in the instant case, as a threshold matter Vanwey argued that the State simply was not permitted to appeal under these circumstances. This court rejected the argument. Among other things, it cited State v. Scherzer, 254 Kan. 926, 929-30, 869 P.2d 729 (1994), to confirm its statutory jurisdiction to consider the appeal: generally under K.S.A. 60-2101(b) (court has jurisdiction to correct, modify, vacate, or reverse any act, order, or judgment of a district court in order to assure that it is just, legal, and free of abuse) and specifically under K.S.A. 22-3504 (Furse) (illegal sentence may be corrected at any time). Similar to the instant case, this court further observed that the ultimate question was whether the trial court possessed jurisdiction to grant the nunc pro tunc order in the first place. Vanwey, 262 Kan. at 527. If the court did not, then the sentence was illegal and correctable by the Supreme Court. See State v. Ruff, 252 Kan. 625, 628, 847 P.2d 1258 (1993) (sentence illegal if, among other things, imposed by a court without jurisdiction). The Vanwey court then held that the trial court had no authority to modify the original sentence under the statutory subparagraph for correction of clerical errors, K.S.A. 22-3504(2) (Furse), because there was no clerical error. Moreover, the court held that the parties’ agreement could not bring life into an order that was invalid because of the trial court’s lack of jurisdiction: “We conclude that parties agreeing to a nunc pro tunc order cannot invest the court with the power to change a sentence if the court otherwise lacks jurisdiction to do so.” Vanwey, 262 Kan. at 528-29. After concluding that the trial court had no jurisdiction under 22-3504(2) to have “corrected” this sentence, and had no jurisdiction created by the parties’ agreement, the Vanwey court looked for other jurisdiction created by statute. After noting that the sentencing of a criminal defendant is strictly controlled by statute in Kansas, the court held that the only apparent jurisdictional alternative, K.S.A. 1991 Supp. 21-4603(4)(a), was inapplicable because the modification had not occurred within 120 days of the original sentence. The Vanwey court further observed that the trial court not only “lacked jurisdiction to modify Vanwey’s 1992 sentence,” but that imposing the sentences consecutively was itself required by statute. 262 Kan. at 529. See K.S.A. 1991 Supp. 21-4608(3) (“[a]ny person who is convicted and sentenced for a crime committed while on . . . parole ... for a felony shall serve the sentence consecutively to the term or terms under which the person was ... on parole”). Finally, this court rejected Vanwey’s argument that the court lacked jurisdiction to allow his sentence to be modified yet again because it was “now running concurrently and the imposition of a consecutive sentence would be a harsher sentence.” (Emphasis added.) 262 Kan. at 530. In rejecting this harsher consequences argument, the Vanwey court simply responded that a “court has authority to reinstate an original sentence when a subsequent modification is illegal.” 262 Kan. at 530. In sum, the Vanwey court held that the trial court was without jurisdiction to enter the nunc pro tunc order. It reversed the trial court’s refusal to set aside the order, and ordered reinstatement of the original 1992 sentence. A synthesis of the decisions in Chambers and Vanwey reveals several principles of guidance for the instant case. When a sentence is imposed for a crime for which the defendant was not convicted, but in fact is appropriate for another crime, this court has addressed the issue on the merits. See, e.g., Chambers, 199 Kan. 483. As a result, the issue is within the jurisdiction of this court to review. Cf. Vanwey, 262 Kan. 524, Syl. ¶ 1 (jurisdiction to consider the matter under 60-2101[b], which gives general statutory authority to correct, modify, vacate, or reverse any act, order, or judgment of a district court to assure that it is just, legal, and free of abuse, and 22-3504: court may correct illegal sentence, e.g., one issued by court without jurisdiction or without conforming with the offense as to character or term of punishment authorized). At a minimum, there is jurisdiction to review the sentence as a possibly illegal one. Whether a criminal sentence is illegal, e.g., imposed without jurisdiction, is a question of law with unlimited review. State v. Davis, 281 Kan. 169, 174, 130 P.3d 69 (2006). When a sentence is imposed for a crime for which the defendant was not convicted, but in fact is appropriate for another crime, such a sentence is void. Chambers, 199 Kan. at 485. Specifically, it is an illegal sentence because, at a minimum, it is imposed without trial court jurisdiction. Cf. Vanwey, 262 Kan. 524. Under these specific circumstances, the sentence must be set aside, and the defendant resentenced for the crime of actual conviction, i.e., a “valid sentence.” Chambers, 199 Kan. at 485; cf. Vanwey, 262 Kan. at 530 (court set aside illegal modification and reinstated original sentence). The fact that the new, and proper, sentence is more severe than the original, improper one is of no consequence. See Vanwey, 262 Kan. at 530 (court expressly rejecting this argument); see also Chambers, 199 Kan. at 484-85 (court approved imposing new sentence which increased original, improper sentence by years). The fact that the parties have agreed to a matter involving trial court jurisdiction is of no consequence, i.e., party agreement does not establish jurisdiction where it otherwise does not exist. See Vanwey, 262 Kan. at 528 (“Nor does agreement of the parties and the presentation of an agreed order to the trial court [to change statutorily mandated consecutive sentence to concurrent] bring life into an otherwise invalid action.”); see also State v. Johnson, 283 Kan. 649, 156 P.3d 596 (2007) (defendant’s agreement to jury instruction on questionable offense does not bar his later jurisdictional challenge claiming offense neither charged nor constituted lesser included offense of a charged offense). Similarly, the more inclusive doctrine of invited error is inapplicable because the alleged invited error leading to the illegal sentence concerns jurisdiction. See State v. Belcher, 269 Kan. 2, 9, 4 P.3d 1137 (2000). Not only is McCarley’s sentence illegal because it was imposed by a court without jurisdiction, but as Judge Knudson observed in his dissent, it also is illegal for failing to conform to the statutory provision, either in the character or the term of the punishment authorized. See Nash, 281 Kan. at 601. We have repeatedly acknowledged that the sentencing of a criminal defendant is strictly controlled by statute. State v. Martin, 285 Kan. 735, 738, 175 P.3d 832 (2008); State v. Anthony, 274 Kan. 998, 999, 58 P.3d 742 (2002). Consistent with this acknowledgment, we held in Scherzer, 254 Kan. at 939, that the trial court did not have authority under K.S.A. 1992 Supp. 21-3405b to allow the defendant to serve his required 90 days’ imprisonment by house arrest. We declared the sentence imposed illegal because it did not conform to the statutory provision and remanded to the district court for correction, i.e., actual imprisonment in the county jail. 254 Kan. at 939; cf. Vanwey, 262 Kan. at 529-30 (in addition to lack of jurisdiction to modify sentence, trial court’s modification of consecutive sentences to run concurrently was clearly contrary to statute requiring consecutive sentences). The trial court’s sentence for a level 8 person felony does not conform to the statutory provision for a level 5 person felony, the offense of conviction. The trial court had no statutory authority to impose such a sentence. It is therefore illegal. See Nash, 281 Kan. at 601. As the State points out, the flip side is also true. While the sentence imposed was proper for a level 8 offense, the jury was not instructed on, nor was McCarley convicted of, a level 8 felony* It is fundamental that a defendant cannot be sentenced for a crime for which he or she has not been convicted. In sum, this court has authority to review the State’s claim of an illegal sentence. The sentence imposed is illegal because it was imposed by a trial court without jurisdiction and because the sentence did not comport with the statutory provision in the character or term of the punishment authorized. Issue 2: The trial court did not lack jurisdiction to convict Mc-Carley of level 5 reckless aggravated battery. Before we can consider remand for resentencing for the level 5 offense, we must consider McCarley s cross-appeal contention that the trial court lacked jurisdiction to convict him of that crime because it is not a lesser included offense of intentional aggravated battery. The existence of jurisdiction is a question of law over which this court’s review is unlimited. State v. Thomas, 283 Kan. 796, 805, 156 P.3d 1261 (2007). Similarly, whether a crime is a lesser included offense is a question of law. State v. Hebert, 277 Kan. 61, 104, 82 P.3d 470 (2004). The Court of Appeals panel, including Judge Knudson, held that McCarley’s argument was erroneously based on this court’s holding in the multiplicity case of State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). The panel rejected McCarley’s argument that “lesser included offenses must be based solely on an identity of elements test.” McCarley, 38 Kan. App. 2d at 178. The State essentially adopts the panel’s position on appeal. We agree. In citing to Schoonover, McCarley contends this court adopted a “strict identity of the elements test for analyzing whether crimes were either multiplicitous or lesser included offenses.” He also argues that the strict identity of the elements test is the only logical, consistent test. Unfortunately, his single-minded argument is contrary to language in Schoonover and the legislature’s express, multifaceted approach for identifying lesser included crimes. See 281 Kan. at 494, 496-98. K.S.A. 21-3107(2) defines a lesser included crime as: “(a) A lesser degree of the same crime; (b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged; (c) an attempt to commit the crime charged; or (d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b).” The panel relied upon section (a) in holding that intentional aggravated batteiy and reckless aggravated battery are degrees of the same general crime, that of aggravated batteiy. We conclude that the crimes of severity levels 5 and 8 aggravated battery are both lesser included offenses of severity level 4 aggra vated battery because they are lesser degrees of the same crime. See K.S.A. 21-3107(2)(a). The language of K.S.A. 21-3414(b) is unmistakable: “Aggravated battery as described in subsection (a)(1)(A) is a severity level 4, person felony. . . . Aggravated battery as described in subsection (a)(2)(A) is a severity level 5, person felony .Aggravated battery as described in subsection (a)(2)(B) is a severity level 8, person felony.” (Emphasis added.) In addition to this clear language, we observe that without more, the higher the severity level of the crime, the lower the sentence. See, e.g., K.S.A. 21-4707(a) (“The crime severity scale contained in the sentencing guidelines grid for nondrug crimes as provided in K.S.A. 21-4704 and amendments thereto consists of 10 levels of crimes. . . . Level 1 crimes are the most severe crimes and level 10 crimes are the least severe crimes.”). The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. State v. Denney, 283 Kan. 781, 789, 156 P.3d 1275 (2007). Intent of tire legislature is to be derived in the first place from the words used. Griffin v. Suzuki Motor Corp., 280 Kan. 447, 460, 124 P.3d 57 (2005). We hold that the legislature’s intent is clear from the words it used. Defining various types of aggravated battery, i.e., “aggravated battery as described in” separate subsections, together with allocating different degrees of punishment for each type, establishes that level 5 and level 8 aggravated battery are lesser included offenses of level 4 aggravated battery, i.e., they are “lesser degrees of the same crime.” Because the crime charged was a level 4 aggravated battery, the trial court had jurisdiction to convict McCarley of severity level 5 aggravated battery. In contrast, see Johnson, 283 Kan. 649, Syl. ¶ 1 (the district court lacks jurisdiction to convict a defendant of a crime not specifically stated in the information or the stated crime’s lesser included offense). Issue 3: The trial court did not clearly err when it failed to instruct the jury that McCarley’s actions had to he the proximate cause of the victim’s injuries to find him guilty of reckless aggravated battery. Finally, McCarley argues in his cross-appeal that the trial court erred in failing to instruct the jury that his actions had to be the proximate cause of Nick’s injuries to find McCarley guilty because his primary defense was that Nick’s actions, not his own, were the cause of the injuries. He contends that the jury specifically should have been instructed: “The fault or lack of fault of [the victim] is a circumstance to be considered along with all the other evidence to determine whether the defendant’s conduct was or was not the direct cause of [the victim’s] injuries.” The Court of Appeals summarily rejected McCarley’s argument, pointing out that the “jury instructions clearly informed the juiy that in order to convict McCarley of reckless aggravated battery, he must have ‘caused great bodily harm or disfigurement’ to the victim.” McCarley, 38 Kan. App. 2d at 179. Again, the State essentially adopts the panel’s position. Because McCarley did not request a proximate cause instruction at trial, his claim is reviewed for clear error. See K.S.A. 22-3414(3); State v. Torres, 280 Kan. 309, 326, 121 P.3d 429 (2005). “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. White, 284 Kan. 333, Syl. ¶ 6, 161 P.3d 208 (2007). We note that instruction 9B provided in relevant part: “To establish this charge [of reckless aggravated battery], each of the following claims must be proved: 1. That Mr. McCarley recklessly caused great bodily harm or disfigurement to Nicola ‘Nick’ Cosentino . . . (Emphasis added.) McCarley’s sole basis for believing that the verdict would be different if the jury had been given a proximate cause instruction is that the jurors seemed confused about how to apply the term “reckless.” The jury asked for a definition of “reckless,” and the trial court gave the following definition: “Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” McCarley does not explain, however, how this purported confusion relates to the giving of a proximate cause instruction. We also observe that in State v. Bale, 39 Kan. App. 2d 655, 182 P.3d 1280 (2008), the defendant argued for the first time on appeal that a proximate cause instruction should have been given in his involuntary manslaughter case. The Court of Appeals rejected his argument, holding that the concept was “adequately expressed in the court’s instruction for the elements of the crime.” 39 Kan. App. 2d at 660. Although the clearly erroneous standard applied, the court simply held that “the district court did not err in failing to give a separate proximate cause instruction.” 39 Kan. App. 2d at 660. In light of the instruction given, McCarley’s limited argument identifying the impact of the purported error on the jury, and the holding in Bale, we are not firmly convinced that there is a real possibility the jury would have rendered a different verdict if the proposed instruction had been given. In short, there is no clear error. The judgments of the Court of Appeals and the district court on issue 1 are reversed and remanded to the district court with instructions to correct McCarley’s illegal sentence. Their judgments on issues 2 and 3 are affirmed.
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The opinion of the court was delivered by Beier, J.: This direct appeal arises out of the tragic death of Jonathan U, who suffered crush injuries when he came to the aid of a purse snatching victim in the parking lot of a Johnson County discount department store. As a result of these events, defendant Brad Jones pleaded guilty to two felony counts of robbery, one felony count of theft, and one felony count of fleeing and eluding, leaving only a felony-murder charge for trial. Jones was convicted by a jury and was sentenced to a life term plus a consecutive 176 months. Jones raises three questions: (1) Did the district judge err in disallowing testimony by the victim’s wife on her observations regarding the quality of U’s medical care? (2) Does newly discovered evidence regarding a medical malpractice case filed by U’s wife merit a new trial? and (3) Did the district judge err in denying a defense request for an instruction on aggravated battery as a lesser included offense of felony murder? Factual and Procedural Background Ruth Peck had just finished unloading items she had purchased from Target into her trunk when defendant Jones grabbed her purse. Peck shouted for help, and U responded by chasing Jones, who still had the purse, to Jones’ car. When Jones jumped into his vehicle, U reached into the car to take hold of Peck’s purse. Jones then sped away with U half inside and half outside of the car. When Jones ran his car into a brick wall, U was pinned between the open car door and the frame of the car. Jones then fled on foot with the purse. Another individual pursued Jones, who eventually dropped the purse and was apprehended by law enforcement. U, gravely hurt, was rushed from the scene to the hospital. He died 18 days later. At Jones’ trial on felony murder, the prosecution argued that U’s death was caused by complications stemming from the injuries he sustained during Jones’ flight from the robbery of Peck; in the State’s view, regardless of whether Jones intentionally steered his car into the wall to get rid of U or simply lost control of the car, Jones’ actions were tire direct and proximate cause of U’s death. The defense theory at trial was that U’s death was caused not by his injuries but by negligent medical treatment of those injuries, i.e., an infection diagnosed too late. In support of this theory, the defense attempted to introduce evidence that U’s wife, Stephanie Sandgren, had consulted with legal counsel about the quality of the medical treatment her husband received. The State filed a motion in limine to prevent introduction of this evidence, arguing that it invaded attorney-client privilege. Defense counsel framed his intended fine of questioning in three ways before the district court. He first stated: “All I requested the Court to allow me to do is to ask Ms. U, did she contact an attorney, and was there some particular reason for that.” Counsel restated his intent: “All I want to ask is: did you consult an attorney about observations you made while your husband was in the hospital? Just yes or no.” After the district court ruled against him, counsel stated: “[J]ust so the record is clear, my tack was to ask her if she consulted with an attorney, no conversation and that was all.” The district judge ruled that the substance of the conversation between Sandgren and the lawyer was privileged and that the only possible relevance of the mere fact of their contact would be its tendency to give rise to an adverse inference about the quality of U’s medical care, which had virtually no probative value. The judge then advised the parties to look to medical evidence, rather than evidence of the contemplation of legal action, to support their arguments about the existence of an intervening cause of U’s death. The district judge also overruled defense counsel’s request to limit the State’s presentation of evidence on the underlying felony of robbery, reasoning that the State had a right to prove the robbery and flight from it. Thus several witnesses testified about the purse snatching and its aftermath. Peck was among those witnesses. In addition, she told the jury that she had visited U every day while he was in the hospital, that he was not doing well, and that he did not appear to be recovering. Sandgren testified that she spent time at the hospital with her husband and that there was no improvement in his condition from the time he went into the hospital until he died. He was never able to consume any nourishment, solid or liquid; and was concerned about surviving. He underwent three surgeries, among other treatments and tests. Dr. Michael Handler, a forensic neuropathologist with the Johnson County Coroner’s Office, performed an autopsy on U’s body. Handler noted that U had been subject to substantial medical intervention, including resection of a portion of his small bowel and insertion of a plate to repair a pelvis fracture. Handler also noted a number of injuries and abnormalities, including fluid and peritonitis in U’s chest cavity; fluid in U’s heart; clotting in U’s lungs; hemorrhage in U’s liver; blockage and death of U’s right kidney; clots to the veins of U’s prostate; and a 1-centimeter perforation of U’s large bowel, which, when opened, revealed an infection Handler termed pseudomembranous colitis. Handler observed this pseudomembranous colitis in both U’s small and large bowels. Handler testified specifically that pseudomembranous colitis is difficult to diagnose and that it develops rapidly. It is linked to the use of antibiotics; when they are used to treat infection, they destroy many bacteria but leave a particular, naturally occurring bacteria without competition. This bacteria overpopulates the bowel and leads to pseudomembranous colitis which, in turn, results in damage, necrosis, and eventual perforation of the bowel. Once such a perforation occurs, fecal material contaminates the abdominal cavity, often resulting in a fatal infection. Handler further testified that pseudomembranous colitis can be treated with an aggressive antibiotic called Vancomycin. Handler also testified that U’s development of pseudomembranous colitis was merely the last link in a chain of events starting with the crush injuries. Even with medical intervention, Handler said, U’s ability to survive had been fatally compromised. Had he not been admitted to the hospital, or had he been released from the hospital on any of the 18 days he managed to survive, he still would have died from his injuries. Handler ultimately opined that the cause of U’s death was “complications of blunt force injury of the thorax and abdomen sustained in a pedestrian, motor-vehicle collision.” U’s injuries, in Handler’s view, were consistent with a severe crush and complications arising therefrom. Dr. Steven Behrends, a surgeon who acted as U’s primary care physician during his time in the hospital, also appeared at trial. He testified extensively about U’s course of treatment, explaining that there was a tremendous amount of swelling in the first few days after admission and that U never really became stable before his death. Behrends specifically addressed the last of U’s surgeries, which Behrends performed 3 days before U’s death. After that surgery, U developed sepsis, an overwhelming infection in the bloodstream that caused U’s vital organs to shut down. In his summary of U’s treatment and complications, Behrends cited the sepsis, peritonitis, kidney failure, severe edema and excessive fluid in the tissues, distention of the abdomen, and jaundice. He also noted that U had entered the hospital with two life-threatening injuries: a pelvic fracture and a laceration to his duodenum. Behrends also testified that there was no evidence of pseudo-membranous colitis when he performed U’s last surgery and that this condition would have developed after that procedure. Behrends had read Handler’s autopsy report and disagreed with its pseudomembranous colitis conclusion. Behrends believed it was more likely that peritonitis, ischemic colitis, or sepsis precipitated U’s death. Behrends agreed with Handler that, if U had not gone to the hospital or had been released from the hospital at any point in the 18 days he was there, he would still have died. Behrends also agreed that Vancomycin is used to treat pseudomembranous colitis. Apparently as a precaution, U had received Vancomycin following his last surgery, which enabled Behrends to opine that Vancomycin could not have saved U’s life. The defense presented the testimony of Dr. James Bryant, a pathologist who had reviewed more than 1,700 pages of U’s medical records, including Handler’s autopsy report. Bryant had not been present at the autopsy, nor had he worked with any of the tissue samples. Bryant testified that the proximate cause of U’s death was pseudomembranous colitis. Specifically, Bryant testified that the immediate cause of death was peritonitis, which was caused by the perforation in U’s bowel from the colitis. Bryant opined that, although Vancomycin was given to U, nothing in the medical records indicated why it was prescribed; there had been no cultures done, no lab tests run, and no diagnosis. Bryant testified that Vancomycin is administered as a “third line” treatment after penicillin and another antibiotic called Metronidazole are not effective; those were not attempted here. According to Bryant’s review of medical literature, pseudomembranous colitis has a very low mortality rate, and once diagnosed, can be treated in a number ways. Here, he said, because there was no diagnosis, there was no treatment for the condition. Biyant opined that, had U’s health care providers doné more than they did, they could have discovered the pseudomembranous colitis and prevented the perforation that led to U’s death. On cross-examination, Biyant disagreed with the autopsy report conclusion that U’s death was caused by the crush injuries because, in Biyant’s opinion, those injuries had been repaired. Although he agreed the crush injuries were life-threatening, they were not the immediate cause of death. Bryant ultimately agreed, however, that, had U been released from the hospital on any of the 18 days he was there, he would not have survived. The State offered rebuttal testimony from Dr. Frank Mitchell, III, a general surgeon acting as the director of the trauma unit of St. Luke’s Hospital in Kansas City. Mitchell discussed the nature of crush injuries versus penetrating injuries or lacerations. He had reviewed U’s file, and he opined that there was significant damage to the tissues, evidenced particularly by tears in the duodenum. Such an injuiy would require surgeiy to put the bowel back together, which, among other concerns, would raise the specter of infection. Ultimately, Mitchell opined, the medical care U received was good, and the physicians making the decisions about that treatment were responding appropriately to U’s symptoms. Neither CAT scans nor the pathology of the 6-inch portion of U’s bowel removed during his last surgery showed any suggestion of pseudomembranous colitis or other inflammation. Mitchell opined that the critical nature of U’s condition “had very little, if anything, to do with . . . pseudomembranous colitis,” which had been over emphasized in the autopsy report. Mitchell testified that U’s initial injuries were massive and that the potential complications associated with those injuries had unfortunately happened to occur in U’s case. The jury’s instructions included non-PIK instructions on felony murder, in accord with State v. Mays, 277 Kan. 359, 85 P.3d 1208 (2004). Instruction No. 12 stated: “Time, distance and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing was done while in flight from the robbery.” Instruction No. 13 stated: “The theory of the defense is that negligent treatment by physicians at the Overland Park Regional Medical Center was the sole proximate cause of death of Jonathan U and not the injuries he sustained at the Target Store parking lot. You are instructed that if you find the defendant did cause the injuries inflicted on the person of Jonathan U, then you must determine whether the acts of the defendant contributed to the death of Jonathan U. If you find defendant’s acts contributed to the death of Jonathan U, then responsibility cannot be avoided by the fact that independent causes such as negligence of others also contributed to the death. However, if you find the proximate cause of death resulted solely from erroneous treatment of the physicians, you must acquit the defendant.” Instruction No. 14 stated: “Where the original injuries are a proximate cause of the death, the fact that the immediate cause of death was the medical or surgical treatment administered or that such treatment was a factor contributing to the cause of death will not refieve the person who inflicted the original injury from responsibility.” Instruction No. 15 stated: “The fact, if it be a fact, that some other person was guilty of negligence which was a contributory cause of the death involved in the case, is no defense to a criminal charge.” Instruction No. 16 stated: “To constitute felony murder, defendant’s actions must be a proximate cause of death of Jonathan U. The proximate cause of a death is a cause which, in natural and continuous sequence, produces the death and without which the death would not have occurred. There may be more than one proximate cause of death. When the conduct of two or more persons contributes concurrently as proximate causes of a death, the conduct of each of said persons is a proximate cause of death regardless of the extent to which each contributes to the death. A cause is concurrent if it was operative at the moment of death and acted with another cause to produce the death.” The defense objected to Instruction No. 14 as redundant. Jones also requested an instruction on aggravated battery as a lesser included offense of felony murder, because of the parties’ dispute on proximate cause. He argued that, without such an instruction, there was no charge to fit his theory of defense, i.e., that U died because of negligent medical care. The district judge declined to give an aggravated battery instruction, observing that lesser included offense instructions should not be given in felony-murder cases unless evidence of the underlying felony is weak or inconclusive. Testimony of Victim’s Wife Jones’ first argument on this direct appeal is that his counsel should have been allowed to question Sandgren about her consultation with a lawyer about the quality of her husband’s medical care. He asserts that the district judge’s refusal to allow this line of questioning on the ground of attorney-client privilege, see K.S.A. 60-426, violated his due process right to present a defense, namely, that the proximate cause of U’s death was medical malpractice rather than his flight from felonious conduct. Jones further asserts that this question is reviewable by this court de novo. Although earlier cases have not been abundantly clear on the standard of appellate review applicable to a district judge’s ruling on the existence and effect of attorney-client privilege, we agree with Jones that, when the underlying facts are undisputed, as they are here, the existence and effect of such a privilege is reviewable by us de novo. See Butler v. HCA Health Svcs. of Kansas, Inc., 27 Kan. App. 2d 403, 436-37, 6 P.3d 871 (1999). That being said, regardless of whether a privilege existed to prevent disclosure of either the fact of Sandgren’s contact with a lawyer or of the content of her discussion with that lawyer, exclusion of any responses Sandgren would have given to questions from defense counsel on this issue, however the questions or responses had been phrased, was inconsequential. Jones’ jury heard a great deal of testimony about U’s injuries, about the multiple complications that arose from them, and about the dispute among medical experts regarding the causal chain leading to U’s death. By comparison, the information Jones hoped to add from Sandgren’s testimony would have been minimally probative on the medicine or the causation involved in this case. When a district judge allows a criminal defendant to present evidence supporting his or her theory of defense such that the jury could reach a conclusion on its validity, exclusion of other evidence is not necessarily error. See State v. Lawrence, 281 Kan. 1081, 1086-87, 135 P.3d 1211 (2006); compare State v. Irons, 250 Kan. 302, 309, 827 P.2d 722 (1992) (reversing conviction when motion in limine completely “ ‘choke[d] off a valid defense in a criminal action’ ”). Here, the district judge’s evidentiary ruling against Jones, even if it could be characterized as legal error, a question we do not decide, was harmless well beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (harmless error standard for constitutional claims). Newly Discovered Evidence Jones also argues for the first time on this appeal that he is entitled to a new trial based on newly discovered evidence because he has learned that Sandgren actually did file a civil suit against U’s treating physicians and the hospital. He appends a copy of her petition to his brief. The State asserts, inter alia, that a newly discovered evidence argument cannot be raised for the first time on appeal and that an appendix to an appellate brief is no substitute for the record on appeal. The State is right on both counts. Generally, issues not raised before the district court cannot be raised for the first time on appeal. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). Should Jones wish to pursue this argument, he should first do so by way of motion in the district court. Moreover, material annexed to an appellate brief by way of an appendix that does not appear in the record on appeal cannot be considered. Supreme Court Rule 6.02(f) (2007 Kan. Ct. R. Annot. 37); In re Gershater, 270 Kan. 620, 633-34, 17 P.3d 929 (2001). We thus do not address the merits of this claim. Lesser Included Offense Instruction Jones’ final argument is that his jury should have been instructed on aggravated battery, a violation of K.S.A. 21-3412, as a lesser included offense of felony murder. He asserts that there was sufficient evidence presented at trial to support a guilty verdict on this crime and that his conviction of it would have been consistent with his theory of defense that he injured but did not cause the death of U. First-degree felony murder is “the killing of a human being ... in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” K.S.A. 21-3401(b). Robbery is an inherently dangerous felony that can support a felony-murder conviction, K.S.A. 21-3436(a)(3), and it was the underlying felony described in the charging document controlling trial of this case. Jones pleaded guilty to two counts of robbery before he went to trial on felony murder. The rule for lesser included offense instructions in felony-murder cases is: “When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder. It is only when the evidence of the underlying felony is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required. [Citations omitted.]” State v. Branning, 271 Kan. 877, 887, 26 P.3d 673 (2001) (quoting State v. Strauch, 239 Kan. 203, 218-19, 718 P.2d 613 [1986]). See State v. Edgar, 281 Kan. 47, 58, 127 P.3d 1016 (2006); State v. Boone, 277 Kan. 208, 219, 83 P.3d 195 (2004). In felony-murder cases, “ ‘[t]he analysis of whether the jury should have been instructed on lesser included offenses includes two steps.’ ” Edgar, 281 Kan. at 60. The first step is to evaluate the strength of the evidence of the underlying felony, and “ ‘[i]f the evidence of the underlying felony was strong, no instruction on the lesser included offenses need have been given.’ ” Edgar, 281 Kan. at 60; State v. Oliver, 280 Kan. 681, 703, 124 P.3d 493 (2005). It is only if the evidence of the underlying felony is not strong that the court then moves to the second step of considering “whether there was evidence on which a jury could have found the defendant guilty of the lesser included offenses.” Edgar, 281 Kan. at 60; see also State v. Boone, 277 Kan. at 220 (quoting State v. Sims, 262 Kan. 165, 172, 936 P.2d 779 [1997]). Jones’ lesser included offense argument is completely without merit for at least three reasons. First, regarding the first step, the evidence of tire underlying felony of robbery in this case was as strong as it could ever be. Jones had already pleaded guilty to the underlying crime. In addition, although no more was needed, the State presented numerous eyewitnesses who testified about the purse snatching and attempted intervention that led to U’s crush injuries. Under these circumstances, we need not proceed to the second step of the analysis for tire appropriateness of a lesser included offense instruction in a felony-murder case. If we were to proceed, the second fatal weakness in the argument is immediately apparent. Aggravated battery, the crime on which Jones insists his jury should have been instructed, was not, as a matter of law, a lesser included offense of felony murder based on the underlying crime of robbery. Third and finally, the instructions as given in this case adequately protected Jones’ due process right to present — and obtain a verdict consistent with — his theory of defense. Instruction No. 13 informed jurors: “[I]f you find defendant did cause the injuries inflicted on the person of Jonathan U, then you must determine whether the acts of the defendant contributed to the death of Jonathan U. If you find defendant’s acts contributed to the death of Jonathan U, then responsibility cannot be avoided by the fact that independent causes such as negligence of others also contributed to the death. However, if you find the proximate cause of death resulted solely from erroneous treatment of the physicians, you must acquit the defendant.” Under this instruction and the others quoted above, had the jury accepted Jones’ theoiy, it had an avenue to express that acceptance: acquittal. The jury did not choose this avenue. That was its prerogative. In view of all of the above, the judgment and sentence of the district court are affirmed.
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The opinion of the court was delivered by Nuss, J.: Walter L. Anderson directly appeals his jury convictions of felony murder and aggravated robbery. Our jurisdiction is under K.S.A. 22-3601(b)(l), conviction of an off-grid crime. The issues on appeal, and our accompanying holdings, are as follows: 1. Did the trial court err in refusing Anderson’s request to instruct on compulsion? No. 2. Did the trial court commit reversible error in allowing witnesses to testify about what the decedent had expressed at the crime scene? No. 3. Did the trial court commit reversible error in its instruction on presumption of innocence? No. Accordingly, we affirm the district court and convictions. FACTS Gustavo Ramirez-Mendez (Gus) worked as a maintenance man at the Silver City Apartment Complex in Kansas City, Kansas. Late the night of January 14, 2005, Gus was robbed and severely beaten outside his apartment. He died 6 days later as a result of his head injuries. Walter L. Anderson and Timothy Bryant were arrested and charged with aggravated robbery and felony murder in connection with the incident. The cases were separated for trial, and Bryant’s convictions were affirmed by this court in State v. Bryant, 285 Kan. 970, 179 P.3d 1122 (2008). Gus was friends with several residents of the apartment complex. He spoke very little English, but his friends were able to understand him. Rosie Bryant Allen (Rosie), codefendant Bryant’s mother, was one of those friends. At trial, Rosie testified that on the night of January 14, Anderson asked her to take him to a check-cashing store to get a $45 or $50 check cashed. They stopped at the liquor store on the way home, and after they returned, several people — including Bryant and Anderson — gathered at Rosie’s house to drink and socialize. According to Rosie, Gus arrived around 8 or 8:15 p.m. He asked Rosie’s grandson, Kevin, to take him to get his $118 paycheck cashed. Kevin and Gus then returned to Rosie’s and started drinking beer and whiskey with the others. A few hours later, Rosie told everyone they had to leave because she was tired. Otilia Dominguez (Otilia), who was visiting family at the apartment complex, testified that around 11 or 11:30 p.m. she heard a “real hard” knocking on the front door. When she looked out the peephole, she saw an arm break out the porch light. According to Otilia, she woke up her son-in-law, Miguel Garcia Rodriguez (Miguel), and told him they needed to call 911. At trial, a recording of her conversation with the 911 operator was played, disclosing that she said “two black guys were beating up on another guy.” At trial, however, when questioned about this statement, she denied that she had seen the three men. Otilia testified that when the police arrived, she and Miguel went outside and saw someone lying on the sidewalk. Miguel recognized the person as his friend, Gus. Gus’ coat, shoes, and socks had been tom off him. His billfold had been rummaged through and its contents strewn over the grass. At trial, Miguel testified that he asked Gus what happened. Gus only said “help me.” After being prompted by the police, Miguel asked Gus who did this to him. Gus “couldn’t say anything” but lifted up two fingers. Officer Mark Bundy, one of the first officers on the scene, testified that Gus was in and out of consciousness. He also testified that according to Miguel, the translator, “the victim had been walking through the complex and that he was attacked by two black males who had beat him up and taken his billfold.” Officer Amy Allen-Silhngs corroborated that Miguel interpreted for Gus, who said that two males had hit him really hard and taken his money. Similarly, Officer Jason Allen testified that his report reflected that based on Gus’ statements, the suspects were described as two black males. Anderson gave a videotaped statement to the police in which he admitted that he participated in the robbery. In the statement, Anderson explained what happened as he, Gus, and Bryant walked through the apartment grounds. His trial testimony was essentially the same, except there he stated, for the first time, that he went through Gus’ pockets only because he felt threatened by Bryant. The following facts are taken from his statement played to the jury, his testimony, or both. According to Anderson, he had known Bryant for 3 years, and he first met Gus the previous fall at Rosie’s house. Anderson worked at Deffenbaugh and was paid between $360 and $420 every Friday. However, on the day of the incident, he did not pick up his paycheck because he had no ride and was unable to go to work. He did pick up a $65 money order from Rosie that night as repayment for money her husband had borrowed from Anderson. Rosie took Anderson to the check cashing store and they stopped at a liquor store on the way back. People gathered at her house to drink and party and several of them, including himself, Bryant, and Gus, were smoking marijuana. According to Anderson, Rosie finally told everyone to leave because she was tired and she was sick of Bryant asking her for money. Gus left first, then Anderson, and Bryant left shortly thereafter. As they walked toward the entrance to the apartment complex, Gus stopped and turned around, and Bryant and Anderson caught up with him. As they walked, Gus said that he wanted to go to a bar, but Anderson said that he wanted to go home. As they walked through the complex, Bryant asked Gus for money, but Gus replied he did not have any. Bryant told Gus he knew that Gus had money because Gus had just cashed his check. Gus responded, “[N]o, go to the bar.” According to Anderson, when they got to Gus’ apartment, Gus threw his duffel bag inside and shut the door. At that point, Anderson heard Gus and Bryant exchanging words. Gus walked away as if he was going to the other side of the building. Bryant then told Anderson to ask Gus for money. Anderson said “no” and indicated that he was going home. Bryant again told Anderson to ask Gus for money, so Anderson walked through the entryway where Gus was standing and asked him for money. Anderson explained that because he previously had borrowed money from Gus, he figured he could borrow money again and later pay Gus back. He thought he then would simply give the borrowed money to Bryant, so Bryant would leave Gus alone. Gus denied Anderson’s request, saying he wanted to go to the bar. At that point, Anderson heard a fight break. Then Bryant came past him down the steps and hit Gus in the head with a gin bottle. After this blow, Anderson asked Bryant what he was doing. Bryant then told Anderson to help him get Gus’ money. Anderson went through Gus’ pockets but did not find any money. He gave Bryant Gus’ wallet. Bryant told him to keep looldng, so he went through Gus’ shoes and socks but still did not find anything. Anderson asked Gus if he was all right because Gus was moaning and groaning. Gus “waived his hands like he was alright, go.” Anderson jumped over the fence, followed by Bryant, and they both started running. They ran to an apartment building behind the complex where they bought and smoked crack cocaine. Anderson paid with the money from the cashed money order. He then went to Rosie’s house, but no one answered the door. He eventually walked IV2 to 2 hours to his sister’s apartment. A jury convicted Anderson of felony murder and aggravated robbery, and he was sentenced to a life term without the possibility of parole for 20 years (hard 20) for the murder plus 102 months in prison for the aggravated robbery, to be served consecutively. Additional facts will be provided as necessary to the analysis. ANALYSIS Issue 1: The trial court did not err in refusing Anderson’s request to instruct on compulsion. Anderson argues that the trial court erred when it refused to give a jury instruction on compulsion in violation of his absolute right to present his sole theory of defense. The State counters that the court was not required to give the instruction because insufficient evidence was presented to support it. The parties disagree somewhat on the appropriate standard of our review. Citing State v. Bell, 276 Kan. 785, 80 P.3d 367 (2003), Anderson argues he is entitled to an instruction on his theory of the case even where the evidence is slight and supported only by his own testimony. The State responds that the trial court has a duty to instruct the jury on the law applicable to the parties’ theories, so far as those theories “are supported by competent evidence,” citing State v. Farmer, 212 Kan. 163, 510 P.2d 180 (1973). The State also contends that if there is “insufficient evidence supporting the defense or where it would be misleading to the jury, the court is not required to give the instruction,” citing State v. Josenberger, 17 Kan. App. 2d 167, 836 P.2d 11 (1992). (Emphasis added.) As these authorities suggest, some confusion has arisen over the years concerning our precise standard of review. This court has sometimes used the “competent evidence” standard articulated in Farmer and has sometimes slightly varied it. See, e.g., State v. Myers, 233 Kan. 611, 616, 664 P.2d 834 (1983) (duty to instruct jury on law applicable to parties’ theories “so far as those theories are supported by any competent evidence”). Also, the “misleading to the jury” standard from the 16-year-old Court of Appeals’ decision in Josenberger has been used only in that case. Additionally, in Bell and many cases since then we have failed to include an integral part of our earlier standard for reviewing requests for instruction on a theory of defense: that the evidence must also be sufficient to justify a jury finding in accordance with that theoiy. Accordingly, a review and clarification of our standard is necessary. We begin by noting that in the compulsion case of State v. Oliver, 280 Kan. 681, 706, 124 P.3d 493 (2005), cert. denied 547 U.S. 1183 (2006), we held: “The district court ‘must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence.’ State v. Williams, 277 Kan. 338, 356, 85 P.3d 697 (2004). ‘A defendant is entitled to an instruction on his or her theory of the case even though the evidence thereon is slight and supported only by the defendant’s own testimony. [Citation omitted.]’ State v. Bell, 276 Kan. 785, 792, 80 P.3d 367 (2003). Further, as mentioned, this court reviews the evidence in the light most favorable to the party requesting the instruction when considering the district court’s refusal to give a requested instruction. Williams, 277 Kan. at 356.” The legislature has addressed the defense of compulsion in K.S.A. 21-3209, which states: “(1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct. “(2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.” PIK Crim 3d. 54.13 echoes the statute. In this court’s interpretation of compulsion, it has expanded the statutory factors and has repeatedly held: “[T]o constitute the defense of compulsion, coercion or duress must be present, imminent, impending, and continuous. It must be of such a nature as to induce a well-grounded apprehension of death or serious bodily injury to oneself or one’s family if the act is not done. The doctrine of compulsion cannot be invoked as an excuse by one who had a reasonable opportunity to escape the compulsion or avoid doing the act without undue exposure to death or serious bodily harm. A threat of future injury is not enough. [Citations omitted.]” State v. Matson, 260 Kan. 366, 385, 921 P.2d 790 (1996). Now that we have reviewed compulsion’s most recent history, we address clarification. Specifically, before our Bell decision in 2003, we often had stated that the evidentiary standard for granting the compulsion instruction request was something greater than “slight and supported only by the defendant’s own testimony.” For example, that same year, in State v. Kessler, 276 Kan. 202, 210, 73 P.3d 761 (2003), we had recognized some similarities to the Bell standard but also some differences: “A defendant is entitled to instructions on the law applicable to his or her theory of defense [1] if there is evidence to support the theory. [2] Furthermore, there must be evidence which, viewed in the light most favorable to the defendant, would justify a jury finding in accordance with the defendant’s theory. State v. Flournoy, 272 Kan. 784, 806, 36 P.3d 273 (2001); State v. Gonzales, 253 Kan. 22, 23, 853 P.2d 644 (1993).” (Emphasis added.) Our decision 30 years before Kessler in State v. Seely, 212 Kan. 195, 197, 510 P.2d 115 (1973), made the same two distinctions, but in a slightly different way: “A criminal defendant is, of course, entitled to an instruction on his theory of defense [1] if it is supported by any evidence whatever. [Citations omitted.] [2] On the other hand, there must be evidence which, viewed in the light most favorable to the defendant, would justify a jury finding in accordance with the defendant’s theory. State v. Hamrick, 206 Kan. 543, 479 P.2d 854; State v. Harden, 206 Kan. 365, 480 P.2d 53, Syl. ¶ 5.” (Emphasis added.) Similarly, our decision 10 years before Kessler in State v. Gonzales, 253 Kan. 22, 23, 853 P.2d 644 (1993), made the same two distinctions, but yet again in a slightly different way: “A defendant is entitled to an instruction on his or her theory of defense [1] if the theory is supported by evidence. [2] At the same time, ‘there must be evidence which, viewed in the light most favorable to the defendant, would justify a jury finding in accordance with the defendant’s theory.’ State v. Seely, 212 Kan. 195, 197, 510 P.2d 115 (1973).” (Emphasis added.) The same year as the Gonzales decision, this court stated the second standard in a slightly different way in State v. Hernandez, 253 Kan. 705, 710-11, 861 P.2d 814 (1993). The Hernandez court held that, for an instruction to be given on the complete defense of “defense-of-another,” the evidence as a whole must be sufficient to “support an affirmative finding by a rational factfinder” on the defendant’s theory. 253 Kan. at 710-11. There, the legal issue was whether the defendant not only sincerely, but also “reasonably,” believed it was necessary to kill to defend his sister. 253 Kan. at 711. This court held the trial court correctly refused to give the requested instruction, concluding “that a rational factfinder could not find that [defendant] acted in defense of his sister ... at the time he shot [victim.]” 253 Kan. at 713. As is evident from the language of the Kessler component, and its variations, presently missing from the standard of review- — -that the evidence must also be sufficient to justify a jury finding in accordance with defendant’s theory — it is somewhat similar to our current standards for reviewing juiy instructions on lesser included offenses. We defined that standard recently in the murder case of State v. White, 284 Kan. 333, 347, 161 P.3d 208 (2007): “ ‘ “A trial court must instruct the jury on a lesser included offense where there is some evidence which would reasonably justify a conviction’ of the lesser offense. [Citation omitted.] ‘If the defendant requests the instructions, the trial court has a duty to instruct die jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive.’ [Citation omitted.] ‘However, the duty to so instruct arises only where there is evidence supporting the lesser crime.’ [Citation omitted.] An instruction on a lesser included offense is not required if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented. [Citation omitted.]” ’ State v. Boyd, 281 Kan. 70, 93, 127 P.3d 998 (2006) (quoting State v. Drennan, 278 Kan. 704, 712-13, 101 P.3d 1218 (2004).” (Emphasis added.) The White court upheld the trial court’s denial of a requested instruction on voluntary manslaughter which was based upon the imperfect version of a complete defense: defense-of-another. As we concluded, “[s]imply put, a jury could not reasonably convict on this lesser included offense based upon the evidence presented. [Citations omitted.]” 284 Kan. at 353. In short, case law indicates that in situations similar to Anderson’s complete defense of compulsion — Hernandez (alleged perfect and complete defense-of-another) and White (alleged imperfect defense-of-another) — the affirmative-defense-based instructions can only be given when the evidence is sufficient to justify a rational factfinder finding in accordance with that defense theory. The particular defense of compulsion is an especially appropriate fit for this test. As mentioned, K.S.A. 21-3209(1) provides: “A person is not guilty of a crime ... if he reasonably believes that death or great bodily harm will be inflicted upon him . . . if he does not perform” the act. (Emphasis added.) Similarly, our compulsion case law adds that the coercion or duress must be “of such a nature as to induce a well-grounded apprehension of death or serious bodily injury to oneself or one’s family if the act is not done.” (Emphasis added.). Matson, 260 Kan. at 385; State v. Davis, 256 Kan. 1, Syl. ¶ 3, 883 P.2d 735 (1994); State v. Hunter, 241 Kan. 629, 645, 740 P.2d 559 (1987); State v. Milum, 213 Kan. 581, 583, 516 P.2d 984 (1973). In sum, our compulsion statute provides that a juiy must consider if the defendant “reasonably” believes, and our case law provides that a jury must consider if the coercion or duress induces a “well-grounded” apprehension. As a result, merely “slight” evidence of these objective standards of reasonableness would appear to be insufficient to justify a rational factfinder finding for the defendant, and therefore insufficient to warrant the giving of a compulsion instruction. See Hernandez, 253 Kan. at 710-711 (defense-of-another required defendant’s belief be reasonable; trial court correctly refused to give requested instruction because rational factfinder could not find that defendant acted in defense of his sister when he shot victim). Accordingly, we clarify that our standard for reviewing a trial court’s refusal to instruct on defendant’s theory of defense is as follows: “A defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory. However, there must be evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant’s theory.” With this clarification, all contrary holdings of this court are disapproved. As with any issue, the evidence of the defendant’s theory of defense certainly can be supported only by his or her own testimony. With this clarification of our standard, we now turn to the facts and arguments of the instant case. Anderson argues that the facts show he feared Bryant would injure him if he did not do what he was told. He points out that immediately before Biyant told Anderson to help him obtain Gus’ money, Anderson had seen Bryant hit Gus in the head with a bottle. He then realized Bryant could use the same bottle to attack him. Anderson also calls our attention to Biyant’s aggressive tone of voice. He testified: “Q. The last thing you said basically was that you turned around, or you looked over your shoulder or something, and you saw Tim [Biyant] strike Gustavo in the head; correct? “A. Yes, sir. “Q. Do you know for sure what he struck him in the head ivith? “A. I seen something clear in his hand, and that’s what the gin bottle was made out of. It was glass. “Q. What happened? “A. He hit Gustavo, and Gustavo fell. And I asked, what are you doing. He said, help me get his money. And when he said it, he said it in a way like a — an aggressive way. So I got scared because I didn’t know if he was going to hit me or not, so I went through the man’s pockets. “Q. Okay. Why did you go through his pockets, WalterP “A. Because I thought he might hit me, too. “A. I proceeded to go through his pockets, but I didn’t find nothing. [Bryant] was going through the pockets. I did give [Biyant] his wallet, and that’s when [Bryant] told me, keep looking. And— “Q. How did he say that to you? “A. He told me, keep looking, and I went — and as I went — proceeded to go through Gustavo’s shoes and socles.” (Emphasis added.) Anderson also recites the facts from the compulsion case of Hunter, 241 Kan. 629, and suggests that he was likewise entitled to such an instruction. However, he does not attempt to draw parallels between the facts of both cases. He essentially only references Hunter to establish that compulsion is a defense to felony murder because it is a defense to the underlying felony. Anderson additionally points to the trial court’s statement when denying his request for the compulsion instruction: “Other than his testimony, there is nothing in his actions that evening that would support his contention in this Court’s opinion that he was under a compulsion to aid and abet in the commission of the act of aggravated robbery.” (Emphasis added.) He argues the italicized language proves that, contrary to Kansas law, the trial court ruled that a defendant’s testimony alone is insufficient to support the instruction. See Bell, 276 Kan. at 792 (compulsion evidence can be supported even if only by defendant’s own testimony). While this component of Bell remains intact for our standard of review, it is not dispositive of the issue as Anderson argues. A review of the trial court’s comments in context reveals the court found that Anderson’s testimony describing the episode theoretically could have been sufficient, but practically its content was not: “Well, I listened intently to the defendant’s testimony in this case, and I’ve read the statute involving compulsion, and that’s 21-3209.1 have read the PIK instruction on compulsion, and I have read some of the caselaw suggested by those sources. And to the best of my ability to discern the meaning or intent of that instruction, your client’s testimony fails to meet the threshold issue. The fact situation, as testified to by your client, at no time that evening did the codefendant threaten him physically, verbally in any way. In fact, the apparent one act of aggression occurred between the codefendant and the victim. “The threat, whether there was one or not, appears to be purely speculative on behalf of your client. There is no direct evidence of the same. There is no direct evidence of an imminent threat to use force against his person if he did not comply.” (Emphasis added.) The trial court then concluded that not only was Anderson’s testimony insufficient to warrant the instruction, but his actions were also, i.e., all of his evidence was inadequate: "Other than his testimony, there is nothing in his actions that evening that would support his contention in this Court’s opinion that he was under a compulsion to aid and abet in the commission of the act of aggravated robbeiy, and that is the going dirough the pockets of the fallen Gustavo.” (Emphasis added.) Anderson next argues that these same trial court comments reveal that it erred in requiring an explicit threat of harm by Bryant toward Anderson. He cites State v. Moore, 269 Kan. 27, 4 P.3d 1141 (2000), in support. Moore, however, was a robbeiy case in which compulsion was not an issue. Moore only makes the point that a threat does not have to be explicit to meet the requirement for robbery. 269 Kan. at 33. Additionally, Moore involved a stranger’s threat to the victim. Here, by contrast, the alleged threat was from a man who had been known to the other man for 3 years. We now turn to the State’s response to the heart of the compulsion issue: whether the evidence was sufficient to warrant the instruction. Specifically, did Anderson rob Gus under the compulsion or threat of the imminent infliction of death or great bodily harm, i.e., did he reasonably believe that it would be inflicted upon him if he did not help Bryant? The State argues that Anderson did not know whether Bryant would hit him also and that there was never any real threat directed at Anderson. It points out that Anderson asked Gus for money so Anderson could give it to Bryant and Bryant would then leave Gus alone. The State also points out that Anderson did not mention the threat allegation until trial. He never told the police he went through Gus’ pockets because he was threatened by Bryant. Rather, according to Anderson’s videotaped statement, Bryant merely “asked” him “to help him go through” Gus’ pockets; Bryant “asked me to help him get the money out and which I proceeded to do that.” The State emphasizes that when asked by police at the end of the interview if there was anything that Anderson wanted to add, he said “no sir” and never mentioned feeling pressured to commit the crimes. The State also draws our attention to the fact that Anderson simply walked away when he had finished going through Gus’ pockets. On cross-examination, Anderson admitted that he finally left “because it wasn’t right” and Bryant did nothing to stop him from leaving. The State points out that Bryant immediately followed and argues that the doctrine of compulsion cannot be invoked by one who had a reasonable opportunity to withdraw or avoid doing the act. Matson, 260 Kan. at 385. The State further points out that Anderson and Bryant straightaway bought a $20 piece of crack cocaine and got high together right after the purchase. Although this evidence relates to conduct after the crimes, Anderson’s counsel at oral arguments conceded that it could be considered in the compulsion calculus. We agree. See Myers, 233 Kan. at 614-15 (court observed that after crime, defendant made no attempt to check on family which had allegedly been threatened with harm); cf. State v. Sanchez-Cazares, 276 Kan. 451, 459, 78 P.3d 55 (2003) (circumstances which may give rise to the inference of premeditation include “ ‘the defendant’s conduct before and after the killing’ ”). Accordingly, as the State argues, we can also consider that Anderson chose not to report the crimes that he had been allegedly compelled to perform — particularly when he noticed police at the crime scene just minutes after his involvement. See Myers, 233 Kan. at 615-16 (court observed that defendant made no attempt to notify authorities after crime so cofelon could be apprehended). We agree with the State. Under our facts, no rational factfinder could have found that Anderson had a reasonable belief that death or great bodily harm would be inflicted upon him by Bryant if he did not cooperate in the robbery. A rational jury would have great difficulty accepting Anderson’s counsel’s characterization of an approximate 2-minute compulsion, sandwiched between two lengthy periods of free will. According to counsel, Anderson essentially exercised his free will the entire night until the moment Bryant struck Gus with a bottle and ordered Anderson to search Gus for money. Under counsel’s characterization, the compulsion that began at that point ended — and free will essentially reappeared — about 2 minutes later, when Anderson stopped searching Gus for money and left “because it wasn’t right.” Clearly, recognizing it “wasn’t right” could have been accomplished at any time, including when Bryant first told Anderson in an “aggressive way” to search Gus for money. Anderson’s theory of compulsion to commit the robbery under his reasonable belief of imminent infliction of death or great bodily harm is further greatly undercut by his own testimony that he and Bryant basically left the crime scene together; that he left voluntarily without any Bryant efforts to stop him; that they went straight to a nearby drug supplier and bought crack cocaine; and that they immediately shared the drug and got high together. Finally, our rejection of Anderson’s theory is well supported by the quadruple homicide case of Oliver, 280 Kan. 681. There, defendant Oliver testified that when he, Earl Bell, and a third man arrived at Raeshawnda Wheaton’s house, he and Wheaton went into the bedroom to talk. Oliver thought he heard gunshots but did not think anything of it. He then saw house occupant Odessa Ford stumble. When Oliver returned to the living room, Bell was holding a gun and told him to check occupant Jermaine Levy, whose body was upright on the floor with two gunshot wounds to the head and neck. Oliver complied, apparently pulling out one of the pockets and looking for money. Bell then entered the bedroom and shot Wheaton multiple times. Oliver said he was too frightened to run. He testified he did not inform police that Bell had committed the crimes because he “ ‘just [didn’t] tell on people.’ ” 280 Kan. at 687. Oliver argued that when the evidence was viewed in the light most favorable to him, it showed he did not know that Bell was planning to rob anyone at the time he agreed to cooperate with Bell; that Oliver checked Levy’s pocket only under duress; and that Bell was holding a gun and directing his actions. He argued he was afraid his life would be in danger if he did not comply with Bell’s directions. The Oliver court upheld the refusal to instruct even under our former, lower standard of “slight evidence” in support of Oliver’s compulsion theory. We acknowledged that while there was some minimal evidence that he was under the influence of Bell, there was no evidence supporting the degree of compulsion necessary to merit an instruction on that defense. 280 Kan. at 707. In light of our holding, we need not consider the State’s other arguments, e.g., that compulsion is not available because Anderson willfully or wantonly placed himself in a situation in which it was probable that he would be subjected to compulsion or threat. See K.S.A. 21-3209(2). Issue 2: The trial court did not commit reversible error in allounng witnesses to testify about what Gus had expressed at the crime scene. Next, Anderson argues that his confrontation rights under the Sixth Amendment to the United States Constitution were violated when the trial court admitted into evidence communication made at the scene by the decedent, Gus, to Miguel, the interpreter. Anderson argues that Miguel should not have been allowed to testify about what Gus expressed to him, nor should law enforcement have been allowed to testify about what they learned from Gus via Miguel. See Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). Anderson acknowledges that while he objected on hearsay grounds at trial, he raises the confrontation issue for the first time on appeal, which generally precludes our review. See State v. Denney, 278 Kan. 643, 651, 101 P.3d 1257 (2004) (“[Wjhere constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review.”). He contends our consideration of the issue is necessary to prevent the denial of his fundamental rights. See State v. Kirtdoll, 281 Kan. 1138, 1149, 136 P.3d 417 (2006) (exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal include consideration of the theory is necessary to prevent denial of fundamental rights). The State responds that the issue of the testimony admissibility was not properly preserved and should not be considered under any exception. It points out that Anderson not only failed to raise the confrontation issue below, but also that he failed to object on any grounds to the testimony of several officers, contrary to our contemporaneous objection rule contained in K.S.A. 60-404; see also Kirtdoll, 281 Kan. 1138, Syl. ¶ 7 (“As a general rule, a party cannot raise an issue on appeal where no contemporaneous objection was made and where the trial court did not have an opportunity to rule.”). The State further argues that even if we overlook Anderson’s threshold problems and consider the confrontation issue, and even if we then conclude that the court admitted Gus’ communications through Miguel and police testimony in violation of the Confrontation Clause, then the error is harmless. Assuming any error exists, we agree it is harmless, which reduces our analysis to that single issue. Anderson does not specify which statements he is challenging. The State, however, identifies four instances in which this evidence was introduced at trial: the testimony of Miguel, and officers Bundy, Sillings, and Allen. Miguel testified that he asked Gus who did this to him: Gus lifted up two fingers. Officer Bundy testified that Miguel told him that Gus “was attacked by two black males who had beat him up and taken his billfold.” Officer Sillings similarly testified that Miguel interpreted for Gus, who said that two males had hit him really hard and taken his money. Officer Allen testified that his report reflected that based upon Gus’ statements, the suspects were described as two black males. As the State points out, there are several factors to consider in determining whether a violation of the Confrontation Clause is harmless: “Violation of the Confrontation Clause is subject to analysis under the federal harmless error rule. The correct inquiry is whether ... a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, and, of course, the overall strength of the prosecution’s case.” State v. Nguyen, 281 Kan. 702, Syl. ¶ 6, 133 P.3d 1259 (2006). In examining the magnitude of the assumed error pursuant to the Nguyen guidelines, we begin by considering Anderson’s own statements. He admitted during his videotaped statement, which was played to the jury, and during his testimony at trial that he aided and abetted the commission of aggravated robbery — the underlying felony for the felony murder. In particular, he admitted that after Biyant struck Gus in the head with a gin bottle, he went through Gus’ pockets looking for money. He then turned over Gus’ wallet to Bryant. For the same reason, he removed Gus’ shoes and socks. Because it was uncontroverted that Gus’ death occurred from the commission of this inherently dangerous felony, Anderson’s own admissions also proved that he committed felony murder. See K.S.A. 21-3401 (“Murder in the first degree is the killing of a human being committed: . . . (b) in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.”); K.S.A. 21-3436(a) (“Any of the following felonies shall be deemed an inherently dangerous felony ... [4] aggravated robbery, as defined in K.S.A. 21-3427.”); and K.S.A. 21-3427 (“Aggravated robbery is a robbery . . . committed by a person who . . . inflicts bodily harm upon any person in the course of such robbery.”). The objectionable testimony of the other witnesses was primarily corroborative of Anderson’s admissions. See Nguyen, 281 Kan. 702, Syl. ¶ 6 (consider importance of offending witnesses’ testimony in prosecution’s case, overall strength of its case, and whether testimony cumulative). Under these circumstances, we must also reject Anderson’s position at oral argument that Gus’ inadmissible communication suggesting that two people actually struck him, versus only Bryant striking him and Anderson merely robbing him, had any likelihood of changing the result of the trial. See State v. Walters, 284 Kan. 1, Syl. ¶ 6, 159 P.3d 174 (2007) (under federal constitutional error standard, error harmless beyond a reasonable doubt when it had little, if any, likelihood of having changed the result of the trial). Issue 3: The trial court did not commit reversible error in its instruction on presumption of innocence. Finally, Anderson argues that the trial court erred in instructing the jury that it was to presume he was not guilty “until” it was convinced beyond a reasonable doubt that he was guilty and not “unless” it found him guilty. The State agrees that the wrong instruction was given but argues that the error is not clearly erroneous. Both parties agree that because Anderson did not object to the instruction at trial, the appropriate standard of review is clear error. See 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 trial error had not occurred.” ’ [Citations omitted.]” State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). The trial court instructed the jury: “The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty. “The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) Anderson argues that the proper instruction, as reflected in PIK Crim. 3d 52.02, is instead: “The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.” (Emphasis added.) This court recently discussed the identical argument in State v. Gallegos, 286 Kan. 869, 875-78, 190 P.3d 226 (2008). There, the court rejected the defendant’s argument for two reasons. First, it noted that it had previously held that this instruction does not rise to the level of reversible error. 286 Kan. at 871-77. Second, the court held that Gallegos had invited error by requesting the instruction he sought to challenge on appeal. 286 Kan. at 877. It is unclear whether Anderson requested the offending instruction which would provide application of the invited error doctrine. However, the Gallegos court’s first basis for rejecting the argument is sufficient here. That court reiterated the rationale from State v. Wilkerson, 278 Kan. 147, Syl. ¶ 7, 91 P.3d 1181 (2004). There, “the defendant claimed that the use of the term until’ rather than ‘unless’ misled the “ ‘jury into believing that [it] should expect to be convinced of the defendant’s guilt.’ ” 278 Kan. at 158.” Gallegos, 286 Kan. at 877. Both the Gallegos and Wilkerson courts noted that the instruction should have used the word “unless” instead of “until,” but neither court determined that the error warranted reversal. They also emphasized that the instructions, when read as a whole, accurately stated the law, so that the jury could not reasonably have been misled by them. Gallegos, 286 Kan. at 877; Wilkerson, 278 Kan. at 158. Anderson has not presented any new facts or law that merit reconsideration of this issue. Consequently, the use of the outdated instruction did not constitute clear error. Affirmed.
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Per Curiam-. This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Russell B. Cranmer, of Las Vegas, Nevada, an attorney admitted to the practice of law in Kansas. The formal complaint filed against the respondent alleged a violation of Kansas Rule of Professional Conduct (KRPC) 8.4(b) (2007 Kan. Ct. R. Annot. 559) (commission of a criminal act). A hearing was held before a panel of the Kansas Board for Discipline of Attorneys, where the respondent was both personally present and represented by counsel. Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court: “FINDINGS OF FACT “The Hearing Panel finds the following facts, by clear and convincing evidence: “1. Russell B. Cranmer (hereinafter ‘the Respondent’) is an attorney at law. . . . His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Wichita, Kansas. . . His current address is . . . Las Vegas[, Nevada]. . . . The Respondent was admitted to the practice of law in the State of Kansas in April, 1990. “2. During May — July, 2006, a Wichita police officer and several women employed in an office building adjacent to respondent’s home observed certain conduct by the Respondent in his home. “3. As a result of the women’s observations and municipal complaints, the Municipal Prosecutor of Wichita, Kansas, charged the Respondent with eight counts of lewd and lascivious behavior. “4. City of Wichita Municipal Ordinance 5.68.140(b) provides that lewd and lascivious behavior is a misdemeanor and includes: ‘Publicly exposing a sex organ or exposing a sex organ in the presence of a person who is not the spouse of the offender and who has not consented thereto, with intent to arouse or gratify the sexual desires of the offender or another.’ “5. On August 7, 2006, the Respondent, through counsel Leslie Hulnick, self-reported the charges to the Disciplinary Administrator. “6. After a bench trial, on January 19, 2007, the Respondent was found guilty of seven counts of lewd and lascivious behavior in the Municipal Court of Wichita, Kansas. Despite his counsel’s recommendations, the Respondent did not appeal the convictions to the Sedgwick County District Court. “7. The Court fined the Respondent and placed him on probation. As part of the probation, the Respondent was required to undergo an evaluation and participate in any recommended treatment at Prairie View in Newton, Kansas. The treatment professional at Prairie View who conducted the evaluation of the Respondent, determined that no treatment was warranted. In February, 2008, the Respondent completed all the terms and conditions of his probation and the Court discharged the Respondent from further obligation. “8. During the summer of 2007, the Respondent ceased practicing law, declared inactive status on his annual registration form, and moved to Las Vegas, Nevada. During the hearing on this matter, the Respondent indicated that he does not intend to practice law again. Further, the Respondent is currently unemployed. “CONCLUSIONS OF LAW “1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4(b), as detailed below. “2. ‘It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s . . . fitness as a lawyer in other respects.’ KRPC 8.4(b). In this case, the Wichita Municipal Court convicted the Respondent of seven counts of lewd and lascivious behavior. Accordingly, the Hearing Panel concludes that the Respondent committed criminal acts and those criminal acts reflect directly on the Respondent’s fitness as a lawyer in other respects, in violation of KRPC 8.4(b). “3. The Disciplinary Administrator also alleged that the Respondent violated Kan. Sup. Ct. R. 211(b) [2007 Kan. Ct. R. Annot. 304], Kan. Sup. Ct. R. 211(b) requires attorneys to file Answers to Formal Complaints. ‘The respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’ In this case, the Respondent failed to file a written Answer to the Formal Complaint. However, at the hearing on this matter, counsel for the Respondent indicated that the failure to file the Answer was his shortcoming and not that of the Respondent. Accordingly, the Hearing Panel concludes that the Respondent did not violate Kan. Sup. Ct. R. 211(b). “AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS “In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “Duty Violated. The Respondent violated his duty to the public and the legal profession to maintain his personal integrity. “Mental State. The Respondent knowingly violated his duty. “Injury. As a result of the Respondent’s misconduct, the Respondent caused potential injury to the legal profession. “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: “A Pattern of Misconduct. The Wichita Municipal Court convicted the Respondent of seven counts of lewd and lascivious behavior for activity occurring on separate occasions. Accordingly, tire Respondent engaged in a pattern of misconduct. “Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent failed to fully acknowledge the wrongful nature of his conduct. “Illegal Conduct, Including that Involving the Use of Controlled Substances. The Respondent engaged in criminal conduct, as evidenced by his criminal convictions. “Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present: “Absence of a Prior Disciplinary Record. The Respondent engaged in the active practice of law for a period of 17 years. Throughout that period of time, the Respondent was not disciplined. Thus, the Hearing Panel concludes that the absence of a prior disciplinary record is a factor in mitigation. “Imposition of Other Penalties or Sanctions. The Wichita Municipal Court ordered the Respondent to pay fines and serve a term of probation. The Respondent complied with the orders of the Court. As such, the Hearing Panel concludes that other penalties or sanctions were imposed on the Respondent. “Standards Considered “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘Standard 5.12 ‘Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer s fitness to practice.’ Standard 5.12 does not appear to directly apply to this case because the Respondent’s conduct does not seriously adversely reflect on his fitness to practice. ‘Standard 7.3. ‘Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed [as a professional] and causes injury or potential injury to a client, the public, or the legal system.’ In the opinion of the Hearing Panel, Standard 7.3 appears to be the standard that is the closest fit to the circumstances of this case. “RECOMMENDATION “The Disciplinary Administrator recommended that the Respondent be suspended for a period of one year and that die Respondent undergo a reinstatement hearing pursuant to Kan. Sup. Ct. R. 219 [2007 Kan. Ct. R. Annot. 350], The Respondent recommended that he be informally admonished by the Disciplinary Administrator. “The Hearing Panel struggled widi making its recommendation for discipline in this case. On one hand, the Wichita Municipal Court convicted the Respondent of seven misdemeanor counts of lewd and lascivious behavior. On the other hand, however, die Respondent has practiced law for 17 years without being disciplined. “The Hearing Panel reviewed In re Ketter, 268 Kan. 146, 992 P.2d 205 (1999), which involved similar, but more serious, misconduct. In that case, despite that the Respondent had previously been disciplined for the same misconduct, the Court placed the Respondent on probation for a period of three years to allow the Respondent to participate in a treatment program. Here, a treatment professional determined that treatment was not warranted. “The Disciplinary Administrator’s recommendation that the Respondent be suspended from the practice of law and that the Respondent undergo a reinstatement hearing pursuant to Kan. Sup. Ct. R. 219 does not appear to be warranted in this case. There was no evidence presented that the Respondent’s misconduct impacted his clients or that he has ever engaged in any inappropriate conduct with any clients. Further, the Respondent’s misconduct had nothing to do with the practice of law. Thus, the Hearing Panel does not believe that suspension from tlie practice of law is warranted in this case. “Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be censured by the Kansas Supreme Court and that the Court publish the censure in the Kansas Reports.” The respondent elected not to file any exceptions to the final hearing report of the panel. Thus, the respondent admits the allegations of the complaint. Supreme Court Rule 212(c) (2007 Kan. Ct. R. Annot. 317). This court also finds that the allegations in the disciplinary complaint against the respondent have been established by clear and convincing evidence, and the court adopts the findings of the hearing panel. In In re Ketter, 268 Kan. 146, 992 P.2d 205 (1999), the panel found a violation of KRPC 8.4 by reason of a 1998 misdemeanor conviction which arose out of an incident in a Topeka grocery store parking lot. The panel indicated that a 17-year-old boy reported he saw Ketter masturbating while sitting in his car, which was parked in a store parking lot. Ketter denied the charge and testified at his bench trial. Ketter was convicted of this misdemeanor. The Disciplinary Administrator also admitted into evidence three convictions for indecent exposure in North Carolina dating back to 1987 and a previous charge of lewd and lascivious conduct in Kansas in 1994. Although Ketter was found not guilty by reason of diminished capacity of the Kansas 1994 charge, Ketter nevertheless was informally admonished for that offense. After considering the facts surrounding the 1998 misdemeanor, the panel recommended that Ketter be disbarred. The Disciplinary Administrator recommended an indefinite suspension. After extensive discussion and examination of detailed information concerning the charge and prior disciplinary actions against Ketter, together with an extensive report from a psychologist, Dr. George Hough, who was treating Ketter at the time of the hearing before the court, the court imposed its punishment subject to four conditions set forth in the opinion. 268 Kan. at 160-61. It must be noted that this court also found that some of the conclusions as well as the findings were not supported by clear and convincing evidence. See 268 Kan. at 154-55. Ultimately, Ketter was decided by a majority of four justices with three justices dissenting and concluding that a sanction be imposed. In contrast, the respondent in this case entered pleas of guilty in each of the seven counts before the municipal court of Wichita; he did not appeal his convictions. While the respondent indicated to this court and the panel that he had been referred to a treating professional who in effect, after meeting with the respondent, determined that no treatment was warranted, the medical report was never submitted to this court and does not appear in the record. Unlike Ketter, this court has very little evidence to consider concerning respondent’s present condition. The court acknowledges the substantial mitigating factors presented by the respondent in this case. However, these mitigating factors must be weighed against the respondent’s plea of guilty to seven misdemeanor counts of lewd and lascivious behavior before the Wichita Municipal Court. Although we generally give some deference to the hearing panel’s findings of fact and conclusions of law, see In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003), a panel’s recommendation as to the appropriate discipline is advisory only and shall not prevent the court from imposing discipline greater or lesser than that recommended by the. panel or the Disciplinary Administrator. Rule 212(f); see In re Pittman, 285 Kan. 1133, 1141, 179 P.3d 404 (2008). Unlike the panel, we do not find Ketter to provide guidance for our consideration regarding the imposition of discipline in this case. Based upon this court’s consideration of the entire record, including the findings of fact and conclusions of law which we conclude are supported by clear and convincing evidence, as well as the arguments of counsel and statements of the respondent before this court, we conclude that the appropriate discipline in this case is a 6-month suspension from the practice of law in this state. It Is Therefore Ordered that respondent, Russell B. Cranmer, be and he is hereby suspended from the practice of law in the state of Kansas, for a period of 6 months. It Is Further Ordered that respondent shall comply with the provisions of Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337) and, if respondent seeks reinstatement, he shall comply with Supreme Court Rule 219 (2007 Kan. Ct. R. Annot. 350). It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to respondent.
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The opinion of the court was delivered by Johnson, J.: Amir Friedman, M.D., appeals the district court’s rulings on his petition challenging the Kansas Board of Healing Arts’ (Board) jurisdiction to initiate a disciplinary proceeding against his Kansas medical license. Friedman claims that the Board did not have subject matter jurisdiction because his medical license had expired when the disciplinary action was filed. The district court dismissed Friedman’s attempted judicial review of agency action because he had not exhausted his administrative remedies, and found that Friedman had failed to show irreparable harm so as to merit an injunction. The Supreme Court transferred the case on its own motion. In April 1999, the Board issued Friedman a license to practice medicine and surgeiy in the State of Kansas. That license remained active until March 6, 2006, when the Board granted Friedman’s request to change his license designation to inactive. Medical licenses must be renewed by June 30 of each year by filling out a renewal form and paying an annual registration fee. See K.S.A. 2007 Supp. 65-2809(a); K.A.R. 100-15-1. Friedman did not file a renewal form or pay the annual fee. Accordingly, his license expired on June 30, 2006. Pursuant to K.S.A. 2007 Supp. 65-2809(d), Friedman had 30 days after the June 30 expiration to effect the renewal or his medical license would automatically be canceled. Friedman did not effect the renewal, because he had moved his residence and medical practice to New Jersey. On July 31,2006, the Board filed a formal petition against Friedman in a disciplinary action, alleging three counts of unprofessional conduct, one count of falsifying a medical record, and one count of surrendering hospital medical privileges while under hospital investigation. On December 26, 2007, Friedman filed a motion to dismiss the disciplinary action, alleging that the Board did not have subject matter jurisdiction because his license was expired when the action was commenced. On January 29,2008, an administrative law judge issued an order which, inter alia, denied Friedman’s motion to dismiss. Instead of appealing the administrative law judge’s decision to the Board pursuant to K.S.A. 2007 Supp. 77-527, Friedman filed a “Petition for Judicial Review, for Temporary Injunctive Relief and Permanent Injunctive Relief’ in Shawnee County District Court. The Board subsequently filed a motion to dismiss, claiming that the district court did not have jurisdiction to consider the petition because Friedman had not exhausted his available remedies, as required by the Kansas Judicial Review and Civil Enforcement of Agency Actions Act (KJRA), and further alleging that tire Board has subject matter jurisdiction to initiate a disciplinary action against a licensee with an expired license. The district court agreed that Friedman’s petition for judicial review of the agency action was filed without having exhausted the administrative remedies and therefore should be dismissed. The court further found that, to the extent the petition asserted an independent action for an injunction, it should be denied because the Board did have jurisdiction to take action on Friedman’s medical license on July 31, 2006, which was the last day on which Friedman could renew his license before it was automatically can-celled. In appealing the district court’s rulings, Friedman makes two claims: (1) Under Kansas law, the Board does not have jurisdiction over a physician whose license has expired unless that physician is then practicing medicine unlawfully; and (2) in Kansas, the exhaustion of administrative remedies is not a prerequisite for judicial review of an administrative agency’s interlocutory order concerning the agency’s jurisdiction. We take the liberty of commencing with the second claim, given that the outcome will impact whether we can review the merits of the first claim. EXHAUSTION OF ADMINISTRATIVE REMEDIES Petition for Judicial Review The determination of a district court’s jurisdiction to consider a petition for judicial review of an agency’s action is a question of law over which this court has unlimited review. Back-Wenzel v. Williams, 279 Kan. 346, 347, 109 P.3d 1194 (2005). Subject matter jurisdiction is vested by statute and establishes the court’s authority to hear and decide a particular type of action. Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 92, 106 P.3d 492 (2005). Accordingly, the interpretation of a statute is also subject to de novo review. Griffin v. Suzuki Motor Corp., 280 Kan. 447, 451, 124 P.3d 57 (2005). Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel; a failure to object to the court’s jurisdiction does not invest the court with the requisite subject matter jurisdiction. See Kansas Bd. of Regents v. Skinner, 267 Kan. 808, Syl. ¶ 5, 987 P.2d 1096 (1999). Moreover, if the district court lacks jurisdiction to make a ruling, an appellate court does not acquire jurisdiction over the subject matter on appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004). The Board derives its authority to regulate the medical profession from the Kansas Healing Arts Act, K.S.A. 65-2801 etseq. That act specifically provides that “[j judicial review and civil enforcement of any agency action under [the Healing Arts Act] shall be in accordance with” the KJRA. K.S.A. 65-2851a(b). Under the KJRA, a prerequisite to filing a petition for judicial review is the exhaustion of “all administrative remedies available within the agency.” K.S.A. 77-612; see K.S.A. 77-607(a). Friedman does not contend that he exhausted his administrative remedies, but rather he argues that a person may petition for review of jurisdictional questions at any time, i.e., that the KJRA exhaustion requirement does not apply to his claim. He relies in part on decisions rendered prior to the 1984 adoption of the KJRA, L. 1984, ch. 338. See, e.g., Butler v. Rude, 162 Kan. 588, 178 P.2d 261 (1947); R. D. Andersen Constr. Co. v. Kansas Dept. of Human Resources, 7 Kan. App. 2d 453, 643 P.2d 1142, rev. denied 231 Kan. 801 (1982). Similarly, Friedman’s reliance on Zion Lutheran Church v. Kansas Comm’n on Civil Rights, 16 Kan. App. 2d 237, 821 P.2d 334 (1991), aff'd 251 Kan. 206, 830 P.2d 536 (1992), is unpersuasive, given that opinion’s failure to cite to or apply the explicit provisions of the KJRA. See Midwest Crane & Rigging, Inc. v. Kansas Corporation Comm'n, 38 Kan. App. 2d 269, 272-73, 163 P.3d 1244 (2007) (attempting to explain Zion as an anomaly under the KJRA). The order containing the ALJ’s ruling on the jurisdictional challenge also discusses future procedures, such as subpoenas and discovery timelines; it does not purport to make any substantive de termination of the disciplinary complaint. The ALJ’s ruling was not a final agency action, but rather it was intended “to be prehminary, preparatory, procedural or intermediate with regard to subsequent agency action.” K.S.A. 77-607(b)(2). In other words, it was a non-final agency action. Accordingly, under the plain statutory language of the KJRA, Friedman was “entitled to interlocutory review of nonfinal agency action only if: “(a) It appears likely that the person will qualify under K.S.A. 77-607 for judicial review of the related final agency action; and “(b) postponement of judicial review would result in an inadequate remedy or irreparable harm disproportionate to the public benefit derived from postponement.” K.S.A. 77-608. Obviously, Friedman would likely qualify for a review of the final agency action on the jurisdiction question. Therefore, Friedman’s entitlement to interlocutory review hinges on the second prong, i.e., whether postponement would result in an inadequate remedy or irreparable harm. The exhaustion of administrative remedies requirement was part of our jurisprudence, prior to the adoption of the KJRA. In Jarvis v. Kansas Commission on Civil Rights, 215 Kan. 902, 904-05, 528 P.2d 1232 (1974), this court explained part of the public benefit in postponing judicial review; “The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. A primary purpose of the doctrine is the avoidance of premature interruption of the administrative process. It is normally desirable to let the administrative agency develop the necessary factual background upon which its decisions are based. Since agency decisions are frequently of a discretionary nature, or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise. It is more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages. The very same reasons lie behind judicial rules sharply limiting interlocutoiy appeals. Frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures. [Citations omitted.]” The KJRA codified the exhaustion of remedies requirement and, arguably, reduced the court’s discretion to circumvent its employ ment by setting forth very limited, statutorily defined exceptions. Nevertheless, the public benefit in postponing judicial review until administrative remedies have been exhausted survives the enactment of the KJRA. See Dean v. State, 250 Kan. 417, 421, 826 P.2d 1372, cert. denied 504 U.S. 973 (1992) (interpretation of a statute is a necessary and inherent function of an agency in its administration or application of that statute). In his appellate brief, Friedman argues that postponement of judicial review would result in an inadequate remedy disproportionate to the public benefit because Friedman was not practicing in Kansas, nor had he applied for renewal of his Kansas license. He does not explain why the Board’s ruling on the jurisdiction question would not be an adequate remedy. Indeed, if the Board were to have ruled that it did not have jurisdiction, Friedman would have obtained the exact remedy that he sought from the district court. Further, Friedman appears to misconstrue the public benefit that is being balanced against adequacy of remedy and degree of harm; K.S.A. 77-608 is referring to the public benefit in postponing judicial review and not tire public benefit associated with supervising Kansas medical licenses. Moreover, the fact that Friedman was continuing to practice medicine in New Jersey during the pendency of these proceedings would refute any contention that a postponement of judicial review concerning the jurisdiction of the Board would effect an irreparable harm upon Friedman. Pointedly, Friedman describes no harm that he has suffered other than the normal and usual inconvenience associated with such proceedings. In other words, he fails to establish the prerequisite set forth in K.S.A. 77-608(b). Friedman also appears to suggest that the question of an agency’s subject matter jurisdiction is best decided in the first instance by the courts, as a matter of judicial economy. However, we have specifically rejected the notion that a party may circumvent the KJRA’s exhaustion requirement by claiming that an issue of statutory construction may be more authoritatively determined by the district court. Dean, 250 Kan. at 422-23. To summarize, we find that Friedman attempted to obtain an interlocutory review of a nonfinal agency action without establish ing his entitlement to do so under K.S.A. 77-608(b). Therefore, the district court correctly dismissed the attempted judicial review because of Friedman s failure to obtain a final order of the Board on the jurisdiction question, i.e., for a failure to exhaust administrative remedies. Because the district court did not have jurisdiction to consider the merits of the attempted judicial review, this court also lacks jurisdiction to do so. The dismissal of the petition is affirmed. Petition for Injunction The district court reached the merits of Friedman s jurisdiction challenge, only to the extent that the petition might be construed as an independent action for an injunction. However, the dictates of the KJRA cannot be bypassed simply by labeling the petition as one for an injunction. The relief Friedman sought through an “injunction” was a court order reversing the ALJ’s ruling that the Board had jurisdiction to bring the disciplinary action, i.e., to obtain a judicial review of the nonfinal agency action. The KJRA “establishes the exclusive means of judicial review of agency action.” K.S.A. 77-606. As this court explained in Heiland v. Dunnick, 270 Kan. 663, 668, 19 P.3d 103 (2001): “The KJRA applies to all agencies and all proceedings for judicial review and civil enforcement of agency actions not specifically exempted by statute. K.S.A. 77-603(a). It establishes the exclusive means of judicial review of agency action. K.S.A. 77-606; Lindenman v. Umscheid, 255 Kan. 610, 619, 875 P.2d 964 (1994). ‘The KJRA is the exclusive remedy for all requested relief which an agency can grant under its authority. Only actionable claims which fall outside the authority of an agency to grant can support a separate action by an aggrieved party.’ Douglass v. Kansas State University, 22 Kan. App. 2d 171, 174, 915 P.2d 782 (1996).” Here, the Board had authority to grant the relief that Friedman sought. See K.S.A. 77-622. Therefore, a request for that relief must be construed as a petition for judicial review subject to the KJRA, notwithstanding the attempt to label it as a separate action. See Schall v. Wichita State University, 269 Kan. 456, 482, 7 P.3d 1144 (2000). Accordingly, the district court should have dismissed the petition in its entirety. Appeal dismissed. McFarland, C.J. and Davis, J., not participating. Hill, J., and Larson, S.J., assigned.
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The opinion of the court was delivered by Johnson, J.: Tod A. Pabst appeals the denial of his K.S.A. 60-1507 motion for postconviction relief from his conviction for premeditated first-degree murder. Pabst raises a number of issues, none of which require us to reverse his conviction. FACTUAL AND PROCEDURAL OVERVIEW In 1997, Pabst was first convicted of premeditated first-degree murder in the shooting death of his fiancée, Phoebe Harkins. However, that conviction was overturned by this court because the prosecutor s remarks in closing argument denied Pabst a fair trial. See State v. Pabst, 268 Kan. 501, 511, 996 P.2d 321 (2000). Upon the retrial in 2000, the victim’s parents hired a private attorney, Pedro Irigonegaray, to act as associate counsel to assist the prosecutor, pursuant to K.S.A. 19-717. Irigonegaray actively participated in the murder trial. At the time, he was also employed to assist with civil litigation which would be impacted by the outcome of the criminal trial. The jury again convicted Pabst of premeditated first-degree murder, and that conviction was affirmed by this court in State v. Pabst, 273 Kan. 658, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002). Approximately a year and a half later, on October 15,2003, Pabst filed a K.S.A. 60-1507 motion through a retained attorney which alleged 11 grounds for relief. However, for his last ground, Pabst’s attorney stated that, because of the applicable statute of hmitation, he had filed the motion prior to a full investigation and review and informed the court that Pabst intended to file supplemental pleadings, with leave of court, after an examination of the record. Inexplicably, there was no activity on the motion until September 2, 2004, when Pabst’s attorney withdrew as counsel. Pabst requested appointed counsel on November 19, 2004, but apparently never returned the requisite paperwork. He then hired current counsel, Richard Ney, who entered an appearance on March 1, 2005, and several months later filed a pleading entitled “Amended Petition Pursuant to K.S.A. 60-1507.” The pleading set forth 16 grounds for relief, 10 of which differed from the original motion. Pabst had not sought or obtained leave of court to file a supplemental pleading. The State, after obtaining a continuance, filed an answer which, inter alia, sought to dismiss those claims which were not raised in the original 60-1507 motion because the new claims were barred by the new limitation period in K.S.A. 60-1507(f). In a reply and a separate motion to strike, Pabst argued that, under K.S.A. 60-215, he had the right to amend his motion as a matter of course at any time prior to the State filing a responsive pleading; that the claims made in both pleadings were of the same type, permitting the later claim to relate back; and that the State had failed to specifically plead a statute of limitations defense as required by the Rules of Civil Procedure. At an evidentiary hearing on March 15, 2006, the parties first presented arguments on the statute of limitations issue. The district court ruled that Kansas law does not require the State to answer or otherwise plead to a convict’s 60-1507 motion in order to refute the motion or the evidence offered in support of the motion; that it is presumed that when a movant sets out grounds for relief under K.S.A. 60-1507, he or she has listed all of the grounds upon which he or she is relying; and that a movant cannot avail himself or herself of the relation-back standard by raising an ineffective assistance of counsel claim in the original petition and then amending the petition to assert another ineffective assistance claim based on a distinct type of attorney malfeasance. The district court dismissed the allegations found in (d), (e), (f), (g), (h), (i), (j), (1), (m), and (p) of the amended “petition.” The district court proceeded on the originally filed 60-1507 motion, permitting Pabst to raise the grounds that had been abandoned by the amended “petition.” Pabst and Irigonegaray testified as Pabst’s witnesses. Irigonegaray related that he was retained by the victim’s sister and parents to be an associate to the attorney general’s office under K.S.A. 19-717 to assist with the prosecution of the murder trial. Irigonegaray admitted that he represented the victim’s sister and her husband in a termination of parental rights and adoption case involving Pabst’s child. At the time of the criminal retrial, Pabst had filed a motion to set aside the termination, and Irigonegaray was involved in the case. Irigonegaray’s office was also involved in other civil cases involving the victim’s family which were at least prompted by the murder, albeit the record is not altogether clear on the details of those cases or the extent of Irigonegaray’s involvement. Although Irigonegaray admitted involvement in the civil cases, he denied that he ever used information from the civil cases to gain an advantage in the criminal trial. However, he did admit that the murder conviction had some impact on the attempt to set aside his client’s adoption of Pabst’s child. Further, Irigonegaray did use the fact that Pabst had filed two civil cases involving property to argue for a hard 40 sentence based on murder for financial gain, although the sentencing court rejected the argument and refused to impose the enhanced minimum sentence. Assistant Attorney General Stephen Maxwell testified on the State’s behalf, acknowledging that he was the lead attorney on the case and had assigned the handling of several parts of the trial to Irigonegaray. Specifically, he assigned Irigonegaray the opening statement, 7 out of 25 State witnesses, 1 or 2 of the defense witnesses, and a portion of the closing argument. However, Maxwell asserted that he controlled the case and everything that Irigonegaray did on the case was subject to Maxwell’s prior approval. On July 18, 2006, the district court issued its memorandum decision denying Pabst’s 60-1507 motion. Pabst timely appealed. STANDARDS OF REVIEW When an evidentiary hearing has been conducted in the district court, the standard of review for an appeal from a K.S.A. 60-1507 motion denial involves determinations of whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. Bledsoe v. State, 283 Kan. 81, 88, 150 P.3d 868 (2007). “The ultimate denial of the 60-1507 motion involves a legal question requiring independent appellate review.” Drach v. Bruce, 281 Kan. 1058, 1063, 136 P.3d 390 (2006), cert. denied 549 U.S. 1278 (2007). To the extent that our decision turns on Pabst’s due process claim or on our interpretation of statutes, we have an unlimited review. See State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 (2006). CONFLICT OF INTEREST In his original motion, Pabst asserted that his “rights were denied” when a special prosecutor hired by the victim’s family usurped the role of the State, “thereby placing the Petitioner in the position of being prosecuted by victims of the crime.” In the “Amended Petition” filed by Ney, Pabst argued that his trial was rendered fundamentally unfair by Irigonegaray’s participation because of a conflict of interest, and that the existence of the conflict of interest violated the Due Process Clause of the 14th Amendment. The district court first determined that there were two reasons why the issue was not properly before the court on a 60-1507 motion. Pointing to Supreme Court Rule 183(c)(3) (2007 Kan. Ct. R. Annot. 243) and Johnson v. State, 271 Kan. 534, 24 P.3d 92 (2001), the district court noted that K.S.A. 60-1507 cannot be used as a substitute for an appeal or as a second appeal of mere trial errors, unless those errors affect constitutional rights and there were exceptional circumstances excusing the failure to appeal them. The district court found no exceptional circumstances excusing Pabst from raising the issue in his direct appeal. Further, the district court specifically found that trial counsel knew of the potential conflict of interest issue and failed to timely object or raise the issue before the district court, thereby failing to preserve the issue for appeal. However, in the alternative, the district court reviewed cases which had dealt with the issue of prosecutors with a conflict of interest. The court found this case to be factually distinguishable from the others, principally because Pabst did not seek disqualification before the trial court and because Irigonegaray was not the sole or controlling prosecutor, but rather participated under the direct supervision of the assistant attorney general. Moreover, the district court concluded that it is not structural error when a private attorney, retained under K.S.A. 19-717, has a conflict of interest “unless the private attorney effectively controlled critical prosecutorial decisions.” In this case, the district court found that any error that may have occurred was subject to a harmless error analysis. On appeal, Pabst’s first four issues involve the alleged conflict of interest of Irigonegaray. First, he argues that Irigonegaray’s participation in the prosecution while laboring under a conflict of interest violated K.S.A. 19-705 and the Due Process Clause of the 14th Amendment, rendering his trial fundamentally unfair. Next, Pabst challenges the district court’s holding that he could not raise the issue in a 60-1507 motion, arguing in the alternative that (1) the conflict of interest constituted structural error which could be raised for the first time in a 60-1507 motion; or (2) the ineffective assistance of appellate counsel in failing to raise the issue on the direct appeal provides the requisite exceptional circumstances for first-time review. Finally, in separate issues, Pabst complains that his trial counsel should have moved for the disqualification of Irigonegaray and that his appellate counsel should have raised the conflict of interest issue on direct appeal. Statutory Provisions Pabst’s initial complaint about being placed in a position to be prosecuted by the victims is refuted in some measure by a specific statute authorizing a victim to be represented in the prosecution. K.S.A. 19-717 provides: “That the prosecuting witness in any criminal action or proceeding may, at his own expense, employ an attorney or attorneys to assist the county attorney to perform his duties in any criminal action or proceeding under any of the laws of the state of Kansas, and such attorney or attorneys shall be recognized by the county attorney and court as associate counsel in such action or proceeding, and no prosecution shall be dismissed over the objection of such associate counsel untü the reason of the county attorney for such dismissal, together with the objections thereto of such associate counsel, shall have been filed in writing, argued by counsel, and fully considered by the court.” It is noteworthy that the statute contemplates that the outside attorney will be employed and paid by the prosecuting witness, obviously suggesting an attomey/client relationship between the victim and one of the prosecutors. See State v. Dressel, 241 Kan. 426, 434, 738 P.2d 830 (1987) (the complaining witness is the client of an attorney hired under K.S.A. 19-717). Further, leave of court is not required, but rather the judge, as well as the county attorney, “shall” recognize the victim’s attorney as an associate prosecutor. Moreover, the victim’s employment of an associate counsel places some restrictions on the county attorney’s discretion to dismiss the case, which is ordinarily unrestrained. See State v. Williamson, 253 Kan. 163, Syl. ¶ 1, 853 P.2d 56 (1993) (county or district attorney controls criminal prosecutions and is the person who has the authority to dismiss any charge). Although the district court did not discuss K.S.A. 19-705, Pabst offers that provision as an alternative to his due process arguments. That statute, in its entirety, provides: “No county attorney shall receive any fee or reward from or on behalf of any prosecutor or other individuals, except such as are allowed by law for services in any prosecution or business to which it shall be his official duty to attend, nor be concerned as attorney or counsel for either party other than the state or county, in any civil action depending upon the same state of facts upon which any criminal prosecution, commenced but undetermined, shall depend; nor shall any county attorney while in office be eligible to or hold any judicial or other county office whatsoever.” K.S.A. 19-705. Due Process Pabst relies heavily on Young v. United States, ex rel. Vuitton et Fils S.A., 481 U.S. 787, 95 L. Ed. 2d 740, 107 S. Ct. 2124 (1987). There, the federal district court appointed the attorneys who had represented the beneficiary of a permanent injunction in a civil action to prosecute a criminal contempt action against the adverse civil party based upon a violation of the injunction. The United States Supreme Court reversed the criminal convictions. Four justices found that the appointment of an interested prosecutor was a fundamental error that required reversal without regard to the facts and circumstances of the case. 481 U.S. at 809-810. One justice agreed with the reversal because appointment of an interested party’s counsel as special prosecutor exceeded the district court’s power under Article III of the United States Constitution. 481 U.S. at 815. Three justices found an abuse of discretion but believed a harmless error analysis was proper. 481 U.S. at 825-27. One justice found no error. 481 U.S. at 827. While acknowledging that it was not the majority decision of the Court, Pabst nevertheless embraces the opinion of those justices who would find that appointing counsel for an interested party to prosecute the criminal proceedings is fundamental error. That opinion’s underlying rationale was that a prosecutor represents the sovereignty, the interest of which is not to win the case, but rather to see that justice is done, i.e., “ "tire twofold aim of which is that guilt shall not escape nor innocence suffer.’ ” 481 U.S. at 803 (quoting Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 [1935]). However, an appointed prosecuting attorney who is also representing a party with an interest in the outcome of the prosecution would also owe an ethical duty to the nonsovereignty client to advocate his or her interests, i.e., the attorney would be serving two masters whose interests were not identical. The plurality found that regardless of whether the appointment of a conflicted attorney actually results in prosecutorial impropriety, the harm is in “the potential for private interest to influence the discharge of public duty.” (Emphasis added.) 481 U.S. at 805. Pabst also points us to the decisions of other states which have found a due process violation where the prosecuting attorney in a criminal case also represented the victims in a related civil matter. See, e.g., Cantrell v. Com., 229 Va. 387, 394, 329 S.E.2d 22 (1985) (private prosecutor who has a civil interest in the case “so infects the prosecution with the possibility that private vengeance has been substituted for impartial application of the criminal law, that prejudice to the defendant need not be shown”); State v. Eldridge, 951 S.W.2d 775, 782 (Tenn. Crim. App. 1997); and Com. v. Eskridge, 529 Pa. 387, 604 A.2d 700 (1992). But cf. Brown v. State, 242 Ga. 536, 250 S.E.2d 438 (1978) (permissible for a victim’s family to hire a special prosecutor so long as the special prosecutor was subject to the direction and control of the district attorney; special prosecutor’s representation of the victim’s family in civil litigation arising from victim’s death was not grounds for disqualification). The principal rationale for those foreign decisions was that the conflicted attorney could not simultaneously serve the divergent interests of two clients. While the argument that concurrently serving two masters is a per se violation of defendant’s due process rights has surface appeal, it dissipates upon closer scrutiny. First, defendant is not one of the clients that is directly subjected to the alleged divided loyalties; the alleged conflict is between the private attorney’s duty to the victim on the one hand and to the State of Kansas on the other. Except to the extent that Pabst may be a beneficiaiy of the duties Irigonegaray owed to the State of Kansas, his own legal representation was not conflicted. Moreover, when the integrity of a defendant’s own legal representation is called into question because of a conflict of interest, the basis for relief is the 6th Amendment right to counsel, not a 14th Amendment due process violation. See, e.g., State v. Jenkins, 257 Kan. 1074, 898 P.2d 1121 (1995). Secondly, with or without employed counsel, a victim is involved in the criminal prosecution. Granted, we have said that a complaining witness is not a party in the criminal action. Dressel, 241 Kan. at 436. However, the legislature has clearly indicated that the views and concerns of a victim should be considered by the court under appropriate circumstances. See K.S.A. 74-7333 (creating a bill of rights for victims of crime). Moreover, this State has created a Crime Victims Compensation Fund, K.S.A. 74-7332, which recognizes that victims may be entitled to financial redress as a result of the defendant’s actions. Obviously, that redress may well be sought through a separate civil action. Finally, K.S.A. 19-717 appears to implicitly set up an inherent conflict, regardless of the existence of concurrent civil litigation. As noted, the statute provides for the prosecuting witness to employ and pay for the “associate counsel.” With regard to the loyalties owed because of that employment, we have said “[a]n attorney is obligated to act in the best interests of his or her client which, in the case of an attorney hired pursuant to K.S.A. 19-717, is the complaining witness who retained the attorney’s services.” Dressel, 241 Kan. at 434. Yet, Dressel also recognized that an attorney retained by the victim pursuant to K.S.A. 19-717 is “hired to assist the prosecution.” 241 Kan. at 434. As such, the Dressel court found the victim-retained associate counsel in that case to be subject to at least a portion of the ethical rules explicitly applicable to prosecutors, then designated as DR 7-103 and currently contained in Rule 3.8 of the Kansas Rules of Professional Conduct (KRPC) (2007 Kan. Ct. R. Annot. 525). Dressel recognized that the “peculiar role of an attorney who is privately retained by a complaining witness to assist in a criminal prosecution” would necessitate compromise and a balancing of the interests the attorney represents. 241 Kan. at 434. Given that K.S.A. 19-717 implicitly authorizes a serving-two-masters scenario, we cannot find that the associate counsel’s concurrent representation of the victim in a separate civil action creates a per se violation of the defendant’s due process rights. Nevertheless, all attorneys are subject to the KRPC, regardless of what legislative enactments might implicitly permit. KRPC 1.7(a)(2) generally precludes a lawyer s representation of a client, if “there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” 2007 Kan. Ct. R. Annot. 440. If the associate counsel’s responsibilities in the civil action require that the defendant be convicted in the criminal action, that attorney’s representation of the State of Kansas may be materially limited with respect to performing the prosecutor’s duty to assure that justice is done. Moreover, if the associate counsel’s materially limited ability to properly assist in the prosecution prejudices the defendant’s right to a fair and impartial trial, the defendant would have standing to object to the associate counsel’s participation in the prosecution. In other words, although not a due process violation, an objectionable conflict of interest may exist under the facts and circumstances of a particular case. Statutory Conflict Pabst also argues that Irigonegaray’s participation in the criminal proceedings violated the public policy of this State, as expressed in K.S.A. 19-705. Specifically, he contends that the assistant attorney general assigned to prosecute him was subject to the statute’s prohibition against acting as an attorney or counsel for a nongovernmental party in a civil action which depends on the same state of facts as the ongoing criminal prosecution. Pabst then argues that the prohibition is imputed to Irigonegaray, as part of the prosecution “firm.” He cites to KRPC 1.10, which provides that none of the lawyers associated in a firm shall represent a client when any one of them practicing alone would be prohibited from doing so. 2007 Kan. Ct. R. Annot. 461. The explicit language of K.S.A. 19-705 makes its prohibitions applicable to a “county attorney.” The question becomes whether one hired “to assist the county attorney to perform his duties” under K.S.A. 19-717 is likewise subject to those prohibitions. In Dressel, the issue was the extent to which an attorney hired under K.S.A. 19-717 was subject to the discovery provisions of K.S.A. 22-3212, which require the “prosecuting attorney” to pro vide the defendant with access to certain evidentiary items. The Dressel court declared that a K.S.A. 19-717 attorney was not a “prosecuting attorney,” as defined by K.S.A. 22-2202(17), so that the discovery requirements of K.S.A. 22-3212 were not explicitly applicable to him or her. Rather, Dressel described the victim-retained attorney as “merely associate counsel, employed to assist the prosecuting attorney, and [who] did not have control over the case.” 241 Kan. at 434. Under that rationale, one could opine that the prohibitions on a “county attorney” are not explicitly applicable to a K.S.A. 19-717 associate counsel. However, the Dressel opinion did not flesh out its rationale for finding that a K.S.A. 19-717 attorney was not a “prosecuting attorney.” The definition of a “prosecuting attorney” included, both then and now, “an assistant county or district attorney and any special prosecutor whose appearance is approved by the court.” K.S.A. 22-2202(17). One might find it difficult to grasp the distinction between an assistant county attorney and an attorney hired to assist the county attorney. Moreover, notwithstanding its definitional declaration, Dressel nevertheless required the “associate counsel” to comply with a portion of the prosecuting attorney s discovery obligations under K.S.A. 22-3212 and further subjected that attorney to the ethical obligations set forth in the disciplinary rules then designated as DR 1-102, DR 7-102, and DR 7-103, as if he or she were a prosecuting attorney. 241 Kan. at 434-36. Granted, we have pointed out that there is an inherent difference between the attorney occupying the public office of prosecutor and an attorney hired by the prosecuting witness to assist the public prosecutor. The public prosecutor is expected to be conflict-free, whereas we have acknowledged that the victim-retained “assistant” comes to the table with built-in divided loyalties. Nevertheless, we need not exacerbate the inherent conflict by absolving the retained attorney of all of the prosecutorial constraints of K.S.A. 19-705. Therefore, we find the K.S.A. 19-717 attorney is subject to the statutory conflict rule of K.S.A. 19-705, i.e., the victim-retained attorney is precluded from representing a party in a civil action that depends on the same state of facts as the ongoing dim inal prosecution in which the attorney is assisting the public prosecutor. Structural Error In the context of arguing that he could raise the conflict issue for the first time on appeal, Pabst contends that the existence of a conflict of interest for Irigonegaray constitutes structural error. If that contention is correct, our finding of a violation of the statutory conflict rule would not be subject to a harmless error analysis. However, structural errors subject to automatic reversals exist in only very limited cases. “Structural errors ‘are so intrinsically harmful as to require automatic reversal {i.e., “affect substantial rights”) without regard to their effect on the outcome.’ Neder v. United States, 527 U.S. 1, 7, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999). Automatic reversal is required in limited situations. See, e.g., Johnson v. United States, 520 U.S. 461, 468-69, 137 L. Ed. 2d 718, 117 S. Ct. 1544 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 [1963]) (complete denial of counsel); Sullivan v. Louisiana, 508 U.S. 275, 282, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993) (defective reasonable doubt instruction); Vasquez v. Hillery, 474 U.S. 254, 264, 88 L. Ed. 2d 598, 106 S. Ct. 617 (1986) (racial discrimination in selection of grand jury). However, the vast majority of constitutional errors fall within the broad category of trial error subject to harmless error review. People v. Flood, 18 Cal. 4th 470, 499-500, 76 Cal. Rptr. 2d 180, 957 P.2d 869 (1998) (citing Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 [1967]).” State v. Hill, 271 Kan. 929, 934-35, 26 P.3d 1267 (2001), abrogated on other grounds by State v. Voyles, 284 Kan. 239, 160 P.3d 794 (2007). Pabst does not identify a substantial right that has been unequivocally violated. He cites to a portion of the Young opinion that says the harm in having an interested party bring a contempt prosecution is that it creates “opportunities for conflicts to arise” and creates “at least the appearance of impropriety.” 481 U.S. at 806. However, we are directed by K.S.A. 60-261 to “disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” The mere potential for having an effect on substantial rights is not excepted from the harmless error rule. Moreover, even in the context of the denial of the most fundamental and substantial right to counsel for a criminal defendant, which is ordinarily structural error, a showing of a potential conflict of interest is not always sufficient. “Under Cuyler, in the face of a silent record, where the defendant makes no objection before the trial court, the possibility of a conflict of interest is not sufficient to impugn a criminal conviction. 446 U.S. at 348-50.” (Emphasis added.) Jenkins, 257 Kan. at 1084. In short, we find that the violation of the conflict rule set forth in K.S.A. 19-705 is subject to the harmless error rule. Harmless Error Pabst attempts to illustrate how his substantial right to a fair trial was affected by Irigonegaray s conflict of interest by describing instances where the associate counsel purported to represent the interests of the victims, rather than the State. While those examples highlight the dual nature of Irigonegaray’s loyalties, Pabst does not persuade us that they illustrate an unfair impact on the criminal trial. Pabst complains that Irigonegaray and his firm advocated for prohibiting Pabst from sending mail from the jail to A.P., the minor child of Pabst and the decedent. Ultimately, the district court ruled that it had no authority in the criminal action to contravene an administrative regulation of the jail. Thus, this squabble was outside the context of the criminal prosecution. Further, it had nothing to do with any of the civil actions with which Pabst asserts a conflict of interest. Next, Pabst finds fault with Irigonegaray’s advising the court that A.P.’s guardian opposed Pabst’s motion to interview tire child. However, Irigonegaray clearly advised the criminal court: “And for the record to be clear, the State’s position in this is not any different with me being involved, because I’m working at the direct instructions of Mr. Maxwell, it’s just that having been assigned by the State the responsibility to check with the family regarding their position on that issue, I have been told and I have reported to Mr. Maxwell, chief counsel in this case, that the family does not, and will not allow the Defendant to interview [A.P.]” Ultimately, the district court ruled that the State had no authority to deny Pabst an interview with the minor, but that the court did not have the authority to force the witness to submit to the interview. Again, this skirmish does not illustrate a fair trial denial. Pabst also complains about a motion to quash subpoena but does not relate that collateral matter to the fair conduct of the trial. Likewise, he believes that Irigonegaray should not have advocated for the hard 40 sentence by bringing up the civil cases in which Pabst was seeking money and property as a consequence of the victim’s death. However, given that the district court refused to impose the hard 40, this argument is the stereotypical harmless error. In conclusion, we find that Pabst has failed to establish that any conflict of interest that Irigonegaray may have had as a result of concurrently representing the victims in civil matters substantially affected the criminal prosecution so as to impair Pabst’s right to a fair trial. EXCEPTIONAL CIRCUMSTANCES Pabst also challenges the district court’s alternative ruling that he had failed to show any exceptional circumstances which would excuse the failure to raise the issue on direct appeal. See Supreme Court Rule 183(c)(3) (2007 Kan. Ct. R. Annot. 243). He submits two reasons to find that the district court erred. First, he argues that Irigonegaray’s participation in the criminal proceedings constituted structural error and such errors may be raised for the first time in a K.S.A. 60-1507 motion. He cites to Crutcher v. State, 27 Kan. App. 2d 674, 8 P.3d 1, rev. denied 268 Kan. 885 (1999), which in an appeal of a 60-1507 denial found that a failure to give a unanimity instruction was structural error, requiring reversal. Pabst does not note that the Crutcher structural error ruling was subsequently abrogated. See State v. Banks, 273 Kan. 738, 743, 46 P.3d 546 (2002). Nevertheless, the short answer is that the potential conflict of interest of an attorney employed pursuant to K.S.A. 19-717 is not structural error, but rather it is subject to a harmless error analysis. Secondly, Pabst contends that he received ineffective assistance of counsel when his appellate attorney did not raise the conflict issue on direct appeal and that such a failure by appellate counsel constitutes an exceptional circumstance. See Bledsoe v. State, 283 Kan. 81, 88-89, 91, 150 P.3d 868 (2007) (a 60-1507 movant can overcome the failure to raise an issue at trial or on direct appeal and demonstrate exceptional circumstances by persuading the appellate court that there was ineffective assistance of trial counsel in failing to object regarding an issue; there was ineffective assistance of direct appeal counsel in failing to raise the issue; or there was newly discovered evidence or an unforeseeable change in circumstances or constitutional law unknown to counsel and movant at time of trial and direct appeal). However, Pabst fails to establish that his appellate counsel was constitutionally ineffective. INEFFECTIVE TRIAL COUNSEL Pabst contends that his trial counsel was ineffective in fading to move for the disqualification of Irigonegaray. A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Bledsoe, 283 Kan. at 91. To obtain a reversal of a conviction based upon ineffective assistance of trial counsel, it is insufficient to surmise, with the benefit of hindsight, that another attorney would have tried the case differently. First, the defendant must establish that counsel’s performance was constitutionally deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that counsel’s deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial. 283 Kan. at 90. The judge presiding over the 60-1507 proceedings also presided at the criminal trial. The judge observed that, at trial, Pabst’s counsel “engaged in a fierce motion practice; engaged in a lengthy Pretrial Conference; frequently met with the Defendant; and vigorously cross-examined the State’s witnesses and competently presented the Defendant’s witnesses.” “ ‘Much deference and reliance must be placed upon the wisdom and determination of the trial judge who saw all of the [criminal case] first hand as [it] happened.’ ” Gilkey v. State, 31 Kan. App. 2d 77, 78, 60 P.3d 351, rev. denied 275 Kan. 963 (2003) (quoting Chamberlain v. State, 236 Kan. 650, 659-60, 694 P.2d 468 [1985]). Pabst takes exception to the district court’s hypothesis that trial counsel may have refrained from seeking Irigonegaray’s disqualification for strategic reasons. He argues that the court should not fabricate tactical excuses for trial counsel’s errors. Pointedly, however, the reason the district court had to speculate on trial counsel’s strategy is that Pabst did not call his trial attorneys to testily at the evidentiary hearing on his 60-1507 motion. An important reason for requiring ineffective assistance of counsel claims to originate in the district court is to allow the allegedly ineffective counsel an opportunity to explain his or her reasoning and actions. See, e.g., United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). In the absence of that testimony, our scrutiny is highly deferential. There is a strong presumption when there is no contrary evidence that counsel’s conduct falls within the wide range of reasonable professional assistance. State v. Betts, 272 Kan. 369, 387-88, 33 P.3d 575 (2001). It is important to note that the decision facing defense counsel was not whether to object to the participation of a victim-retained attorney. K.S.A. 19-717 was going to permit that participation, regardless of how vehemently defense counsel may have objected. The only possible choice for the defense was as to who would be representing the victims. Defense counsel may well have preferred to have Irigonegaray stay involved in the trial, rather than another attorney who might be hired to replace him. In that regard, Pabst’s contention that he asked his attorney to move for Irigonegaray’s disqualification would add support to the notion that the decision not to do so was a reasoned choice, rather than ineffective representation. Accordingly, we find that the district court did not err in finding that Pabst had constitutionally effective representation at his trial. INEFFECTIVE APPELLATE COUNSEL Next, Pabst argues that his appellate counsel was constitutionally ineffective for failing to make an issue of Irigonegaray’s conflict in the direct appeal. He contends that he told his appellate attorney to raise the conflict issue on direct appeal, but counsel did not do so. Moreover, he asserts that a reasonably competent appellate attorney would have recognized that the conflict created a structural error which could be appealed despite trial counsel’s failure to object. We disagree. Again, we do not have the benefit of any testimony from the allegedly ineffective appellate attorney as to the thought process that went into the decision to reject Pabst’s requested issue. Accordingly, we will afford considerable deference to counsel, presuming that the choice of issues to present on direct appeal fell within the wide range of reasonable professional assistance. See Betts, 272 Kan. at 387-88. At the time of the appeal, the appellate courts of this State had not considered whether K.S.A. 19-705 applied to a victim-retained attorney under K.S.A. 19-717. There certainly was no precedent for declaring a violation of K.S.A. 19-705 to be structural error that could be reviewed on appeal without preserving the issue. Indeed, we have decided today that it is not. In short, Pabst failed to establish. his claim of ineffective assistance of appellate counsel. FAILURE TO IMPEACH WITNESS Pabst asserts that his trial counsel was ineffective by failing to impeach the testimony of the medical examiner, Dr. Mitchell, on two bases. First, Pabst argues that trial counsel should have brought out allegations contained in news reports that Dr. Mitchell resigned a medical examiner post in New York because of claims that he donated body parts for research without relatives’ permission and violated court orders to rebury bodies after exhuming them to perform tests. Second, Pabst claims Dr. Mitchell’s testimony at the parental termination hearing was inconsistent with his trial testimony. The State concedes that generally great latitude is given in the cross-examination of experts in order to adequately test their qualifications and knowledge, and the bases for their opinions. See Pope v. Ransdell, 251 Kan. 112, 123, 833 P.2d 965 (1992). However, the State also points out that a witness cannot be impeached with extrinsic evidence dealing with a collateral matter. Stickney v. Wesley Med. Center, 244 Kan. 147, 155, 768 P.2d 253 (1989). At trial, Dr. Mitchell testified that he held medical licenses in Kansas, New York, and North Carolina, and that he was board certified in anatomic pathology, clinical pathology, and forensic pathology. He testified about his autopsy findings and gave demonstrations about how the shots had to have been fired in order to inflict the injuries he found on the victim. Dr. Mitchell’s testimony was prejudicial to the defense by effectively refuting Pabst’s version of the shooting incident. Therefore, it would have behooved the defense to impeach Dr. Mitchell’s expertise. However, Pabst fails to make any connection between the alleged misconduct in New York and the doctor’s ability to perform and draw conclusions from the autopsy. We question whether such a cross-examination would have been proper and certainly cannot fault defense counsel for declining to attempt to impeach Dr. Mitchell with collateral, irrelevant claims from the media. With respect to his second complaint, Pabst makes his argument better than it is by taking Dr. Mitchell’s testimony at the termination hearing out of context. Dr. Mitchell testified during the termination hearing in relevant part as follows: “Q. The first shot, then, that goes through the arm, what consequences would it have had immediately on Miss Harkins? “A. It would immediately incapacitate her lower extremities. It would immediately determine that she was going to die, but she would still have powers of mentation, she would still have the ability to move her left arm normally, she could move her upper arm on the right but would lose the strength and continuity of her arm because the bone is gone. “Q. When that bone is — would that be the humerus? “A. Yes. “Q. When the humerus was shattered why would that make her right lower arm and hand not usable? “A. Well, there are a couple of things. First off, you’ve got a lot of shock here, you’re damaging nerves as well as the blood vessels and damaging muscles. You’ve lost structural continuity of that arm so that you’re not going to be able to control where the lower arm is as you normally would because the structure that you depend upon is gone. “Q. Would someone who has received that type of a wound to the right arm be able to with the right hand pull the hammer on the revolver while they’re holding it to the back of their head? “A. I do not expect them to be able to bring the gun up. They, theoretically you still have grasp because you’re depending upon lower arm musculature for that, yes, but you’re not going to be able to place the weapon. “Q. If then the second shot is — strike that. What was the trajectory of the second shot? “A. This came from right to left going across the back of the head, going through the back of the brain.” At the termination hearing, Dr. Mitchell said that it was “well beyond” a reasonable degree of medical certainty that the victim did not have her hand on the gun when it was shot. At retrial, Dr. Mitchell testified in relevant part: “Q. And would you describe to the jury what that anatomical injury was? “A. In this instance, the humerus was shattered. What you’ve got is bone that extends from the shoulder down to the elbow, which would be down below the picture here, there is a single bone in the upper arm, that bone was shattered and had lost its structure and ability to support the arm. “Q. What impact does that injury have on someone’s ability to use that arm with any strength? “A. They would remove that ability. You can wiggle your shoulder, you might be able to do some movement where you have a loosely hanging arm, but you’re not going to have coordinated effort of that arm. It has gone through an area where it has not only damaged the bone, but the shock of this particular gunshot is going to damage some blood vessels, and it’s going to damage nerves, it’s going to concussed [sic] the nerves, so it’s highly unlikely that you can even get a nerve signal beyond the shoulder, well, actually beyond the level of the gunshot down to the hands. You certainly will not have the structural Strength to allow this arm to be used to reach out for something. “Q. Assuming for a second that Phoebe Harkins, after the first shot, wished to have held a revolver away from her in reverse fashion and pull the trigger, would she have been able to do so? “A. No. “Q. Why not? “A. She did not have the necessary physical structure left to accomplish that. Her arm was damaged on the right. The humerus was simply — it was fragmented. It was not a matter of simply a crack in it, it was fragmented. She did not have structural support. It was floppy. Plus, with the energy of transfer of this particular projectile as it goes through shattering the humerus, damaging the soft tissues, it is very unlikely that she even had use of nerves beyond the point of that.” We do not perceive that Dr. Mitchell’s testimony at retrial was inconsistent with his termination hearing testimony. Therefore, trial counsel had no ammunition with which to impeach the doc tor’s testimony. Accordingly, we find that Pabst did not meet his burden to show counsel’s performance was objectively unreasonable. AMENDED PLEADINGS Pabst’s amended motion included some of the claims from his original motion, as well as 10 new claims that were not included in the original pleading. The State did not file a response until after the amended motion was filed. The district court found that the new claims did not relate back to the original motion and dismissed Pabst’s new claims as time-barred by K.S.A. 60-1507(f)(l). The specific new claims at issue were set forth in the amended motion as follows: (d) trial counsel was ineffective because he failed to adequately investigate and prepare for the testimony of Pabst’s forensic expert, Dr. Jay Dix, which resulted in the jury hearing testimony that was damaging for Pabst; (e) trial counsel was ineffective for failing to object when Dr. Dix commented on the credibility of Pabst’s former trial testimony; (f) trial counsel was ineffective for failing to object when the State’s forensic expert, Dr. Erik Mitchell, testified about the credibility of Pabst’s testimony; (g) trial counsel was ineffective in having failed to object to Dr. Mitchell’s testimony that this was a homicide and not an accident; (h) trial counsel was ineffective for failing to object when Dr. Mitchell commented on areas outside of his expertise; (i) appellate counsel was ineffective for fading to raise on direct appeal that Dr. Mitchell gave improper opinion testimony that invaded the province of the juiy; (j) trial counsel was ineffective for failing to object to the improper opinion testimony of law enforcement officers concerning crime scene evidence and how the crime occurred; (1) trial counsel was ineffective for fading to investigate and/ or test hairs and other debris taken from the victim that could have supported the defense theory that there was a struggle between Pabst and the victim for the gun; (m) appellate counsel was ineffective for failing to raise on direct appeal the issue that the jury witnessed Pabst being unshackled before he entered the courtroom; (p) Pabst was denied his constitutional right to effective assistance of counsel by the cumulative errors and omissions made by trial counsel. Resolution of this issue involves the interpretation of statutes, which is a question of law. This court has unlimited review over questions of law and is not bound by the trial court’s interpretation. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). K.S.A. 60-1507 was amended, effective July 1, 2003, to add a 1-year time hmitation for bringing an action. L. 2003, ch. 65, sec. 1. Subsequently, the Court of Appeals found that those individuals who had preexisting claims had 1 year from the effective date of the 2003 amendment to file a 60-1507 motion. Hayes v. State, 34 Kan. App. 2d 157, 161-62, 115 P.3d 162 (2005). Therefore, Pabst had until June 30, 2004, to file his 60-1507 motion. Pabst’s original motion was filed by counsel on October 15,2003, well within the time hmitation. His amended motion was filed by new counsel on July 15, 2005, well outside the hmitation period. The district court found that Pabst’s new claims did not relate back to the original motion and were therefore barred by the hmitation in K.S.A. 60-1507(f)(1) as applied in Hayes. Pabst argues that the district court’s ruling fails to recognize that he had an absolute right under the Rules of Civil Procedure, K.S.A. 60-215(a), to amend his 60-1507 motion at any time prior to a responsive pleading being filed by the State. The relevant portions of K.S.A. 60-215 are as follows: “(a) Amendments. A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. . . . “(c) Relation back of amendments. An amendment of a pleading relates back to the date of the original pleading when: (1) The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” If we look solely at the statutes, the terms utilized would dictate against applying K.S.A. 60-215 in the context of a 60-1507 proceeding. K.S.A. 60-1507(a), entitled “Motion attacking sentence,” permits a prisoner in custody to “move the court which imposed the sentence to vacate, set aside or correct the sentence.” In other words, a 60-1507 proceeding is commenced with a motion, notwithstanding Pabst’s use of the word, “Petition,” in the caption of his latest filing. K.S.A. 60-203 suggests that a “petition” is used to commence a new civil action. Further, K.S.A. 60-215 speaks to the amendment of “pleadings.” K.S.A. 60-207(a), entitled “Pleadings,” describes the pleadings which are permitted, and a motion is not described therein as a “pleading.” Therefore, an attempt to amend a motion is not governed by the provisions applicable to the amendment of a pleading. However, these technical distinctions are arguably obscured by our Supreme Court Rule 183, which governs the procedure under K.S.A. 60-1507. In relevant part, subsection (a), entitled “Nature of Remedy,” states: “K.S.A. 60-1507 is intended to provide in a sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in district courts in whose jurisdiction the prisoner was confined. A motion challenging the validity of a sentence is an independent civil action which should be separately docketed, and the procedure before the trial court and on appeal to the Court of Appeals is governed by the Rules of Civil Procedure insofar as applicable.” (Emphasis added.) 2007 Kan. Ct. R. Annot. 243. The suggestion that a motion commences a new civil action is hard to reconcile with the aforementioned statutory definitions. Moreover, one could argue that a motion which serves the same purpose as a petition, i.e., which commences an independent, separately docketed civil matter, should be treated the same as a “pleading” within the meaning of K.S.A. 60-215, notwithstanding the assigned label. On the other hand, our directive is that the Rules of Civil Procedure will govern “insofar as applicable.” K.S.A. 60-215(a) speaks to two time frames where an amendment can be made as a matter of course, before the responsive pleading is served or within 20 days of service if a responsive pleading is not permitted. Neither circumstance describes the 60-1507 motion scenario. As the State points out, there is no statutory requirement that it file a responsive pleading under K.S.A. 60-1507. Cf. K.S.A. 60-1504 (the person to whom a K.S.A. 60-1501 writ of habeas corpus is directed shall file an answer within 72 hours after the writ is served or at another time as specified in the writ). Moreover, in Tipton v. State, 194 Kan. 705, 711, 402 P.2d 310 (1965), this court held that it was neither necessary nor required that the State answer or otherwise plead to the 60-1507 motion in order to refute the allegations of the motion or the evidence offered in support of those allegations. On the other hand, nothing in the statute or our rules makes it impermissible for the State to file a responsive pleading. Thus, neither circumstance described in K.S.A. 60-215(a) accurately describes the procedural posture of a 60-1507 proceeding and, therefore, that rule of civil procedure would not be “applicable.” Pabst urges us to follow the decision of the Ohio Court of Appeals in State v. Wilkins, 127 Ohio App. 3d 306, 712 N.E.2d 1255 (1998). Wilkins found that a petitioner filing a postconviction petition had an absolute right to amend before a responsive pleading was filed. 127 Ohio App. 3d at 310-12. Although Pabst points out that the Ohio Rule of Civil Procedure governing amendments is identical to our K.S.A. 60-215(a), he fails to mention that the Ohio statute governing postconviction proceedings differs significantly from our K.S.A. 60-1507 procedure. In Ohio, a response is required. Specifically, the prosecuting attorney shall respond by answer or motion within 10 days of the docketing of a petition for relief or at some other time set by the court. Ohio Rev. Code Annot. § 2953.21 (D) (Anderson 2003). That significant distinction renders Wilkins unpersuasive. Although Pabst neither sought nor obtained leave of court to amend his motion, the district court nevertheless considered whether the new issues in the purported amendment would be barred by the statute of limitations. In its memorandum decision, the district court relied on the body of law developed under the federal habeas statute, 28 U.S.C. § 2255 (2000). Specifically, the court cited to Mayle v. Felix, 545 U.S. 644, 162 L. Ed. 2d 582, 125 S. Ct. 2562 (2005), and the parties extensively discuss that decision in their briefs. In Mayle, the United States Supreme Court held that an amended habeas petition does not relate back and escape the 1-year time limitation of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1), when the amended petition asserts a new ground for relief supported by facts that differ in both time and type from those set forth in the original pleading. 545 U.S. at 650. Pabst argues that all of his new claims involve his trial attorneys conduct at the retrial, so they meet the time and type requirement. There is some merit in viewing an ineffectiveness claim as a unitary issue, notwithstanding the number of separate reasons advanced in support of the claim. See Galloway, 56 F.3d at 1241. However-, our rule governing the sufficiency of a 60-1507 motion appears to require more specificity. Supreme Court Rule 183(e) dictates that “[a] motion to vacate a sentence shall be deemed sufficient if in substantial compliance with the form” set forth by the Judicial Council. 2007 Kan. Ct. R. Annot. 244. In paragraph 10 of that form, movant is directed to “[s]tate concisely all the grounds on which you base your allegation that you are being held in custody unlawfully.” In the next paragraph, movant is directed to concisely state the facts which support each of the grounds. That language calls for specificity in the manner in which the movant claims ineffective assistance of counsel. Further, when a movant submits the form, he or she “is presumed to have listed all of the grounds upon which he is relying.” Smith v. State, 195 Kan. 745, 747, 408 P.2d 647 (1965). Accordingly, the district court was unquestionably correct in finding no relation back for the claims set forth in paragraphs (d), (e), (i), (j), (1), (m), and (p) of the amended motion because they are based on different grounds than asserted in the original motion. The claims set forth in paragraphs (f), (g), and (h) dealt with trial counsel’s effectiveness concerning Dr. Mitchell’s testimony, which could arguably be bootstrapped into an originally raised ground for relief. However, any error in that regard was ameliorated when the district court nevertheless ruled on the merits of those claims. Finally, Pabst argues in the alternative that the district court should have extended the time limitation of K.S.A. 60-1507(f)(l) to prevent manifest injustice, as permitted in K.S.A. 60-1507(f)(2). However, as the district court noted, Pabst failed to explain the delay between the fifing of the initial motion on October 15, 2003, and the attempted amendment filed July 15, 2005. Originally, Pabst’s attorney had asserted that additional time would be required to fully examine the trial and appellate records in order to identify supplemental grounds for relief. The district court found that those records were available through the office of the Clerk of the District Court of Thomas County during the entire period of the delay, suggesting that no good cause had been shown to extend the limitation period. Further, we find unavailing Pabst’s argument that it was manifestly unjust for him not to have known that the district court would not find K.S.A. 60-215(a) applicable to give him an absolute right to amend his motion. Apparently, original counsel did not believe such an absolute right existed, given that he advised the court that he would seek leave of court to supplement the motion, after reviewing the record. As noted, no leave of court was sought. The district court did not err in fading to apply K.S.A. 60-1507(f)(2) to extend the limitation period. RULING ON BARRED ISSUES Finally, Pabst complains that the district court considered and rejected his new claims, after having determined that they were time-barred. Specifically, he asserts that it was error to rule on those claims without an evidentiary hearing and without making specific findings of fact and conclusions of law. While Pabst argues why he believes his time-barred ineffectiveness claims had legal merit, he does not explain what evidence he was precluded from presenting on those claims. As noted, neither trial counsel nor appellate counsel were called as witnesses at the evidentiary hearing on the timely claims. Moreover, the presiding judge had personally observed trial counsel’s performance; the judge opined on counsel’s overall effectiveness in conducting the trial; and the judge found that the evidence against Pabst was overwhelming. Thus, Pabst fails to convince us that he was prejudiced by the district court’s alternative ruling on the merits of the time-barred claims. Similarly, the district court issued a lengthy memorandum decision, in which it made findings of fact and conclusions of law. Pabst did not object to the decision, and we therefore presume that the district court found all facts necessary to support its judgment. See Gilkey, 31 Kan. App. 2d at 77-78. Affirmed. Davis, J., not participating. McAnany, J., assigned.
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The opinion of the court was delivered by Luckert, J.: Angelo Ortega-Cadelan pled guilty to one count of rape in violation of K.S.A. 21-3502(a)(2) (sexual intercourse with child under 14 years of age). He received a mandatory Ufe sentence without the possibility of parole for 25 years and postrelease supervision for life. Ortega-Cadelan appeals his sentence. Raising a new issue on appeal, he argues his sentence constitutes cruel or unusual punishment. In addition, he argues the district court abused its discretion by denying his motion for a downward durational departure sentence. We affirm Ortega-Cadelan’s sentence. Regarding the first issue of whether the sentence constitutes cruel or unusual punishment, we conclude the issue cannot be raised for the first time on appeal. Regarding the second issue, we conclude the sentencing court properly considered all mitigating circumstances and did not abuse its discretion when it concluded those circumstances were not substantial and compelling reasons to impose a departure sentence. Facts The sentence relates to Ortega-Cadelan’s conviction for committing an act of sexual intercourse with a 5-year-old child, his stepdaughter, on or between November 1, 2006, and November 27, 2006. Ortega-Cadelan pled guilty to the statutory rape charge under a plea agreement with the State, and in exchange, he was free to seek a sentencing departure. Ortega-Cadelan filed a motion requesting a durational departure sentence pursuant to K.S.A. 2006 Supp. 21-4643(d), in effect at the time of the offense, and he presented arguments at the sentencing hearing. The district court, however, found none of the reasons asserted by Ortega-Cadelan in his departure motion or at the sentencing hearing were substantial and compelling reasons to depart from the mandatory minimum sentence. Therefore, pursuant to K.S.A. 2006 Supp. 21-4643(a)(l), the court sentenced Ortega-Cadelan to a mandatoiy life sentence with out the possibility of parole for 25 years. And, pursuant to K.S.A. 2006 Supp. 22-3717(d)(l)(G), the court ordered postrelease supervision for the remainder of Ortega-Cadelaris natural life. Ortega-Cadelan raises a timely appeal of his sentence. This court has jurisdiction under K.S.A. 22-3601(b)(l) (life sentence; off-grid crime). Cruel or Unusual Punishment Ortega-Cadelan concedes he did not present the constitutional issue of whether his sentence constituted cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights to the district court. Generally, constitutional issues cannot be asserted for the first time on appeal. State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007). However, in Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967), a constitutional issue case, we recognized three exceptions to the general rule: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason. See, e.g., State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008); State v. Conley, 270 Kan. 18, 30-31, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001); State v. Puckett, 230 Kan. 596, 598-99, 640 P.2d 1198 (1982); but cf. State v. Snow, 282 Kan. 323, 342-43, 144 P.3d 729 (2006) (not stating third exception; stating exception as applying to “newly asserted theory that is strictly a question of law and its consideration is necessary to serve the ends of justice”); State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003) (same); State v. Papen, 274 Kan. 149, 161-62, 50 P.3d 37 (2002) (same). In past cases when a defendant has suggested one of the Pierce exceptions applies to an argument that a sentence is a cruel or unusual punishment, this court has determined the exception does not apply and has not considered the issue. See, e.g., State v. Myers, 260 Kan. 669, 700, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997); see also Churchill v. State, 216 Kan. 399, 399, 532 P.2d 1070 (1975) (merely stating general rule that constitutional issues are not considered for first time on appeal). Ortega-Cadelan suggests a different result is called for in this case. Yet, he fails to argue any specifics regarding how the issue satisfies an exception. He generally suggests that our consideration of the issue is necessary to serve the ends of justice. The difficulty with this argument, as we have noted before, is that we must be able to consider the merits of the issue to determine if justice demands its resolution: “[T]o serve the ends of justice orto prevent the denial of fundamental rights, it follows that, on consideration, we must find reversible error occurred.” State v. Williams, 275 Kan. 284, 289-90, 64 P.3d 353 (2003). On occasion, such as in Williams, the error will be uncontroverted and the only remaining question is the seriousness of the error. In other cases, resolution of another issue in the case will preclude or preordain the outcome of the constitutional question and answer the inquiiy of whether justice demands resolution. Myers, 260 Kan. at 701. Yet, in still other situations, such as in this case, we must consider whether we are able to analyze the merits of the issue based upon the record before us. See Singleton v. Wulff, 428 U.S. 106, 120, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (1976). Consideration of the sufficiency of the record dovetails with the first exception of whether the newly asserted issue raises a question of law or can be decided on undisputed facts. The specific question raised in this case of whether a sentence offends the constitutional prohibition against cruel or unusual punishment includes both factual and legal questions. This court has adopted three considerations that structure the analysis: “(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are die facts of tire crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment; “(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and “(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). The first of these considerations is inherently factual, requiring examination of the facts of the crime and the particular characteristics of the defendant. Because this issue was not raised before the district court, neither party had an opportunity to present evidence or arguments to the district court. Consequently, the State suggests the issue would be better raised in a collateral proceeding brought pursuant to K.S.A. 60-1507 so that both parties have an opportunity to develop a complete record. For example, it is apparent from the transcript of the sentencing hearing that there was a psychological evaluation of Ortega-Cadelan. Had it been known that an issue of cruel or unusual punishment would be raised on appeal, it seems highly probable this evaluation would have been made a part of the record of that proceeding. Granted, the other considerations in the analysis of whether a sentence is cruel or unusual are legal determinations, and it is primarily the second consideration on which Ortega-Cadelan builds his argument. Yet, one consideration is not necessarily controlling over ihe other considerations; in fact, in Freeman the three considerations were referred to as “the three pronged test.” 223 Kan. at 368. Ultimately, one consideration may weigh so heavily that it directs the final conclusion. Before that conclusion is reached, however, consideration should be given to each prong of the test. Particularly where arguments focus upon proportionality, and that is the thrust of Ortega-Cadelan’s arguments, the factual aspects of the test are a necessary part of the overall analysis. Hence, neither the first nor the second exception applies. Similarly, the final exception — the judgment of the district court is right for the wrong reason — cannot be applied because the record is insufficient to determine the merits of the issue. Consequendy, we conclude Ortega-Cadelan’s argument that his sentence is a cruel or unusual punishment, presented for the first time on appeal, is not properly before this court. Downward Durational Departure Motion Next, Ortega-Cadelan argues the district court erred by denying his request for a downward durational departure sentence. Under the statute in effect at the time of Ortega-Cadelan’s offense, K.S.A. 2006 Supp. 21-4643(a), a first-time offender who is age 18 years or older, convicted of committing sexual intercourse with a child under the age of 14, “shall be sentenced to a term of imprisonment for life with a mandatoiy minimum term of imprisonment of not less than 25 years.” Subsection (d) allows for departure sentences, providing “the sentencing judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” If the sentencing judge departs from the mandatoiy minimum term, the departure sentence “shall be the sentence pursuant to the sentencing guidelines act, K.S.A. 21-4701 et seq., and amendments thereto, and no sentence of a mandatoiy minimum term of imprisonment shall be imposed.” K.S.A. 2006 Supp. 21-4643(d). The statute specifies a nonexclusive list of mitigating factors the judge may consider in determining whether substantial and compelling reasons for departure exist: (1) The defendant has no significant criminal history; (2) the crime was committed while the defendant was under the influence of extreme mental or emotional disturbances; (3) the victim was an accomplice, and the defendant’s participation was relatively minor; (4) the defendant acted under extreme distress or substantial domination of another person; (5) the defendant’s capacity to appreciate the criminality of his or her conduct or conform such conduct to the requirements of the law was substantially impaired; and (6) the defendant’s age at the time of the crime. K.S.A. 2006 Supp. 21-4643(d)(l)-(6). In his departure motion, Ortega-Cadelan asked the district court to impose a Kansas sentencing guidelines sentence under the grid block corresponding to the severity level of his crime and his criminal history score I. In support of his request, Ortega-Cadelan cited three mitigating circumstances: (1) his lack of prior felony convictions, (2) his admission of guilt in this case, and (3) the sex offender evaluator’s conclusion that Ortega-Cadelan was a good candidate for sex offender treatment. Considering these arguments at the sentencing hearing, the district court recognized that Ortega-Cadelan had “very little previous criminal history” but concluded that “the extent of the crime and the impact of the crime upon a 5-year-old girl outweighs the fact that [Ortega-Cadelan] does not have significant criminal history.” The judge also stated: “By the same token, while [Ortega-Cadelan] admitted the responsibility in this matter and took a guilty plea . . . , I’m not going to find that is a substantial and compelling reason to justify a departure either.” Indicating that he had considered Ortega-Cadelan’s other asserted arguments, the judge stated that “[n]one of the other grounds in the case convince me ... to impose a durational departure.” As a preliminary matter before we review these rulings, the State suggests this court does not have jurisdiction to consider whether the district court erred in these conclusions because Ortega-Cadelan received a presumptive sentence. It is well known that if the record shows there is no jurisdiction for the appeal, the appellate court must dismiss the case. State v. Harp, 283 Kan. 740, 746, 156 P.3d 1268 (2007). To make this determination, the appellate court must conduct a de novo review of the governing statutes because the right to appeal is statutory; neither the United States nor Kansas Constitutions grant such a right. State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008); State v. Scoville, 286 Kan. 800, 188 P.3d 959 (2008); State v. Flynn, 274 Kan. 473, 477, 55 P.3d 324 (2002). The Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., defines a defendant’s right to appeal from his or her sentence and, as applicable to this issue, provides that “the appellate court shall not review: (1) Any sentence that is within the presumptive sentence for the crime.” K.S.A. 21-4721(c)(l). The KSGA defines “presumptive sentence” as “tire sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the current crime of conviction and the offender’s criminal history.” K.S.A. 21-4703(q). Ortega-Cadelan’s sentence does not meet the K.S.A. 21-4703 definition of “presumptive sentence,” as his sentence was not issued pursuant to a number in a grid block. Under the circumstances of this case, the KSGA grid was inapplicable. Moreover, K.S.A. 2006 Supp. 21-4706(d) characterizes Ortega-Cadelan’s offense as an “off-grid [crime] for the purposes of sentencing.” Thus, the State’s jurisdictional argument is misguided; we hold that this court has jurisdiction to review a sentence imposed pursuant to K.S.A. 2006 Supp. 21-4643(a). We, therefore, consider the merits of Ortega-Cadelan’s arguments which suggest that each mitigating circumstance listed in K.S.A. 2006 Supp. 21-4643(d) constitutes a per se substantial and compelling reason for a departure sentence. Resolving this question requires our interpretation of K.S.A. 2006 Supp. 21-4643(d). Interpretation of a statute presents a question of law, and a de novo standard of appellate review applies. In re K.M.H., 285 Kan. 53, 63, 169 P.3d 1025 (2007). The rules of statutory interpretation are well known. As this court explained in In re “When we are called upon to interpret a statute, we first attempt to give effect to the intent of the legislature as expressed through the language enacted. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent. [Citations omitted.]” 285 Kan. at 79. Here, the statutory language regarding the consideration of mitigating circumstances is clear and unambiguous, stating the judge shall impose a life sentence “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A. 2006 Supp. 21-4643(d). Contrary to Ortega-Cadelan’s argument, this language does not make “mitigating circumstances” synonymous with “substantial and compelling reasons.” Rather, there is a two-step procedure: first, the judge reviews mitigating circumstances; second, the judge must determine if there are substantial and compelling reasons for a departure. The distinction between the terms is reiterated in the provision identifying six mitigating circumstances without reference to these factors as substantial and compelling reasons for departure. The procedure is similar to that mandated by K.S.A. 21-4716(c)(1), the general departure provision in the KSGA. K.S.A. 21-4716(c)(l) provides a nonexclusive list of mitigating factors, but as stated in State v. Favela, 259 Kan. 215, 233, 911 P.2d 792 (1996), “does not define what is a substantial and compelling reason for departure.” Rather, under both the KSGA provision and K.S.A. 2006 Supp. 21-4643(d), the district court must consider whether a mitigating circumstance is a substantial and compelling reason for departure under the facts of the case. There is no formula for this determination, and the list of nonexclusive mitigating circumstances merely serves as a guide for analysis. Consequently, we hold the mitigating circumstances listed in K.S.A. 2006 Supp. 21-4643(d) do not constitute per se substantial and compelling reasons for a departure sentence. Ortega-Cadelan’s arguments also require us to review the sentencing judge’s determination that the mitigating circumstances presented by Ortega-Cadelan were not substantial and compelling reasons for departure. In considering other sentencing departure provisions, this court has reviewed a district court’s weighing of aggravating and mitigating circumstances for abuse of discretion. See, e.g., State v. Jones, 283 Kan. 186, 215, 151 P.3d 22 (2007) (hard 50 sentence); State v. Engelhardt, 280 Kan. 113, 144, 119 P.3d 1148 (2005) (same). In this context we have defined abuse of discretion very broadly, stating: “Judicial discretion is abused when no reasonable person would take the view adopted by the district judge.” 280 Kan. at 144. We find no reason to impose a different standard in this context and hold that an abuse of discretion standard applies to an appellate court’s review of a district court’s determination of whether mitigating circumstances presented under K.S.A. 2006 Supp. 21-4643 are substantial and compelling. A review of the sentencing transcript convinces us that the district court considered all of Ortega-Cadelan’s arguments, acknowledged the mitigating circumstances asserted by Ortega-Cadelan, and explained why it chose to reject the request for a downward durational departure. Reasonable people could agree with the dis trict court’s assessment of whether the mitigating circumstances were substantial and compelling. The district court did not abuse its discretion by denying OrtegaCadelan’s motion for a downward durational departure sentence. Affirmed.
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Per Curiam-. This is an original proceeding in disciphne filed by die office of the Disciplinary Administrator against Boyd R. McPherson, of Wichita, Kansas, an attorney admitted to the practice of law in Kansas. The office of the Disciplinary Administrator appears by and through Stanton A. Hazlett, Disciplinary Administrator. The respondent appears in person and by and through his attorney, Stephen M. Joseph. The formal complaint filed against the respondent alleged a violation of Kansas Rules of Professional Conduct (KRPC) 1.3 (diligence) (2007 Kan. Ct. R. Annot. 398), KRPC 1.4 (communication) (2007 Kan. Ct. R. Annot. 413), KRPC 1.15(b) (client funds) (2007 Kan. Ct. R. Annot. 473), KRPC 1.16 (terminating representation) (2007 Kan. Ct. R. Annot. 487), KRPC 4.1(a) (false statement) (2007 Kan. Ct. R. Annot. 527), KRPC 8.1 (disciplinary matter) (2007 Kan. Ct. R. Annot. 553), and KRPC 8.4(c) (dishonesty) (2007 Kan. Ct. R. Annot. 559). A hearing was held before a panel of the Kansas Board for Disciphne of Attorneys where the respondent was personally present and represented by counsel. Prior to the proceeding, the Disciplinary Administrator struck the allegations from the formal complaint of violations of KRPC 1.16, KRPC 1.4, and KRPC 8.1. Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation for disciphne to this court: “FINDINGS OF FACT “The Hearing Panel finds the following facts, by clear and convincing evidence: “1. Boyd R. McPherson (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 15599. His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Wichita, Kansas. . . . The Respondent was admitted to the practice of law in the State of Kansas on September 25, 1992. “DA9933 “2. In January, 2005, David North retained the Respondent to file a motion to change custody. Mr. North resided in Omaha, Nebraska, with his second wife. Mr. North’s former wife and his daughter resided in Wichita, Kansas. “3. On March 31, 2005, the Respondent filed the motion in Mr. North’s behalf. On April 25, 2005, the Court scheduled an evidentiary hearing for August 17, 2005, ordered the parties to provide a prehearing conference order by July 26, 2005, and ordered that a settlement conference be held on August 2, 2005. “4. After the Court-ordered deadline, on August 3, 2005, the Respondent prepared a prehearing conference order. However, the Respondent failed to forward it to Ms. Simpson or file it with the Court. “5. On August 16, 2005, in preparation for the hearing the following day, the Respondent spoke by telephone with Mr. North. Thereafter, Mr. North, his wife, and a witness traveled from Omaha, Nebraska, to Wichita, Kansas, for the hearing. “6. Overnight, the Respondent became ill and was unable to attend Mr. North’s hearing. The Respondent contacted Suzanne Dwyer, an attorney with whom he shared an office, told her that he was ill, and asked that she notify his client and the Court. Ms. Dwyer went to the courthouse and informed Mr. North that the Respondent was ill and would be unable to appear for the hearing. “7. At the hearing, Ms. Dwyer appeared with Mr. North. At that time, the Court dismissed the pending motion without prejudice because no prehearing order had been filed by the Respondent as previously ordered. Additionally, the Court ruled that the Respondent could file another motion, but that opposing counsel may be entitled to attorneys fees. Finally, the Court stated that the Respondent could have his first motion reinstated if he could show that he timely sent the prehearing order to Ms. Simpson. “8. Following the hearing, on August 17, 2006, Ms. Dwyer called the Respondent at home and informed him of the Court’s orders and instructions. That same day, the Respondent prepared a letter on his home computer to Ms. Simpson. The letter provided: ‘Enclosed herein please find my portion of the Prehearing Conference Order. Please provide you [sic] information as soon as possible. Sorry for the delay with this.’ “9. Following the August 17, 2005, hearing, Mr. North contacted the Respondent on a number of occasions to obtain information regarding the status of the case. The Respondent failed to respond to many of Mr. North’s requests for information. “10. Without first making the proper showing to the Court as ordered on August 17, 2005, the Respondent filed a motion which scheduled the custody matter for November 8, 2005. On November 1, 2005, the Respondent forwarded a copy of the motion to schedule the custody matter for hearing to Ms. Simpson. “11. On November 3, 2005, Ms. Simpson responded and informed the Respondent that she believed that he had failed to comply with the Court’s August 17, 2005, order. “12. On November 7, 2005, the Respondent wrote to Ms. Simpson. His letter provided as follows: T am in receipt of your letter dated November 3, 2005 regarding a hearing date in this matter. I had Jolene print out a copy of my letter to you dated August 9, 2005 transmitting to you my proposed Prehearing Order regarding this matter. This is the correspondence you advised Judge Yost you never received. A copy is enclosed herewith. ‘It is my request that the court grant a new evidentiary hearing without the necessity of filing a new motion.’ The Respondent’s November 7, 2005, letter was an attempt to mislead Ms. Simpson into believ[ing] that he had sent Ms. Simpson a copy of the Prehearing Conference Order on August 9, 2005. “13. On November 7, 2005, Ms. Simpson informed the Respondent that she had not previously received the letter which purported to be sent on August 9, 2005. “14. Because the Respondent had not accomplished what Mr. North had retained him to accomplish, Mr. North became frustrated. Mr. North contacted his former wife and negotiated a settlement of the issues directly. The terms of the agreement were sent to the Respondent and an order reflecting the agreement was filed with the Court on December 19, 2005. “15. In June, 2006, Mr. North filed a complaint against the Respondent with the Disciplinary Administrator’s office. David Calvert of the Wichita Ethics and Grievance Committee was assigned to investigate the complaint. When Mr. Calvert interviewed the Respondent he did not disclose that the August 9, 2005, letter was created after the fact to mislead Ms. Simpson. Later, the Respondent recontacted Mr. Calvert and admitted to making the letter after the fact to mislead Ms. Simpson and avoid paying her fees. “16. After the disciplinary complaint was filed, the Respondent agreed to waive the outstanding fees. On August 7, 2006, the Respondent wrote to Mr. North. The letter provided as follows: ‘This is to confirm the agreement you reached with Ms. Dwyer regarding the outstanding balance due and owing on your account and all other matters pertaining to my representation of you in the above captioned matter. I agree to consider your account paid in full at this time based upon your representations to Ms. Dwyer that you consider such as full satisfaction of any and all claims you may assert against me regarding my representation of you in the above captioned matter. Further, it is my understanding that you are not requesting any further pursuits of your complaint against me. Please confirm in writing that this is our agreement.’ Mr. North responded to the Respondent’s letter on September 7, 2006. “DA10118 “17. On April 10, 2006, Alisa B. Lehnherr retained the Respondent to file an action in divorce in her behalf. The following day, Ms. Lehnherr paid the Respondent $2,611.00 for costs and fees. The Respondent told Ms. Lehnherr that she could stop the proceedings at any time and that he would refund any unearned fees to her. “18. On April 11, 2006, the Respondent filed a petition in Ms. Lehnherr’s behalf. On April 24, 2006, Ms. Lehnherr called the Respondent, informed him that she and her husband had reconciled, and directed him to stop the divorce proceedings. At that time, the Respondent assured Ms. Lehnherr that he would terminate the divorce proceedings and would refund the unearned fees when his billing was complete. “19. Thereafter, Ms. Lehnherr contacted the Respondent on numerous occasions seeking a refund of the unearned fees. The Respondent failed to return Ms. Lehnherr’s telephone calls. Finally, in January, 2007, after still not receiving a refund of the unearned fees, Ms. Lehnherr filed a complaint against the Respondent with the Disciplinary Administrator. “20. On February 28, 2007, the Respondent issued a check to Ms. Lehnherr in the amount of $1,934.11. She received the check on March 11, 2007. “CONCLUSIONS OF LAW “1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.3, KRPC 1.15, KRPC 4.1, and KRPC 8.4(c), as detailed below. “2. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Mr. North when he failed to timely provide the prehearing conference order to Ms. Simpson and the Court and when he failed to timely have Mr. North’s motion heard by the Court. Because the Respondent failed to act with reasonable diligence and promptness in representing Mr. North, the Hearing Panel concludes that the Respondent violated KRPC 1.3. “3. KRPC 1.15 provides ‘(b) 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 or 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.’ The Respondent faded to prompdy deliver the unearned fees to Ms. Lehnherr. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.15(b). “4. KRPC 4.1(a) provides that ‘[i]n the course of representing a client a lawyer shall not knowingly . . . make a false statement of material fact or law to a third person.’ The Respondent violated KRPC 4.1(a) when he knowingly and intentionally created the letter, dated August 9, 2005, which purported to be a cover letter sent to Ms. Simpson. The Respondent created the letter after the date indicated and did not send it to Ms. Simpson until months later, in an attempt to show that he previously promptly complied with the order of the Court. The Hearing Panel concludes that the Respondent violated KRPC 4.1(a). “5. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty when he created the letter, dated August 9, 2005, which purported to be a cover letter sent to Ms. Simpson. By creating the letter, the Respondent engaged in conduct that involved dishonesty, fraud, deceit, and misrepresentation, in that, the Respondent attempted to avoid paying Ms. Simpson’s fees and malee it appear as though he had promptly complied with the Court’s order. Because the Respondent engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c). “AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS “In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “Duty Violated. The Respondent violated his duty to the public and legal profession to maintain his personal integrity. “Mental State. The Respondent knowingly violated his duty. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual and potential injuiy. “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: “Prior Disciplinary Offenses. The Respondent has been previously disciplined on three occasions. On October 31, 1997, the Kansas Supreme Court censured the Respondent for having violated MRPC 1.1, MRPC 1.2, MRPC 1.3, MRPC 1.4, MRPC 3.2, MRPC 8.1, MRPC 8.4, and Kan. Sup. Ct. R. 207. The Court did not publish the Respondent’s censure in tire Kansas Reports, however. Addition ally, on February 28,2003, and September 8,2006, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.4 and KRPC 1.3, respectively. “Dishonest or Selfish Motive. The Respondent’s misconduct, in writing the August 9, 2005, letter to Ms. Simpson, was motivated by dishonesty and selfishness. By creating the document and sending it to Ms. Simpson claiming it was a copy of a letter previously sent, the Respondent attempted to mislead Ms. Simpson and avoid paying her fees associated with the motion to change custody. “Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.15, KRPC 4.1(a), and KRPC 8.4(c). As such, the Respondent committed multiple offenses. “Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process. When Mr. Calvert interviewed the Respondent [he] did not disclose that he created the August 9, 2005, letter after the date indicated. Later, however, the Respondent mitigated this misconduct by fully disclosing the misconduct to Mr. Calvert. Further, the Respondent fully admitted the misconduct during the formal proceedings before the Kansas Board for Discipline of Attorneys. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1992. At the time the Respondent’s misconduct began, he had been practicing law for a period of 13 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct. “Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present: “The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. At the hearing, the Respondent fully cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct. “Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of the bar in Wichita, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by several letters received by the Hearing Panel. “Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse. “Remoteness of Prior Offenses. The discipline imposed in 1997 is remote in time and in character to the misconduct in this case. “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.’ Standard 4.12. Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.2. ‘Suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further acts of misconduct that cause injuiy or potential injury to a client, the public, the legal system, or the profession.’ Standard 8.2.” The Disciplinary Administrator recommended to the panel that the respondent be suspended for 1 year. The respondent, in turn, advocated a discipline of published censure. The hearing panel unanimously recommended a discipline of 6 months’ suspension from the practice of law. The respondent raises exceptions before this court to three of the panel’s factual findings and to the panel’s recommended discipline. The respondent does not take exceptions to the panel’s conclusions that he violated KRPC 1.3 (2007 Kan. Ct. R. Annot. 398), KRPC 1.15 (2007 Kan. Ct. R. Annot. 473), KRPC 4.1 (2007 Kan. Ct. R. Annot. 527), and KRPC 8.4(c) (2007 Kan. Ct. R. Annot. 559). Thus, these violations are deemed admitted under Supreme Court Rule 212(c) (2007 Kan. Ct. R. Annot. 317). Discussion The respondent argues that three of the findings made by the hearing panel are not supported by the record. In particular, the respondent disputes the panel’s finding in paragraph 10 of the final hearing report that he filed a motion for a hearing in North’s custody proceeding in violation of a prior court order. He also argues that the panel should have made a finding in paragraph 20 of the final hearing report that he did not commingle personal funds in his client trust account. Finally, the respondent asserts that the panel incorrectly found as an aggravating factor that he had engaged in deceptive practices during the course of the disciplinary investigation. Standard of Review In disciplinary proceedings, this court “considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. [Citation omitted.] Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. [Citations omitted.]” In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003). Clear and convincing evidence is “evidence that causes the factfinder to believe that ‘the truth of the facts asserted is highly probable.’ ” In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 (2008) (quoting In re B.D.-Y., 286 Kan. 686, 697, 187 P.3d 594 [2008]). This court gives the final hearing report in a disciplinary case the same level of deference as it would a special verdict by a juiy or the findings of a district court during a bench trial. Lober, 276 Kan. at 636. When the panel’s findings relate to matters about which there was conflicting testimony, this court recognizes that the panel, as the trier of fact, had the opportunity to observe the witnesses and evaluate their demeanor. The court therefore does not reweigh the evidence or pass on credibility of witnesses. In re Rumsey, 276 Kan. 65, 76, 71 P.3d 1150 (2003). Rather, this court will generally affirm the panel’s findings if it determines that a rational factfinder could have found that it was highly probable that the respondent engaged in the activity described in the hearing report. See Dennis, 286 Kan. at 725. Analysis Paragraph 10 of the final hearing report provides: “Without first making the proper showing to the Court as ordered on August 17, 2005, the Respondent filed a motion which scheduled the custody matter [in the North case] for November 8, 2005. On November 1, 2005, the Respondent forwarded a copy of the motion to schedule the custody matter for hearing to Ms. Simpson.” The respondent takes exception to this finding, arguing in his brief that “[rescheduling the earlier motion regarding residential placement without the district court’s permission would have been a violation of the court’s August 17 order,” but “[a]sking the court to reschedule the hearing was not a violation of the order.” The respondent explains that he is taking exception to this finding “to avoid a mistaken impression by the Supreme Court that [he] also violated the district court’s August 17 order.” David North’s custody case was originally set for an evidentiary hearing on August 17, 2005. The respondent did not show up on the date of the hearing, however, because he was ill. When the respondent did not show at the August 17, 2005 hearing, the court dismissed the pending custody motion without prejudice because the respondent had failed to provide a pretrial order. The court indicated that the respondent could file another motion, but Ms. Simpson (the opposing counsel in the case) might be entitled to attorney fees. The court also indicated that the respondent’s original motion for an evidentiary hearing might be reinstated if the respondent could show that he had sent Simpson the pretrial order before the August 17 hearing. The respondent does not dispute these facts. On November 1, 2005, the respondent filed a motion with the court “to schedule [the custody] matter for Evidentiary Hearing.” Attached to this motion was a notice of hearing, which stated that the “foregoing Motion will be heard on the 8th day of November, 2005 at 9:30 a.m. in the Family Law Department of the Sedgwick County Courthouse.” Prior to filing the November 1 motion, the respondent had not demonstrated to the court that he had sent the pretrial order to Simpson. The record demonstrates that the district court issued an order on August 17, 2005, stating that an evidentiary hearing would not be reinstated until the respondent demonstrated to the court that he had sent the pretrial order to Simpson. On November 1, 2005, the respondent sent a notice of evidentiary hearing on the custody matter without ever complying with the court’s precondition. The respondent admitted these facts in his answer to the disciplinary complaint. The respondent’s contention that paragraph 10 is not supported by clear and convincing evidence is without merit. Paragraph 20 of the final hearing report provides: “On February 28, 2007, the Respondent issued a check to Ms. Lehnherr in the amount of $1,934.11. She received the check on March 11, 2007.” The respondent argues paragraph 20 should be supplemented with a finding that he did not comingle personal funds with Lehn herr’s funds in his client trust account or misuse those funds in any way. The respondent claimed that the balance of Lehnherr s retainer always remained in the respondent’s trust account until he returned it to her. The Disciplinary Administrator points out that there was never any allegation made that the respondent comingled or misused Lehnherr’s funds. The cause for Lehnherr’s complaint — and the resultant finding by the panel — -was the respondent’s 10-month delay in returning the balance of her retainer when she notified him that she was terminating his representation. Because the respondent was never charged with having misused Lehnherr’s funds, there is no need to supplement the panel’s factual findings with additional findings irrelevant to the allegations of the formal complaint. Finally, the respondent takes issue with the panel’s finding as an aggravating factor that he engaged in deceptive practices during the disciplinary process. The respondent’s deception was based on the panel’s conclusion that when he was initially interviewed by David Calvert, who was investigating the allegations of misconduct relating to the respondent’s representation of North, he did not disclose that he had created the August 9 letter he allegedly sent to Simpson (which purportedly was accompanied by the pretrial order) until months after the fact to avoid paying Simpson’s attorney fees. As background, the respondent sent Simpson a letter on November 7, 2005, regarding North’s custody dispute to which the respondent attached a letter he allegedly sent to Simpson on August 9. Simpson responded with a letter that same day stating that she never received the original August 9 letter and that the copy of that letter sent to her on November 7 was not on letterhead and was not signed. She also indicated that the pretrial conference order provided on November 7 was incomplete in that it did not include a statement of the anticipated testimony of any of the witnesses. The respondent now acknowledges that he created the purported August 9 letter after the fact in order to avoid paying Simpson’s attorney fees under the district court’s August 17 order and in an attempt to have the district court reschedule the evidentiary hearing without having to restart the custody process. In the respondent’s initial letter to Calvert explaining his representation of North, he made no mention of the fact that he had fabricated the August 9 letter months after the fact. Similarly, in his initial interview with Calvert, he did not mention that he drafted this letter well after it was dated despite Calvert’s reading of a letter from Simpson indicating that she had concerns about the August 9 letter. In the disciplinary hearing, the respondent claimed that he “really didn’t make any comment about [the letter]” to Calvert at that time, “but [he] didn’t tell [Calvert] that [it] was a fictitious letter.” The respondent admitted to the hearing panel that he was not candid with Calvert during the interview regarding the letter. The hearing panel found the respondent’s failure to communicate honestly with Calvert to be an aggravating factor in this case. The panel also found as a mitigating factor that the respondent subsequently cooperated with the disciplinary process and completely acknowledged his misconduct. The panel’s finding that the respondent was not forthright at all times during the disciplinary process is supported by the record and is balanced by its finding regarding the respondent’s subsequent cooperation. We conclude that there is clear and convincing evidence to support the panel’s finding that the respondent did engage in deceptive behavior at the outset of the investigation. Discipline The respondent argues that the panel’s recommended discipline — 6 months’ suspension — is inappropriate. Instead, the respondent asserts that the proper sanction is published censure. The Disciplinary Administrator recommended to the panel that a 1-year suspension from practice be imposed. Before this court, the Disciplinary Administrator modified his recommendation and now requests that this court impose a 6-month suspension. Standard of Review Although this court generally gives some deference to the hearing panel’s findings of fact and conclusions of law, see In re Lober, 276 Kan. at 636, a panel’s recommendation as to the appropriate discipline is advisory only and shall not prevent the court from imposing discipline greater or lesser than that recommended by the panel or the Disciplinary Administrator. Rule 212(f) (2007 Kan. Ct. R. Annot. 317); see In re Pittman, 285 Kan. 1133, 1141, 179 P.3d 404 (2008). Analysis The panel based its recommendation of 6 months’ suspension on Standards 4.12, 7.2, and 8.2 of the American Bar Association’s Standards for Imposing Lawyer Sanctions (ABA Standards). The respondent argues that these Standards were inappropriate given the panel’s findings regarding the respondent’s conduct, and a correct reading of the Standards reveals that the respondent should receive a published censure. Standard 4.12 The panel found that the respondent failed to return Lehnherr’s retainer from her divorce case until 10 months after she had notified him in April 2006 that she and her husband had reconciled and they were no longer going through with the divorce. The respondent assured Lehnherr in April that he would refund the unused portion of the retainer. Despite this assurance, the respondent did not return Lehnherr’s numerous phone calls about the retainer. It was not until February 2007 — a month after Lehnherr filed a disciplinary complaint against the respondent — that he returned the funds. ABA Standard 4.12 states that suspension is “generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.” The respondent argues that this standard is inappropriate because nothing in the record demonstrates that he knowingly delayed the reimbursement of Lehnherr’s money. Instead, he argues that ABA Standard 4.13, which refers to an attorney’s negligence, applies. The respondent bases this claim on his testimony at the disciplinary hearing that he did not promptly return Lehnherr’s funds from her divorce retainer for 10 months due to “[v]eiy poor management.” Contrary to the respondent’s assertions, the record demonstrates that the respondent personally spoke with Lehnherr in April 2006 and indicated that he would remit the unused portion of her retainer as soon as his billing was finished. Even if the respondent did not know, as he claimed at the hearing, of Lehnherr’s repeated attempts to contact him between April 2006 and January 2007, he nevertheless was aware that he was no longer representing her in the divorce case. Standard 7.2 The panel also found that ABA Standard 7.2 called for suspension in this case. Standard 7.2 states that “[suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty as a professional and causes injury or potential injury to a client, the public, or the legal system.” The respondent argues that according to the index for the ABA Standards, a violation of KRPC 4.1(a) is controlled by the considerations in either Standard 5.1 (failure to maintain personal integrity) or 6.1 (false statements, fraud, misrepresentation), not Standard 7 (violations of duties owed as a professional). In particular, the respondent argues that ABA Standard 5.13 is appropriate in this case: “Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.” The ABA Standards provide that Standards set forth in section 5.1 are appropriate unless there are aggravating or mitigating circumstances. As the Disciplinary Administrator points out in the brief in this case, the respondent knowingly drafted the August 9 letter to opposing counsel in the North custody dispute in November in order to avoid paying opposing counsel’s attorney fees in violation of a prior court order. Moreover, during oral argument before this court, the respondent indicated that his primaiy motivation for generating the fraudulent letter was to reschedule the evidentiary hearing without having to restart the entire custody process over again. In other words, although the letter itself was not sent to the district court or filed with that court, the respon dent’s ultimate goal in drafting the letter was to convince the court that he had complied with its previous order when he actually had not done so. These circumstances demonstrate that the respondent’s conduct is more egregious than that discussed in Standard 5.13. The more appropriate standard, in our view, is Standard 6.12, which states: “Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.” The respondent in this case generated a false letter to opposing counsel with the dual goal of avoiding sanctions and of convincing the court to reschedule the evidentiary hearing. The respondent knew that the August 9 letter would eventually be submitted to the court and hoped that the court would rely on that letter to reopen the case. Such conduct is much more grievous than the respondent acknowledges in his brief and argument before this court. Standard 8.2 The panel additionally relied on ABA Standard 8.2, which states that “[suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further similar acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.” The respondent received an unpublished censure in 1997 based on his mishandling of a criminal appeal to which he was appointed (that appeal was subsequendy dismissed because the respondent failed to prosecute the appeal); an informal admonition in 2003 due to his failure to prosecute an appeal for a client’s family law case; and another informal admonition in 2006 for lack of diligence for failing to file an order in a domestic case he was handling. The Disciplinary Administrator correctly points out that all of these cases involve a lack of diligence. In this case, the panel found that the respondent failed to exercise diligence in his representation of North when he failed to timely file the pretrial order and this failure prevented the court from hearing North’s motion. Even if the respondent’s statement in his brief before this court is true that this lack of diligence is the “least significant of the conclusions of misconduct against” him, it nevertheless exhibits a pattern of misconduct that the respondent has not remedied — despite successive citations by the Disciplinary Administrator. Appropriate Discipline The two complaints filed against the respondent in this case resulted from the respondent’s failure to prosecute North’s custody case, from the respondent’s fabrication of the August 9 letter to opposing counsel in North’s case to avoid paying attorney fees and to persuade the court to reopen the case and hold an evidentiary hearing, and from the respondent’s 10-month delay in reimbursing the balance of Lehnherr’s funds. The respondent has been disciplined for lack of diligent representation in the past. Moreover, the respondent’s after-the-fact creation of the August 9 letter was particularly repugnant in that it was not only dishonest, but was created to avoid personal sanction and to circumvent court orders. The combination of these actions calls into serious question the respondent’s fitness to practice law. Based upon our consideration of the entire record and the statements of counsel and the respondent before this court, we are convinced that the recommended discipline by the panel is the appropriate discipline in this case. Counsel for the respondent requests that this court delay imposition of the suspension so that the respondent’s firm, of which his counsel Joseph is a member, may find other attorneys to represent ongoing clients of the respondent. We have considered this request and deem it inappropriate to delay the discipline imposed against the respondent. We are not unmindful of the clients whom the respondent represents, but we are convinced that members of the firm continuing in the active practice will adequately provide for their interest. We conclude that the findings of the hearing panel are supported by clear and convincing evidence, and we adopt the hearing panel’s findings of fact and conclusions of law. We also conclude that the panel has fully considered all factors in relation to the appropriate discipline in this case, and we adopt its recommendation for discipline that the respondent be suspended from the practice of law for a period of 6 months. It Is Therefore Ordered that respondent, Boyd R. McPherson, be and he is hereby suspended from the practice of law in the state of Kansas for a period of 6 months, effective on the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2007 Kan. Ct. R. Annot. 261). It Is Further Ordered that the respondent comply with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337) and that the respondent shall not engage in the practice of law until such time as the respondent is reinstated pursuant to Supreme Court Rule 219 (2008 Kan. Ct. R. Annot. 365). It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to respondent. Luckert, J., not participating. Michael Corrigan, District Judge, assigned.
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Per Curiam: The United States Court of Appeals for the Tenth Circuit, pursuant to K.S.A. 60-3201, submits five certified questions regarding the interpretation of various provisions of the Kansas Code of Judicial Conduct, Rule 601A (2007 Kan. Ct. R. Annot. 617). Kansas Judicial Review v. Stout, 519 F.3d 1107 (10th Cir. 2008). The case from which the questions arise is on appeal from a decision of the United States District Court for the District of Kansas, which granted a preliminaiy injunction against enforcement of the questioned judicial canons on the basis that they violated the First Amendment to the United States Constitution. See Kansas Judicial Watch v. Stout, 440 F. Supp. 2d 1209, 1239-41 (D. Kan. 2006). These certified questions require this court to interpret three sections of the Kansas Code of Judicial Conduct (2007 Kan. Ct. R. Annot. 640): Canon 5A(3)(d)(i), Canon 5A(3)(d)(ii), and Canon 5C(2). Canon 5A(3)(d)(i) — the “pledges clause” — states that a can didate for judicial office “shall not . . . make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.” (2007 Kan. Ct. R. Annot. 641.) Canon 5A(3)(d)(ii) — the “commits clause” — states that a candidate for judicial office “shall not . . . malee statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” (2007 Kan. Ct. R. Annot. 642.) Canon 5C(2) — the “solicitations clause” — states in relevant part that a candidate for judicial office “shall not personally . . . solicit publicly stated support . . . . A candidate subject to public election may, however, establish committees of responsible persons ... to obtain public statements of support for his or her candidacy.” (2007 Kan. Ct. R. Annot. 643-44.) The five questions certified by the Tenth Circuit, and our respective answers to those questions, are as follows: 1. Does a judicial candidate violate Canon 5A(3)(d)(i) and (ii) by answering a questionnaire asking for his or her views on disputed legal and political issues? Answer: Perhaps, depending on the questions asked. 2. Does a judicial candidate solicit “publicly stated support” in violation of Canon 5C by personally collecting signatures for his or her nomination petition? Answer: Yes. 3. Does the definition of “the faithful and impartial performance of the duties of the office” in Canon 5A(3)(d)(i) include all conduct relevant to the candidate’s performance in office? Answer: Yes. 4. Is the definition of “appear to commit” in Canon 5A(3)(d)(ii) limited to an objective appearance of a candidate’s intent to commit himself or herself? Answer: Yes. 5. Does the definition of “publicly stated support” in Canon 5C(2) include endorsements of a candidate? Answer: Yes. Factual Background Plaintiffs Kansas Judicial Review, a political action committee, Robb Rumsey, previously a judicial candidate and now a state dis trict court judge, and Charles Hart, a state district court judge, filed an action in the United States District Court for the District of Kansas against members of the Kansas Commission on Judicial Qualifications and the office of the Disciplinary Administrator, seeking injunctive and declaratory relief under 42 U.S.C. § 1983 (2000). The plaintiffs claimed that the three aforementioned provisions of the Kansas Code of Judicial Conduct violated their rights to freedom of speech and freedom of assembly under the First Amendment to the United States Constitution. See Kansas Judicial Watch, 440 F. Supp. 2d 1209. The federal district court granted a prehminary injunction against enforcement of the judicial canons in question. 440 F. Supp. 2d at 1240-41. The defendants appealed. The United States Court of Appeals for the Tenth Circuit determined that the plaintiffs’ First Amendment claims “rest[ed] on sufficiently novel and determinative questions of state law” regarding the canons and that there were “important state policy interests at play” regarding the regulation of judicial conduct and the judicial process. Kansas Judicial Review, 519 F.3d at 1120. The Tenth Circuit decided not to reach the merits of the plaintiffs’ claims before the Kansas Supreme Court had an opportunity to resolve the underlying questions of state law. 519 F.3d at 1120. The Tenth Circuit noted that if the Kansas Supreme Court were to interpret the provisions of our judicial code in such a way that the questionable conduct was permissible, the issues relating to the constitutionality of these provisions, which were reserved by the Tenth Circuit, might be eliminated. 519 F.3d 1120-22. This court has jurisdiction to answer questions certified to it by a United States Court of Appeals under K.S.A. 60-3201, which provides that the Kansas Supreme Court may answer certified “questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court and the court of appeals of this state.” Because certified questions must, by definition, turn on legal issues, this court’s review of such questions is unlimited, subject only to the contours of the questions themselves. Danisco Ingre dients USA, Inc. v. Kansas City Power & Light Co., 267 Kan. 760, 764-65, 986 P.2d 377 (1999). The underlying facts are not in dispute. The Tenth Circuit Court of Appeals provided the following factual background: “A “Kansas provides for popular election of some judges, holding partisan political contests for judicial office in 14 of its 31 judicial districts. The Kansas Supreme Court has adopted a Code of Judicial Conduct (‘Code’) regulating the behavior of judges and judicial candidates. See Kan. Sup. Ct. R. 601A [2007 Kan. Ct. R. Annot. 617]. Three bodies are involved in the interpretation and enforcement of the Code: the Judicial Ethics Advisory Panel (‘JEAP’), the Commission, and the Kansas Supreme Court. “JEAP was created by the Kansas Supreme Court to provide nonbinding ethical ‘guidance’ to persons subject to the Code. See Kan. Sup. Ct. R. 650 [2007 Kan. Ct. R. Annot. 665]. The panel is comprised of three retired judges, one of whom is usually a retired state Supreme Court justice, and panel members are appointed by the Kansas Supreme Court. Judges and judicial candidates may request advisory opinions interpreting the Code from JEAP. [Rule 650(b).] Although these advisory opinions are not binding on die Commission or the Kansas Supreme Court, the Commission must take into account a judge or candidate’s reliance upon an advisory opinion in its investigation of an alleged violation of the Code. Kan. Sup. Ct. R. 650(f) [2007 Kan. Ct. R. Annot. 666]. According to Justice [Fred] Six, a former Commission member and a retired Kansas Supreme Court justice, judges in the state rely upon these opinions and consider them ‘authoritative.’ “The Commission, also established by the Kansas Supreme Court, is charged with investigating allegations against judges and candidates, and recommending disciplinary action when necessary. See Kan. Sup. Ct. R. 602-21 [2007 Kan. Ct. R. Annot. 647-59]. Its 14 members are appointed by the Supreme Court and consist of a mix of judges, lawyers, and nonlawyers. Anyone may submit a complaint regarding the conduct of a judge or candidate to the Commission, with the majority of complaints coming from the general public. Each complaint received by the Commission is assigned to a seven-member panel for investigation. If the investigatory panel finds probable cause of a violation of the Code, it refers the matter to a seven-member hearing panel for a trial-like proceeding. There is no direct appeal of the investigatory panel’s decision. “Upon finding clear and convincing evidence of an ethics violation, the hearing panel may take several actions, ranging from an admonishment by the panel to a recommendation that the Kansas Supreme Court remove the judge from the bench. Although the hearing panel may rely on clearly established constitutional law, it may not consider novel constitutional arguments. Disciplinary recommendations made by the panel are automatically reviewed by the Kansas Supreme Court. Factual findings of the hearing panel are subject to substantial evidence review. “This case involves challenges to three Code clauses. Canon 5A(3)(d) provides that judicial candidates ‘shall not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office’ (‘Pledges Clause’) or ‘make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court’ (‘Commits Clause’). Canon 5C(2) provides that ‘a candidate shall not personally . . . solicit publicly stated support,’ although candidates may establish committees to solicit support and campaign contributions on their behalf (‘Solicitation Clause’). These clauses apply to all judicial candidates. See Kan. Sup. Ct. R. 601A [Terminology] (defining ‘candidate’) [2007 Kan. Ct. R. Annot. 619]; 601A (containing Canon 5) [2007 Kan. Ct. R. Annot. 640-45]. “B “In February 2006, plaintiff [Kansas Judicial Review] KJR mailed a questionnaire and explanatory cover letter to all declared judicial candidates in Sedgwick County, Kansas. Candidates were asked to answer the questionnaire, designed to elicit views on a variety of legal and political issues. The cover letter asked that candidates answer the questionnaire, consistent with their ethical obligations under the Code. An option of declining to respond if candidates believed the Code prohibited answering was offered. KJR received seven responses, only one of which included substantive answers to the questionnaire. All other candidates marked the ‘Decline to Respond’ option. “JEAP has issued two opinions addressing candidate questionnaires. In 2000, JEAP published advisory opinion JE 100, which states that a judicial candidate may not answer questionnaires sent by newspapers for the purpose of deciding whether to malee an endorsement. The majority of the panel viewed the answering of such questionnaires as requests for public endorsement and concluded that a response would violate the Solicitation Clause. One panel member dissented and advanced the view that a candidate may answer such questionnaires but ‘must be ever mindful of the Canons of Judicial Conduct, particularly Canon 5.’ After JE 100 was published, the Commission attached a ‘Note’ to the opinion, stating that it was not bound by JEAP advisory opinions and adopted the minority view. “In 2006, plaintiff Robb Rumsey, at the time a candidate for judicial office, asked JEAP whether he could respond to KJR’s questionnaire. In advisory opinion JE 139, citing the Pledges and Commits Clauses, JEAP determined that because he was an announced candidate, Rumsey could not answer the questionnaire. Again, the Commission attached a ‘Note’ to the advisory opinion, rejecting JEAP’s approach. Citing Republican Party of Minnesota v. White, 536 U.S. 765, [153 L. Ed. 2d 694, 122 S. Ct. 2528] (2002), the Commission adopted the principle that judicial candidates may publicly announce their views on legal and political issues. [This note was added on August 2, 2006, after the district court had issued a preliminary injunction in the present case.] “Since adoption of the Canons, the Kansas Supreme Court has spoken to the Pledges Clause on one occasion, but has yet to address the other two clauses at issue. In re Baker, 218 Kan. 209, 542 P.2d 701 (1975), involved a candidate who was subjected to disciplinary proceedings after publicly pledging to be a ‘full-time judge’ and eliminate court delay. [218 Kan. at 212.] Rejecting the Commission’s disciplinary recommendation, the court held that these statements relate to the faithful performance of official duties and did not violate the Pledges Clause. [218 Kan. at 212.] “C “Plaintiff Charles M. Hart, a state district court judge in Rutler County, seeks to be a candidate for re-election in 2008. In order to qualify as a candidate, he requires a sufficient number of voters sign a nomination petition. In 2004, JEAP issued advisory opinion JE 117, declaring that a judicial candidate may not seek signatures for a nomination petition under the Solicitation Clause. Neither the Commission nor the Kansas Supreme Court has addressed JE 117 or the Solicitation Clause. Hart proposes to go door-to-door to collect these signatures, but will not do so because he fears discipline pursuant to the Solicitation Clause. “D “On May 24, 2006, KJR, Rumsey, and Hart filed a complaint against the Commission in federal district court, seeking injunctive and declaratory relief, and a motion for preliminary injunction. They requested that enforcement of the Pledges, Commits, and Solicitation Clauses be enjoined as being unconstitutionally overbroad and vague, and chilling candidates’ political speech, thereby restricting the free exchange of views between candidates and potential voters. Additionally, plaintiffs argued that the Clauses were unconstitutional as applied to them. In response, the Commission asserted that KJR lacked standing to sue, this preenforcement challenge was not ripe, and the clauses were constitutional. It also requested certification of a question of state law to the Kansas Supreme Court, namely whether the Pledges and Commits Clauses function as the kind of prohibition on announcements struck down by the United States Supreme Court in White, 536 U.S. 765 ... . “After a hearing, the district court granted a preliminary injunction as to the Pledges, Commits, and Solicitation Clauses, and denied the remaining requests. The district court found that, despite not being subject to the Canons, KJR had standing to challenge them and that plaintiffs’ claims were ripe for review. It also found that plaintiffs were likely to succeed on the merits of their claims that the Clauses were unconstitutional and that the other preliminary injunction factors weighed in their favor. The Commission filed a timely notice of appeal. “On October 6, 2006, the district court denied both of the Commission’s motions, for a stay of the injunction pending appeal and for certification of a question of state law to the Kansas Supreme Court. On November 3, 2006, a panel of this court granted the Commission’s motion for a stay with respect to the portion of the Solicitation Clause concerning a judicial candidate’s personal solicitation of campaign contributions.” Kansas Judicial Review v. Stout, 519 F.3d at 1111-14. Discussion The federal case underlying this certification request is the latest in a series of actions being brought throughout the United States in the wake of the United States Supreme Court’s decision in Republican Party of Minnesota v. White, 536 U.S. 765, 153 L. Ed. 2d 694, 122 S. Ct. 2528 (2002). In that case, the Court held that the “announce clause” of Minnesota’s Code of Judicial Conduct violated the First Amendment to the United States Constitution. 536 U.S. at 788. In White, the canon stated that a “ ‘candidate for a judicial office, including an incumbent judge,’ shall not ‘announce his or her views on disputed legal or political issues.’ ” 536 U.S. at 768 (quoting Minn. Code of Judicial Conduct, Canon 5[A][3][d][i] [2000]). The Court held that this canon was an impermissible, content-based regulation of speech because it prohibited “a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running.” 536 U.S. at 773. Notably, the White Court recognized that there was a difference between the announce clause at issue in that case and another section of the Minnesota code that prohibited “’pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.’ ” 536 U.S. at 770, 812 (quoting Minn. Code of Judicial Conduct, Canon 5[A] [3] [d] [i] [2002]). The Court indicated that it was expressing no view on this latter clause, explaining that “ ‘announcing] . . . views’ on an issue covers much more than promising to decide an issue a particular way.” 536 U.S. at 770. The Court further noted that the announce clause “extends to the candidate’s mere statement of his current position, even if he does not bind himself to maintain that position after election.” 536 U.S. at 770. Since the 2002 White decision, several actions have been initiated to challenge provisions of various judicial codes. Most of these cases involve either “pledges clauses” — like that discussed briefly in White — or “commits clauses” — where the canons generally prohibit candidates from committing to a position on cases, controversies, or issues that might come before them if they were to ascend to the bench. Jurisdictions have split as to whether the pledges and commits clauses are constitutional restrictions on judicial speech. See Family Trust Foundation of Kentucky, Inc. v. Kentucky Judicial Conduct Comm’n, 388 F.3d 224, 227-28 (6th Cir. 2004) (pledges and commits clauses are similar in scope to announce clause, unconstitutional); Pennsylvania Family Institute, Inc. v. Celluci, 521 F. Supp. 2d 351, 387 (E.D. Pa. 2007) (pledges and commits clauses narrowly construed, constitutional); North Dakota Family Alliance, Inc. v. Bader, 361 F. Supp. 2d 1021, 1044 (D. N.D. 2005) (pledges and commits clauses are similar in scope to announce clause, unconstitutional); In re Kinsey, 842 So. 2d 77, 87 (Fla. 2003) (pledges and commits clauses are different from announce clause, constitutional); In re Watson, 100 N.Y.2d 290, 301, 763 N.Y.S. 2d 219, 794 N.E.2d 1 (2003) (pledges clause different from announce clause, constitutional). The Kansas Code of Judicial Conduct does not currently contain an announce clause — the clause at issue in White — as that clause was removed by this court in 1984. See Kansas Judicial Watch, 440 F. Supp. 2d at 1228. The case before us involves a challenge to Kansas’ pledges and commits clauses, as well as a provision in the solicitations clause. See Kansas Judicial Review, 519 F.3d at 1112. The constitutionality of these clauses is not before us, as jurisdiction over the constitutional questions has been reserved by the Tenth Circuit. See 519 F.3d at 1122. Instead, the certified questions request this court to provide authoritative interpretations of the three canons of judicial conduct at issue in this case. Maxims of Interpretation and Scope of Review The Kansas canons of judicial conduct are contained in Supreme Court Rule 601A (2007 Kan. Ct. R. Annot. 617). The interpretation of a Supreme Court rule, like the interpretation of a statute, is a question of law. Gerhardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976 (1997). For this reason, this court has emphasized on numer ous occasions that it is not bound by the Commission’s interpretation of the judicial canons. The most fundamental rule governing statutoiy interpretation is that “the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.” State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001). Thus, when the language of a statute is plain and unambiguous, courts “need not resort to statutory construction.” In re 285 Kan. 53, 79-80, 169 P.3d 1025 (2007). Instead, “[wjhen the language is plain and unambiguous, an appellate court is bound to implement the expressed intent.” State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190 (2004). Only where “the face of the statute leaves its construction uncertain” may the court 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. [Citation omitted.]” Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000). This court has also explained that “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. [Citation omitted.]” Boatright v. Kansas Racing Comm'n, 251 Kan. 240, 243, 834 P.2d 368 (1992). This court “not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.” State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989). These same principles apply where this court is called on to interpret its own rules. Jarvis v. Drake, 250 Kan. 645, 651-53, 830 P.2d 23 (1992). In these circumstances, this court is in the unique position of articulating its own intention for adopting particular provisions. If the language of a particular court rule is clear, this court is bound by that language. But if the language of a Supreme Court rule is subject to more than one reasonable interpretation, we may authoritatively state which interpretation is most consistent with our intent in adopting the rule in question. See 250 Kan. at 651 (“If Rule 223 were ambiguous, then our intent in adopting the rule and amendment would be controlling”). For this reason, even though the questions certified in this case are legal questions in the sense that they require the interpretation of Supreme Court rules, we have a considerable amount of discretion in interpreting ambiguous language. Recommended Revisions to the Code of Judicial Conduct During oral argument before this court, the parties acknowledged — as the Commission indicated in a series of letters submitted to the court under Supreme Court Rule 6.09 (2007 Kan. Ct. R. Annot. 45) — that the Commission is in the process of recommending substantial amendments to the Kansas Code of Judicial Conduct based on the American Bar Association 2007 Model Code of Judicial Conduct. The Commission has presented its recommendations to this court. We have not considered these recommendations and have decided not to review these recommended revisions during the pendency of this case. The decision we file today is based upon our present Code of Judicial Conduct, the same code that was considered by the United States District Court and the Tenth Circuit. By putting off consideration of any amendments until this case has been decided, we avoid complicating the task of answering the Tenth Circuit’s questions by changing the rules midstream. We also avoid any suggestion that the Commission’s submission of new rules while this case is in progress might be an improper ex parte communication with a party in the case before us. Thus, although we are aware of the proposed revisions to Kansas’ judicial code, we choose to decide the matter before us on the basis of the code in its present form. I. Does a judicial candidate violate Canon 5A(3)(d)(i) and (ii) BY ANSWERING A QUESTIONNAIRE ASKING FOR HIS OR HER VIEWS ON DISPUTED LEGAL AND POLITICAL ISSUES? Answer: Perhaps, depending on the questions asked. We are not asked whether the particular questionnaire proposed by the Kansas Judicial Review (KJR) violated Canons 5A(3)(d)(i) and (ii). Instead, as the question suggests, we are called on to consider whether, in the abstract, a judicial candidate’s response to an issue-related questionnaire is permissible under these sections. Canon 5A(3)(d)(i) states that a candidate for judicial office “shall not . . . make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.” 2007 Kan. Ct. R. Annot. 641. Canon 5A(3)(d)(ii) similarly provides that a candidate for judicial office “shall not . . . make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” 2007 Kan. Ct. R. Annot. 642. The comments to section 5A(3)(d) explain: “Section 5A(3)(d) prohibits a candidate for judicial office from making statements that appear to commit die candidate regarding cases, controversies or issues likely to come before the court. As a corollary, a candidate should emphasize in any public statement the candidate’s duty to uphold the law regardless of his or her personal views. . . . Section 5A(3)(d) does not prohibit a candidate from making pledges or promises respecting improvements in court administration. Nor does this Section prohibit an incumbent judge from making private statements to other judges or court personnel in the performance of judicial duties. This Section applies to any statement made in the process of securing judicial office, such as statements to commissions charged with judicial selection and tenure and legislative bodies confirming appointment.” 2007 Kan. Ct. R. Annot. 642. The determination as to whether answering an issue-related questionnaire violates either Canon 5A(3)(d)(i) or (ii) turns on our interpretation of the terms “pledges,” “promises,” and “commit.” The decisions of other courts that have considered similar language to this state’s pledges and commits clauses illustrate the ambiguity of tírese provisions. These cases vary widely in their conclusions as to whether the clauses cover all statements regarding disputed issues or are limited to statements that bind candidates’ later decisions. For example, a federal district court in the District of North Dakota found that “there is little, if any, distinction between the ‘announce clause’ which was struck down by the United States Supreme Court in White, and the ‘commitment clause’ and ‘pledges and promises clause’ contained in Canon 5A(3)(d)(i) and (ii) of the North Dakota Code of Judicial Conduct.” North Dakota Family Alliance v. Bader, 361 F. Supp. 2d at 1041. The court explained that each of these clauses — North Dakota’s pledges clause and commits clause, and the announce clause in White — “forbid[s] . . . speech announcing a judicial candidate’s views on disputed legal, political, or social issues.” 361 F. Supp. 2d at 1041. The federal court thus found that “[t]here is no real distinction between announcing one’s views on legal or political issues and making statements that commit, or ‘appear to commit,’ a judicial candidate with respect to cases, controversies, and issues that are likely to come before the court.” 361 F. Supp. 2d at 1041; see also Family Trust Foundation of Kentucky, Inc. v. Kentucky Judicial Conduct Comm'n, 388 F.3d at 227-28 (explaining that the state of Kentucky had treated its pledges and commits clauses to bar mere announcing of particular viewpoints); Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224, 229 (7th Cir. 1993) (stating that Illinois’ “ ‘pledges or promises’ clause ... is as overbroad as the ‘announce’ clause”). State courts reviewing these clauses have come to the opposite conclusion, finding clear distinctions between pledges and commits clauses, on the one hand, and White’s announce clause (which barred the mere expression of disputed viewpoints), on the other. This interpretation has been adopted by the highest courts of both New York and Florida. The New York Court of Appeals explained that “statements that merely express a viewpoint do not amount to promises of future conduct. On the other hand, candidates need not preface campaign statements with the phrase 1 promise’ before their remarks may reasonably be interpreted by the public as a pledge to act or rule in a particular way if elected. A candidate’s statements must be reviewed in their totality and in the context of the campaign as a whole to determine whether the candidate has unequivocally articulated a pledge or promise of future conduct or decisionmaking that compromises the faithful and impartial performance of judicial duties.” In re Watson, 100 N.Y.2d at 298. The Florida Supreme Court came to a similar conclusion in In re Kinsey, 842 So. 2d at 87, where the court held that under the state’s pledges and commits clauses, “a candidate may state his or her personal views, even on disputed issues. However, to ensure that the voters understand a judge’s duty to uphold the constitution and laws of the state where the law differs from his or her personal belief, the commentary encourages candidates to stress that as judges, they will uphold the law.” The most recent court to adopt this view was a federal district court in the Eastern District of Pennsylvania, which explained that the purpose of Pennsylvania’s pledges clause “becomes clear when one realizes that a judge’s job consists primarily of deciding cases or controversies in a particular way.” Pennsylvania Family Institute, Inc. v. Celluci, 521 F. Supp. 2d at 376. The court found that the pledges clause barred judicial candidates from pledging “to rule a particular way on an issue, case, or controversy,” but permitted more general promises that the candidates would “perform their judicial duties faithfully and impartially.” 521 F. Supp. 2d at 376. The Pennsylvania Family Institute court similarly found that Pennsylvania’s commits clause was drafted “with the goal of prohibiting judicial candidates from making statements that commit them to particular results.” 521 F. Supp. 2d at 379. This court has never interpreted the Kansas judicial code’s commits clause and has considered the pledges clause on only one previous occasion. That case, In re Baker, 218 Kan. 209, 211-12, 542 P.2d 701 (1975), involved a challenge to the Commission’s finding that a district judge had violated the pledges clause by making statements during his campaign for judicial office that he would be a “ Tull time judge’ ” and that he would increase judicial efficiency. This court disagreed with the Commission’s conclusion that the judge’s statements violated the pledges clause, explaining: “While the present Canon may appear broader in its prohibition against pledges and promises, its thrust was intended to be . . . pledges and promises which appeal to prejudices or special interest which are prohibited. ... [A] pledge of increased efficiency such as was made here is aimed at the legitimate interests of the entire electorate; it is one of those pledges permitted as being for the ‘faithful performance’ of a judge’s duties.” 218 Kan. at 212-13. The Baker court further opined that while a “candidate for nonjudicial office is free to announce his stand on the issues he must pass upon in office, and to pledge his vote on those issues[,] the judicial candidate is forbidden to enter this customary campaign arena.” 218 Kan. at 213. The court noted that “the only legitimate area for debate is the relative qualifications of the candidates.” 218 Kan. at 213. As the facts underlying the case before us demonstrate, the Commission has altered its interpretation of the pledges clause over the course of the past 33 years. When the Judicial Ethics Advisory Panel (the Panel) issued its advisory opinion in JE 139 that the plaintiff judicial candidate in this case should not answer the KJR’s questionnaire in 2006, the Commission disagreed. Citing the United States Supreme Court’s decision in White, 536 U.S. 765, the Commission explained in a note ádded about 3Vz months after the advisory opinion was issued that “judges and judicial candidates are allowed to publicly announce their views on legal, political, or other issues.” 2007 Kan. Ct. R. Annot. at 673-74. This statement, while consistent with White, is not necessarily in keeping with this court’s decision in Baker, where the court explained that “promises [that] appeal to prejudices or special interest . . . are prohibited.” 218 Kan. at 212-13. This court’s opinion in Baker was decided almost three decades before the United States Supreme Court issued its opinion in White, which significantly changed the landscape of permissible judicial conduct throughout the country. Furthermore, the Baker decision is silent as to the scope of the commits clause. In light of this time span and of this court’s duty to interpret rules and statutes in a constitutional manner as long as that interpretation is not inconsistent with the intent of the enacting authority, we find that this court’s statements in Baker are not controlling as to the proper interpretation of the clauses before us today. The conclusion that our prior case law does not resolve the issue before us fails to answer the question, however, as to whether a judge or judicial candidate may answer an issue-centered questionnaire without violating Canon 5A(3)(d)(i) or (ii). The answer to this question turns on what conduct is encompassed by the terms “pledge” and “promise” in the pledges clause and “commit” in the commits clause. Webster’s Third New International Dictionary 1739 (1976) defines “to pledge” as “to assure or promise the performance of’ or “to promise seriously.” “Promise” connotes similar meanings: “to engage to do or bring [something] about” or “to give ground for expectation.” Webster’s Third New International Dictionary 1815. Webster’s explains that “promise indicates the giving of a stated assurance about some future act or action.” Webster’s Third New International Dictionary 1815. It appears from these definitions that there is a qualitative difference between stating or announcing one’s views on one hand and pledging or promising a particular course of conduct with respect to those views on the other. As the New York Court of Appeals indicated in In re Watson, “statements that merely express a viewpoint do not amount to promises of future conduct.” 100 N.Y.2d at 298. The New York court’s interpretation of its pledges clause emphasized that a “candidate’s statements must be reviewed in their totality and in the context of the campaign as a whole to determine whether the candidate has unequivocally articulated a pledge or promise of future conduct or decisionmaking that compromises the faithful and impartial performance of judicial duties.” 100 N.Y.2d at 298. Other cases interpreting pledges clauses similar to that in our own canons have recognized that it is permissible under the Constitution to prohibit a candidate from making pledges or promises of certain results in a particular case but that prohibiting a wider range of conduct may fail strict scrutiny. See Pennsylvania Family Institute, Inc., 521 F. Supp. 2d at 376-77; In re Kinsey, 842 So. 2d at 87; In re Watson, 100 N.Y.2d at 298. These clauses — interpreted narrowly to prohibit a candidate from making pledges and promises of certain results in particular cases, as contrasted to statements of viewpoints accompanied by assurances that the judicial candidate will conduct his or her judicial duties fairly and impartially — have been held to meet constitutional standards under the First Amendment. While there certainly is contrary authority, the ambiguity in the pledges clause permits this court to interpret the provision in accordance with our authority and duty to construe the canon constitutionally. We hold that Canon 5A(3)(d)(i) prohibits a candidate for judicial office from making pledges or promises regarding a particular controversy or regarding certain results in a particular case that is bound to come before the candidate as judge. This interpretation is consistent with both this court’s duty to construe rules in a constitutional manner, if possible, and this court’s duty to provide a reasonable interpretation within the scope of the rule’s language. The plaintiffs have not convinced this court that the language used in Canon 5A(3)(d)(i) somehow limits or prevents us from narrowly interpreting the pledges clause to pass constitutional muster. The plaintiffs direct their primary argument regarding the constitutionality of Canons 5A(3)(d)(i) and (ii) to the commits clause (subsection [d] [ii]), contending that this clause is not ambiguous and does not permit a judicial candidate to answer an issue-related questionnaire without doing violence to the intent of this court in adopting the canon in question. This argument is based upon a claim that the commits clause reaches speech broader than a pledge or a promise, barring not only statements that commit a candidate to a particular position but also statements that “appear to commit” the candidate to such a position. The plaintiffs argue that narrow interpretations of the commits clause only add confusion because such interpretations render the commits clause identical to the pledges clause. In particular, the plaintiffs point to the commits clause’s prohibition of statements committing candidates regarding “issues,” arguing that this term indicates an intent of the drafters to reach more than pledges or promises of certain results in a particular case. According to the plaintiffs, the effect of the term “issues” is to essentially transform the commits clause into an announce clause, which was struck down by the United States Supreme Court in White. The plaintiffs argue that in order to narrowly interpret the clause so as to pass constitutional muster, this court would be required to strike the word “issues” from the language of Canon 5A(3)(d)(ii). We are not convinced by these arguments. “Commit” connotes a similar meaning to “pledge” or “promise.” “To commit” means to “obligate or bind to take some moral or intellectual position or course of action” or “to pledge to some particular course or use: contract or bind by obligation to a particular disposition.” Webster’s Third New International Dictionary 457. If the term is construed in accordance with its common definition, it becomes clear that the term invokes more than the mere announcement of an opinion. Narrowly construed, the commits clause prohibits judicial candidates from making statements that bind them to a particular disposition with regard to a particular issue, a particular case, or a particular controversy bound to come before the candidate as judge. It does not prohibit candidates from stating a personal view on a disputed issue. This interpretation is consistent not only with the common definition of “commit,” but also with the other provisions in the Kansas Code of Judicial Conduct. Canon 4 of the code, for example, states that a “judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects” as long as this behavior does not “cast reasonable doubt on the judge’s capacity to act impartially as a judge.” Canon 4B and 4A(1) (2007 Kan. Ct. R. Annot. 631). The commentary to this provision explains that judges are “encouraged” to “contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice.” Commentary, Canon 4B (2007 Kan. Ct. R. Annot. 631-32). We find it difficult to reconcile this provision of the code — which encourages debate on substantive legal issues — with the plaintiffs’ position that the commits clause prevents judges and judicial candidates from commenting on any disputed legal or political issues. The fact that we abandoned this state’s announce clause in 1984, see Kansas Judicial Watch, 440 F. Supp. 2d at 1228, but continue to encourage judges’ participation in extra-judicial activities further supports the narrow interpretation of the commits clause that we adopt in this case. Our interpretation of the pledges and commits clauses strikes a balance between the canons’ encouragement of judges’ engagement and participation in important legal discussions with the judges’ primary responsibility of fair and impartial adjudication of disputes coming before them. Announcing a judicial candidate’s legal or political viewpoints is not prohibited. But a candidate who identifies a case or controversy or issue that is likely to come before him or her when on the bench and who proceeds to pledge or promise a particular result, or to commit to a particular resolution of that case, controversy, or issue, engages in behavior inherently inconsistent with the faithful and impartial performance of the duties of the judicial office. Interpreting the pledges and commits clauses in this manner is also consistent with our obligation to construe court rules in a constitutional manner and with our authority to adopt reasonable interpretations of ambiguous court rules. It is clear from this discussion that merely answering an issue-related questionnaire does not necessarily violate Kansas’ pledges or commits clauses. At the same time, it is virtually impossible to answer this first certified question in a definitive manner because questionnaires ask issue-related questions with various degrees of specificity and require various degrees of commitment from those who respond. For example, it would seem that a candidate’s decision to respond to a questionnaire asking, “What is your stance on abortion?” is qualitatively different under the code from a candidate’s decision to respond to a question, “Do you vow to overturn Roe v. Wade?” While an answer to the first of these questions would likely be a permissible announcement of a personal view on a disputed legal issue, an affirmative response to the second question would impermissibly bind a candidate to a particular legal action. A second, perhaps less contentious example — though of equal importance when considering a judge’s duties to decide cases fairly and impartially — might involve a survey that asks whether a judicial candidate would ever grant a downward departure sentence in a criminal conviction for abuse of a child. If a candidate chose to respond to this question substantively — and particularly if the candidate answered in the negative — the candidate’s response would violate even our narrow interpretations of the pledges and commits clauses. In summaiy, judges and candidates for judicial office may choose to answer issue-related questionnaires (though they are not in any way required to do so) to the extent that the questionnaires call for the candidate’s personal views on disputed legal or political issues. Canons 5A(3)(d)(i) and (ii) do prohibit a judicial candidate from answering issue-related questions, however, when giving responses would bind the candidate as a judge to a resolution of a particular case, controversy, or issue within a particular controversy. We stress that in answering any questionnaire, it is advisable — as the code’s comments explain — that a candidate who makes a public statement “should emphasize . . . the candidate’s duty to uphold the law regardless of his or her personal views” and to remain ever mindful of the impartiality that is essential to the judicial office. Commentary, Canon 5A(3)(d) (2007 Kan. Ct. R. Annot. 642). II. Does a judicial candidate solicit “publicly stated support” in violation of Canon 5C by personally COLLECTING SIGNATURES FOR HIS OR HER NOMINATION PETITION? Answer: Yes. Canon 5C(2), the “solicitations clause,” states that a candidate for judicial office “shall not personally . . . solicit publicly stated support .... A candidate subject to public election may, however, establish committees of responsible persons ... to obtain public statements of support for his or her candidacy.” (2007 Kan. Ct. R. Annot. 643-44.) It does not appear that this court or any other court has interpreted this provision of the judicial canons. The ambiguity in this statement centers on what is intended by “publicly stated support” and — specifically relating to the certified question now before us— whether a judicial candidate violates this provision by personally collecting signatures for his or her nominating commission. In March 2004, the Panel issued an advisory opinion, JE 117, which states that “Canon 5C(2) . . . prohibits a candidate for a judgeship from personally soliciting publicly stated support. A signature on a public document would be publicly stated support.’ ” Neither the Commission nor the Kansas Supreme Court have been called on to review JE 117. Advisoiy opinions issued by the Panel are not binding on this court. Supreme Court Rule 650(f) (2007 Kan. Ct. R. Annot. 666). Webster’s Third New International Dictionary defines the noun “support” in terms of its verb equivalent. “To support” means “to uphold by aid, countenance, or adherence: actively promote the interests or cause of,” “to uphold or defend as valid, right, just, or authoritative: advocate,” or “to pay the costs of: maintain.” Webster’s Third New International Dictionary 2297 (1976). These definitions illustrate “support” is generally taken to mean the promotion of a particular person or position or the provision of monetary aid. We note that in the abstract, it may theoretically be possible that signatures on a nominating petition would not fall under either of these definitions. While a signature on a nominating petition could be intended to demonstrate that the signor supports the particular candidate for office, it may also mean that the signor generally supports people participating in the political process or running for a judicial office. The statutory requirements of nominating petitions in Kansas efiminate this potential ambiguity, however, and require us to answer that a judicial candidate’s personal collection signatures for that candidate’s nominating petition violates Kansas’ solicitations clause. K.S.A. 2007 Supp. 25-205(b) provides that “[n]o signature shall be counted unless it is upon a sheet” having the content of Form PP. Form PP contains the following language applying to all signors: “I further declare that I intend to support the candidate herein named and that I have not signed and will not sign any nomination petition for any other person, for such office at such primary election.” K.S.A. 2007 Supp. 25-205(c) further provides that “[ejach signer of a nomination petition shall sign but one such petition for the same office, and shall declare that such person intends to support the candidate therein named.” When read in conjunction with the solicitations clause, the plain language of K.S.A. 2007 Supp. 25-205 makes it clear that by personally asking someone to sign a nomination petition, a judicial candidate is “personally soliciting] . . . publicly stated support” in violation of Canon 5C(2). III. Does the definition of “the faithful and impartial PERFORMANCE OF THE DUTIES OF THE OFFICE” IN CANON 5A(3)(d)(i) INCLUDE ALL CONDUCT RELEVANT TO THE CANDIDATE’S PERFORMANCE IN OFFICE? Answer: Yes. The plaintiffs argue that the provision of the pledges clause that states that a candidate for judicial office shall not make pledges or promises “of conduct in office other than the faithful and impartial performance of the duties of the office” does not include all judicial conduct and is therefore too narrow to survive strict scrutiny under the First Amendment. See Canon 5A(3)(d)(i) (2007 Kan. Ct. R. Annot. 641). According to the plaintiffs, the pledges clause prohibits judicial candidates from making any pledges or promises relating to judicial philosophy or anything else that would influence their actions as a judge. This argument is not consistent with the previous conclusion that general statements relating to a candidate’s opinions as to disputed issues are permissible under the pledges clause, nor can it be reconciled with this court’s previous interpretation of that clause in In re Baker, 218 Kan. 209, 542 P.2d 701 (1975). In Baker, this court explained that candidates could make statements regarding their “health, work habits, experience and ability” because such matters were “of legitimate concern to the electorate who must make the choice.” Baker, 218 Kan. at 213. These topics would be outside the realm of acceptable discussion under the plaintiffs’ proposed interpretation, yet this court has permitted such topics to be discussed for more than 30 years. Under our interpretation of the pledges clause articulated in response to the first certified question in this opinion, it is clear that such topics involve questions as to the judge’s faithful performance of his or her judicial duties. We emphasize that the types of statements that the plaintiffs claim to be barred by the pledges clause — statements regarding judicial philosophy or statements that a particular candidate would be tough on crime- — are not inconsistent with a judge’s duty to faithfully and impartially perform the duties of judicial office. A judge’s identification of himself or herself as a strict constructionist does not mean that the judge cannot be impartial and does not guarantee a particular result in a case any more than any other judicial philosophy might. A statement that a judge will be tough on crime does not mean that the judge will not or cannot apply the law fairly and impartially. It is only when a judge’s or judicial candidate’s statements bind that person’s resolution of the cases that would come before him or her that the conduct becomes impermissible under the pledges clause. Finally, Canon 3A of the Code of Judicial Conduct explains that a judge’s “judicial duties include all the duties of the judge’s office prescribed by law.” (2007 Kan. Ct. R. Annot. 624.) We interpret the “faithful . . . performance of the duties of the office,” as described by the pledges clause (2007 Kan. Ct. R. Annot. 641), to include all conduct relevant to the judge’s official actions — from judicial philosophy when deciding cases to work habits to education and ability. IV. IS THE DEFINITION OF “APPEAR TO COMMIT” IN CANON 5A (3)(d)(ii) LIMITED TO AN OBJECTIVE APPEARANCE OF A candidate’s intent to commit himself or herself? Answer: Yes. The plaintiffs in this case argue that the language in the commits clause prohibiting statements that “commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court” involves a subjective analysis and is therefore unconstitutionally vague. See Canon 5A(3)(d)(ii) (2007 Kan. Ct. R. Annot. 642). The Commission argues that the “appear to commit” language indicates that an objective, reasonable-person standard is appropriate. The Commission’s objective interpretation is consistent with this court’s previous case law. In State v. Logan, 236 Kan. 79, 86, 689 P.2d 778 (1984), this court explained under a different provision of the Kansas judicial code: “The standard which federal courts use is whether the charge of lack of impartiality is grounded on facts that would create reasonable doubt concerning the judge’s impartiality, not in the mind of the judge himself, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances. [Citations omitted.]” (Emphasis added.) During oral argument, counsel for the plaintiffs acknowledged that the “appear to commit” language in Canon 5A(3)(d)(ii) requires a similar objective analysis of the judge’s or judicial candidate’s conduct to that described in Logan. It became clear during the parties’ arguments before this court that the plaintiffs’ claim regarding objectivity is not actually a textual argument that the commits clause requires a subjective standard for interpreting judicial conduct — which is contraiy to the plain language of the canon and to our previous opinions interpreting such language as objective in nature — but rather is a constitutional claim as to the chilling effect of regulating judicial speech. We will not consider the merits of this argument in detail, as the constitutionality of the commits clause is not before us at this time. The question over which we have jurisdiction is whether the “appear to commit” language in Canon 5A(3)(d)(ii) involves an objective or subjective standard. We do note, however, that taken to its logical end, the plaintiffs’ argument would imply that any regulation of judicial speech would violate the First Amendment, as a listener could always understand the speech in the wrong way. Not only is this extreme view unsupported by the case law, but we believe that this state’s objective standard for reviewing judicial speech protects against such fears, as the reasonable-person standard involves an analysis of the conduct from the perspective of a person with knowledge of the applicable rules and surrounding circumstances. See Logan, 236 Kan. at 86. We conclude therefore that Canon 5A(3)(d)(ii)’s prohibition against statements that “appear to commit” judicial candidates “with respect to cases, controversies or issues that are likely to come before the court” requires an objective analysis of the conduct in question from the perspective of a reasonable person with knowledge of all of the circumstances. See 2007 Kan. Ct. R. Annot. 642. V. Does the definition of “publicly stated support” in Canon 5C(2) include endorsements of a candidate? Answer: Yes. Finally, this court is called on to determine whether the solicitations clause of Canon 5C(2) — which states that a judicial candidate “shall not personally . . . solicit publicly stated support”— permits candidates to respond to questionnaires requested by newspapers or other media for the purpose of providing an endorsement for the upcoming election or to otherwise seek endorsements for judicial office. See 2007 Kan. Ct. R. Annot. 643-44. The parties in this case focus on the definitional differences between “support” and “endorsements.” We find these terms to be synonymous. See Webster’s Third New International Dictionary 2297 (“support”), 749 (“endorsement”). If there is any actual difference between the two terms, endorsements are a particular subset of public support. Because the solicitations clause explicitly prohibits judges and judicial candidates from personally soliciting “publicly stated support,” the clause necessarily prohibits judicial candidates from personally soliciting endorsements. Such solicitations must be delegated to the candidate’s campaign committee. See Canon 5C(2) (2007 Kan. Ct. R. Annot. 643-44). Because Canon 5C(2) explicitly prohibits judges and judicial candidates from soliciting endorsements, the answer to this certified question turns on whether the judge or candidate is soliciting the endorsement or merely responding to a public questionnaire. Webster’s defines “to solicit” as “to endeavor to obtain by asking or pleading” or “to seek eagerly or actively.” Webster’s Third New International Dictionary 2169. The underlying facts in this case illustrate the importance of determining whether a judicial candidate’s conduct amounts to a solicitation of public support. When a judicial candidate engages in conduct discussed previously by personally seeking signatures on a nominating petition (rather than having his or her campaign solicit such signatures), such conduct is impermissible in this state, as it amounts to a personal request for the signor’s endorsement of the judicial candidate. But when a newspaper or other media source submits questions to a judicial candidate and the candidate responds, and this exchange results in an endorsement, we conclude that the candidate is not actively seeking support or endorsement in violation of the canons. In the first example, the judicial candidate is actively seeking an endorsement. In the second, the request originated from the media source, not the candidate. Judges and judicial candidates are not permitted under the solicitations clause to personally and actively seek endorsements of their judicial candidacies. Judges and judicial candidates may respond, however, to requests regarding their viewpoints on disputed issues, as long as such responses do not otherwise violate the canons. Luckert, J., not participating. Leben, J., assigned.
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The opinion of the court was delivered by Davis, J.: This is a criminal case involving the nonexclusive possession of marijuana and drug paraphernalia. Over the defendant’s objection, the district court admitted evidence of the defendant’s prior crime of possession of marijuana. The Court of Appeals held the admission of that evidence violated K.S.A. 60-455, reversed the defendant’s convictions, and remanded the case with directions for a new trial. State v. Boggs, 38 Kan. App. 2d 683, 170 P.3d 912 (2007). We agree and affirm the Court of Appeals’ reversal of the district court and Boggs’ convictions based on the K.S.A. 60-455 issues in the State’s petition for review. Facts The incident giving rise to the defendant’s convictions for felony possession of marijuana and misdemeanor possession of drug paraphernalia began at about 3 a.m. on October 29, 2005. Captain Charles Allcock and Officer Meagher of the McPherson Police Department initiated a traffic stop of a pickup truck on suspicion that the driver was operating the vehicle under the influence of alcohol (DUI). The driver of the pickup, Matthew Hockett, and the passenger, Charles Boggs, were the only occupants of the truck. Captain Allcock explained that when he initiated the stop, he smelled the odor of alcohol on Hockett and thus initiated a DUI investigation. Allcock told Boggs that he was not needed during the investigation and was free to leave. Boggs exited the truck and began to walk away from the scene on foot. As part of this investigation, the officers searched Hockett’s pickup and discovered a multicolored, glass marijuana pipe containing burnt marijuana residue underneath the passenger seat where Boggs had been sitting. Allcock testified that the pipe was found out of the driver’s reach and that he had not noticed the driver leaning over or making unusual movements in the pickup at any time after the officers initiated the stop. Captain Allcock indicated that after he found the glass pipe, he showed the pipe to Hockett, who responded, “That son of a bitch Charlie Boggs, I can’t believe he brought this into my dad’s pickup.” Allcock then asked Officer Meagher to request that Boggs return to the pickup. After Boggs returned and was read Miranda warnings, Allcock showed Boggs the pipe; Allcock testified that Boggs did not act “particularly surprised” with the revelation. All-cock asked Boggs if the pipe belonged to him. Boggs responded that the pipe was not his. Captain Allcock further testified that while he was speaking with Boggs, he noticed the odor of burnt marijuana emanating from Boggs’ clothing. Allcock explained that he had been in close proximity to Hockett while conducting the DUI investigation and had not smelled the odor of burnt marijuana coming from the driver. Both Boggs and Hockett were arrested. When the officers, Boggs, and Hockett arrived at the law enforcement center, Allcock noticed that Boggs’ pupils were dilated and that his clothes still smelled of burnt marijuana. Officer Meagher asked Boggs when the last time was that Boggs had smoked marijuana, and Boggs responded that it had been about a month before. Other than Captain Allcock and a KBI forensic scientist, Hockett was the only witness called for the State at trial. He testified that for most of the day before the traffic stop, he and Boggs had been at an acquaintance’s house in McPherson. Hockett stated that he had driven to the house alone in his father’s pickup truck. He also explained that he doubted that he had locked the truck while he was at the house because he rarely locks the pickup. Nevertheless, he testified that he never saw anyone in the pickup during that time. According to Hockett, there were five or six people at the house in McPherson that evening. He explained that when Boggs first arrived at the house, Boggs showed Hockett and a few other people a glass pipe. Hockett later testified that the pipe Boggs carried looked like the same pipe that the officers later found in his father’s pickup. Hockett decided to leave the party at around 3 a.m. and agreed to give Boggs a ride to go find cigarettes and food. Hockett testified that before they left their acquaintance’s house, Hockett asked Boggs if he “had anything on him that would get me [Hockett] in trouble or could possibly get him [Boggs] in trouble” because Hockett was concerned about the pipe he had seen earlier in the day. Boggs answered that he did not have anything like that with him. Shortly after they left the house, Captain Allcock and Officer Meagher pulled over Hockett in the pickup truck for suspicion of DUI. Before trial, Boggs filed a motion in limine, requesting the court to prevent the State from introducing evidence of Boggs’ statement to Officer Meagher at the law enforcement center that he had smoked marijuana about a month before the arrest. Boggs argued that the evidence of his prior marijuana usage was evidence of prior criminal acts governed by K.S.A. 60-455 and that the evidence was being admitted solely for the purpose of showing he had a propensity toward using drugs in violation of the statute. The district court overruled Boggs’ motion on the eve of trial, finding that “[i]n nonexclusive possession cases[,] prior criminal [sic] or use of drugs is a factor to be considered by the jury.” Boggs renewed his objection to the admission of the evidence of his prior drug use when Captain Allcock testified at trial regarding Boggs’ statement to Officer Meagher. Boggs’ principal defense at trial was that he was not in possession of the pipe and residue within the meaning of Kansas law. Boggs stipulated that the glass pipe found in the pickup truck was drug paraphernalia under Kansas law. In addition, he did not dispute that the glass pipe contained marijuana residue but, instead, argued that the residue in the pipe was so insignificant that it should not lead to a criminal conviction. At the close of evidence, the court instructed the jury on the law to be applied in the case. Among other instructions given, the court provided the following three instructions: “Instruction No. 4 “The Parties stipulate that the glass pipe found under the front seat in the vehicle in which defendant was riding is ‘drug paraphernalia’ as defined by law and as applies to the other instructions in this case.” “Instruction No. 5 “Possession of a controlled substance and/or drug paraphernalia requires that the defendant have control over the substance and/or drug paraphernalia with knowledge of and the intent to have such control. To possess a controlled substance and/or drug paraphernalia, the Defendant must have knowledge of the presence of a the controlled substance and/or drug paraphernalia with the intent to exercise control over it. Control means to exercise a restraining or directing influence over the controlled substance and/or drug paraphernalia. “Possession may be immediate and exclusive, jointly held with another, or constructive. Joint possession occurs when two or more person[s], who have the power or control and intent to manage property, exercise the same jointly. Constructive possession is knowingly keeping a controlled substance and/or drug paraphemaha[] in a place to which the Defendant has some measure of access and right of control[.] “When a Defendant is in nonexclusive possession of an automobile in which a controlled substance and/or drug paraphernalia is found, it cannot be inferred that the Defendant knowingly possessed the controlled substance and/or drug paraphernalia unless there are other circumstances linking the Defendant to the controlled substance and/or drug paraphernalia: Factors you may consider in determining whether the Defendant knowingly possessed the controlled] substance and/or drug paraphernalia, include]]]: “1. Defendant’s use of controlled substance. “2. Defendant’s proximity to the area where the controlled substance and/or drug paraphernalia was found. “3. Incriminating statements of the Defendant; and “4. Suspicious behavior of the Defendant]].]” “Instruction No. 6 “Evidence has been admitted tending to prove that the Defendant committed a crime other than the present crime charged i.e. use of marijuana on a prior occasion. This evidence may be considered by you solely for the puipose of proving the Defendant’s intent, knowledge and absence of mistake or accident in this case.” Although Boggs did not object to the form of these instructions, he renewed his earlier objection to the admission of his statement to Officer Meagher that he had previously used drugs. The jury found Boggs guilty of both felony possession of marijuana and misdemeanor possession of drug paraphernalia. Boggs appealed. In a published opinion authored by Judge Green, the Court of Appeals reversed Boggs’ convictions, holding that the evidence of Boggs’ prior marijuana use was inadmissible under K.S.A. 60-455. Boggs, 38 Kan. App. 2d 683. We granted the State’s petition for review. In its amended petition for review and its argument before this court, the State advances the following reasons for reversing the decision of the Court of Appeals and affirming the district court: (1) This court’s decision in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), requiring compliance with K.S.A. 60-455 regarding the admission of evidence that “a person committed a crime or civil wrong” has prospective application only and therefore does not apply in Boggs’ case because it was tried before Gunby was decided; (2) the Court of Appeals improperly applied a de novo standard of review rather than an abuse-of-discretion standard regarding admission of the K.S.A. 60-455 evidence; (3) the Court of Appeals erred in ruling that prior drug use is not a factor to be considered in a nonexclusive possession case; and (4) tire Court of Appeals erred in concluding that the evidence of Boggs’ prior marijuana use was not harmless because the appellate court engaged in an improper weighing of Hockett’s testimony. Discussion All of the issues raised in the State’s petition for review center on the Court of Appeals’ conclusion that the admission of evidence relating to Boggs’ prior marijuana use violated K.S.A. 60-455. K.S.A. 60-455 provides: “Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” In Gunby, 282 Kan. at 47-48, this court recently clarified that if not admissible as character evidence under K.S.A. 60-447, evidence of other crimes or civil wrongs is inadmissible unless the evidence is relevant to proving a material fact in dispute. Furthermore, even when such evidence is admissible, Gunby requires district courts to undergo several safeguards “to eliminate the danger that the evidence will be considered to prove the defendant’s mere propensity to commit the charged crime.” 282 Kan. at 48. Gunby reiterated this court’s previous rulings explaining that “at least three types of prejudice can follow” from the improper admission of evidence of other crimes or civil wrongs. 282 Kan. at 48. To illustrate these dangers, Gunby quoted State v. Davis, 213 Kan. 54, 58, 515 P.2d 802 (1973), where the court explained: “ ‘ “First, a jury might well exaggerate the value of other crimes as evidence proving that, because the defendant has committed a similar crime before, it might properly be inferred that he committed this one. Secondly, the jury might conclude that the defendant deserves punishment because he is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might conclude that because the defendant is a criminal, the evidence put in on his behalf should not be believed.” ’ ” 282 Kan. at 48-49. Boggs argues that the evidence of his prior marijuana use was not relevant to any material fact in question because his defense consisted of a denial that he ever had possession of the pipe and, by extension, the marijuana residue. According to Boggs, this evidence only served to demonstrate a propensity toward drug use and therefore implicated all of the fundamental dangers discussed in Davis and Gunby. The Court of Appeals agreed, concluding that the district court committed reversible error when it admitted the evidence at trial. Boggs, 38 Kan. App. 2d at 686-94. I. Does the rule set forth in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), apply to the defendant’s direct appeal? The State argues that our decision in Gunby, which was decided in October 2006, does not apply in this case since it was filed after the conclusion of Boggs’ trial. In Gaudina v. State, 278 Kan. 103, 106, 92 P.3d 574 (2004), this court adopted the rule set forth by the United States Supreme Court in Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987), explaining that “ ‘a new rule for the conduct of criminal prosecutions is to be applied ... to all cases, state or federal, pending on direct review or not yet final.’ ” (Emphasis added.) We have previously explained that a conviction is “generally not considered ‘final’ until (1) the judgment of conviction has been rendered, (2) the availability of an appeal has been exhausted, and (3) the time for any rehearing or final review has passed. [Citation omitted.]” State v. Heath, 222 Kan. 50, 54, 563 P.2d 418 (1977). Thus, contrary to the State’s argument, decisions are not applied “retroactively” to cases on direct appeal from a conviction. Rather, the retroactivity of a decision is only a consideration during collateral attacks to convictions that became final before the decision in question was filed. Although Boggs’ trial concluded months before we filed our decision in Gunby, we are currently in the process of considering his direct appeal. Under our opinions in Gaudina and Heath, Boggs’ convictions are not final. Thus, our decision in Gunby applies to this case regardless of whether it would be applied retroactively on collateral attack. See Drach v. Bruce, 281 Kan. 1058, 1072, 136 P.3d 390 (2006) (distinguishing direct appeals from collateral attacks on convictions and setting forth the requirements for new rules to be applied retroactively during collateral appeals). This conclusion is supported by our recent decisions applying Gunby to pending cases on direct review or not yet final. See State v. Vasquez, 287 Kan. 40, 48-51, 194 P.3d 563 (2008) (appeal filed October 27, 2005); State v. Reid, 286 Kan. 494, 502-13, 186 P.3d 713 (2008) (appeal filed December 23, 2004); State v. Garcia, 285 Kan. 1, 11-13, 169 P.3d 1069 (2007) (appeal filed February 11, 2005); State v. Woolverton, 284 Kan. 59, 63-64, 159 P.3d 985 (2007) (appeal filed January 21, 2005); State v. Conway, 284 Kan. 37, 49-50, 159 P.3d 917 (2007) (appeal filed December 23, 2004); State v. Walters, 284 Kan. 1, 8, 12-13, 159 P.3d 174 (2007) (appeal filed July 6, 2004); State v. Horton, 283 Kan. 44, 51-52, 151 P.3d 9 (2007) (appeal filed February 25, 2005). The trials in each of these cases concluded long before this court decided Gunby on October 27,2006. Nevertheless, we have applied Gunby’s rationale to each of these cases pending on direct appeal. Because this case involves a direct appeal from Boggs’ convictions, the Court of Appeals correctly concluded that our decision in Gunby governs the admission of the evidence at issue in this case. II. What is the proper standard that an appellate court should apply when reviewing the admission of the K.S.A. 60-455 evidence in this case? The State argues that the Court of Appeals applied an incorrect standard of review when considering the district court’s decision to admit the evidence of Boggs’ prior drug use. According to the State, all questions regarding the admission of evidence should be reviewed under an abuse-of-discretion standard. The Court of Appeals determined that because the admission of evidence under K.S.A. 60-455 is governed by that statute, the case presented a legal question that should be reviewed de novo. Boggs, 38 Kan. App. 2d at 688 (citing Gunby, 282 Kan. at 47-48). The standard this court applies in reviewing a district court’s decision involving the admission or exclusion of evidence is guided by the level of discretion that the district court could exercise in making that decision under Kansas law. For example, Gunby explained that when the “legal basis” of the district court’s decision is raised on appeal, appellate courts review such questions de novo. 282 Kan. at 47-48. If the decision at issue is one where the district court is afforded greater discretion, such as the balancing of a piece of evidence’s probative value versus the risk of undue prejudice under K.S.A. 60-445, then the district court’s decision will not be overturned on appeal if reasonable minds could disagree as to the court’s decision. See State v. Miller, 284 Kan. 682, 722-24, 163 P.3d 267 (2007) (Luckert, J., concurring). This court explained in Garcia, 285 Kan. 1, that the analysis of evidence under K.S.A. 60-455 involves several steps: (1) A reviewing court must determine whether the evidence in question is relevant to prove a material fact; (2) the court must determine whether the particular material fact that forms the basis of the admission is in dispute; (3) the court must determine whether the probative value of the evidence outweighs its potential for undue prejudice; and (4) the court must provide a limiting instruction “informing the juiy of the specific purpose for admission whenever [K.S.A.] 60-455 evidence comes in.” 285 Kan. at 12 (citing Gunby, 282 Kan. at 48, 56-57). In our recent decisions in Vasquez and Reid, we clarified the standards that appellate courts utilize to review each of these steps. In the first step — the relevance inquiry — courts are called on to assess both the probative value of the evidence to be admitted and whether that evidence is being admitted for the purpose of proving a material fact. The probative value of the evidence is reviewed for an abuse of discretion; the materiality question requires a legal determination as to the elements of a particular offense and is therefore reviewed de novo. Vasquez, 287 Kan. at 50; Reid, 286 Kan. at 505, 507-09. The second step in the analysis, which involves a question as to whether the material fact alleged is actually in dispute, is similarly reviewed de novo since it requires the court to assess the elements of the charged offense. Vasquez, 287 Kan. at 50. The subsequent weighing of the evidence’s probative value versus its potential for producing undue prejudice requires an exercise of discretion by the district court, and appellate courts therefore review such determinations for an abuse of that discretion. Vasquez, 287 Kan. at 50; Reid, 286 Kan. at 507-09, 512. The district court’s compliance with the limiting-instruction requirement is reviewed under the same rules that govern this court’s review of other jury instructions. See Vasquez, 287 Kan. 40, Syl ¶ 6; K.S.A. 22-3414(3) (clearly erroneous standard). In the instant case, the focus of the State’s argument is its claim that the evidence of Boggs’ prior drug use was relevant to prove his intent to possess the drugs and drug paraphernalia, his knowledge that the pipe actually consisted of drugs and drug paraphernalia, and the absence of a mistake. The Court of Appeals questioned the district court’s relevance determination, finding that prior drug use does not necessarily prove intent, knowledge, and absence of mistake or accident in a subsequent possession case. Boggs, 38 Kan. App. 2d at 688-89. The court also held that even if evidence of prior drug use might be relevant to prove any of those elements in a different case, it was not admissible in this case be cause none of those material facts were disputed. 38 Kan. App. 2d at 690-93. After examining the arguments raised regarding the admission of the evidence of Boggs’ prior drug use, we conclude that the Court of Appeals correctly applied a de novo standard on appeal— though not necessarily for the reason given. The key issue as to the admissibility of Boggs’ past marijuana use in this case turns on legal questions regarding materiality — whether intent, knowledge, or absence of mistake or accident are material facts in a possession case and, if so, whether those material facts were actually in dispute here. Vasquez and Reid explained that both of these questions are to be reviewed under a de novo standard. Vasquez, 287 Kan. at 50; Reid, 286 Kan. at 505. Thus, we conclude that the Court of Appeals applied the correct de novo standard of review regarding the admissibility of the defendant’s past use of marijuana. III. Did the district court err by admitting evidence of the defendant’s prior drug use to prove intent, knowledge, or absence of mistake or accident? The district court did not analyze the question of admissibility of defendant’s prior marijuana use under the provisions of K.S.A. 60-455. Instead, in ruling on Boggs’ motion in limine to exclude this evidence, the district court determined that prior Kansas case law supported admissibility of instances of prior drug use in nonexclusive possession cases to prove intent, knowledge, or absence of mistake or accident. The district court also concluded that nonexclusive possession cases provided “one of the exceptions to the general rule that prior crimes or wrongs [are] not admissible in court.” The district court partly based its reasoning on PIK Crim. 3d 67.13-D, which states that factors to be considered in nonexclusive possession cases include a “defendant’s previous participation in the sale of a controlled substance” and a “defendant’s use of controlled substances.” The court later provided a modified version of this instruction to the jury, listing only the factors that the court found to be relevant to the case at hand. Among these factors was the defendant’s prior “use of [a] controlled substance.” The district court’s consideration of the admission of Boggs’ statement regarding his previous marijuana use was similar to that used by our courts prior to Gunhy, where the courts would admit evidence of prior crimes or civil wrongs independently of K.S.A. 60-455. See State v. Bly, 215 Kan. 168, 176, 523 P.2d 397 (1974), overruled on other grounds State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976) (stating that “where evidence disclosing another criminal offense has a direct bearing on and relation to the commission of the offense itself, it is admissible without a limiting instruction” because such evidence is “admissible independently of K.S.A. 60-455”). In Gunhy, however, this court held “unequivocally” that “admissibility of any and all other crimes and civil wrongs evidence will be governed by K.S.A. 60-455.” 282 Kan. at 56-57. Thus, Gunhy held that there is always error when a district court “neglects] to apply the safeguards . . . outlined to any other crimes or civil wrongs evidence.” 282 Kan. at 57. In this case, while the trial court did not apply K.S.A. 60-455 in determining the admissibility of defendant’s past marijuana use, it did give a hmiting instruction to the jury on how such evidence was to be considered by the jury. This court has not indicated that a district court must state its findings on the record regarding the various safeguards required when considering the admission or exclusion of K.S.A. 60-455 evidence or that the failure to consider these safeguards requires automatic reversal. See Gunby, 282 Kan. at 57. Rather, Vasquez and Reid indicated that a district court’s admission of evidence under K.S.A. 60-455 may be upheld on review even if its rationale was in some way erroneous if an appellate court determines that the evidence was otherwise admissible under the statute. See Vasquez, 287 Kan. at 51-53; Reid, 286 Kan. at 509-12. Thus, we must determine whether the evidence of Boggs’ previous marijuana use was admissible under K.S.A. 60-455. In order to sustain a conviction for possession of marijuana under K.S.A. 65-4162, the State was required to prove (1) that the defendant possessed marijuana (2) intentionally (3) on the date and at the place alleged in the complaint. To establish that Boggs was guilty of possession of drug paraphernalia under K.S.A. 65-4152, it was the State’s burden to prove (1) that the defendant Imowingly possessed drug paraphernalia (2) with the intent to use the drug paraphernalia to introduce marijuana into the body (3) on the date and at the place alleged in the complaint. See also PIK Crim. 3d 67.13 (possession of narcotics and other stimulants); PIK Crim. 3d 67.17 (possession of drug paraphernalia). Although intent is an element of both possession of marijuana and possession of drug paraphernalia, it does not necessarily follow that evidence of intent is always material in a particular case. Rather, this court has explained that “ ‘materiality,’ for purposes of K.S.A. 60-455, contemplates a fact which has a legitimate and effective bearing on the decision of the case and is in dispute. If the fact is obvious from the mere doing of an act, or if the fact is conceded, evidence of other crimes to prove that fact should not be admitted because it serves no purpose to justify whatever prejudice it creates.” (Emphasis added.) State v. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 (1976) (citing 31A C.J.S. Evidence §§ 159, 166 [1964]). The Faulkner court further clarified that although “ ‘an evidential fact [may] be relevant under the rules of logic, it is not material unless it has a legitimate and effective bearing on the decision of the ultimate facts in issue.’ [Citation omitted.]” 220 Kan. at 156. The State argues that Boggs’ prior use of marijuana was relevant in this case to prove the intent element in both charges because intent is always a material fact in possession cases. In particular, the State asserts that this court has long permitted evidence of prior drug use to be admitted in cases involving possession of drugs or drug paraphernalia to prove the defendant’s intent to use drugs, the defendant’s knowledge that the particular substance possessed consisted of drugs or was drug-related, or to prove an absence of mistake or accident in possessing the contraband material. The State correctly points out that this court has previously held that evidence of prior crimes or civil wrongs may be admissible under K.S.A. 60-455 to prove intent, knowledge, or absence of mistake or accident in cases involving possession of drugs or drug paraphernalia. The State fails to recognize, however, that in all cases where this court has held such evidence to be admissible on these bases, the question of the defendant’s intent, knowledge, or claim of mistake or accident was a disputed material fact in issue. In Faulkner, for example, two police officers observed a vehicle enter the parking lot of a restaurant in Salina. The defendant was the passenger in the vehicle. When the vehicle stopped in the parking lot, the defendant exited and began to walk toward the restaurant; the defendant ignored the officers’ requests to stop until he reached the restaurant entrance. One of the officers approached the vehicle to talk with the driver and observed a hypodermic needle and a small plastic bag of pills on the floorboard of the passenger side. Another bag of pills — determined later to be amobarbital — was found in the glove compartment. The defendant was charged with and subsequently convicted of possession of amobarbital with intent to sell. On appeal, the defendant claimed that the district court erred when it admitted a journal entry of judgment of a prior conviction for possession of a controlled substance. The district court had determined that this evidence was admissible for the limited purposes of showing intent, knowledge, or absence of mistake or accident. Considering Faulkner’s arguments on appeal, this court noted that evidence of the defendant’s prior conviction “was offered essentially to prove the specific intent required for possession.’ ” 220 Kan. at 157. The Faulkner court defined “possession” as “having control over a place or thing with knowledge of and the intent to have such control.” 220 Kan. 153, Syl. ¶ 3. The court found in the case before it that although the defendant’s control of the amobarbital was demonstrated by circumstantial evidence and witness testimony, the “[ijntent to exercise control over the amobarbital was disputed.” (Emphasis added.) 220 Kan. at 157. Turning to the rationale provided by the district court for the admission of the defendant’s prior drug conviction, Faulkner explained that “[wjhether the appellant had the specific intent required to prove possession was a highly material fact substantially in issue.” (Emphasis added.) 220 Kan. at 157. The court noted that “[bjoth knowledge and absence of mistake are factors bearing on intent.” 220 Kan. at 156. While knowledge “signifies awareness and is a requirement for possession,’ ” absence of mistake “simply denotes an absence of honest error.” 220 Kan. at 156 (citing Slough, Other Vices, Other Crimes: An Evidentiary Dilemma, 20 Kan. L. Rev. 411 [1972]). The Faulkner court also held that it was not necessary to introduce evidence demonstrating the similarity of the defendant’s previous conviction to the crime charged to prove intent because “[w]hen identity is conceded,” a previous drug-related conviction may raise “a reasonable inference” that a defendant is “familiar with controlled substances and [has] knowledge of and intend[s] to exercise control over” controlled substances. 220 Kan. at 157. Nevertheless, the court noted that although there need not be a showing of the “specific facts and circumstances involved in the prior offense,” similarity of offenses continued to be a key factor in a court’s assessment of relevance. 220 Kan. at 157. In State v. Bullocks, 2 Kan. App. 2d 48, 574 P.2d 243, rev. denied 225 Kan. 846 (1978), the Court of Appeals expanded the discussion in Faulkner relating to intent to hold that evidence of prior drug use is always a factor that may be considered in cases that involve the nonexclusive possession of contraband. The Bullocks court explained at some length: “ ‘Possession of marijuana is having control over the marijuana with knowledge of, and intent to have, such control. Possession and intent, like any element of a crime, may be proved by circumstantial evidence. [Citation omitted.] Possession may be immediate and exclusive, jointly held with another, or constructive as where the drug is kept by the accused in a place to which he has some measure of access and right of control. [Citation omitted.] “When a defendant is in nonexclusive possession of premises on which drugs are found, the better view is that it cannot be inferred that the defendant knowingly possessed the drugs unless there are other incriminating circumstances linking the defendant to the drugs. [Citation omitted.] Such parallels the rule in Kansas as to a defendant charged with possession of drugs in an automobile of which he was not the sole occupant. [Citation omitted.] Incriminating factors noted in Faulkner are a defendant’s previous participation in the sale of drugs, his use of narcotics, his proximity to the area where the drugs are found, and the fact that the drugs are found in plain view. Other factors noted in cases involving nonexclusive possession include incriminating statements of the defendant, suspicious behavior, and proximity of defendant’s possessions to the drugs.” 2 Kan. App. 2d at 49-50. The PIK instruction relied on by the district court in this case — • PIK Crim. 3d 67.13-D — contains almost identical language to this discussion in Bullocks. Importantly for this case, Bullocks neither cited nor discussed K.S.A. 60-455. In more recent decisions, this court has explained that “ ‘[t]he crucial distinction in admitting other crimes evidence under K.S.A. 60-455 on the issue of intent is not whether the crime is a specific or general intent crime but whether the defendant has claimed that his or her acts were innocent.’ ” State v. Dotson, 256 Kan. 406, 413, 886 P.2d 356 (1994) (quoting State v. Synoracki, 253 Kan. 59, Syl. ¶ 12, 853 P.2d 24 [1993]). When the possession of illegal substances is susceptible to two interpretations- — one innocent and one criminal — then “the intent with which the act was committed becomes the critical element in determining its character. [Citation omitted.]” State v. Graham, 244 Kan. 194, 196, 768 P.2d 259 (1989). However, when a defendant does not assert that his or her actions were innocent but rather prevents some other defense, there is no reason to admit evidence of other crimes or civil wrongs to prove intent. See Dotson, 256 Kan. at 413. In Graham, the defendant was apprehended carrying several bags of cocaine and one bag of marijuana in the pockets of his jacket and cocaine residue in a plastic packet in his jeans. A search of the car that the defendant was driving revealed additional bags of methamphetamine and marijuana, as well as marijuana cigarettes. He was charged with possession of cocaine, marijuana, and methamphetamine. At trial, Graham asserted as defenses that a friend had borrowed his jacket the day before he was arrested; that he was wearing a friend’s pants because his had been soiled; and that the vehicle he drove did not belong to him. This court found that because Graham had provided innocent explanations at trial for why he possessed the drugs in question, his intent was a “critical element” in assessing his guilt. 244 Kan. at 196. In fact, the court noted that “Graham’s intent was the sole issue” in the case. (Emphasis added.) 244 Kan. at 198. The court therefore held that the evidence of the defendant’s prior drug crimes was admissible under K.S.A. 60-455 to show “knowledge, intent, and absence of mistake or accident.” 244 Kan. at 198. A review of these cases demonstrates that all of the cases where the court found that evidence of other wrongful acts was admissible to prove intent involved attempts by the defendants to provide an innocent explanation for his or her possession of contraband. See Graham, 244 Kan. at 195-96; Faulkner, 220 Kan. at 156-57. None of these cases involve a situation where the defendant’s principle defense involved disputing possession of the drugs in question; instead, the defense provided in each was that although drugs were found in the defendant’s possession, the defendant did not intend to possess those substances. In Dotson, where the defendant did not attempt to provide an innocent explanation for his actions, the court held that evidence of prior crimes was not admissible because intent was not raised as an issue in the case. 256 Kan. at 413. In other words, intent was not disputed. See Faulkner, 220 Kan. at 156-57; see also State v. Davidson, 31 Kan. App. 2d 372, Syl. ¶ 4, 65 P.3d 1078, rev. denied 276 Kan. 971 (2003) (evidence of other crimes or civil wrongs inadmissible to prove intent when the defendant provides a blanket denial that an event ever occurred). In this case, Boggs’ only defense was that he did not possess the glass pipe found under the passenger seat in Hockett’s father’s pickup truck. Boggs did not dispute the fact that the pipe was drug paraphernalia or that the pipe contained a small amount of marijuana residue (although he did argue at trial that the residue was not substantial enough to give rise to a conviction). Instead, as the Court of Appeals noted in its opinion in this case, Boggs completely denied ever having possession of the pipe at all. See Boggs, 38 Kan. App. 2d at 690 (citing Davis, 31 Kan. App. 2d at 383). Because Boggs’ only defense was that he did not possess the glass pipe, the element of intent — and the related elements of knowledge and absence of mistake or accident — were not at issue in this case. As the Court of Appeals opined below: “[T]he State’s argument raises several questions. First, what ‘intent’ was tended to be proved? Boggs’ defense was that he neither possessed the marijuana nor the drug paraphernalia. Unlike Graham, Boggs did not assert that the charged crimes in question were done innocently. As a result, the issue of intent was not in dispute. Second, what ‘knowledge’ was tended to be proved? The question to be answered was as follows: Did Boggs possess the marijuana and drug paraphernalia? No claim was made that Boggs may have possessed the marijuana and drug paraphernalia without knowledge that he had it. Third, what ‘absence of mistake or accident’ was a question in this case? No one contended that Boggs possessed the marijuana and the drug paraphernalia without knowing what the items were or possessed the items by mistake.” 38 Kan. App. 2d at 692. We agree and find the reasoning of the Court of Appeals sound. The issues of intent, knowledge, or absence of mistake or accident were not material to the resolution of Boggs’ case, as the only issue in dispute was whether Boggs ever possessed the pipe and its contents at all. The State cites two recent unpublished opinions of the Court of Appeals that both held that evidence of other crimes or civil wrongs is admissible to prove possession in nonexclusive possession cases. See State v. Vogt, No. 96,660, unpublished opinion filed December 14, 2007; State v. Saunders, No. 94,672, unpublished opinion filed May 4, 2007, rev. denied 284 Kan. 950 (2007). A review of these two cases, however, demonstrates that they are inconsistent with this court’s case law holding that intent evidence is only material when intent is at issue in the case. It is unclear in Vogt, which involved a question of nonexclusive possession of drugs in an automobile similar to that raised in this case, whether the defendant contended that he did not intend to possess the contraband or that he did not possess the drugs at all. Vogt is therefore of little use to this case, which turns on whether the intent was a material fact in dispute. Saunders involved nonexclusive possession of drugs found in a residence. The panel in that case concluded that the defendant did not “categorically deny the allegations” of possession because the defendant claimed to have “no knowledge” of the presence of the drugs in the residence. Slip op. at 8. The court therefore concluded that knowledge was a material fact in dispute, and evidence of prior drug use could be introduced to refute the defendant’s claims that he did not know about the drugs in question. Slip op. at 8. The problem with the court’s analysis in Saunders is that it fails to appreciate that “knowledge” in the context of drug possession may have different connotations. An assertion that a defendant did not know about the drugs in question — as the defendant made in Saunders — is a much different assertion than a claim that the defendant did not know a particular substance consisted of drugs or was drag-related. While evidence of prior drag use might be relevant to prove the latter of these assertions, there is absolutely no logical connection between prior drug use and the first assertion, i.e., no knowledge of drags being present. If a person asserts that he or she does not know that there are drags in a residence (or in this case, under the seat in a vehicle), prior use of drags neither proves nor disproves the validity of that assertion. A review of the record and arguments in this case demonstrates that the only question at issue was the identity of the individual who possessed the pipe. The evidence of Boggs’ prior drag use admitted at trial indicated that he had smoked marijuana about a month before he was arrested for the current offense. This evidence does not raise any inference or provide any details that would lead to a conclusion that Boggs possessed the glass pipe at issue in this case. The only conceivable connection between the two events is an assumption that because Boggs used marijuana in the past, it was probable that he would use it again in the future and thus possess the pipe. This is propensity evidence and is precisely what K.S.A. 60-455 was designed to prevent. See State v. Gunby, 282 Kan. 39, 47-48, 144 P.3d 647 (2006). The instruction provided in this case states that in a nonexclusive possession case, factors including other crimes or civil wrongs of the defendant may be admitted to establish the defendant “knowingly possessed the controlled substance” charged in the information or complaint. In the past, factors such as a defendant’s prior drag use or participation in the sale of drags — evidence of other crimes or civil wrongs that fall squarely within the realm of K.S.A. 60-455 — have been admitted both under the guise of that statute or independent from the statutory mandates. Compare Faulkner, 220 Kan. at 155-57 (discussing K.S.A. 60-455), with Bullocks, 2 Kan. App. 2d at 49-50 (admitting evidence of other crimes or civil wrongs without ever discussing K.S.A. 60-455). The ambivalence existing in this area of law is exemplified by the trial court’s admission of the defendant’s prior drag use without employing the safeguards of K.S.A. 60-455, yet giving a hmiting instruction. Gunby abolished this ambiguity, making it clear that before any evidence of a defendant’s other crimes or civil wrongs can be ad mitted, the court must apply the K.S.A. 60-455 safeguards. See 282 Kan. at 57. Finally, we observe that although PIK Crim. 3d 67.13-D, which was applied in a modified form in this case, states that a jury may consider a defendant’s use of a controlled substance as one of the factors in a nonexclusive possession case, the pattern instruction fails to adequately summarize the nuances of this court’s case law relating to K.S.A. 60-455 evidence. Our decision in Gunby specifically bars the admission of any evidence of other crimes or civil wrongs independent of K.S.A. 60-455 or some other statutory basis. While a defendant’s use of a controlled substance may be admitted — subject to the requirements of K.S.A. 60-455 — -when such evidence is relevant to prove a disputed material fact, the defendant’s use of a controlled substance is not a factor that is automatically admissible as an exception to the specific mandates of K.S.A. 60-455. To the extent that PIK Crim. 3d 67.13-D suggests otherwise, the instruction is disapproved. To the extent that past appellate cases in this state suggest otherwise, they are also disapproved. IV. Was the erroneous admission of the evidence of the defendant’s prior marijuana use harmless? The conclusion that the evidence of Boggs’ previous drug use was inadmissible under K.S.A. 60-455 does not automatically lead to reversal. Instead, we must determine, as die Court of Appeals did in this case, whether the admission of that evidence was harmless under K.S.A. 60-261, which provides: “No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice.” Other than his prior drug use, the only evidence Unking Boggs to the glass pipe consisted of Captain Allcock’s testimony that he smelled the odor of marijuana on Boggs’ clothing and Hockett’s extensive testimony at trial. Plockett was the only other occupant of the pickup truck where the pipe was found, and that truck be longed to Hockett’s father; both of these facts place Hockett’s credibility in question. Under the facts of this case, the evidence that Boggs had used marijuana on a prior occasion was inadmissible, but it was also extremely prejudicial. We cannot discount the veiy real possibility that the jury was swayed by this prior drug experience and concluded on the basis of the improperly admitted evidence that the defendant was guilty of the crime charged solely based on his previous behavior. In short, we do not believe that the erroneous admission of defendant’s prior drug use was harmless. The State argues that the Court of Appeals’ harmless error analysis was improper because it required the court to reweigh the witnesses’ credibility. Specifically, the State argues that the Court of Appeals discounted Hockett’s incriminating testimony due to his interests as the driver of a truck belonging to his father — and therefore potential bias — concerning the outcome of Boggs’ case. This claim fails to recognize that a reviewing court considering a question of harmless error is required to make a determination as to whether the evidence admitted had any likelihood of changing the results at trial. See State v. Gonzalez, 282 Kan. 73, 99-100, 145 P.3d 18 (2006). This determination is different from a question of whether there is sufficient evidence to sustain a conviction because considerations of harmless error necessarily involve some weighing of the evidence presented against the court’s confidence that the verdict is consistent with substantial justice. See K.S.A. 60-261. Applying this same harmless error standard, we conclude that the admission of Boggs’ prior use of marijuana had a real likelihood of changing the result of the trial. The district court’s error in admitting the evidence was not harmless. The decision of the Court of Appeals reversing the district court on the issues subject to our grant of review is affirmed, the district court is reversed, and the case is remanded with directions to the district court for a new trial consistent with this opinion.
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The opinion of the court was delivered by Beier, J.: In these consolidated criminal cases, defendant Martin Vasquez was convicted of three counts of first-degree murder; one count each of aggravated robbery, aggravated burglaiy, and felony theft; and two counts of misdemeanor theft. He was sentenced to three consecutive hard 40 terms on the three convictions of first-degree murder. In this appeal, his counsel raises six issues for our review; Vasquez raises several additional issues in a pro se brief. On December 12, 1998, the bodies of Vasquez’ wife, Robin; Robin’s father, Howard Franks; and Tom Dinkel were discovered in Robin’s home in Kinsley, Kansas. Each victim had been incapacitated by blows or gunshots, then executed by means of a final gunshot. Investigators recovered 9 mm bullet casings at the scene, and 9 mm bullets were recovered from the bodies. “Robin I Love You” was written on a wall at the scene. Although Dinkel’s truck had been parked in the driveway in front of Robin’s house the night before, it was no longer there the morning the bodies were found. Mike Sebes, who had employed Vasquez, discovered that his 9 mm Firestar handgun was gone when he looked for it on December 14. Dinkel’s truck was found in Juarez, Mexico, in late December 1998. Dinkel’s wallet was discovered along Highway 183 south of Kinsley in February 1999. Sebes’ 9 mm Firestar was found in El Paso, Texas, in late December 2002. In Case No. 99 CR 26 — filed April 7, 1999; amended July 18, 2001; then amended again January 19,2005 — Vasquez was charged with three counts of first-degree murder in violation of K.S.A. 21-3401; one count of aggravated robbery in violation of K.S.A. 21-3427 for taking Dinkel’s keys and wallet; one count of aggravated burglary in violation of K.S.A. 21-3716 for entering into or remaining within Robin’s house with the intent to commit first-degree murder; one count of felony theft in violation of K.S.A. 21-3701 for taking Dinkel’s truck; and one count of misdemeanor theft in violation of K.S.A. 21-3701 for taking Sebes’ gun. A related complaint in Case No. 98 CR 102 had been filed December 18, 1998, charging Vasquez with felony burglaiy in violation ofK.SA. 21-3715 and misdemeanor theft in violation ofK.S.A. 21-3701 for taking a .357 pistol from Ron Sebes’ truck. Ron Sebes is Mike Sebes’ father. Vasquez had also worked with Ron. Vasquez was arrested in Mexico on September 3, 2003; gave statements to police; and made his first appearance before the district court on October 19, 2004. A preliminary hearing was held in the consolidated cases on December 16, 2004. The district magistrate who presided over the hearing dismissed the felony burglary count in Case No. 98 CR 102, but he bound Vasquez over on the misdemeanor theft count in that case and on the seven counts charged in Case No. 99 CR 26. Vasquez requested separate jury trials in the two cases, and he waived his speedy trial rights at a February 18, 2005, motion hearing. Two months later, Vasquez obtained a change of venue from Edwards County to Pawnee County. A few days after the venue transfer, the district judge sustained the State’s motion to consolidate the two cases for trial. He also addressed two defense motions in limine. On the first, the judge excluded evidence of an emergency restraining order and a related Kinsley municipal court domestic battery case filed after a July 1998 incident in which Vasquez had pushed and bitten Robin. The judge ruled that he would, however, allow evidence of Robin’s statements to law enforcement about the July 1998 incident. On the second motion in limine, the judge ruled on the admissibiliiy of certain statements by Robin to coworkers. The judge ruled that evidence of the statements would be admitted: “[B]y a preponderance of the evidence . . . the defendant did procure the absence of the declarent [sic] in this case and therefore cannot benefit from said act.” At trial, the State’s evidence covered the following additional information: Vasquez and Robin were married in 1996, and their union swiftly deteriorated. Vasquez drank to excess; by mid-1998, Robin was seeking a divorce. Vasquez worked for Mike and Ron Sebes in their Kinsley farming operation during the summer of 1998. In mid-October, Vasquez left Kansas for several months to harvest crops on his own land in Mexico. While in Mexico, Vasquez contacted Robin, who told him she did not want him to return. Vasquez nevertheless returned to Kinsley in the first week of December 1998. Robin had moved his belongings to the home of Vasquez’ sister, Maria, who lived across the street from Robin; and Vasquez stayed at Maria’s after his return from Mexico. Robin had begun seeing Dinkel, and Vasquez became aware of this fact. According to Vasquez’ friend, Nathan Bartley, Vasquez was upset by his wife’s relationship with Dinkel and “wanted to kick Dinkel’s ass.” Around December 5, 1998, Vasquez attempted to borrow a gun from Bartley for the stated purpose of going hunting, although Bartley had never known Vasquez to hunt. Vasquez asked Bartley to take him to the store for ammunition. When Bartley was unable to do so, Vasquez went to the store with his sister and purchased 9 mm bullets. On December 11, 1998, Robin told Police Officer Curtis William Starks that Vasquez was back in Kinsley. When Starks asked Robin if she was frightened, she said that she was not afraid of Vasquez unless he had been drinking. She said there had been a shotgun in her house, which she had taken to Dinkel. Dinkel had locked the shotgun in a safe in his shop so that it was not in her house while Vasquez was in town. Robin also told Starks that she had sought a restraining order against Vasquez and would file a petition for a protection from abuse (PFA) order on the following Monday. Later in the afternoon on December 11, Starks was called to Dinkel’s shop, where Dinkel and Robin gave him a handwritten letter from defendant that had been left on the doorstep. The letter said that Vasquez did not want to “beat anyone” and that he wished Dinkel would stay away so that Vasquez and Robin could work out their problems. Dinkel and Robin also gave Starks the shotgun and a Smith & Wesson .357 handgun. Robin told Starks that Vasquez had brought the handgun into their home several months earlier and would not tell her where he had gotten it. The shotgun belonged to Ron Sebes, who had also kept a Smith & Wesson .357 in his pickup truck until September 1998, when he reported it stolen. Still later the same afternoon, Starks spoke to Vasquez. Starks told Vasquez that the police had the shotgun, and that Vasquez was not permitted to possess a firearm because of an earlier domestic battery case and because of his immigration status. Starks told Vasquez that the police were going to get the Immigration and Naturalization Service (INS) “involved.” He also told Vasquez that Robin had a restraining order against him; that she was filing for divorce; that she was happy with Dinkel; and that Vasquez needed to leave her alone. Late the evening of December 11, Vasquez told his sister that he needed to “talk to Robin.” He gave his sister a hug, which he did not normally do, and walked from her house to Robin’s. He did not come back that night, and the bodies of Robin, Franks, and Dinkel were found the next morning. Forensic pathologist Corrie May, M.D., testified that Franks suffered blunt force trauma and two gunshot wounds to his head, fired from intermediate range. Dinkel’s death was caused by two gunshot wounds to the head and neck, but he suffered a number of blows to the head and neck, which probably incapacitated him before the fatal shots were fired. Robin sustained defensive gunshot wounds to her hand; an atypical gunshot wound to her left shoulder, received while she was hiding behind or under a table; and finally, a shot to the back of her neck. KBI Special Agent Roger Butler, a bloodstain analyst, testified that the crime scene was consistent with a theory that each victim was executed with an “insurance shot” after being felled and incapacitated by gunshot wounds. Mike Sebes, who had reported that his 9 mm Firestar was missing when he looked for it after learning of the murders, testified that, in the first few days of December, Vasquez had called him looking for work. After completing a day-long job, Vasquez borrowed Mike’s truck. At the time, Vasquez was aware that Mike kept the gun behind the seat in the truck. Police recovered a box of 9 mm ammunition from Vasquez’ sister’s house; eight rounds were missing from it. Over a defense objection, the State also introduced evidence that, on July 17 or 18, 1998, the police had responded to a hangup 911 call from the Vasquez home. According to responding officers Starks and Tammy Gross, Robin told them that Vasquez, who had been drinking, shoved her, threw her around, and bit her hard on her left breast. The police arrested Vasquez for domestic battery and disorderly conduct. At trial on these cases, Vasquez also objected to evidence that Robin had filed to obtain a PFA order as a result of the July 1998 incident. The PFA action was later dismissed. Several of Robin’s close friends testified to remarks Robin had made about her turbulent relationship with Vasquez. Defendant made a continuing hearsay objection to this testimony. Mickey Avery, with whom Robin worked, testified about a letter from Vasquez that Robin had shown her. In the letter, Vasquez stated that he did not want Robin to divorce him and that life would not be worth living if he was not married to her. Avery also testified that, at work on December 11, 1998, Robin received a phone call from Vasquez, who wanted her to meet him. Robin suggested a public meeting place. Avery testified that, although she did not hear Vasquez’ side of the conversation, she heard Robin tell him, “ ‘This isn’t Mexico, and you cannot get a gun and shoot people.’ ” After the call, Robin repeated to Avery what she had told Vasquez. Robin’s friend and former coworker, Virginia Lee Smith, testified that she talked to Robin on December 11, 1998, and Robin mentioned that defendant was back in town. Smith asked Robin if Vasquez knew about Dinkel. Robin said yes and said that Vasquez had said he “ ‘was going to shoot [Dinkel] in the head.’ ” Vasquez, through the aid of an interpreter, testified that he was innocent of the murders. He said that Robin had been married previously, that her former husband had kidnapped her, and that he had beaten her so badly while she was pregnant that she had lost the child. He said that Robin was afraid of her former husband and, in the summer of 1998, decided she needed a gun to protect herself. Vasquez testified that he purchased, from a friend, the Smith & Wesson .357 that was later determined to have been stolen from Ron Sebes. Vasquez admitted that he had bitten Robin in play in July 1998 and that she had become angry. He maintained that he and Robin did not have marital problems. He said he stayed with his sister when he returned to Kinsley from Mexico because Robin’s father and son were staying with her and she wanted to be alone with them. Vasquez testified that he and Bartley had planned a hunting trip and that he believed Bartley had a 9 mm handgun they would use; Vasquez therefore purchased a box of 9 mm bullets. By the night of the murders, defendant testified, Starks had talked to him and made him realize his marriage was over. He said Starks had told him he should get out of town. He said he went to Robin’s house that night and knocked, but no one was home; so he hugged his sister, walked to Highway 183, hitchhiked south through El Paso, and caught a bus to Durango, where his brother picked him up and took him to his farm in Mexico. The district judge did not give a limiting instruction on K.S.A. 60-455 evidence; there was no objection from the defense. The district judge declined to give an instruction on the lesser included offense of voluntary manslaughter based on heat of passion, which the defense had proposed. At sentencing, the State argued for hard 40 sentences on the three murders. The district judge imposed the hard 40 sentences sought, ruling that the victims were murdered in an especially heinous, atrocious, and cruel manner. The judge relied upon each victim suffering serious pain, physical abuse, and mental anguish before his or her death, and on Vasquez’ firing of execution-style shots to ensure their deaths. The heinous, atrocious, cruel aggravator outweighed Vasquez’ only mitigator, i.e., the lack of a significant criminal history. Admission of Evidence about July 1998 Incident Vasquez argues that the district judge erred in admitting evidence about the July 1998 incident in which he had pushed and bitten Robin. He suggests that this court has disallowed admission of marital discord evidence of this type as an exception to the procedure employed under K.S.A. 60-455. See State v. Gunby, 282 Kan. 39, 47-60, 144 P.3d 647 (2006). He also argues that die evidence was irrelevant and unduly prejudicial and that the absence of an appropriate limiting instruction requires reversal of his convictions. Vasquez is correct that evidence of marital discord qualifying as another crime or civil wrong is subject to evaluation for admission under K.S.A. 60-455 rather than independent of it. The evidence at issue here — testimony about Vasquez’ commission of domestic battery of Robin — -unquestionably qualifies as evidence of another crime or civil wrong. K.S.A. 60-455 provides in pertinent part: “[E]vidence that a person committed a crime or civil wrong on a specified occasion ... is inadmissible to prove his or her disposition to commit [a] crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but . . . such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity!,] or absence of mistake or accident.” One of our most recent cases focusing on K.S.A. 60-455 evidence is State v. Reid, 286 Kan. 494, 186 P.3d 713 (2008). In Reid, we clarified the analytical steps to be taken and the standard of appellate review to be applied to each step. “[T]he K.S.A. 60-455 analysis requires several steps. . . . [T]he court must determine that the evidence is relevant to prove a material fact, e.g., motive, knowledge, and identity. The court must also determine that the material fact is disputed. Additionally, the court must determine that the probative value of the evidence outweighs the potential for producing undue prejudice. Finally, the court must give a limiting instruction informing the jury of the specific purpose for admission whenever 60-455 evidence comes in. [Citations omitted.]” 286 Kan. at 503. Referencing our 2006 decision in Gunby, 282 Kan. at 47-48, 56-57, which did away with marital discord as an independent basis for admission of other crimes and wrongs evidence, Reid made clear that it was refining and extending the Gunby discussion: “While Gunby established that evidentiary rules may be applied either as a matter of law or in the exercise of the trial court’s discretion, depending on the contours of the rule in question, this particular determination only occurs ‘[o]nce relevance is established.’ 282 Kan. at 47. Gunby did not establish our standard of review for analyzing relevance of certain K.S.A. 60-455 evidence. “[T]he legislature has defined ‘relevant evidence’ as ‘evidence having any tendency in reason to prove any material fact.’ This statutory definition bears some resemblance to one found in Federal Rule of Evidence 401: ‘ “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ “Several treatises have recognized that the federal rule contains both a probative, i.e., relevancy, element and a materiality element.” Reid, 286 Kan. at 504. Our Reid decision then observed that materiality merged into the federal rule on relevancy through inclusion of the “ requirement that the fact proved must be “of consequence to the determination of the action.” .... Determining whether evidence is “consequential” depends on the applicable substantive law/ ” 286 Kan. at 504-05 (quoting Mueller & Kirkpatrick, Evidence Practice Under the Rules § 4.2, pp. 228-29 [2d ed. 1999]; citing 1 Federal Rules of Evidence Manual, § 401.02[2] [9th ed. 2006] [“Both traditional requirements of relevance analysis — that evidence must relate to issues that are properly in dispute and that it must shed some light on those issues — are combined into one rule. Whether an issue is properly in dispute is, of course, determined by the applicable substantive law.”]). The Kansas statute, K.S.A. 60-401(b), mirrors its federal counterpart. As Reid stated, “ ‘Evidence having any tendency in reason to prove’ suggests the probative element, while ‘any material fact’ suggests the materiality element.” Reid, 286 Kan. at 505. Moreover, both elements have a place under K.S.A. 60-455 because of the statute’s references to both relevance — i.e., probativeness— and materiality. 286 Kan. at 505. In other words, the concept of relevance under Kansas law includes both whether evidence is probative and whether it is material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. 286 Kan. at 507-09. With respect to relevance overall, Reid concluded: “Obviously, if either the probative or materiality element’s standard is not met, then the evidence is inadmissible. If both standards are met, then the appellate court proceeds to the next step(s) in the [K.S.A.] 60-455 analysis established in Gunby.” Reid, 286 Kan. at 509. The second step under K.S.A. 60-455, i.e., whether the fact was in issue at trial, is judged on appeal under a de novo standard. An appellate court is as capable as a district court of discerning whether a particular fact was in issue from a cold record. The third step, the district judge’s weighing of probative value and prejudicial effect, is reviewed on appeal for abuse of discretion, a more deferential standard. See Reid, 286 Kan. at 512. If evidence qualifies for admission under K.S.A. 60-455 but no limiting instruction was given, the standard of review should match that applied to other jury instruction issues. If the defense requested a hmiting instruction and was refused, or it otherwise objected to its omission by the district judge, the standard on appeal is that set out in K.S.A. 60-261; to be reversible, the error must be inconsistent with substantial justice. See Gunby, 282 Kan. at 48, 57-59. If the defense did not request a hmiting instruction and it failed to object to its omission, the absence of a hmiting instruction is reviewed on appeal under the clearly erroneous standard of K.S.A. 22-3414(3). Reid, 286 Kan. at 513. “ Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.’ [Citation omitted.]” State v. Shirley, 277 Kan. 659, 666, 89 P.3d 649 (2004). At the time of Vasquez’ trial, it was accepted practice to admit marital discord evidence independent of K.S.A. 60-455. To avoid error, a district judge need not have followed the three steps under the statute or given a prophylactic hmiting instruction. See, e.g., State v. Mayberry, 248 Kan. 369, 384-85, 807 P.2d 86 (1991); State v. Green, 232 Kan. 116, 119-23, 652 P.2d 697 (1982). This changed with Gunby, 282 Kan. at 49. Yet Gunby also unequivocally held that the list of facts in K.S.A. 60-455 was meant to be exemplary rather than exclusive. 282 Kan. at 56. Since Gunby, then, marital discord evidence could be admissible to demonstrate motive for a crime or some other fact, as long as the three-part test under K.S.A. 60-455 was met and a hmiting instruction given. 282 Kan. at 56-57. In addition, we stated: “[T]the admission of K.S.A. 60-455 evidence without the explicit relevance inquiries, particularized weighing of probative value and prejudicial effect, or prophylactic hmiting instruction is not inevitably so prejudicial as to require automatic reversal. On the contrary it may be harmless.” Gunby, 282 Kan. at 57; see K.S.A. 60-261. Gunby applies to this case, which was on direct appeal at the time Gunby was filed. See United States v. Booker, 543 U.S. 220, 268, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 107 S. Ct. 708 [1987]); State v. Francis, 282 Kan. 120, 126-27, 145 P.3d 48 (2006); State v. Barnes, 278 Kan. 121, 124-27, 92 P.3d 578 (2004). Thus it is clear that the district judge in Vasquez’ case erred, albeit innocently, by admitting marital discord evidence independent of K.S.A. 60-455. We must evaluate the effect of that error, if any. To do so, we must examine whether the evidence would have been admissible if the three-part test of K.S.A. 60-455 had been applied correctly. If so, because Vasquez did not seek a hmiting instruction and none was given, we must next examine whether the absence of the instruction amounted to clear error requiring reversal. Vasquez argues that the evidence of the July incident fails the three-part test because it was not relevant to prove any material fact in issue at his triple murder trial. We disagree. Addressing the legal question of the materiality element of relevance first, we hold that motive was clearly material to the juiy’s task in this triple murder trial. Although motive is not an element of premeditated first-degree murder, evidence of its existence can be highly persuasive circumstantial evidence of guilt. It is the “moving power that impels one to action for a definite result.” Reid, 286 Kan. at 504 (citing State v. Jordan, 250 Kan. 180, 190, 825 P.2d 157 [1992]). It “ ‘supplies the jury with some degree of explanation, responding to a juror’s natural tendency to wonder why a defendant behaved in the manner described by the State. Often it is a prominent feature of the State’s theory of its case.’ ” Reid, 286 Kan. at 504 (quoting State v. Engelhardt, 280 Kan. 113, 128, 119 P.3d 1148 [2005]); see also State v. Hughes, 286 Kan. 1010, 1021-23, 191 P.3d 268 (2008); (discussing motive); State v. Carapezza, 286 Kan. 992, 998-1000, 191 P.3d 256 (2008) (same). Here, the State attempted to prove that Vasquez killed out of anger and jealousy, i.e., that he had a motive to kill his wife because of the separation she instigated and her new romantic relationship with Dinkel. The question of whether the evidence of the July 1998 domestic battery incident was probative on motive is somewhat more difficult, because the incident was fairly remote in time from the murders. However, that temporal remove is ameliorated by the fact of Vasquez’ absence from the country for several weeks. It is also ameliorated by our recognition that anger and jealousy in troubled romantic relationships are not necessarily logical or linear. Neither are they strictly time-bound. Rather, these volatile emotions may wax and wane; they may build over time or be tamped down by sudden or slow reconciliation. In the circumstances before us, the district judge’s decision to permit the State to prove motive by demonstrating the existence of discord between Vasquez and Robin in the several months leading to the murders would not have been an abuse of discretion. Employing a de novo standard, our review of the record also demonstrates there would have been no error in deciding that motive was actually in issue in Vasquez’ trial. As mentioned, the State’s theory was that Vasquez killed out of anger and jealousy. His testimony directly contradicted that theory. He advanced an alternate explanation for why he was staying at his sister’s home after his return from Mexico and denied that he and Robin had marital problems of any kind. We move next to the balance of probative value and prejudicial effect. On this part of the test, it is not enough for Vasquez to show that the evidence was prejudicial. It undoubtedly was, as is all or most of the evidence introduced by the State in any murder trial. See State v. Miller, 284 Kan. 682, 703, 163 P.3d 267 (2007). Rather, to demonstrate an abuse of discretion, he must show that unfair or undue prejudice arising from the admission of the evidence substantially outweighed its probative value. Vasquez cannot do so here. The State put on convincing circumstantial proof of Vasquez’ guilt; it included ample evidence of his estrangement from Robin. Under these circumstances, the July incident did not give the jury its sole or even a predominant independent reason to convict Vasquez. Had the district judge conducted this balance under K.S.A. 60-455, it would not have been an abuse of discretion for him to conclude that the evidence could come in. Indeed, the contribution of this evidence to the ultimate verdicts was most likely minimal. Finally, we address the absence of a limiting instruction under the clearly erroneous standard. Given our expectation of minimal impact from this evidence, we have no hesitation in holding that the absence of a limiting instruction in this case was not clear error. An instruction telling the jury that it could consider the July incident only to the extent it was probative of motive or another particular fact in issue would have improved Vasquez’ trial, but the trial was fair and its result rehable without it. Instruction on Voluntary Manslaughter Defendant argues that the district court erred in failing to give his requested instruction on voluntary manslaughter based on heat of passion, a lesser included offense of premeditated first-degree murder. Noting that evidence relating to mitigation in the form of heat of passion was “scant” and “minimal at best,” the district court declined to include the instruction because Vasquez’ defense was that he had not entered Robin’s house at all on the night of December 11, 1998, and thus could not have committed the murders or other charged crimes. “ ‘ “ ‘If the defendant requests [lesser included offense] instructions, the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive.’ [Citation omitted.] An instruction on a lesser included offense is not required if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented.” ’ [Citation omitted.]” State v. White, 284 Kan. 333, 347, 161 P.3d 208 (2007) (quoting State v. Boyd, 281 Kan. 70, 93, 127 P.3d 998 [2006]; State v. Drennan, 278 Kan. 704, 712-13, 101 P.3d 1218 [2004]). K.S.A. 21-3403 defines voluntary manslaughter as “the intentional killing of a human being committed: (a) [u]pon a sudden quarrel or in the heat of passion.” The key elements for this offense are whether the killing was intentional and whether there was legally sufficient provocation. See State v. Hamons, 248 Kan. 51, 63, 805 P.2d 6 (1991). The Kansas rules for determining whether heat of passion and sufficient provocation existed to support a voluntary manslaughter conviction, detailed in State v. Guebara, 236 Kan. 791, 796-97, 696 P.2d 381 (1985), are: “(1) Voluntary manslaughter is the intentional killing in the heat of passion as a result of severe provocation. . . . “(2) ‘Heat of passion’ means any intense or vehement emotional excitement of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror. Such emotional state of mind must be of such a degree as would cause an ordinary man to act on impulse without reflection. [Citations omitted.] “(3) In order to reduce a homicide from murder to voluntary manslaughter, there must be provocation, and such provocation must be recognized by the law as adequate. A provocation is adequate if it is calculated to deprive a reasonable man of self-control and to cause him to act out of passion rather than reason. [Citation omitted.] In order for a defendant to be entitled to a reduced charge because he acted in the heat of passion, his emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation. [Citations omitted.] “(4) The test of the sufficiency of the provocation is objective, not subjective. The provocation, whether it be ‘sudden quarrel’ or some other form of provocation, must be sufficient to cause an ordinary man to lose control of his actions and his reason. [Citations omitted.] In applying the objective standard for measuring the sufficiency of the provocation, the standard precludes consideration of the innate peculiarities of the individual defendant. The fact that his intelligence is not high and his passion is easily aroused will not be considered in this connection. [Citation omitted.] “(5) Mere words or gestures, however insulting, do not constitute adequate provocation, but insulting words when accompanied by other conduct, such as assault, may be considered. [Citations omitted.]” 236 Kan. at 796-97. With these guiding principles in mind, the court must determine here whether there was sufficient evidence of adequate provocation to instruct on voluntary manslaughter. In doing so, this court views the evidence in the light most favorable to die defendant. State v. Horn, 278 Kan. 24, 40, 91 P.3d 517 (2004); State v. McClanahan, 254 Kan. 104, 109, 865 P.2d 1021 (1993). In this case, there was no such evidence from Vasquez. This is not surprising, given his version of events. He could not have credibly claimed simultaneously that he was not inside the house at all and that he was inside and had been provoked into committing a triple homicide. See McClanahan, 254 Kan. at 113-14. Vasquez nevertheless argues that the admitted evidence could have led jurors to conclude that, if he committed the crimes, he was acting out of heat of passion. He points to testimony that he had recentiy learned Robin was divorcing him; that she was seeing another man; that she had given a gun Vasquez possessed illegally to the police; and that the police planned to contact INS. Even if all of this evidence was credited by the jury, these facts do not “meet the provocation threshold — that which is calculated to deprive a reasonable [person] of self-control and to cause [the defendant] to act out of passion rather than reason.” Horn, 278 Kan. at 42; see State v. Oliver, 280 Kan. 681, 705, 124 P.3d 493 (2005); Engelhardt, 280 Kan. at 135-36. On the contrary, this evidence provided strong support for the factors we have recognized as persuasive on the premeditation element of first-degree murder. See Oliver, 280 Kan. at 704-05. In addition, the weapon used was deadly, a 9 mm gun. Vasquez had illegally obtained such a weapon and had purchased 9 mm ammunition more than a week before the murders. He had made threats against at least one of the victims. He hugged his sister and told her goodbye — an unusual parting, according to her — before he went to Robin’s house. There was evidence of defensive wounds on Robin, and additional and'lethal injuries were inflicted after each of the victims had been felled. Premeditation and heat of passion are mutually exclusive concepts. State v. Hurt, 278 Kan. 676, 683, 101 P.3d 1249 (2004); see State v. Abu-Fakher, 274 Kan. 584, 609, 56 P.3d 166 (2002). An instruction on voluntary manslaughter based on heat of passion was not warranted in this case. Admission of Victim’s Hearsay Statements Vasquez also argues that the State’s reliance on Robin’s inadmissible hearsay statements to prove motive violated his right of confrontation, requiring reversal of his convictions. As the State noted in its brief, Vasquez did not specify exactly which testimony he contests, but his brief cites to a passage in the record containing testimony from Starks about his first conversation with Robin on the day of the murders. We therefore address only this testimony. This court’s analysis under the Confrontation Clause of the Sixth Amendment to the United States Constitution is undertaken without deference to the trial court’s interpretation of the law. State v. Davis, 283 Kan. 569, Syl. ¶ 1, 158 P.3d 317 (2006). The Sixth Amendment provides that, in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him or her. U.S. Const, amend. VI. The Kansas Constitution also protects a criminal defendant’s right to confront the witnesses against him or her. Kan. Const. Bill of Rights, § 10. However, these provisions do not preclude the admission of all out-of-court statements. See Davis, 283 Kan. at 576. After the United States Supreme Court’s decisions in Davis v. Washington, 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006), and Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the test to determine whether the admission of a hearsay statement violates a defendant’s confrontation rights turns first on whether the statement is testimonial. If a statement is testimonial, it must be excluded unless the court finds that the declarant is unavailable as a witness and that the defendant had a prior opportunity to cross-examine the declarant. If a statement is not testimonial, then it does not implicate the Confrontation Clause, and the only consideration before the court is whether it may be admitted under one of the statutory exceptions to Kansas hearsay law. Davis, 283 Kan. 569, Syl. ¶ 2. “In determining whether a statement is testimonial, an appellate court applies an objective, totality of the circumstances test.” State v. Henderson, 284 Kan. 267, Syl. ¶ 4, 160 P.3d 776 (2007). In State v. Brown, 285 Kan. 261, 282-94, 173 P.3d 612 (2007), we engaged in an extended review of the language in the Supreme Court’s Davis and Crawford opinions and of our interpretations of the word “testimonial” in State v. Miller, 284 Kan. 682, 709-13, 163 P.3d 267 (2007); Henderson, 284 Kan. at 276-95; and State v. Lackey, 280 Kan. 190, 201, 120 P.3d 332 (2005), cert. denied 547 U.S. 1056 (2006). We concluded with the following attempt at synthesis: “[T]he various factors considered ... for determining whether a hearsay statement is testimonial include: “(1) Would an objective witness reasonably believe such a statement would later be available for use in the prosecution of a crime? “(2) Was the statement made to a law enforcement officer or to another government official? “(3) Was proof of facts potentially relevant to a later prosecution of a crime the primary purpose of the interview when viewed from an objective totality of the circumstances, including circumstances of whether (a) the declarant was speaking about events as they were actually happening, instead of describing past events; (b) the statement was made while the declarant was in immediate danger, i.e., during an ongoing emergency; (c) the statement was made in order to resolve an emergency or simply to learn what had happened in tire past; and (d) the interview was part of a governmental investigation?; and “(4) Was the level of formality of the statement sufficient to malee it inherently testimonial; e.g., was the statement made in response to questions, was the statement recorded, was the declarant removed from third parties, or was the interview conducted in a formal setting such as in a governmental building?” Broten, 285 Kan. at 291. When the totality of circumstances surrounding Robin s first statements to Starks on the day of her murder are measured against these factors, the statements do not qualify as testimonial. Although they were made to a police officer and not during an ongoing emergency, they took the form of a fairly casual update. Robin let Starks know that Vasquez was back in town and that she intended to file a PFA action. The situation would not have led Robin to believe that the statements would later be available for use in the prosecution of a crime, and investigation of a crime was not Starks’ purpose in responding to the information. Admission of Starks’ testimony about Robin’s statements therefore did not violate Vasquez’ right to confront the witnesses against him. We next move to the question of whether Starks’ testimony about these statements by Robin was admissible under Kansas hearsay rules. According to Starks, Robin approached him and wanted to visit. She told him that Vasquez was back in town, and she answered Starks’ questions about whether she was afraid. She said that Vasquez was violent when drunk and that she had told him she did not want him to come back from Mexico. She also said that there had been a shotgun in her house but that she had taken it to Dinkel’s shop because she did not want Vasquez to have access to it. She told Starks that Vasquez was staying at his sister’s house; that Robin had arranged to have a restraining order filed; and that she was going to file a PFA action die following Monday. We hold that the testimony was admissible under K.S.A. 60-460(d)(3), which permits admission of hearsay when the declarant is unavailable to testify at trial and the statements were made at a time when the declarant had recently perceived the matter, while the declarant’s recollection was clear, and the statement was made in good faith prior to the commencement of the action, with no incentive to falsify or distort. As noted above, the district judge admitted the testimony because of the forfeiture doctrine. We do not today address that doctrine. In any event, the judge’s ruling can be affirmed, if it is right even for the wrong reason. See State v. Bryant, 272 Kan. 1204, 1210, 38 P.3d 661 (2002). Sufficiency of Evidence on Aggravated Burglary The State’s complaint charged Vasquez with aggravated burglary through the alternative means of entering into or remaining within Robin’s house without authority; the jury instructions allowed conviction only on the “entering into” alternative. Vasquez argues the State failed to present evidence that he lacked authority to enter the house, which he and Robin had shared as husband and wife before his extended stay in Mexico. When the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, examined 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. Morton, 283 Kan. 464, 474, 153 P.3d 532 (2007) (quoting State v. Kesselring, 279 Kan. 671, 679, 112 P.3d 175 [2005]; State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 [2003]). Aggravated burglary is defined in K.S.A. 21-3716 as “knowingly and without authority entering into or remaining within any building ... in which there is a human being, with intent to commit a felony . . . therein.” “Entering into” refers to the situation where a defendant enters without authorization. State v. Williams, 220 Kan. 610, 612-13, 556 P.2d 184 (1976); State v. Brown, 6 Kan. App. 2d 556, Syl. ¶ 4, 630 P.2d 731 (1981). Our opinion in State v. Franklin, 280 Kan. 337, 345-46, 121 P.3d 447 (2005), is helpful in deciding this issue. In that case, a majority of this court reversed the aggravated burglary conviction of a former live-in girlfriend who entered her former boyfriend’s residence and attacked his current paramour. 280 Kan. at 346-48. Evidence of lack of authority was insufficient when the defendant had testified that she had permission to be in the residence, and that she had clothes in the residence and a car in its garage. In response, the State had relied on the timing of the attack, 1:54 a.m., as well as the defendant’s lack of conversation with residents on the night of the attack, her estrangement from the boyfriend, and her failure to visit the residence in the previous several weeks. Viewing all of tire evidence in this case in the light most favorable to the prosecution, the State certainly demonstrated that Robin wanted nothing to do with Vasquez. She had asked him to stay in or go back to Mexico; and she had moved at least some of his belongings out of their house and into his sister’s. Yet the State did not prove that on December 11, 1998, Vasquez was legally unauthorized to enter the house he and Robin had lived in together. Robin may have obtained a restraining order or may have planned to file a PFA action, as she told Starks, but there was no evidence that Vasquez had been served with any order of this type. He was still married to Robin. Although Starks’ discouragement of contact with Vasquez’ wife was good advice, it lacked the force of law. In keeping with our Franklin decision, we hold that the evidence at trial was insufficient to show Vasquez lacked authority to enter Robin’s house. His conviction on aggravated burglary must therefore be reversed and its corresponding sentence vacated. Cumulative Error Vasquez’ last challenge to his convictions is that the substantial prejudice of cumulative trial errors denied him the right to a fair trial. Cumulative trial errors, when considered collectively, may be so great as to require reversal of a conviction; the test is whether the totality of circumstances substantially prejudiced the defendant and denied him or her a fair trial. State v. Gunby, 282 Kan. 39, 66-67, 144 P.3d 647 (2006). As to Vasquez’ murder and aggravated robbery convictions, we do not detect multiple errors. Thus the cumulative error rule has no application in this case. Hard 40 Sentence Vasquez also argues that Kansas’ hard 40 sentencing scheme is unconstitutional, because it does not afford criminal defendants the right to a juiy determination beyond a reasonable doubt of all facts that may increase the maximum penalty for a conviction of first-degree murder. He also argues that the district judge erred in imposing hard 40 sentences under K.S.A. 21-4635 and K.S.A. 21-4636(f) because the evidence was insufficient to support the judge’s ruling that the murders were committed in an especially heinous, atrocious, or cruel manner. Vasquez’ constitutional argument has been considered and rejected by this court many times. See, e.g., State v. Albright, 283 Kan. 418, 423-25, 153 P.3d 497 (2007); State v. Conley, 270 Kan. 18, 35-36, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). Judicial fact finding by a preponderance of the evidence “that exposes a defendant to a sentence in excess of the statutory maximum” violates a defendant’s constitutional rights; but “judicial fact finding utilizing a preponderance of the evidence standard to increase the mandatory minimum sentence does not run afoul of the jury trial guarantee.” State v. Johnson, 284 Kan. 18, 22-23, 159 P.3d 161 (2007), cert. denied 169 L. Ed. 2d 737 (2008) (citing Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 [2007]; McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 [1986]). The maximum sentence for first-degree murder is fife in prison. K.S.A. 21-4706(c). The hard 40 sentence stiffens the minimum sentence that must be served but does not expose a defendant to a higher maximum than that provided by statute. Vasquez’ challenge to the sufficiency of the evidence to support the “heinous, atrocious, or cruel” aggravator also is without merit. Our standard of review is “ whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence.’ ” State v. Washington, 280 Kan. 565, 568, 123 P.3d 1265 (2005), cert. denied 549 U.S. 1018 (2006). Here, on tire “heinous, atrocious, or cruel” aggravator, the district judge noted that each victim “suffered serious pain and physical abuse,” including “mental anguish, both in the form of certainty and uncertainty” on his or her “ultimate fate.” Viewed in the light most favorable to the prosecution, the evidence supports this finding. See Washington, 280 Kan. at 568. Each victim suffered brutal, incapacitating blows, either by blunt force or by gunshot, to the head and/or neck. Robin, in particular, was wounded while she was hiding behind or under a table. Once each of the victims was felled, execution-style shots were fired to ensure death. We also note, in closing, that the State alleged and the district court found three additional aggravating factors present: Vasquez purposefully killed more than one person; he committed the crimes to avoid lawful arrest or prosecution; and he committed the crimes for the purpose of receiving money or other things of monetary value. Even if Vasquez was entitled to relief because the evidence on the “heinous, atrocious, or cruel” aggravator was insufficient, the sentence was adequately supported by the multiple purposeful killings and the absence of outweighing mitigating evidence. Additional Issues in Pro Se Brief We have carefully reviewed each of the additional issues raised by Vasquez in his pro se brief. None entitles him to relief not already outlined earlier in this decision. Conclusion In light of all of the foregoing discussion, Vasquez’ murder, aggravated robbery, felony theft, and misdemeanor theft convictions and their corresponding sentences are affirmed. His aggravated burglary conviction is reversed, and its corresponding sentence is vacated. Affirmed in part and reversed in part. Davis, J., not participating. Greene, J., assigned.
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The opinion of the court was delivered by Beier, J.: Defendant John Prine was convicted of rape, aggravated criminal sodomy, and aggravated indecent liberties with a child because of his conduct with a 6-year-old girl. He petitioned for our review of the Court of Appeals decision affirming his convictions in State v. Prine, No. 93,345, unpublished opinion filed December 1, 2006. We address K.S.A. 60-455 and sufficiency issues. Factual and Procedural Background Prine’s sufficiency claim requires more elaborate discussion of the troubling case than might ordinarily be necessary. As E.K. was taking her 6-year-old granddaughter, A.M.C., home from kindergarten on December 11, 2003, A.M.C. told her that “John” had touched her in ways he should not have touched her. E.K. notified A.M.C.’s stepmother, J.C., who came home from work and immediately took A.M.C. to the doctor. An examination revealed no injuries. J.C. had asked Prine to babysit A.M.C. and her baby brother and sister that morning; he had babysat for the family before. Prine was the best friend of A.M.C.’s father. J.C. filed a police report. That day, Sergeant John Taylor of the Hutchinson Police Department’s Juvenile Detective Bureau videotaped an interview of A.M.C. Taylor asked A.M.C. about truth and lies, and A.M.C. indicated she understood the difference. Taylor talked about good touching and bad touching, and A.M.C. said that John always gave her bad touches. A.M.C. was able to identify body parts and understood that some were private. She knew a private part on a girl is the chest. She described her bottom and referred to her vagina as her “front.” She referred to a penis on a boy as a “front” too. A.M.C. told Taylor that Prine had touched her “lots of times” when he was babysitting and her parents were gone. She said this had happened in the hving room; in the laundry room by the dryer; in her parents’ room; and once in the playroom while her brother and sister were present. A.M.C. said Prine touched her between her legs with his fingers, his tongue, and his tummy. Taylor asked A.M.C. what Prine would do with his fingers when he would touch her between the legs. A.M.C. took her index and middle finger, put them up to her mouth, acting like she had licked them, and then swiped them down between her legs. She said he licked his fingers and put them between her legs. A.M.C. said, “I know what that is. It’s a bad touch.” She said the fingers went inside and outside. A.M.C. also said that Prine sometimes used his fingers to pull her front apart and would lick inside. She said, “I don’t know why he did that.” She said she had asked him why he would do stuff like that to her, and he would not listen; she said he thought what he was doing was fun and funny. A.M.C. also said that once she was lying on the floor with her clothes on, but with her pants down past her bottom, and Prine put his tummy between her legs and scooted her. She explained that she was on her back, her legs were almost over her head, apart, and John’s exposed tummy was touching her. When asked where Prine’s tummy was touching her, A.M.C. stood up and pointed to her vagina. Taylor asked her if this was on the inside or out, and A.M.C. said, “I told you, on the inside and outside.” Steve Edwards, a clinical social worker at Horizon Mental Health Center, who interviewed A.M.C. on December 18, 2003, had been working for many years with S.M., Prine’s 9-year-old daughter, through a school program. Police interviewed S.M. in late December 2003, and she stated that her father had often given her bad touches. She said she was little when he had sex with her. When asked what she meant, S.M. said Prine would be naked; that he would yell at her; that he would remove her pants; and that he would set her on top of him as he lay in bed. She said she felt his penis on her vagina, but he never did anything with it, and she never saw it. S.M. thought this had happened two or three times, but she did not remember how old she was; when pressed, she suggested it was when she was 4 or 5. The State charged Prine in four counts. The first three counts related to incidents involving A.M.C.: rape; aggravated criminal sodomy; and aggravated indecent liberties with a child. A second count of aggravated indecent liberties with a child, Count IV, was based on his alleged sexual abuse against S.M. At Prine’s preliminary hearing, the district judge granted a defense motion to dismiss Count IV, because there was no evidence the prosecution of that count had been commenced within 5 years of the commission of the crime. Prine was bound over for trial on the first three counts. The State moved to admit evidence of other crimes or wrongs pursuant to K.S.A. 60-455. The defense opposed admission of any evidence relating to sexual abuse allegations made against Prine by S.M. or by J.J.S., Prine’s half-sister. The State argued the evidence was relevant to prove the material facts of intent, plan, and absence of mistake or accident. Each involved a girl about 5- or 6-years-old and simulation of a sex act without penetration by the penis; two of the cases involved oral sodomy and digital penetration. The defense responded that if the allegations had any probative value, it was far outweighed by potential prejudice; that the allegations were not similar enough to the charged crimes; that any similarities that did exist were common to many sexual abuse allegations; and that the evidence was too remote in time to be probative. The district judge decided that the evidence would be admissible at trial to prove intent, plan, and absence of mistake or accident. At trial, A.M.C. testified about the three events she had previously described to Taylor. She said that Prine pushed her pants and underwear down, licked his fingers, and touched her front; he spread her legs, put his tongue on her front, and “was just licking it like some dog”; and, one time when she was on the floor and part of her pants were off, Prine pulled her legs apart in the air, put them over his shoulders, and scooted her with his front touching her front. She said the first event happened in the living room, the play room, in her parents’ room, and in the laundry room; the second event happened in the living room; and the third event happened in the living room. The first event happened lots of times, she said, almost every day that her parents were not home. She also testified that no one had told her to say these things; rather, “it really happened.” She further testified that when she asked Prine to stop and asked him why he did these things, he said it was funny to him. A.M.C. said she told her grandmother about Prine because she did not want these things to happen anymore. A.M.C.’s trial testimony deviated from her initial interview with Taylor in one respect. She testified that Prine’s fingers touched her only outside, rather than the inside and outside which she had spoken about with Taylor. Edwards testified concerning his initial interview with A.M.C., in which she related the same incidents involving Prine that she had told police about earlier. She had demonstrated Prine’s licking of his fingers in the same manner, and she had used anatomically correct dolls to demonstrate where and how Prine had touched her. Edwards further testified that he had seen A.M.C. more than a dozen times since her initial interview, and she remained extremely consistent in her disclosures. He also testified that, although A.M.C. had not experienced a traumatic event such as a tornado, a fire, or seeing someone die, she exhibited signs of post-traumatic stress disorder, including recurring nightmares, sleep disturbance, and exaggerated fear of Prine. Over a defense objection, Edwards also testified that, before his initial meeting with A.M.C. in December 2003, he had performed a sexual abuse evaluation on then 8-year-old S.M. S.M. told Edwards that Prine would force her to go into his bedroom, would put honey on his private part, and would force her to “get back on him.” She told Edwards defendant would laugh at her when she tried to wash away the honey that had gotten on her private part. Also over a defense objection, 9-year-old S.M. testified that Prine had touched her in a bad way. She testified specifically that Prine had taken her clothes off and gotten on top of her. She testified that, when she was 3 or 4, he put honey on his private part and got on top of her. He laughed at her when she tried to wash off the honey that had gotten on her. S.M. also said that Prine “smacked” her. S.M.’s mother testified over objection that, in December 2002, S.M. had told her she had been naked and defendant had laid her on top of him. S.M. had asked her mother if that act was sex. J.J.S., Prine’s 27-year-old half-sister, testified that Prine had sexually abused her when they lived in the same house in the 1980’s. Specifically, J.J.S. said that, when she was 4 or 5 years old and Prine was 17, he forced her to perform oral sex on him; he performed oral sex on her; he put his penis between her legs and rubbed it on her vagina; and he put his pointer and middle fingers inside her vagina after wetting them in his mouth. J.J.S. performed the same action that A.M.C. had performed to demonstrate. J.J.S. also testified that once, two of her other half-brothers had witnessed her performing oral sex on Prine. M.S., Prine’s stepbrother, testified that, when he was about 12 years old, he saw his 5-or 6-year-old half-sister, J.J.S., performing oral sex on Prine. The district judge also admitted, over objection, a 1993 police report J.J.S. had filed about Prine’s sexual abuse. Nick Prine, the defendant’s other brother, was the sole witness presented by the defense. Nick denied ever witnessing any sexual acts between Prine and J.J.S. Pursuant to an earlier Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), hearing and ruling, the State also introduced evidence from KBI Special Agent Ricky Atteberry, who testified that Prine voluntarily made statements to the police concerning A.M.C.’s allegations in an interview on January 7, 2004. In that interview, Prine denied A.M.C.’s general allegations of sexual abuse, but he suggested that three innocent incidents might explain her stories. He suggested that, on one occasion, he had been roughhousing with A.M.C. and had picked her up with one arm under her crotch. He also said that, during the previous summer, he and A.M.C. were swimming and the bottoms of her swimsuit had moved to one side, exposing her vagina, and that she had slid down his arm, thus rubbing her vagina against his arm. On another occasion, Prine said he was looking at pornography on his computer when A.M.C. came into the room. Because she had peanut butter and jelly on her face, he licked his thumb and wiped the peanut butter and jelly off of her face. J.C. testified that A.M.C. did not have a swimsuit at the place and during the time frame about which Prine testified. The State also introduced evidence that Prine had tried to blackmail A.M.C.’s mother into dropping the charges against him by threatening to tell police that her husband, A.M.C.’s father, was stealing from his workplace. Finally, Taylor testified concerning his involvement in the case and his initial interview with A.M.C. The videotape of the interview was played for the jury, but the video tape was not included in the record on appeal. The jury was given a limiting instruction on the prior sexual abuse evidence involving S.M. and J.J.S. It read: “Evidence has been admitted tending to prove that the defendant committed crimes other than the present crimes charged. This evidence may be considered solely for the purpose of proving the defendant’s intent, plan, absence of mistake or accident.” During deliberations, the jury asked the district court to “elaborate on what constitutes penetration. If a finger or fingers or tongue touch only the clitoris, does that constitute a penetration of the female anatomy or labia, or vaginal opening, or simply if someone touches the clitoris, would that constitute penetration?” The court responded by directing the jury to reread Instructions No. 3 and No. 7. Instruction No. 3 told the jury to determine the weight and credibility to be given each witness and to use its common sense, knowledge, and experience in evaluating testimony. Instruction No. 7 set out the elements of rape and defined sexual intercourse as “any penetration of the female sex organ by a finger or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.” Two and Vz hours after initially retiring for deliberations, tire jury returned a verdict of guilty on each of the three counts. At sentencing, the district judge denied Prine’s motions for judgment of acquittal, new trial, and downward departure. Prine argued that he had been set up because he had rejected a romantic proposition from A.M.C.’s mother, his best friend’s wife.,He then accused the district judge of failing to be impartial, of unfairly favoring the prosecution. After the judge advised Prine to “keep the cussing to [himjself,” Prine launched into a tirade of abusive language that earned him eight counts of direct criminal contempt. Each count added a consecutive 6 months to his sentence. Based on a criminal history score of G for a prior felony failure to pay child support conviction, Prine received a 203-month sentence for rape; a 123-month sentence for aggravated criminal sodomy; and a 61-month sentence for aggravated indecent liberties with a child. Each was consecutive to the others, as well as to the multiple contempt sentences. Prine argued four issues to the Court of Appeals: (1) There was insufficient evidence of penetration to support his conviction of rape; (2) the district judge erred in admitting evidence of his prior activities with S.M. and J.J.S.; (3) the district judge erred in admitting a photograph of him with a mustache, which matched A.M.C.’s description of him; and (4) the district judge erroneously denied his request for a downward departure sentence. A majority of the Court of Appeals’ panel affirmed in part and dismissed in part. Prine, slip op. at 13. On the sufficiency claim, one of the two issues before this court, the majority noted that, contrary to Prine’s assertion, actual penetration of the vagina is not required to establish sexual intercourse, and “any penetration, however slight, is sufficient.” Slip op. at 6-7. The majority wrote: “[Pjenetration of the vagina or rupturing of the hymen is not necessary; penetration of the vulva or labia is sufficient” to establish sexual intercourse. Slip op. at 6-7 (citing K.S.A. 21-3501(1) and, inter alia, In re B.M.B., 264 Kan. 417, 434, 955 P.2d 1302 [1998]). The majority concluded that the record contained sufficient evidence that “the defendant penetrated at least the victim’s vulva or labia with his lubricated fingers” and that, based on this evidence, “a rational factfinder could have found the defendant guilty of rape beyond a reasonable doubt.” Prine, slip op. at 7. On the K.S.A. 60-455 issue, the majority set out its standard of review as abuse of discretion. It noted that two of the three material factors the prior sexual abuse evidence was admitted to prove— absence of mistake and the presence of intent — were related concepts. Slip op. at 9 (citing State v. Davidson, 31 Kan. App. 2d 372, Syl. ¶ 2, 65 P.3d 1078, rev. denied 276 Kan. 971 [2003]). Although Prine categorically denied A.M.C.’s allegations against him, he had offered possible innocent explanations for them. The majority held that when a defendant creates “an inference of innocent motive,” evidence of a prior bad act sufficiently similar to the alleged crime becomes relevant and material to the juiy’s determination of guilt. Slip op. at 9-10 (citing State v. Dotson, 256 Kan. 406, 413, 886 P.2d 356 [1994]; State v. Nunn, 244 Kan. 207, 212, 768 P.2d 268 [1989]; State v. Kackley, 32 Kan. App. 2d 927, 930, 92 P.3d 1128 [2004]). This was true, despite the general rule that evidence of prior crimes is inadmissible to show intent when intent is obviously proved by the mere doing of the charged act. See Nunn, 244 Kan. at 212. Moreover, the majority observed, when the facts of a prior act and an alleged crime are “strikingly similar,” the prior act is admissible to demonstrate that defendant had a plan or employed a distinct method of operation. Prine, slip op. at 10-11 (citing State v. Jones, 277 Kan. 413, 421, 85 P.3d 1226 [2004]). The majority said there were “a number of specific similarities” between the crime charged and the evidence of Prine’s behavior with S.M. and J.J.S.: “All victims were extremely young, 4-6 years of age, when the abuse occurred.” Prine, slip op. at 11. In both S.M.’s and A.M.C.’s cases, the defendant laughed at the victims; in A.M.C.’s and J.J.S.’s cases, defendant had licked his fingers and rubbed them on the victims’ genital areas. “Despite some difference . . . the defendant’s conduct was sufficiently similar to demonstrate a plan or common approach. Therefore, the prior bad acts were relevant and material to demonstrate a plan or a common course of conduct by the defendant.” Slip op. at 11 (citing Kackley, 32 Kan. App. 2d at 932). The majority acknowledged that a determination of relevance, i.e., the existence of probative value, and the existence of materiality'to an actual issue, formed only part of the K.S.A. 60-455 analysis; a district judge also must weigh any probative value against potential prejudice to the defendant. In this case, the majority held that the probative value of evidence of Prine’s intent was slight because of his general denial, but “the combined value of the prior bad acts evidence to prove intent, an absence of mistake or accident, and plan outweighed the potential prejudice to the defendant.” Slip op. at 11-12. The majority was “firmly convinced” that the district court did not abuse its discretion in admitting the prior sexual abuse evidence under K.S.A. 60-455. Slip op. at 12. Court of Appeals Judge Richard Greene dissented, suggesting that an abuse of discretion standard does not come into play on a K.S.A. 60-455 issue unless and until a reviewing court determines that “(1) the evidence was relevant to prove one of the facts specified in K.S.A. 60-455; (2) the fact being proven is a disputed, material fact; and (3) the probative value of the evidence sought to be admitted outweighs its potential prejudice.” Slip op. at 14 (Greene, J., dissenting). According to the dissent, application of the precedent cited by the majority required the opposite conclusion: The prior sexual abuse evidence was not admissible to prove intent, plan, or absence of mistake or accident. Slip op. at 14-15. Judge Greene relied on the general rule that prior sexual conduct is inadmissible to show intent when criminal intent is obviously proved by the mere doing of the charged act. Slip op. at 14 (citing Dotson, 256 Kan. at 413; Nunn, 244 Kan. at 212; Kackley, 32 Kan. App. 2d at 930.) He concluded: “[T]he allegations of defendant’s conduct toward A.M.C. were so egregious that there was no room for any inference of innocent conduct, thus eliminating any need for evidence of intent.” Prine, slip op. at 15 (Greene, J., dissenting). Judge Greene also suggested that absence of mistake or accident was not a basis for admissibility unless a defendant had offered an explanation of mistake or accident for the criminal acts alleged in the case. Slip op. at 15. Here, he argued, the defendant did not claim that he accidentally touched A.M.C. “at the times and places charged, but offered an explanation that he may have accidentally touched her at other times and places. This does [not] place in dispute . . . mistake or accident. . . .” Slip op. at 15 (citing Davidson, 31 Kan. App. 2d at 379-83). Judge Greene also took issue with the degree of similarity between the allegations made by A.M.C. and those made by S.M. and J.J.S. In his view, the differences were marked. The only similarities — the relative age of the victims and Prine’s amusement at their degradation — were not enough to demonstrate modus operandi or plan. Slip op. at 15-17. As in Jones, 277 Kan. at 423, Judge Greene wrote: “ ‘[T]here simply was insufficient evidence presented to show a distinct method of operation that could be considered “signature” or “strikingly similar” or even “similar enough” for K.S.A. 60-455 purposes.’ ” Prine, slip op. at 17. Judge Greene ultimately would have held that reversal was necessary on the K.S.A. 60-455 issue, because the State’s case rested entirely on the victim’s testimony, what she had told others, and the evidence of prior sexual abuse. Slip op. at 17-19 (Greene, J., dissenting). KS.A. 60-455 Evidence of Prior Sexual Abuse K.S.A. 60-455 provides: “Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” In State v. Vasquez, 287 Kan. 40, 194 P.3d 563 (2008), we review the current requirements for admission of evidence of prior crimes or civil wrongs under K.S.A. 60-455 and the standards of appellate review applicable to each facet of the analysis. Vasquez relies on our recent decision in State v. Reid, 286 Kan. 494, 503, 186 P.3d 713 (2008), stating: “ ‘[T]he K.S.A. 60-455 analysis requires several steps. . . . [T]he court must determine that the evidence is relevant to prove a material fact, e.g., motive, knowledge, and identity. The court must also determine that the material fact is disputed. Additionally, the court must determine that the probative value of the evidence outweighs the potential for producing undue prejudice. Finally, the court must give a limiting instruction informing the jury of the specific purpose for admission whenever 60-455 evidence comes in.’ [Citations omitted.]” Vasquez, 287 Kan. at 49. We observe in Vasquez that Reid refined and extended our earlier ruling in State v. Gunby, 282 Kan. 39, 47-48, 56-57, 144 P.3d 647 (2006): “ “While Gunby established that evidentiary rules may be applied either as a matter of law or in the exercise of the trial court’s discretion, depending on the contours of the rule in question, this particular determination only occurs “[o]nce relevance is established.” 282 Kan. at 47. Gunby did not establish our standard of review for analyzing relevance of certain K.S.A. 60-455 evidence. “ ‘[T]he legislature has defined “relevant evidence” as “evidence having any tendency in reason to prove any material fact.” This statutory definition bears some resemblance to one found in Federal Rule of Evidence 401: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” “ ‘Several treatises have recognized that the federal rule contains both a probative, i.e., relevancy, element and a materiality element.’ Reid, 286 Kan. at 504.” Vasquez, 287 Kan. at 49. Vasquez then continues: “Our Reid decision then observed that materiality merged into the federal rule on relevancy through inclusion of the ‘ “requirement that the fact proved must be ‘of consequence to the determination of the action.’ . . . Determining whether evidence is ‘consequential’ depends on the applicable substantive law.” ’ ” 286 Kan. at 504-05 (quoting Mueller & Kirkpatrick, Evidence Practice Under the Rules § 4.2, pp. 228-29 [2d ed. 1999]; citing 1 Federal Rules of Evidence Manual, § 401.02[2] [9th ed. 2006] [‘Both traditional requirements of relevance analysis— that evidence must relate to issues that are properly in dispute and that it must shed some light on those issues — are combined into one rule. Whether an issue is properly in dispute is, of course, determined by the applicable substantive law.’]).” Vasquez, 287 Kan. at 50. Vasquez explicitly recognizes that Kansas law, K.S.A. 60-401(b), mirrors federal law on the two components of the relevance concept. See Vasquez, 287 Kan. at 50 (“As Reid stated: ‘ “Evidence having any tendency in reason to prove” suggests the probative element, while “any material fact” suggests the materiality element.’); 286 Kan. at 505.” Moreover, we say in Vasquez that “both elements have a place under K.S.A. 60-455 because of the statute’s references to both relevance— i.e., probativeness — and materiality. Reid, 286 Kan. at 505. In other words, the concept of relevance under Kansas law includes both whether evidence is probative and whether it is material.” Vasquez, 287 Kan. at 50. Vasquez also addresses the applicable standards of review on appeal: “On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. Reid, 286 Kan. at 507-09. With respect to relevance overall, Reid concluded: ‘Obviously, if either the probative or materiality element’s standard is not met, then the evidence is inadmissible. If both standards are met, then the appellate court proceeds to the next step(s) in the [K.S.A.] 60-455 analysis established in Gunby.’ Reid, 286 Kan. at 509. “The second step under K.S.A. 60-455, i.e., whether the fact was in issue at trial, is judged on appeal under a de novo standard. An appellate court is as capable of discerning whether a particular fact was in issue from a cold record. The third step, the district judge’s weighing of probative value and prejudicial effect, is reviewed on appeal for abuse of discretion, a more deferential standard. See Reid, 286 Kan. at 512. “If evidence qualifies for admission under K.S.A. 60-455 but no limiting instruction was given, the standard of review should match that applied to other jury instruction issues. If the defense requested a limiting instruction and was refused or it otherwise objected to its omission by the district judge, the standard on appeal is that set out in K.S.A. 60-261; to be reversible, the error must be inconsistent with substantial justice. See Gunby, 282 Kan. at 48, 57-59. If the defense did not request a limiting instruction and it failed to object to its omission, the absence of a limiting instruction is reviewed on appeal under the clearly erroneous standard of K.S.A. 22-3414(3). Reid, 286 Kan. at 513. ‘ “Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.” [Citation omitted.]’ State v. Shirley, 277 Kan. 659, 666, 89 P.3d 649 (2004).” Vasquez, 287 Kan. at 50-51. Finally, Vasquez also notes our Gunby clarification of the role of harmless error analysis under K.S.A. 60-455: “ ‘[T]he admission of K.S.A. 60-455 evidence without the explicit relevance inquiries, particularized weighing of probative value and prejudicial effect, or prophylactic limiting instruction is not inevitably so prejudicial as to require automatic reversal. On the contrary it may be harmless.’ ” Vasquez, 287 Kan. at 51 (quoting Gunby, 282 Kan. at 57); see K.S.A. 60-261. Intent The State’s first basis for admission of evidence about Prine’s prior sexual abuse of S.M. and J.J.S. was intent. We hold that it would not have been an abuse of discretion for the district judge to decide that the first component of relevance, the existence of probative value, was satisfied on intent. The fact that Prine molested other young girls in the past, given today’s jurors’ common understanding of the psychology of those who commit such crimes, actually “shed[sj some light” on the existence of intent in this case. In this context, we use the word “intent” in the broader sense of the overall guilty mind or mens rea required for proof of criminal behavior, rather than in the particular sense of the “general intent” or “specific intent” required for proof of certain crimes. In this case, Prine was charged with two general intent crimes — rape under K.S.A. 21-3502 and aggravated criminal sodomy under K.S.A. 21-3506 — and a specific intent crime — aggravated indecent liberties with a child under K.S.A. 21-3504. The elements of aggravated indecent liberties with a child include an “intent to arouse or satisfy the sexual desires of either the child or the offender, or both.” K.S.A. 21-3504. At least in the abstract, prior sexual abuse of others by Prine also could, as a matter of law, satisfy the second component of relevance, materiality. Criminal intent generally is “properly in dispute” in rape, aggravated criminal sodomy, and aggravated indecent liberties with a child cases. The going gets tougher for the State on the second part of the K.S.A. 60-455 test, i.e., whether intent actually was in issue at Prine’s trial, also judged on appeal under a de novo standard. We agree with Judge Greene that, given the record before us and the egregious nature of the behavior alleged here, intent was not actually in issue. It was simply a given that, if the sexual abuse of A.M.C. occurred as described by her, it was motivated by criminal intent. See State v. Rucker, 267 Kan. 816, 825-26, 987 P.2d 1080 (1999); Nunn, 244 Kan. at 212-13 (evidence of prior sexual misconduct against children not admissible to prove intent because intent not in issue; defendant denied any involvement); see also State v. Synoracki, 253 Kan. 59, 71-74, 853 P.2d 24 (1993) (prior crime admissible to prove intent in murder trial; defendant argued self-defense); State v. Graham, 244 Kan. 194, 198, 768 P.2d 259 (1989) (prior crimes evidence admissible to prove intent; drug possession case); State v. Bly, 215 Kan. 168, 176, 523 P.2d 397 (1974) (when armed robber extracts money at gunpoint, felonious intent not in issue); Kackley, 32 Kan. App. 2d at 930 (prior bad acts inadmissible when defendant’s act of placing victim’s hand on his penis leaves no room for an inference of innocence). The acts alleged in this case were criminal in and of themselves. No adult would engage in the activities supporting the charges against Prine without the mens rea required by the statutes defining the three crimes. We need go no further in our analysis of whether there was error in admitting the evidence of Prine’s prior sexual abuse of S.M. and J.J.S. to prove intent. There was. Absence of Mistake or Accident The State’s admission of the prior sexual abuse evidence to prove absence of mistake or accident breaks down in the same manner as its admission of the evidence to prove intent. Indeed, the two bases for admission of K.S.A. 60-455 evidence are largely intertwined. State v. Plaskett, 271 Kan. 995, 1020, 27 P.3d 890 (2001) (“Intent and related facts are not at issue in that defendant denied all allegations.”); State v. Spurlock, 30 Kan. App. 2d 921, 927, 52 P.3d 371, rev. denied 274 Kan. 1118 (2002) (prior crimes evidence inadmissible to prove intent; defendant did not offer innocent explanation); State v. Gibson, 30 Kan. App. 2d 937, Syl. ¶ 4, 52 P.3d 339, rev. denied 274 Kan. 1115 (2002) (“The crucial distinction in admitting evidence of other crimes under K.S.A. 60-455 on the issue of intent is not whether the crime is a specific or general intent crime, but whether the defendant has claimed that his or her acts were innocent.”); see State v. Chubb, No. 91,708, unpublished Court of Appeals opinion filed December 2, 2005, rev. denied 281 Kan. 1379 (2006); cf. State v. Clements, 252 Kan. 86, 89-90, 843 P.2d 679 (1992) (intent in issue when defendant admitted act; question for trial whether defendant’s physical contact with complaining witness therapeutic massage of sore back or sexual batteiy). Here, absence of mistake or accident was not actually in issue in Prine’s trial. The State’s introduction of evidence about Prine’s hypothesis during his law enforcement interview that A.M.C. could have become confused by certain other incidents of nonsexual touching was insufficient to support admission of contrary evidence by the State. The hypothesis did not inform Prine’s position at trial; his defense was a categorical denial that any of the alleged events took place. Under these circumstances, the State could not open the door for itself to put S.M. and J.J.S. on the stand to rebut an innocent explanation advanced by Prine. The evidence it introduced from his interview bore no relationship to the defense theory of the case at trial. Admission of the prior sexual abuse evidence to prove absence of mistake or accident was error. Plan One of the avenues through which evidence of prior crimes or civil wrongs can be probative of plan or modus operandi — satisfying the first component of relevance, an ability to shed some light on a contested fact — is similarity. See State v. Damewood, 245 Kan. 676, 681-82, 783 P.2d 1249 (1989) (citing State v. Morgan, 207 Kan. 581, 582, 485 P.2d 1371 [1971] [testimony from two women that defendant raped them “ ‘under somewhat similar circumstances’ ” to that of victim admissible to show plan]; State v. Hampton, 215 Kan. 907, 909-10, 529 P.2d 127 [1974] [prior crimes evidence bearing “marked similarity” admissible]). If a defendant’s past bad acts are sufficiently similar to the acts alleged to support the charges on trial, the existence of probative value is established. In Damewood, Darwin Gene Damewood befriended 14-year-old J.A. by interesting J.A. in Damewood’s beekeeping operation. Using beekeeping to isolate J.A. from others, Damewood proceeded to sexually molest him and threatened to punish J.A. if he told anyone. A second incident occurred, after which J.A. told his parents. At Damewood’s trial, the State presented the testimony of M.S.R., who, at 13 years old, had been drawn into beekeeping by Damewood and then sexually abused for several years. On appeal, this court found no error in admitting evidence of the prior crime because it was so “strikingly similar”; thus, it was admissible to describe “the modus operandi or general method used by a defendant to perpetrate similar but totally unrelated crimes.” 245 Kan. at 681-82. This court stated that “[t]he rationale for admitting evidence of prior unrelated acts to show plan under K.S.A. 60-455 is that the method of committing the prior acts is so similar to that utilized in the case being tried that it is reasonable to conclude the same individual committed both acts. In such cases the evidence is admissible to show the plan or method of operation and conduct utilized by the defendant to accomplish the crimes or acts. [Citations omitted.]” Damewood, 245 Kan. at 682. Another line of cases has held evidence of prior crimes or acts is admissible to show plan when there is some direct or causal connection between the earlier conduct and the crimes charged. 245 Kan. at 682-83 (citing State v. Gourley, 224 Kan. 167, 170, 578 P.2d 713 [1978]; State v. Marquez, 222 Kan. 441, Syl. ¶ 4, 565 P.2d 245 [1977]). This court has consistently recited these two theories for admission of K.S.A. 60-455 evidence to prove plan, but our formulation of the standard of similarity employed under the first theory has varied somewhat from case to case. State v. Jones, 277 Kan. 413, 85 P.3d 1226 (2004), upon which both the Court of Appeals majority and dissent relied in this case, demonstrates the difficulty we have encountered in describing the necessary similarity in a child sexual abuse case. In that case, defendant Charlie Jones, Jr., had been paroled from prison after a conviction of indecent liberties with a child. He met and moved in with L.W. and her daughter, M.W., who was then 9 years old. When M.W. turned 12 in 1996, defendant began having sex with her. This activity did not cease after M.W. told L.W. about it in 1998, and it continued at least weekly until 2001. According to M.W., Jones told her he loved and cared for her very much. She testified she still loved him very much. In 1999, Jones’ natural daughter from a previous marriage, S.J., who was just 15 months older than M.W., moved in. Shordy after S.J. moved in, Jones allegedly orchestrated a group sexual “ritual” or “initiation” with L.W., S.J., and M.W., during which the women wore “colors.” Jones had sex with each woman, while digitally penetrating the others, and told them all that he loved them. Thereafter, Jones also began having sex with S.J. once or twice a week until she moved out in July 2001 after turning 18. In November 2001, Jones was charged in eight counts for his sexual abuse of S.J. and M.W. after the sordid details of the girls’ life began to unfold. Jones denied the abuse and offered evidence of a back injury that would have prevented the alleged group sex incident. At trial, the district court permitted the State to introduce evidence of Jones’ prior conviction of indecent liberties with a child to prove plan. L.D., the victim in the earlier case, testified that her mother had been married to Jones. When L.D. was 8 or 9 years old, Jones began molesting her by taking off her clothes, touching her with his hands and penis, and rubbing himself on her. Jones attempted but never achieved sexual intercourse with L.D. L.D. testified Jones would masturbate, fondle her vagina and breast areas, and tell her that he loved her. He also wanted her to say she loved him. These incidents always happened when they were alone; Jones had told her to keep the activity a secret; and he pleaded guilty when she eventually reported the sexual abuse. L.D.’s mother never participated in the activities; and there was no talk of “colors, rituals, or ‘family values.’ ” Jones, 277 Kan. at 418. The Jones majority, citing State v. Tolson, 274 Kan. 558, 564, 56 P.3d 279 (2002), acknowledged that the Damewood case contained “so distinct a method of operation as to be a ‘signature,’ ” while other cases, such as Clements 252 Kan. at 90, “have upheld the admission of such evidence with no requirement of ‘striking’ similarities but because the evidence showed that the general method used is ‘similar enough to show a common approach that is tantamount to a plan.’ ” Jones, 277 Kan. at 421. The majority held that the facts of Jones failed to meet either standard of similarity. 277 Kan. at 421. It reached this conclusion after reviewing cases such as Davidson, 31 Kan. App. 2d at 384, in which the Court of Appeals had rejected admission of prior bad acts evidence to show plan. Jones, 277 Kan. at 421-22. In Davidson, the panel had reasoned that the differences between the prior acts and the current allegations were substantial, and the similarities either common to nearly all sexual abuse cases or lacking in any “striking” similarities. See Jones, 277 Kan. at 422-23. Justice Davis, joined by Chief Justice McFarland, dissented in Jones. Under the same precedent cited by the majority, the dissent would have held that “[Jones’] conduct in the prior conviction was similar enough to his conduct in some of the instant charges . . . to warrant admission of the defendant’s prior conviction for indecent liberties with a child” and that the similarities between the prior acts and the current allegations would make it “difficult to conclude that the trial court abused its discretion in admitting the prior conviction evidence.” 277 Kan. at 430-431 (Davis, J., dissenting). In State v. Kackley, 32 Kan. App. 2d 927, 92 P.3d 1128 (2004), also relied on by both the Court of Appeals majority and dissent in this case, the Court of Appeals grappled with the same problem. Defendant Leslie Kacldey was charged with two counts of aggravated indecent liberties with a child for his conduct with A.G.; at trial, the district court admitted evidence of defendant’s prior no-contest pleas for conduct involving C.D. As set out by the panel, the similarities were: (i) A.G. and C.D. were 10-year-old girls; (ii) both victims were known to Kacldey; (iii) access to the children was gained through friendship with the children’s parents; (iv) Kackley had the children touch him rather than the reverse; (v) one or more siblings were present in the home at the time of incidents; and (vi) Kackley began each sexual contact by placing the child’s hand on his penis. The dissimilarities were: (i) Although Kacldey had no family connection with A.G., he lived with C.D.’s family and filled a quasi-parental role; (ii) adults were present in the house at the time of the incident with A.G., whereas no adults were present for the incidents involving C.D.; and (iii) following Kackley’s placing of A.G.’s hand on his penis, he told her to keep her hand there but she withdrew it, whereas, after Kacldey placed C.D.’s hand on his penis, he forced her to give what she described as “hand jobs.” 32 Kan. App. 2d at 931-32. The panel concluded that the feature distinguishing this case from Jones was that Kackley had a “signature” act of first placing the underage girls’ hands on his exposed penis; “it is a signature act because it is so strikingly similar in pattern or modus operandi as to authenticate the conduct as the defendant’s when it is allegedly replicated in a later case.” 32 Kan. App. 2d at 932. Others among our cases have upheld convictions by concluding that similarities were sufficient to admit prior bad acts to prove plan or modus operandi. In State v. Overton, 279 Kan. 547, 112 P.3d 244 (2005), defendant Earnest Overton was an eighth-grade science teacher who separately befriended his three 14-year-old female victims, G.B., T.R., and A.D. Several years after the girls had graduated from middle school, Overton was charged with rape and aggravated indecent liberties with a child as to each; he responded to the charges with a general denial. The charges pertaining to A.D. were dismissed at Overton’s preliminary hearing because the 5-year statute of limitations had run. After a trial including A.D.’s testimony to prove plan, a jury convicted Overton of rape and aggravated indecent liberties with a child as to G.B. and acquitted him of the charges as to T.R. On appeal, this court upheld the admission of A.D.’s testimony because we regarded the prior bad acts it described as strikingly similar to the current allegations as to G.B. Both girls were minor students at the school where defendant taught; both were 14 years old when defendant began talking to them; both students confided in defendant about their family problems; defendant complimented both students and arranged to be alone with them at school, where he kissed and fondled each of them; defendant hired both students as babysitters; and defendant raped each of them on a particular bed in his home. In Overton, our opinion did not focus on dissimilarities between the girls’ stories of sexual abuse. This could be due in part to an easing of our analytical burden by the limited defense argument on appeal. Overton argued that prior bad act evidence to support plan was admissible only when it bore a direct and causal relationship to the charged crimes, i.e., the second theory noted above. This theory was clearly inapplicable. In Rucker, 267 Kan. 816, defendant Frank Rucker was charged with crimes relating to the abuse of his daughter. He denied that the illegal acts occurred. The State sought to introduce testimony about prior sexual abuse of Rucker’s other daughter. Both victims were abused from age 5 to puberty; both were legal children of Rucker; both testified that he applied a lotion or oil to their vaginal area and that he rubbed his penis there until he ejaculated; penetration was not in evidence in either situation; each girl said that Rucker slapped her if she protested; and each said he threatened to kill their pets if they reported the abuse. Finding the evidence of prior sexual abuse “substantially similar,’’ this court held that it was properly admitted under K.S.A. 60-455 to prove plan or method of operation. 267 Kan. at 827-29. The results in Damewood, Kackley, Overton, and Rucker are consistent with those in other cases in which we concluded that a sufficient degree of similarity existed between prior bad acts and the current ¿legations to permit evidence of the prior bad acts to come in under K.S.A. 60-455 to prove plan. See State v. Moore, 274 Kan. 639, 647-48, 55 P.3d 903 (2002) (similar pattern of conduct between prior conviction and charged crime; both involved young girls of comparable age; defendant surreptitiously videotaped the girls at play as preface to crimin¿ conduct, which involved fondling the victims’ genit¿s or exposing himself; both crimes occurred in private, where defendant had control of environment, his home or his store); State v. Tiffany, 267 Kan. 495, 498-502, 986 P.2d 1064 (1999) (similar words used to entice victims into performing requested acts; victims approximately same age; crimin¿ conduct performed in same manner); compare Clements, 252 Kan. at 87-90 (defendant’s treatment of boys “similar enough to show a common approach that is tantamount to a plan”; evidence that defendant had performed or¿ sex on 11 year old admitted in tri¿ involving two incidents in which he gave backrubs to two boys on separate occasions, put his hand down one boy’s pants, performed or¿ sex on other boy); State v. Aldaba, 29 Kan. App. 2d 184, 189-92, 25 P.3d 149 (2001) (both victims young boys; perpetrator forced his penis into child’s mouth in each incident; incidents occurred when defendant staying overnight in same residence with victim; each victim threatened with bodily harm if sexual abuse reve¿ed). The problem is that it is difficult to distinguish the factu¿ comparisons made in these cases to those made in cases in which the opposite conclusion was reached, i.e., that the prior bad acts and current allegations were too dissimilar to permit K-S.A. 60-455 evidence to prove plan or modus operandi. See, e.g., Jones, 277 Kan. at 421-23; State v. Dayhuff, 37 Kan. App. 2d 779, 790-94, 158 P.3d 330 (2007) (evidence of defendant’s prior sexu¿ abuse of former girlfriend’s daughter not strikingly similar to conduct underlying charge of aggravated indecent liberties with former wife’s daughter; ¿1 incidents involved defendant reaching under girl’s clothing and touching outside of vagina; dissimilarities included presence of another adult in room during one incident, secrecy demand to one girl); State v. Davidson, 31 Kan. App. 2d 372, 383-84, 65 P.3d 1078, rev. denied 276 Kan. 971 (2003). We hope and expect that future analytical consistency in these especially wrenching cases, see Kackley, 32 Kan. App. 2d at 930 (difficulty in application of law most acute in sex crime prosecutions), can be improved and maximized if we settle on uniform language to describe the degree of similarity that must exist before a district judge admits evidence of prior bad acts to prove plan or modus operandi under K.S.A. 60-455. We regard the standard of “so ‘strikingly similar’ in pattern or so distinct in method of operation as to be a ‘signature,’ ” see Jones, 277 Kan. at 423, to be the most sound and will apply it exclusively when the State’s admission of K.S.A. 60-455 evidence to prove plan is challenged on appeal. We believe this standard gives appropriate deference to the current legislative choice of language in the statute, language plainly selected to disallow evidence of prior bad acts admitted only to show propensity to commit a charged crime or crimes. Without such a standard, one with identifiable meat on its bones, the line between mere propensity evidence and plan evidence is simply too thin for this court — or any court — to traverse predictably or reliably. As mentioned above, this standard governs examination of whether particular evidence has probative value, one of the two components of relevance, as outlined in Vasquez, 287 Kan. at 49-50, and Reid, 286 Kan. at 504. If a defendant’s prior bad act is so strikingly similar in pattern or so distinct in method of operation as to be a signature, then it is probative of defendant’s plan in the case at bar. If it is not, then the evidence has no probative value on plan and the evidence is irrelevant if offered for that purpose. On appeal, we will review a district judge’s decision under the “signature” standard for an abuse of discretion. See Vasquez, 287 Kan. at 50. Turning to a comparison of the evidence of prior bad acts admitted to prove Prine’s plan here, we note that all three crimes are similar in the approximate ages and the gender of the victims. However, the specific sex acts among the victims differed. A.M.C. described discrete events of three types. S.M. described two other types of activities. The account of J.J.S. bore some similarity to one of the activities in which defendant engaged with S.M. and some similarity to a different behavior described by A.M.C. Under the signature standard we have set forth, even in light of the deferential abuse of discretion standard of appellate review, it was error to admit the evidence of Prine’s prior bad acts with S.M. and J.J.S. to prove plan in the trial of A.M.C.’s allegations. Harmless Error Plaving concluded there were errors in admitting evidence of prior sexual abuse of S.M. and J.J.S. to support intent, absence of mistake or accident, and plan, we next move to the question of whether these errors were harmless. The standard for harmlessness is set forth in K.S.A. 60-261: “No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in tire proceeding which does not affect the substantial rights of the parties.” See State v. Woolverton, 284 Kan. 59, 65, 159 P.3d 985 (2007). The evidence from S.M. and J.J.S. was undoubtedly prejudicial, but we are not concerned with the garden-variety prejudice necessary for any successful prosecution. We are concerned only with undue or unfair prejudice. See Vasquez, 287 Kan. at 53. Because there was no physical evidence corroborating A.M.C.’s account, the State’s entire case hinged entirely on A.M.C.’s credibility. A.M.C.’s overall consistency in her account over time and several retellings to a variety of adults was remarkable, especially for a child; but we cannot ignore what had to be very significant support for her credibility from the inadmissible testimony of S.M. and J.J.S. Their descriptions of what must have been bewildering sexual abuse by Prine were prejudicial in the extreme; as a result, we hold that Prine is entitled to reversal of his convictions and retrial without the K.S.A. 60-455 errors we have identified. We are compelled to make one final set of brief comments on the K.S.A. 60-455 issues raised by this case. Extrapolating from the ever-expanding universe of cases that have come before us and our Court of Appeals, it appears that evidence of prior sexual abuse of children is peculiarly susceptible to characterization as propensity evidence forbidden under K.S.A. 60-455 and, thus, that convictions of such crimes are especially vulnerable to successful attack on appeal. This is disturbing because the modem psychology of pedophilia tells us that propensity evidence may actually possess probative value for juries faced with deciding the guilt or innocence of a person accused of sexually abusing a child. In short, sexual attraction to children and a propensity to act upon it are defining symptoms of this recognized mental illness. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, pp. 527-28 (4th ed. 1994) (302.2-Pedophilia). And our legislature and our United States Supreme Court have decided that a diagnosis of pedophilia can be among the justifications for indefinite restriction of an offender s liberty to ensure the provision of treatment to him or her and the protection of others who could become victims. See K.S.A. 59-29a01 et seq.; Kansas v. Crane, 534 U.S. 407, 409-10, 151 L. Ed. 2d 856, 122 S. Ct. 867 (2002); Kansas v. Hendricks, 521 U.S. 346, 356-60, 371, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997) (Kansas’ Sexually Violent Predator Act narrows the class of persons eligible for confinement to those who find it difficult, if not impossible, to control their dangerousness.). It is at least ironic that propensity evidence can be part of the support for an indefinite civil commitment, but cannot be part of the support for an initial criminal conviction in a child sex crime prosecution. Of course, the legislature, rather than this court, is the body charged with study, consideration, and adoption of any statutory change that might make K.S.A. 60-455 more workable in such cases, without doing unconstitutional violence to the rights of criminal defendants. It may be time for the legislature to examine the advisability of amendment to K.S.A. 60-455 or some other appropriate adjustment to the statutory scheme. Sufficiency of Evidence of Rape We briefly address Prine’s second issue on petition for review because, if he were to be successful on it, he could not be retried on the rape count. See State v. Scott, 285 Kan. 366, Syl. ¶ 2, 171 P.3d 639 (2007). When sufficiency of evidence is challenged in a criminal case, our standard of review is whether, after review of all the evidence, examined in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See Vasquez, 287 Kan. at 59; State v. Morton, 283 Kan. 464, 474, 153 P.3d 532 (2007). K.S.A. 21-3502(a)(2) defines rape as “sexual intercourse with a child who is under 14 years of age.” K.S.A. 21-3501(1) defines “sexual intercourse” for purposes of rape to include: “any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.” Prine focuses on the distinction between A.M.C.’s trial testimony and her initial statement to Taylor. Because she testified at trial that Prine’s fingers touched her only on the outside, he argues, no rational factfinder could have found that there was even slight penetration. It is true that A.M.C.’s story was not completely uniform on this particular point. She explicitly said in her interview with Taylor that Prine touched her with his fingers on her front, between her legs, “inside and outside.” Taylor testified at the preliminary hearing: “I asked her if the fingers went inside. She said they went inside and outside . . . .” However, at trial, the prosecutor did not elicit exactly the same description of Prine’s conduct from A.M.C.: “Q. Where did you get touched? “A. My front. “Q. Where at in your front? Where? “A. My front on the outside. “Q. How did he'touch you there? “A. With, with his fingers. “Q. And wliat did he do with his fingers? “A. Licked them and put them on my front. “Q. I’m sorry, he did what? “A. He licked them and put it on my front. “Q. And you said he licked it? “A. Yes. . . . (indicating). “Q. Okay. Do you know whether his fingers went inside you or outside, or? “A. Outside, outside. “Q. Okay. Do you remember previously talking to the police about this? “A. Yes. “Q. Did you say his fingers went in and out? “A. Out.” Defense counsel followed up on cross-examination: “Q. Let me ask you this, [A.M.C.]. Let me go ahead and ask you this, Now . . . what you’re saying is that it was, that as far as [Prine] and his fingers, it was, it was always on the outside, right? “A. Yes, only on the outside. “Q. Okay, and the tongue was on the outside, too? “A. Yes. “Q. Okay, and when you’re talking about inside and outside you’re talking about the play room and the different rooms, right? “A. Huh? “Q. You’re talking about it was inside the house, right? “A. Yes, we were always inside the house when he did that.” It is important to note that the jury also watched the videotape of A.M.C.’s interview, produced on the day the sexual abuse was reported. This court has often stated that the testimony of the victim alone can be sufficient to sustain a rape conviction without further corroboration as long as the evidence is clear and convincing and is not so incredible and improbable as to defy belief. State v. Borthwick, 255 Kan. 899, 904, 880 P.2d 1261 (1994); State v. Cooper, 252 Kan. 340, 347, 845 P.2d 631 (1993). We regard the evidence as sufficient to support a rape conviction. Prine’s argument ignores A.M.C.’s videotaped statement and her many consistent repetitions of the essentials of her account. It also ignores the common-sense inference of penetration that might be drawn from other evidence, such as A.M.C.’s repeated descriptions of him licking his fingers. Prine may be retried on the rape count. Reversed and remanded for new trial. Davis and Johnson, JJ., not participating. McAnany, J., and Larson, S.J., assigned.
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The opinion of the court was delivered by McFarland, C.J.: Anthony Conley appeals the summary denial of his pro se motion to correct illegal sentence filed pursuant to K.S.A. 22-3504(1). Because Conley is serving a hard 40 life sentence on a conviction of premeditated first-degree murder, this court has jurisdiction of this appeal under K.S.A. 22-3601(b)(l). See State v. Thomas, 239 Kan. 457, Syl. ¶ 2, 720 P.2d 1059 (1986) (jurisdiction over an appeal of a motion to correct illegal sentence lies with the court that had jurisdiction to hear the original appeal). FACTUAL BACKGROUND In 1998, Conley was convicted by a jury of the 1995 premeditated first-degree murder of Nicholas Armstrong. He was sentenced to a hard 40 life sentence. Conley filed a direct appeal in which he argued, among other things, that the hard 40 sentencing scheme was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), because it enhanced his sentence on the basis of facts that were not presented to the jury and proved beyond a reasonable doubt. State v. Conley, 270 Kan. 18, 30-35, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). We rejected Conley’s challenge, holding: “Imposition of the K.S.A. 21-4638 hard 40 sentence based on a fact not found by the jury does not increase a defendant’s maximum sentence of imprisonment for life imposed under K.S.A. 21-4706(c). The hard 40 sentence limits the lower end of the sentence. Defendant’s hard 40 sentence violates neither the Due Process Clause of the United States Constitution, nor his right to trial by juiy under the Sixth Amendment to the United States Constitution or § 5 of the Kansas Constitution Bill of Rights.” 270 Kan. 18, Syl. ¶ 3. Conley’s present appeal arises from the denial of his pro se motion to correct illegal sentence. In his motion, Conley challenged the legality of his hard 40 sentence under Apprendi. Specifically, Conley argued that a hard 40 sentence cannot be imposed based upon facts not charged in the complaint and found by a jury beyond a reasonable doubt because such a sentence exceeds the statutory maximum for first-degree murder. The district court summarily denied the motion on the ground the Apprendi issue had been decided adversely to Conley by this court in his direct appeal. Conley appeals therefrom. He does not contend the district court erred in its conclusion that the Apprendi issue which is the issue in the motion herein is the same issue raised in the direct appeal. Rather, Conley argues that the district court erred and/or abused its discretion in summarily denying the motion because: (1) res judicata is inapplicable to motions to correct illegal sentence; and (2) summary disposition is an inappropriate procedure for handling motions to correct illegal sentence. APPLICABLE STATUTE The motion to correct sentence herein was filed pursuant to K.S.A. 22-3504(1) which provides: “(1) The court may correct an illegal sentence at any time. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.” APPLICABILITY OF RES JUDICATA Conley argues that the doctrine of res judicata does not apply to K.S.A. 22-3504 motions. He contends that because the language of K.S.A. 22-3504(1) specifically states that the court may correct an illegal sentence “at any time,” his claim is not procedurally barred, regardless of whether the issue has been previously raised and decided. He contends that by using such language in the illegal sentence statute, the legislature intended to allow a defendant to be freed from an illegal sentence despite “previous erroneous rulings.” In State v. Neer, 247 Kan. 137, Syl. ¶ 2, 795 P.2d 362 (1990), we held: “Under Kansas law, where an appeal is taken from the sentence imposed and/ or a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived.” In State v. Johnson, 269 Kan. 594, 602, 7 P.3d 294 (2000), we held that K.S.A. 22-3504 “may not be used as a vehicle to breathe new life into appellate issues previously abandoned or adversely determined.” Statutory time restrictions apply to the filing of direct appeals in criminal actions and K.S.A. 60-1507 motions. In the limited situations in which K.S.A. 22-3504 relief may be sought, there is no time restriction — hence the statutory “at any time” language. This is not authorization for “do-overs.” Under Conleys argument herein, the same issue could be endlessly raised despite adverse appellate determinations. Res judicata applies to motions to correct illegal sentence filed pursuant to K.S.A. 22-3504. Such a motion may not be used to breathe new life into an appellate issue previously adversely determined. Conley also argues that res judicata should not bar his claim because recent United States Supreme Court decisions have modified the rule in Apprendi, rendering this court’s decision in Conley erroneous. He contends that fundamental fairness justifies permitting this issue to be considered again. See State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008) (newly asserted theory may be considered for the first time on appeal when [1] the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; [2] consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and [3] the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or assignment of a a wrong reason for its decision). Conley s fundamental fairness argument is not persuasive for two reasons. First, this is a res judicata situation — the issue was raised and decided on the merits in a prior appeal — not a situation where a new legal theory is being raised for the first time on appeal. Second, even if there were a “fundamental fairness” exception to the application of res judicata, Conley s argument that the United States Supreme Court has changed its position on the case law this court relied upon in Conley is without merit. In McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986), the United States Supreme Court held that facts that do not increase a sentence beyond the prescribed statutory maximum do not have to be proven to a jury beyond a reasonable doubt. This court relied on McMillan in affirming the constitutionality of the hard 40 sentencing scheme. Conley, 270 Kan. at 32. After Apprendi, the United States Supreme Court considered and rejected the argument that Apprendi overruled McMillan: “As we shall explain, McMillan and Apprendi are consistent because there is a fundamental distinction between the factual findings that were at issue in those two cases. Apprendi said that any fact extending the defendant’s sentence beyond the maximum authorized by the jury’s verdict would have been considered an element of an aggravated crime — and thus the domain of the juiy — by those who framed the Bill of Rights. The same cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury’s verdict has authorized the judge to impose the minimum with or without the finding. As McMillan recognized, a statute may reserve this type of factual finding for the judge without violating the Constitution.” Harris v. United States, 536 U.S. 545, 557, 153 L. Ed. 2d 524, 122 S. Ct. 2406 (2002). Although Conley does not mention the Harris decision, he argues that under recent United States Supreme Court decisions— specifically Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002), Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), and United States v. Booker, 543 U.S. 220, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005) — .Apprendi has been modified. He attempts to buttress this argument with selected snippets from those cases. He quotes the following language from Booker: “ ‘If a State makes an increase in a defendant’s authorized punishment contingent on the finding of fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.’ ” Booker, 543 U.S. at 231 (quoting Ring, 536 U.S. at 602). From these quotes, he argues that “Booker requires the Government to prove to a jury beyond a reasonable doubt all facts relevant to the sentence sought to be imposed.” Conley’s selective quotes and argument ignore the language in Booker which makes it clear that under Apprendi, only facts that increase the sentence beyond the prescribed statutory maximum must be presented to and found by a jury. See, e.g., Booker, 543 U.S. at 232 (“Our precedents . . . make clear‘that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’ ”). The United States Supreme Court has not modified McMillan. It is still the law that Apprendi does not apply where the statutory minimum sentence is increased based upon facts not found by a jury. Moreover, Conley fails to acknowledge that this court has made this very point repeatedly, and recently, in rejecting similar arguments challenging the constitutionality of the hard 40/hard 50 sentencing scheme and the Conley decision: “The United States Supreme Court continues to invalidate judicial preponderance of the evidence fact finding that exposes a defendant to a sentence in excess of the statutory maximum as being a violation of a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments to the United States Constitution. See, e.g., Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007). Nevertheless, our highest court has not explicitly overruled its prior holdings that judicial fact finding utilizing a preponderance of the evidence standard to increase the mandatory minimum sentence does not run afoul of the jury trial guarantee. See, e.g., McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986). The maximum sentence for first-degree murder is life in prison. The hard 50 sentence enhances the minimum sentence which must be served and does not expose a defendant to a higher maximum sentence than provided by statute. Under current law, our hard 50 scheme is constitutional.” (Emphasis added.) State v. Johnson, 284 Kan. 18, 22-23, 159 P.3d 161 (2007), cert. denied 552 U.S. 1104 (2008). See State v. Warledo, 286 Kan. 927, 954, 190 P.3d 937 (2008) (reaffirming Conley, citing Johnson with approval, and noting that the United States Supreme Court has not “altered decisions in which it recognized that the [Apprendi] prohibition does not apply when considering the minimum sentence to be imposed”); State v. Albright, 283 Kan. 418, 424, 153 P.3d 497 (2007). Albright and Johnson are controlling authority on the issue of whether recent United States Supreme Court decisions have modified the rule that Apprendi does not apply to judicially found facts that increase the minimum sentence. Conley does not cite Albright or Johnson in Iris brief and, although tire State relies upon Johnson in its brief, Conley did not file a reply brief to show why Johnson should not apply. Defendant has also filed a pro se brief on this Apprendi argument, which we have considered and find to be without merit. In conclusion, the district court did not err in holding the Apprendi issue was barred by the doctrine of res judicata. PROPRIETY OF SUMMARY DENIAL Conley next argues that summary denial is an inappropriate disposition of a motion filed pursuant to K.S.A. 22-3504(1). For convenience, K.S.A. 22-3504(1) is reiterated as follows: “(1) The court may correct an illegal sentence at anytime. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.” We have defined an illegal sentence under K.S.A. 22-3504(1) as: “An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served.” State v. Johnson, 269 Kan. 594, Syl. ¶ 2, 7 P.3d 294 (2000). In State v. Duke, 263 Kan. 193, 946 P.2d 1375 (1997), the issue was raised as to whether the language of K.S.A. 22-3504(1) precluded preliminary examination. In holding it did not, we reasoned as follows: “In State v. Nunn, 247 Kan. 576, 802 P.2d 547 (1990), a claim was made that the district court was required to appoint counsel for defendant on a motion for new trial filed later than 10 days after trial. The motion was based upon alleged newly discovered evidence, a ground K.S.A. 22-3501(1) affords a 2-year filing period. “We rejected this argument, holding: While it would simplify matters for all courts and litigants if we were to adopt a bright-line rule that counsel be appointed for all post-trial motions, such a rule would not appear to be feasible or justified. Obviously, counsel should be appointed in cases where the motion raises substantial questions of law or triable issues of fact requiring an evidentiary hearing, legal arguments, and/or briefs of the parties. It appears just as obvious that if the motion, whether or not it is the defendant’s first based upon newly discovered evidence, fails to state any substantial issues of law or fact, or states sufficient facts to allow a determination based upon the motion itself, then appointment of counsel and the holding of a hearing would be unwarranted. We adhere to our prior rulings that the determination of whether to appoint counsel and hold a hearing on post-trial motions not filed “within 10 days after the verdict or finding of guilty, or within such further time as the court may fix during the 10-day period,” is one best left to the sound discretion of the trial court considering all the circumstances of the particular case. If the trial court correctly determines from the pleadings and record that the motion raises no substantial questions of law or fact, then the refusal to appoint counsel and hold a hearing does not constitute an abuse of discretion.’ 247 Kan. at 584-85. “The language authorizing preliminary judicial examination to determine whether or not substantial questions of law or fact are raised appears in K.S.A. 22-4506, which provides in pertinent part: ‘(a) Whenever any person who is in custody under a sentence of imprisonment upon conviction of a felony files a petition for writ of habeas corpus or a motion attacking sentence under K.S.A. 60-1507 and files with such petition or motion such person’s affidavit stating that the petition or motion is filed in good faith and that such person is financially unable to pay the costs of such action and to employ counsel therefor, the court shall make a prehminary examination of the petition or motion and the supporting papers. ‘(b) If the court finds that the petition or motion presents substantial questions of law or triable issues of fact and if the petitioner or movant has been or is thereafter determined to be an indigent person as provided in K.S.A. 22-4504 and amendments thereto, the court shall appoint counsel. . . .’ “Our decisions have been quite uniform in upholding the propriety of such preliminary examinations on all post-trial motions filed later than 10 days after trial. There is no indication that a motion to correct an illegal sentence was intended by the legislature to be treated differently from a K.S.A. 60-1507 attack upon a sentence. Logic does not require a different treatment. What purpose is served if, unlike another post-trial motion, the filing of a bare-bones conclusory motion to correct an allegedly illegal sentence triggers a full-blown hearing with defense counsel and the presence of the defendant? We believe the keywords in K.S.A. 22-3504(1) relative to the issue before us are ‘any proceeding.’ The district court should make the preliminary examination as to whether substantial questions of law or fact are raised. If the findings are in the negative, the court should summarily deny the motion. This is not a ‘proceeding’ within the language of the statute. If the findings are in the affirmative, then the matters can only be resolved in a ‘proceeding’ as set forth in the statute. “The motions herein were filed long after the sentences were imposed and direct appeals determined. The issues would not arise if the motion is filed so close in time to the imposition of sentence that it is a continuation of the representation afforded at the sentencing. “In summary, we hold K.S.A. 22-3504(1) does not eliminate a district court’s duty to preliminarily examine a motion to correct an allegedly illegal sentence to determine if substantial issues of law or fact are raised. If no such issues are found to have been raised, the motion may be summarily dismissed.” 263 Kan. at 195-96. Conley does not challenge the fact that the preliminary examination process is the well-established law in Kansas for the handling of K.S.A. 22-3504(1) motions. Rather, he seeks to change the law. In his brief, Conley flits from reason to reason as to why summary denial is inappropriate procedurally for the handling of such motions. He contends the appointment of counsel and the holding of a hearing are mandatory. In support of his position, Conley cites readily distinguishable cases. He cobbles together bits and pieces of language therefrom to present the outward appearance of authority for his various positions. “ ‘ “Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority or in the face of contrary authority, is akin to failing to brief an issue.” ’ ” State v. Torres, 280 Kan. 309, 321, 121 P.3d 429 (2005). It is sufficient to simply state that we find no merit in any of Conley s reasons for the requested change in our established law and no necessity to further discuss this aspect of the appeal. The preliminary examination procedure was appropriate. The district court properly denied the motion summarily upon finding the motion to be barred on the basis of res judicata. The judgment is affirmed.
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Per Curiam,-. Keith E. Barr, who pled guilty in 2002 to manufacturing methamphetamine, filed a motion in 2005 pursuant to K.S.A. 60-1507 in which he claimed that his lawyer at the time of sentencing was ineffective for failing to advise him of his appeal rights, and that he should be resentenced in accordance with State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). In the alternative, he asked for leave to file a direct appeal out of time pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). The district court denied relief following a nonevidentiary hearing on Barr’s motion, and the Court of Appeals affirmed. The matter now comes to us as a result of Barr’s petition for review. With that brief overview, a more detailed history is necessary. On Mayl3,2002, Barr entered into a plea agreement with the State in which he agreed to plead guilty to unlawfully manufacturing methamphetamine. In exchange, the State agreed to dismiss four other counts which involved charges that he possessed methamphetamine and pseudoephechine. Further, the State agreed to “seek the low end of the appropriate grid box, and ask the Court to follow the presumption.” The agreement provided: “12. I understand that despite my plea of guilty or nolo contendere (no contest), I retain a limited right to appeal the sentence which may be imposed. If the sentence imposed is the presumptive sentence the appellate court will only have jurisdiction to hear appeals based on the accuracy of my criminal history score, the accuracy of the crime severity level determination. If the sentence imposed is not the presumptive sentence, claims of partiality, prejudice, oppression or corrupt motive may be the basis of an appeal. I also understand that if the sentenced imposed is that agreed to in the plea agreement, the appellate court will not review my sentence. I understand that any appeal must be filed within 10 days of the date my sentence is pronounced in court and that if I cannot afford an attorney or the costs of an appeal, the Court will appoint counsel to represent me and will order that a transcript of the necessary portions of the transcript be provided to my counsel.” Both Barr and his attorney signed the plea agreement. The following day Barr entered his guilty plea in accordance with the agreement. He acknowledged to the court that he had read and signed the agreement and understood its contents. Before sentencing, Barr moved to classify his crime as a misdemeanor rather than a felony, relying on K.S.A. 65-4127c and State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989) (when two or more penalties are provided for the same crime, the court must impose the lesser penalty). The court denied Barr’s motion. However, the court expressed concern due to the fact that Barr and his wife had engaged in the same criminal conduct, yet Barr’s plea agreement called for a guilty plea to manufacturing methamphetamine (a severity level 1 felony), while his wife’s plea agreement called for a plea to possession of methamphetamine (a severity level 4 felony). Accordingly, the court offered Barr the choice between a durational departure sentence of 60 months’ imprisonment or a dispositional departure sentence of probation with an underlying sentence of 142 months. After an overnight continuance to permit Barr to consider these options further, Barr chose, and the court imposed, the dispositional departure sentence of probation. Barr did not appeal his sentence. Barr tested positive for methamphetamine and amphetamines while on probation, and, in December 2003, the district court revoked his probation and ordered him to serve his underlying 142-month sentence. Barr appealed. This court announced its decision in State v. McAdam in January 2004. Barr argued in his then-pending appeal that his sentence was illegal in view of this court’s ruling in McAdam. The Court of Appeals dismissed the appeal on the McAdam issue for lack of jurisdiction since Barr had not filed a timely direct appeal of his sentence and the ruling in McAdam, therefore, was not available to him. State v. Barr, Case No. 91,746, unpublished opinion filed August 27, 2004, (Barr I). In January 2005, Barr moved pursuant to K.S.A. 60-1507 for resentencing under McAdam. He claimed his counsel at sentencing had been ineffective for failing to fully inform him of his appeal rights. Barr attached to his motion a one-page legal memorandum in which he requested resentencing under McAdam or, in the alternative, an Ortiz hearing to establish his right to perfect a late direct appeal of his sentence. Following a nonevidentiary hearing, the court denied relief. Again, Barr appealed. At a nonevidentiary hearing on Barr’s motion, Barr’s counsel did not raise the Ortiz issue; nor did the court in its ruling. Barr argued to the Court of Appeals that the district court erred in not ordering an Ortiz hearing and in denying his ineffective assistance of counsel claim. Though not raised at the hearing before the district court, the Court of Appeals considered Barr’s Ortiz argument and concluded he was not entitled to a late direct appeal because he was aware of his appeal rights at the time of sentencing and chose not to exercise them. Barr also argued on appeal that his counsel was ineffective for not filing a direct appeal. This issue was never raised by Barr in his motion or by his counsel before the district court. Nevertheless, the Court of Appeals considered the issue and distinguished Barr’s counsel from the attorney found ineffective in Laymon v. State, 280 Kan. 430, 444, 122 P.3d 326 (2005). The court noted that the sentencing court had granted Barr probation over the State’s objection, and a direct appeal of Barr’s sentence could have jeopardized this favorable outcome. Barr v. State, Case No. 94,429, unpublished opinion filed October 13, 2006, (Barr II). Now, before us, Barr argues that he is entitled to pursue a direct appeal under Ortiz, and that his counsel was ineffective for not perfecting a direct appeal. Late Direct Appeal The right to appeal is entirely statutory and is not found in either the United States Constitution or the Kansas Constitution. Griffin v. Illinois, 351 U.S. 12, 18, 100 L. Ed. 891, 76 S. Ct. 585 (1955), reh. denied 351 U.S. 958 (1956); State v. Smith, 223 Kan. 47, 48, 574 P.2d 161 (1977). Accordingly, no appeal may be perfected absent compliance, with the statutes conferring jurisdiction on the appellate courts. Since the filing of a timely notice of appeal is jurisdictional, the failure to file a notice of appeal in a criminal case within the 10-day period fixed by statute ordinarily compels dismissal of the appeal. See K.S.A. 22-3608. A limited exception, Ortiz, 230 Kan. at 735-36, may allow a late appeal if a criminal de fendant (1) has not been informed of his or her right to appeal, (2) has not been furnished an attorney to perfect an appeal, or (3) has been furnished an attorney who failed to perfect an appeal. State v. Patton, 287 Kan. 200, 206, 195 P.3d 753 (2008). Barr relies on the first ground for granting an Ortiz exception: his ignorance of his appeal rights. In Patton, filed this day, we hold that the first exception is grounded in the procedural due process aspect of fundamental fairness. When a court is faced with a claim that a late appeal is permitted by the first exception, the first concern is the content of the statements of the sentencing judge. Patton, 287 Kan. at 219-22. “[A] district judge must inform a criminal defendant at sentencing, regardless of whedrer the defendant has entered a plea or gone to trial, that: (1) a right to appeal the severity level of the sentence exists; (2) any such appeal must be taken within 10 days [citations omitted]; and (3) if the defendant is indigent, an attorney will be appointed for the purpose of talcing any desired appeal.” Patton, 287 Kan. at 220. “The evidentiary burden of showing that the district judge failed to communicate one or more of these three pieces of information at sentencing is on the defendant, who must demonstrate deficiency from the transcript of the sentencing hearing.” Patton, 287 Kan. at 220. If the defendant discharges this burden, “the State may still prevent a late appeal by proving that the defendant possessed actual knowledge of all of the required information by some means other than the district judge’s oral statements at sentencing. The source of such actual knowledge may be . . . the wording of an agreement signed by the defendant . . . ; but the State bears the evidentiary burden on this point. “If the sentencing transcript demonstrates that the district judge did not adequately inform the defendant orally and the State is unable to demonstrate that the defendant had actual knowledge of the required information from other source, the defendant must then prove that, had he or she been properly informed, a timely appeal would have been sought. This evidentiary burden rests on the defendant.” Patton, 287 Kan. at 221-22. In this case, Barr was explicitly informed by his plea agreement that he retained a limited right to appeal his sentence, including “the accuracy of the crime severity level determination.” He was informed of the 10-day time limit for filing a notice of appeal. And he was told that, if he could not afford an attorney or the cost of an appeal, the court would appoint counsel for him and order that all necessary transcripts of the proceedings be provided. At his plea hearing Barr acknowledged to the court that he read the plea agreement and understood his rights described in it. He stated that he understood that the presumptive sentence for his crime, if the court accepted his plea, would be incarceration in the penitentiary. Barr directs us to the statement in his plea agreement in which he acknowledged: “I also understand that if the sentence imposed is that agreed to in the plea agreement, the appellate court will not review my sentence.” While this is a correct paraphrase of K.S.A. 21-4721(c)(2), it is incomplete because it fails to note K.S.A. 21-4721(e)(3), which permits appellate review of, among other things, an error in ranking tire severity level of a crime. Its incompleteness renders it inaccurate. It is also irrelevant. The portion of the plea agreement Barr relies upon warns of the limits on the appeal rights of a defendant who is sentenced in accordance with a plea agreement. Barr s plea agreement called for the State to ask the court to impose the low range presumptive sentence for Barrs crime. The presumptive sentence for Barrs crime was imprisonment. In accordance with the agreement, the State recommended imprisonment for the shortest presumptive duration. However, the sentencing court granted Barr probation, a departure sentence. Thus, this statement in the plea agreement does not apply to Barr’s sentence, which was not a sentence agreed to in the plea agreement. Although appellate cases in which a criminal defendant has invoked the first exception to allow a late appeal may require remand to determine relevant facts needed to decide the issues under our decision in Patton, this case is not one of them. The record on appeal contains all any court would need to know to rule on whether the first exception can be applied. Even assuming that Barr’s sentencing judge did not inform him of each of the three items of essential information Patton requires, Barr already had actual knowledge of each from the unambiguous and explicit language in the plea agreement he admitted that he reviewed, understood, and signed. In other words, the State would have no trouble carrying its evidentiary burden, defeating Barr’s effort to invoke the exception. Barr is not entitled to take a late direct appeal from his sentence on manufacturing methamphetamine. K.S.A. 60-1507 Claim: Ineffective Assistance of Counsel Barr s plea was taken by one judge. A different judge presided over his sentencing and the later probation revocation hearing. Yet a third judge heard legal argument on Barr s K.S.A. 60-1507 motion. We have a transcript of the argument before the court at that hearing. The judge hearing the motion denied relief based upon that argument and a review of the files and records of the case. Because we are in as good a position as the judge hearing the 60-1507 motion to consider its merits, our review is de novo. Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007); Laymon v. State, 280 Kan. 430, 436-37, 122 P.3d 326 (2005). To prevail on his ineffective assistance of counsel claim, Barr bore the burden of establishing not only that his counsel’s performance was constitutionally deficient, but also that he was prejudiced thereby; i.e., that “there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different.” Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). In the present context, the different outcome of the proceedings would have been a timely direct appeal of Barr’s sentence. See Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000). Barr claims that his counsel should have filed a direct appeal of his sentence since his counsel moved the court at sentencing to have Barr sentenced for a misdemeanor under the identical offense doctrine set forth in Nunn, and the motion was denied. This identical offense doctrine was later applied in McAdam to the statute under which Barr was convicted. Barr argues that his counsel should have anticipated this court’s ruling in McAdam and appealed his sentence. In considering this claim we extend a high level of deference to the decisions of Barr’s counsel, who enjoys a strong presumption that his conduct was within the wide range of reasonable professional assistance. See State v. Gleason, 277 Kan. 624, 88 P.3d 218 (2004). Barr seeks to extend to his case the ruling in Laymon v. State, 280 Kan. 430. In Laymon, the court considered whether the failure of appellate counsel to anticipate the court’s ruling in McAdam constituted ineffective assistance of counsel. Laymon involved counsel who practiced in the Appellate Defender Office. Barr’s counsel did not. Laymon’s counsel was engaged in appellate practice. Barr’s counsel was not. This court found Laymon’s appellate counsel’s failure to preserve the argument that ultimately prevailed in McAdam to be objectively unreasonable, given the involvement of other attorneys in the Appellate Defender Office in the McAdam issue. This “inside baseball” analysis does not apply to trial counsel from a local public defender office. We consider Barr’s counsel’s conduct from counsel’s perspective at the time of Barr’s sentencing, discounting, as best we can, the benefits of hindsight. See Graham v. State, 263 Kan. 742, 754, 952 P.2d 1266 (1998); Baker v. State, 20 Kan. App. 2d 807, 894 P.2d 221, rev. denied 257 Kan. 1091 (1995). Here, however, we have the added factor of the motion based on Nunn raised by counsel at the sentencing hearing. The Court of Appeals addressed this factor: “Although Barr’s attorney foresaw the argument that would be the basis for McAdam, the record does not suggest that Barr’s plea counsel had the same level of involvement with the McAdam issue as did the ADO attorney in Laymon. And unlike Laymon, where McAdam was pending at the time the defendant’s direct appeal was filed, Barr pled guilty and was sentenced approximately 18 months before McAdam was even filed in the Kansas Supreme Court. [Citation omitted.]” Barr II, slip op. at 9. We find this distinction drawn by the Court of Appeals to be a sound one. But of equal if not greater weight is the fact that Barr fails to present a colorable claim of prejudice. One reason for the district court’s rejection of Barr’s Nunn/ McAdam argument was the lack of prejudice because Barr was not entitled to retroactive application of McAdam. This court has since announced in Phinney that McAdam applies retroactively to a defendant who perfects a late direct appeal. Thus, this first basis for finding no prejudice is flawed. The district court’s other reason for finding no prejudice is sound. At the time of Barr’s original sentencing, the court expressed concern about the disparity between the proposed 142-month prison sentence for Barr and a sentence of 10 to 16 months with presumptive probation for his wife. Accordingly, Barr was given the option of a shorter sentence in prison, or the full 142-month sentence but with the departure of probation. The State opposed a dispositional departure and urged that Barr be sent to prison. Barr received the departure sentence of probation. After failing probation and being sent to prison to serve his sentence, Barr asserted for the first time in his K.S.A. 60-1507 motion that he did not appeal his sentence because “at the original sentencing hearing the district court did not advise me of my right to appeal or regarding the time restriction on filing such an appeal.” As discussed earlier, this assertion is not an adequate basis for a late direct appeal because Barr was otherwise informed of his appeal rights before his sentence was imposed. Once that argument fails, Barr presents no alternative theoiy for why he did not appeal. He does not claim he asked his attorney to file an appeal but his attorney failed or refused to do so. He does not claim that his attorney advised against an appeal. In fact, his only averment regarding this claim indicates a lack of communication on the issue: “Counsel did not advise defendant of his right to appeal nor did he advise defendant regarding the time restrictions on filing such an appeal.” Since, as noted earlier, the issue is the extent of Barr’s knowledge, not the source of that knowledge, this claim regarding counsel’s conduct also fails. Barr’s counsel at the hearing on his 60-1507 motion expressed the obvious: “Obviously a direct appeal was not had here, and if I remember correctly, Mr. Barr was placed on probation at first. . . . [A]nd then at a later time was revoked from his probation, so obviously with the placement on probation he did not directly appeal at first.” (Emphasis added.) The district court observed: “ ‘Moreover, the movant does not even allege that he would have appealed his sentence had he known of the time restriction. Again, the court offered the movant the option [of] serving a prison sentence or being placed on probation; the movant elected to take a chance at probation, and the court granted him that opportunity. There is no reason to believe the movant would have appealed his sentence/ ” Barr II, slip op. at 4-5. Finally, the Court of Appeals noted: “Thus, if Barr had appealed, this court may well have had the opportunity to review the departure to determine if the facts justifying the departure were (1) supported by evidence in the record and (2) constituted substantial and compelling reasons for the departure. K.S.A. 21-4721(d). Because an appeal may have jeopardized the defendant’s probationary status, Barr cannot suggest that there could be no strategic reason for the failure to file a direct appeal.” Barr II, slip op. at 9-10. Barr fails to allege, let alone offer proof of, any prejudice resulting from any ineffective assistance of counsel. In his motion Barr raised two claims which are now before us: (1) the failure of the district court to advise him of his right to appeal and the time restriction for an appeal; and (2) the failure of his counsel at sentencing to advise him of his right to appeal and the time restrictions for an appeal. As discussed above, neither claim has merit. Barr presents no justifiable basis for a late appeal under the first Ortiz exception. He fails to assert a viable claim of deficient lawyering which caused him not to appeal his departure sentence. Accordingly, the district court did not err in refusing to grant relief on Barr’s K.S.A. 60-1507 motion, and the Court of Appeals properly affirmed that ruling. Affirmed. Davis and Johnson, JJ., not participating. McAnany, J., and Brazil, S.J., assigned.
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The opinion of the court was delivered by Johnson, J.: Clifton Lane Schow seeks review of the Court of Appeals’ decision affirming the district court’s denial of Schow’s motion to withdraw his plea and affirming the district court’s ruling on Schow’s criminal history challenge. State v. Schow, 37 Kan. App. 2d 941, 161 P.3d 222 (2007). We reverse, vacate the sentence, and remand. FACTUAL AND PROCEDURAL BACKGROUND Schow was originally charged with one count each of criminal threat and violation of a protective order. He entered into a plea agreement with the State in which he agreed to plead guilty to the criminal threat count, a severity level 9 felony. In return, tire State agreed to dismiss the second count and to recommend the mitigated sentence in the applicable grid box and “probation per LSIR at level of at least [residential] center if eligible under guidelines.” Further, Schow’s sentence was to run consecutive to a prior misdemeanor conviction on which probation had been revoked. In the preprinted plea agreement form the agreed disposition was indicated as probation, “if eligible.” At the August 5, 2005, plea hearing, defense counsel advised the court of additional discussions that had occurred during plea negotiations that had not been specifically noted in the written agreement. Schow was attempting to get his probation reinstated in the prior misdemeanor case so that he could “do both sentences at the Residential Center,” i.e., serve the sentences from the prior misdemeanor and die current felony cases on probation at the Residential Center. According to defense counsel, the prosecutor on the current case had indicated a willingness to assist with Schow’s efforts to get probation reinstated in the misdemeanor case. The prosecutor did not contest the accuracy of defense counsel’s recitation. Prior to accepting Schow’s plea, the district court advised Schow that the minimum sentence for a level 9 felony would be 5 months and the maximum sentence would be 17 months. Further, the court advised that, unless Schow was a criminal history A or B, his sentence “would be presumptive probation ordinarily.” After being advised by defense counsel that the parties believed Schow to be a criminal history D, the court stated, “If you are a D, then the sentence would be 11 months on the low side, 13 months on the high side, still presumptive probation .” (Emphasis added.) The judge then clarified that he had no control over what the other judge assigned to the misdemeanor case might do. After ascertaining that Schow had been afforded time to discuss the matter with his attorney, the district judge further explained: “THE COURT: I don’t have a lot of discretion in a felony sentencing like I do in misdemeanors. So if you are a D, you are pretty much assured of 11,12 or 13 months and getting probation initially because that will be what the sentencing guidelines tell me to do. The only fly in that ointment is that if Judge Phalen wouldn’t put you on probation [in the misdemeanor case], then obviously you won’t be able to do my probation. That could create some problem. And I don’t know how to figure that out ahead of time.” After the foregoing recitation, defense counsel asked for time to speak with Schow to explain what the court had just said. Following that discussion, defense counsel asserted: “He understands.” Schow then said, “Yes, your honor, that is fine.” Ultimately, the district court accepted Schow’s guilty plea to criminal threat and dismissed the remaining count of the complaint. The court set sentencing for September 22, 2005. A presentence investigation (PSI) report was prepared and, according to the face of the document, was submitted on September 8, 2005. The PSI reflected a criminal history category B, rather than D, because three prior person misdemeanors were aggregated and scored as a person felony. Just prior to the sentencing hearing, Schow filed an objection to the criminal history reflected in the PSI. He specifically denied the validity of two misdemeanor domestic battery convictions out of Leon County, Florida, which were fisted as items 4 and 5 on the schedule of prior convictions. The PSI indicated that the source of the information on the challenged convictions was a prior PSI, apparently from a 1997 Johnson County case. The court granted a 1-week continuance to permit the parties to retrieve a copy of the prior PSI from the archives. At the continued hearing, defense counsel noted that there was a question as to the accuracy of the PSI, in that it reflected the occurrence dates of items 4 and 5 as 1992 and 2002, respectively, although both carried the same case number. Counsel observed that, from other information, it appeared that the discrepancy in dates might have been a typographical error. We note that the PSI in the record on appeal, showing a file date of January 20, 2006, reflects the same 1992 conviction date for both items. Defense counsel further noted that in the prior case, the defense had not objected to the inclusion of the two Florida misdemeanors in that PSI. Apparently, Schow had no reason to object in the prior case because the misdemeanors were not aggregated and did not impact the criminal history score. Although Schow continued to maintain that he had only one domestic battery conviction in Florida, the State took the position that Schow was bound by the prior criminal history schedule; that his current criminal history was B; that the plea agreement precluded a defense motion for departure; and that the court should proceed to impose the presumptive prison sentence. Defense counsel requested leave to withdraw because she perceived that the plea agreement precluded her from moving for departure, but her client believed that a dispositional departure to probation was appropriate under the circumstances. The district court indicated that it wanted to know Schow’s correct criminal history before sentencing and directed the State to obtain factual information on the Florida convictions, suggesting that the State obtain certified copies of the conviction records. On October 27,2005, the court reconvened the sentencing hearing. However, before the district court could pronounce sentence, defense counsel renewed her motion to withdraw. Her recitation suggests that the judge and attorneys had met in chambers and that defense counsel anticipated that the court would rule that Schow’s criminal histoiy had been fixed by the prior PSI and that he was precluded from requesting a disposition^ departure by the plea agreement. The court granted defense counsel’s motion to withdraw as Schow’s attorney. After the district court appointed new counsel, a hearing was held on January 5, 2006. The transcript indicates that, at some point, the district court had previously ruled that the State had satisfied its burden of proving Schow’s criminal history by presenting the prior, uncontested PSI from the 1997 case. However, the court had apparently left the issue open, by permitting the defendant to present evidence that the criminal history in the prior PSI was not accurate. The court specifically said that the burden had shifted to the defendant to show that the prior criminal history schedule was not true. Defense counsel announced that she did not intend to proceed with any evidence to prove the negative that Schow did not have the two Florida convictions, but rather she would be proceeding upon the motion to withdraw plea which had been recently filed. With respect to the motion to withdraw plea, the district court observed that it was clear to the court from the plea agreement that when the plea was entered “the parties expected probation at that point.” Before announcing that the motion would be taken under advisement, the judge further opined: “But I do see from the plea agreement that it talks about probation pursuant to the LSI-R. If the parties had known he was a B, they wouldn’t have been talking about probation. I’m confident that at least at tire time of the plea the parties were thinking that he was not a B and that that was a surprise.” On January 17, 2006, the district judge continued his consideration of the motion to withdraw plea, ultimately denying the motion and summarizing its rationale as follows: “So the only issue then is whether it’s good cause when someone mistakenly believes they’re going to get probation, pleads guilty with that understanding, and finds out later that criminal history wasn’t as he expected. And I can’t — I have read the Ford case. I can’t see any case as close to this case in terms of what happened and consequences of what happened. And in that case, the Court of Appeals said that was not good cause. And I think I’m more or less bound by the Appellate Court decision on that even though I understand the mutual mistake aspect which was one of the criteria shown there. They’re looking for more than just that here. Looking also for an assertion that the defendant actually was not guilty of the crime in addition to one of these other criteria.” The district court then proceeded immediately to sentence Schow to the mid-range grid box sentence, based on a criminal history B, and imposed the presumptive imprisonment. Schow ap pealed, claiming that his case was factually distinguishable from State v. Ford, 23 Kan. App. 2d 248, 930 P.2d 1089 (1996), rev. denied 261 Kan. 1087 (1997), relied upon by the district court, and that it was error to relieve the State from its obligation to prove the challenged Florida convictions. COURT OF APPEALS DECISION The Court of Appeals identified two issues: (1) whether the district court abused its discretion in denying Schow’s motion to withdraw his guilty plea because both parties to the plea agreement were mistaken about his criminal history; and (2) whether the district court erred in requiring Schow to disprove the existence of the two prior misdemeanor convictions in Florida. On the first issue, the panel unanimously found no fault with the denial of Schow’s motion to withdraw plea, declaring that a “[mjutual mistake of the defendant’s criminal history score, standing alone, is insufficient to justify withdrawal of a plea.” Schow, 37 Kan. App. 2d 941, Syl. ¶ 3. Further, the panel found that the record disclosed no evidence that Schow was not represented by competent counsel; that Schow failed to show that he was misled, coerced, mistreated, or unfairly taken advantage of; and that the information conveyed to Schow at the plea hearing established that the plea was fairly and understandingly made. 37 Kan. App. 2d at 946-47. The opinion reviewed and relied upon three cases: State v. Ford, 23 Kan. App. 2d 248; State v. Haskins, 262 Kan. 728, 942 P.2d 16 (1997); and State v. Baldwin, 28 Kan. App. 2d 550, 18 P.3d 977, rev. denied 271 Kan. 1038 (2001). The panel was split on the second issue. The majority found that it was duty bound to follow the holding in State v. Hobbs, 276 Kan. 44, Syl. ¶ 8, 71 P.3d 1140 (2003), that a trial court is permitted to “take judicial notice of a defendant’s presentence report filed in a previous case without objection instead of requiring the State to produce evidence to establish the disputed portion of the criminal history by a preponderance of the evidence.” Accordingly, the majority found no error in the district court’s procedure of shifting the burden to the defendant to disprove the convictions reflected on the previous case’s PSI. The dissent reviewed the statutory procedure for establishing a defendant’s criminal history, noting that the State’s initial burden is met by the PSI, unless the defendant files an objection to the report. If an objection is filed, K.S.A. 21-4715(c) provides that “[t]he state shall have the burden of producing further evidence to satisfy its burden of proof regarding any disputed part, or parts, of the criminal history.” (Emphasis added.) See Schow, 37 Kan. App. 2d at 950 (Malone, J., dissenting in part). The dissent would not have permitted the prior PSI to satisfy the “further evidence” requirement, because the validity of the Florida convictions had not been litigated on the merits in the prior proceeding, i.e., the elements of collateral estoppel had not been satisfied. 37 Kan. App. 2d at 951. The dissent acknowledged our prior holding in Hobbs but found the facts in that case to be distinguishable. Further, the dissent found Hobbs to be of questionable precedential value because of the absence of significant analysis in the opinion and its reliance on the holding in State v. Hatt, 30 Kan. App. 2d 84, 86, 38 P.3d 738, rev. denied 273 Kan. 1038 (2002), which has been subsequently rejected by the Court of Appeals opinions in State v. Welty, 33 Kan. App. 2d 122, 98 P.3d 664 (2004), and State v. Prater, 31 Kan. App. 2d 388, 65 P.3d 1048, rev. denied 276 Kan. 973 (2003). Schow, 37 Kan. App. 2d at 954. The dissent opined that the district court’s initial direction that the State prove the Florida convictions with certified journal entries was the correct procedure. Thus, the dissent would have remanded for resentencing with directions for the district court to place the burden on the State to establish Schow’s correct criminal history score. 37 Kan. App. 2d at 955. BURDEN OF PROVING PRIOR CONVICTIONS On review, Schow concentrates his arguments on the issue of whether the district court erred in shifting the burden to him to refute the existence of both Florida misdemeanors. Thus, we take the liberty of discussing that issue first. Our analysis will focus on an interpretation of the applicable statutes. “The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the trial court’s interpretation. [Citation omitted.]” State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). The statutes in play on this issue are K.S.A. 21-4714 and K.S.A. 21-4715. We begin with a review of each statute’s content and apparent purpose. K.S.A. 21-4714 begins in subsection (a) by directing that “[t]he court shall order the preparation of the presentence investigation [PSI] report by the court services officer [CSO] as soon as possible after conviction of the defendant.” K.S.A. 21-4714(b) describes the information that is to be contained in the report, with the most notable subsection for our purposes, (b)(5), providing: “(5) A listing of prior adult convictions or juvenile adjudications for felony or misdemeanor crimes or violations of county resolutions or city ordinances comparable to any misdemeanor defined by state law. Such listing shall include an assessment of the appropriate classification of the criminal history on the criminal history scale and the source of information regarding each listed prior conviction and any available source of journal entries or other documents through which tire listed convictions may be verified. If any such journal entries or other documents are obtained by the court services officer, they shall be attached to the presentence investigation report. Any prior criminal history worksheets of the defendant shall also be attached.” (Emphasis added.) K.S.A. 21-4714(c) prescribes who is to have access to which parts of the report, and subsection (d) clarifies that a criminal history worksheet will not substitute for a PSI report. Subsection (e) precludes certain optional report components from inclusion in the report. Subsection (f), relied upon by the State, reads as follows: “(f) The court can take judicial notice in a subsequent felony proceeding of an earlier presentence report criminal history worksheet prepared for a prior sentencing of the defendant for a felony committed on or after July 1,1993.” K.S.A. 21-4714(f). Finally, subsection (g) directs that all PSI reports are to be submitted on a form approved by the Kansas Sentencing Commission. It is readily apparent that K.S.A. 21-4714 was intended to address the preparation and submission of the PSI report. As noted above, K.S.A. 21-4714(b)(5) directs the CSO preparing the current PSI report to attach any criminal history worksheets previously prepared for the defendant. In that context, the apparent purpose of the judicial notice provision of subsection (f) would be to permit the court to consider the attached prior worksheets as part of the PSI report without further foundation from the preparer of the prior worksheet, who may well be unavailable for the current proceeding. In other words, the judicial notice provision deals with the admissibility of the prior worksheets. In contrast, K.S.A. 21-4715 addresses the legal effect of the PSI report on the sentencing proceedings. Subsection (a) directs that either the defendant must admit to the reported criminal histoiy in open court or the sentencing judge must determine the criminal histoiy, by a preponderance of the evidence, at the sentencing hearing. The remaining two subsections read as follows: “(b) Except to the extent disputed in accordance with subsection (c), the summary of the offender’s criminal history prepared for the court by the state shall satisfy the state’s burden of proof regarding an offender’s criminal histoiy. “(c) Upon receipt of the criminal history worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in the proposed criminal history worksheet. Such notice shall specify the exact nature of the alleged error. The state shall have the burden of producing further evidence to satisfy its burden of proof regarding any disputed part, or parts, of the criminal history and the sentencing judge shall allow the state reasonable time to produce such evidence to establish the disputed portion of the criminal history by a preponderance of the evidence.” K.S.A. 21-4715. Subsection (b) appears to extend the judicial notice provision of K.S.A. 21-4714(f) to the current criminal history worksheet. The court may admit the PSI report without the State providing further foundation or further proof of its contents, i.e., the preparing CSO need not testify and provide evidence to establish the veracity of the sources of his or her information. However, subsection (b) is explicitly subject to the provisions of subsection (c), which permit the defendant to file specific written objections to the criminal history worksheet and require the State to carry the burden of proving the disputed parts by producing further evidence. While the PSI report has been initially admitted into evidence under K.S.A. 21-4715(b), the report is no longer conclusive proof of the disputed parts so as to satisfy the State’s burden. The statute makes no exception for disputed parts which may have been contained in a prior criminal history worksheet. The Court of Appeals majority relied upon the judicial notice provision of K.S.A. 21-4714(f) to affirm the district court’s ruling that, even after the defendant files a written objection, a prior criminal histoiy worksheet remains conclusive proof of its listed convictions, unless the defendant can disprove their existence. Schow, 37 Kan. App. 2d at 948. Such a finding isolates a provision in the statute addressing the preparation and filing of the PSI report, K.S.A. 21-4714, and applies it to trump the clear language of the statute specifically addressing the legal effect of the report, K.S.A. 21-4715. It does not appear to be consistent, harmonious, or sensible to assign the burden of proof on disputed crimes based solely upon the source of the information utilized by the CSO to prepare the current worksheet. See McIntosh v. Sedgwick County, 282 Kan. 636, 642, 147 P.3d 869 (2006) (court should construe all parts of an act in pari materia and reconcile the different provisions so as to make them consistent, harmonious, and sensible). Moreover, K.S.A. 21-4714(b)(5) provides that prior criminal history worksheets are to be attached to the current criminal history worksheet, i.e., the prior worksheets are a part of the current PSI report. Therefore, die provisions of K.S.A. 21-4715(c) requiring the State to produce further evidence to prove the “disputed part, or parts, of the criminal history” would necessarily apply to the disputed part or parts of the prior criminal history worksheet. To be fair to the Court of Appeals majority, it dutifully followed the holding recited in State v. Hobbs, 276 Kan. 44, Syl. ¶ 8, that a district court is permitted to “take judicial notice of a defendant’s presentence report filed in a previous case without objection instead of requiring the State to produce evidence to establish the disputed portion of the criminal history by a preponderance of the evidence.” In that case, the defendant had attempted to hold the State accountable in a subsequent sentencing for what the district court found to be a clerical error in the prior case by misclassifying a residential burglary as a nonperson felony. In other words, the Hobbs decision effected an application of the correct criminal history. Without any independent analysis, Hobbs quoted from Hatt, 30 Kan. App. 2d at 86. 276 Kan. at 57-58. As the Court of Appeals dissent points out, that court has retreated from Hatt’s judicial notice holding in favor of the more important consideration that a defendant be sentenced based upon an accurate criminal history calculation. Schow, 37 Kan. App. 2d at 951-53; see State v. Welty, 33 Kan. App. 2d 122, and State v. Prater, 31 Kan. App. 2d 388. Nevertheless, the district court in Hobbs did not blindly adopt the prior criminal history worksheet. It considered Hobbs’ objection and made a finding that there had been a clerical error and calculated the current criminal history based upon its determination of the correct classification of the prior crime. Therefore, Hobbs’ recitation of the Hatt rule was unnecessary to that decision. Moreover, criminal statutes must be strictly construed in favor of the accused, provided the judicial interpretation is reasonable and sensible to effect legislative design and intent. State v. Snow, 282 Kan. 323, 340-41, 144 P.3d 729 (2006). K.S.A. 21-4715(c) clearly provides a defendant the right to file a written objection to his or her criminal history worksheet and requires the State to carry the burden of producing further evidence to prove the convictions contained in the worksheet. To find that the burden shifts to the defendant to disprove convictions contained in a prior criminal history worksheet would require us to ignore the plain language of K.S.A. 21-4715(c) and employ an extremely liberal construction of K.S.A. 21-4714(f) in favor of the State. Such a departure from our construction rules does not appear justified by legislative intent. The statutes lean toward maximizing the probability that a defendant will be sentenced with the correct criminal history score. For instance, in addition to providing for an opportunity for written objections, the legislature has provided that prior convictions discovered after a plea is accepted are required to be included in the criminal history score, K.S.A. 21-4707(c)(4). Likewise, upon any appeal, the appellate court can review a claim that the district court erred in including or excluding a prior conviction. K.S.A. 21-4721(e)(2). Therefore, we find, as a matter of statutory interpretation, that a defendant may file a written objection to his or her criminal history worksheet, including those convictions which may have been contained in a previous criminal history worksheet, and that such an objection places the burden on the State to produce further evidence establishing the existence of the challenged conviction(s) by a preponderance of the evidence. Any suggestion to the contrary in Hobbs is disapproved. Here, the district court erred in shifting the burden to the defendant to disprove the existence of the disputed prior convictions. The sentence is vacated, and the matter remanded to the district court for a proper determination of criminal history and resentencing, if necessary. Before moving to the next issue, we pause to note that we have not been presented with a situation in which the State could have asserted collateral estoppel to avoid relitigating the existence of a prior conviction. As the Court of Appeals dissent noted, an essential element of collateral estoppel is that the issue had been decided on its merits in the prior proceeding. Schow, 37 Kan. App. 2d at 952 (citing Prater, 31 Kan. App. 2d at 395). Here, there was no prior judgment on the merits of the existence of the two Florida convictions. In the proper case, the State might be able to rely upon collateral estoppel to avoid repeatedly litigating the efficacy of the same prior convictions in successive sentencing hearings. MOTION TO WITHDRAW PLEA In his petition for review, Schow points to the district court’s specific finding that both parties entered into the plea agreement with the idea and expectation that Schow would receive probation and asserts that such a mutual expectation provides good cause for withdrawing the plea. He further argues that the manner in which tire prior criminal history was handled should have led the district court to grant the plea withdrawal motion. K.S.A. 22-3210(d) specifically addresses the withdrawal of a plea of nolo contendere or guilty. It establishes two standards for the court. At any time before sentencing, the court may permit the plea to be withdrawn “for good cause shown and within the discretion of the court.” However, after a sentence has been adjudged, the court may permit a plea withdrawal only “[t]o correct manifest injustice.” K.S.A. 22-3210(d). Here, to avoid blurring the distinction between the standards, we clarify that this case presents a situation in which the lesser standard of “good cause” is applicable. The district court did not need to find a manifest injustice, such as a violation of due process. Cf. Ford, 23 Kan. App. 2d at 252 (in a good cause case, nevertheless finding that due process does not require the State to present an accurate criminal history prior to the court’s acceptance of a plea). In reviewing a presentence denial of a motion to withdraw plea, we employ an abuse of discretion standard of review, as suggested by the language of the statute. Further, we require the defendant to bear the burden of establishing the abuse of discretion. State v. Harned, 281 Kan. 1023, 1042, 135 P.3d 1169 (2006). However, in order for the district court’s decision to receive the full measure of that standard’s deference, it must have been based upon a correct understanding of the law. “Generally, the trial court’s decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards. However, an abuse of discretion may be found if the trial court’s decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. [Citations omitted.]” State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006). As previously noted, the district court relied on the Court of Appeals’ prior decision in Ford, which declared, inter alia, that “[t]o justify a motion to withdraw a plea prior to sentencing, the motion should allege that the defendant is not guilty of the offense charged.” 23 Kan. App. 2d 248, Syl. ¶ 1. However, subsequently, this court refuted that prerequisite. “It is apparent that this court does not require an allegation that defendant is not guilty as charged as a prerequisite for withdrawing a plea of guilty or nolo contendere prior to sentencing. Nor is there such a requirement in the statute, which bases withdrawal on good cause shown and on the discretion of the trial court." State v. Vasquez, 272 Kan. 692, 696, 36 P.3d 246 (2001). Therefore, to the extent the district court refused to grant the motion to withdraw plea based upon an erroneous understanding of the law, i.e., that an allegation of innocence was a prerequisite, the ruling would be an abuse of discretion. However, the Court of Appeals did not focus on that aspect of the district court’s ruling or that portion of the Ford decision. See State v. Hoge, 283 Kan. 219, 225-26, 150 P.3d 905 (2007) (district court’s correct result can be affirmed notwithstanding an erroneous rationale). The Court of Appeals began by listing the oft-cited factors which a district court should evaluate in determining whether good cause has been shown, i.e., whether “ ‘ “(1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made.” [Citation omitted.]’ State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006).” Schow, 37 Kan. App. 2d at 944. Then, the opinion proceeded to determine that a mutual mistake as to criminal histoiy is insufficient reason, as a matter of law, to permit a plea withdrawal. The Court of Appeals divined that rule from Ford, State v. Haskins, 262 Kan. 728, 942 P.2d 16 (1997), and State v. Baldwin, 28 Kan. App. 2d 550, 18 P.3d 977, rev. denied 271 Kan. 1038 (2001), albeit the opinion duly noted the factual distinctions of Haskins and Baldwin. Specifically, the Supreme Court in Haskins found that a plea agreement did not exist in that case and the defendant in Baldwin actually received the probation for which he had plea bargained, even though his true criminal history score was lower than he believed it to be. 262 Kan. at 732. En route to its determination that a mutual mistake about criminal history is not good cause, the Court of Appeals noted that the defendant in Ford had argued that his plea was not “intelligently” made because he had relied on the State’s representation as to his criminal history score at the time he entered his plea. The opinion then quoted Ford’s response to that argument, which was that there is “ ‘no recourse for a plea unintelligently made.’ 23 Kan. App. 2d at 252.” Schow, 37 Kan. App. 2d at 945. We pause to address that sweeping assertion. While we would agree that a defendant should not get relief from a plea decision simply because he or she determines, in hindsight, that it was not the most intelligent course of action, that was not the argument put forth in Ford. Rather, Ford argued that he had made his plea decision based upon misinformation from the State, i.e., that'the plea was not “fairly and knowingly made.” See Edgar, 281 Kan. at 36. In that context, Ford’s summary response, which was completely unsupported by any authority, is difficult, if not impossible, to reconcile with Edgar’s list of good cause evaluation factors. Where a defendant has not had competent counsel, or where a defendant has been misled, coerced, mistreated, or unfairly taken advantage of, or where a defendant’s plea has not been fairly and understanding^ made, one would have to characterize the resultant plea as “unintelligently made.” In that event, there is indeed recourse for the unintelligently made plea; the district court can and ordinarily should grant the motion to withdraw plea pursuant to K.S.A. 22-3210(d). Cf. White v. State, 203 Kan. 687, 690, 455 P.2d 562 (1969) (“If such plea is induced by promises or threats which deprive it of its voluntary character, it is void, and a conviction based thereon is open to collateral attack.”). Likewise, one might question the need to pronounce any rule with respect to a mutual mistake about criminal history. The district court is imbued with discretion to determine whether the defendant has shown good cause for a plea withdrawal, and our case law has proffered legitimate factors to consider in making that determination. We concur that a defendant cannot meet his or her good cause burden by merely declaring that the parties were mutually mistaken about the defendant’s criminal history score. However, the circumstances giving rise to the mistake may well implicate the Edgar factors and should be available for consideration by the court. The district court did not reach an analysis of the Edgar factors. In its summary review of the those factors, the Court of Appeals apparently completely ignored the circumstances surrounding the misinformed plea negotiations because of its declared rule on mutual mistake. With respect to the first factor, the Court of Appeals stated that the record did not suggest that Schow was not represented by competent counsel. To the contrary, we find that the record raises a number of questions. An initial indication of performance problems might be found in the fact that defense counsel felt compelled to withdraw from the case in order to try to protect Schow’s inter ests. Next, the current PSI indicated that the information about the Florida misdemeanors, which raised the criminal history score above that used in the plea bargain, was obtained from a prior PSI from the same district court. One might wonder whether it was reasonable for defense counsel to rely upon the State’s representation of the number and severity level of prior convictions, when verification could be obtained from the court’s record. Furthermore, in order to reach the higher score, the misdemeanors had to be aggregated and converted into a person felony, prompting a question as to whether the current mistake was prompted by counsel’s failure to know or to apply the current sentencing guidelines. With respect to the second factor, the Court of Appeals found no showing that Schow was misled, coerced, mistreated, or unfairly taken advantage of when he entered the plea agreement because the written agreement expressly stated twice that the State would recommend a probation sentence if Schow was eligible. The apparent suggestion is that Schow could not have been misled because he was explicitly informed that the probation recommendation was contingent. That notion is trumped by the district court’s explicit finding that the parties entered into the plea agreement under the belief that the criminal history was D, i.e., that Schow was eligible for probation. Moreover, under the sentencing guidelines, the State’s commitment in the plea agreement to recommend a probation sentence is of limited value. If Schow fell within a presumptive probation grid box and the court did not initiate its own departure procedure and make the requisite legal (not discretionary) findings, the district court would be required to impose probation regardless of what the State might recommend. More to the point, the inquiry is whether Schow was misled about his criminal history score or was induced to enter a plea because of assurances that his criminal history score was D. Any caveats in the written agreement or in tire judge’s recitation at the plea hearing might well be germane to the question of whether Schow had actually been misled or induced, but they need not be determinative. If a defendant is given assurances about his or her criminal history score which are based upon known facts, any caveats about what might happen if the score is different would be ineffectual to countermand those assurances. For instance, the disputed misdemeanors in this case were contained in the PSI of a prior case, yet they were apparently not aggregated in that prior case to score as a felony. The district court might well find that Schow was misled into believing the same misdemeanor convictions would receive the same legal treatment in the current case as they received in the prior case, i.e., that they would not increase the criminal history score. For the third factor, the Court of Appeals found Schow’s plea to be fairly and understandingly made because the district court advised him of his maximum sentence; the district court informed him that the sentencing court was not bound to the State’s recommendation of probation; and the district court was aware that Schow’s counsel separately conveyed this information to Schow, to which Schow replied, ‘Tes, your honor, that is fine.” If Schow reasonably believed the assertions of the prosecutor and defense counsel that his criminal history score was D, it is difficult to intuit what enlightenment Schow would find in the court’s recitation of the maximum sentence which could be imposed upon a defendant with a score of A. This is especially true where the district court specifically recited the grid box range for a criminal history score of D. Moreover, any statement that the sentencing court would not be bound by the State’s recommendation of probation would have been misleading, at best. As noted previously, except for filing a motion for departure, the State has no influence on whether a defendant who falls within a presumptive probation grid box is sentenced to probation; the guidelines mandate that sentence. Furthermore, in this instance, the district court specifically told Schow that, if his score was D, he was “pretty much assured of . . . getting probation initially because that will be what the sentencing guidelines tell me to do.” Further, the Court of Appeals took Schow’s words, “Yes, your honor, that is fine,” out of context. That statement referred to the district court’s discussion of what might happen if the other judge who had presided over the other misdemeanor case refused to modify Schow’s current jail sentence to also grant probation to the Residential Center in that other case. The statement did not manifest a realization that the plea might result in a presumptive prison sentence because both attorneys had misread the facts or the law applicable to Schow’s true criminal history score. Finally, the Court of Appeals recited the rule that when “there is a mutual mistake as to defendant’s criminal history score, the trial court is obligated to sentence defendant on his true criminal history score.” Baldwin, 28 Kan. App. 2d at 552. While we agree with that statement, it has no relevance to the issue presented. Schow did not ask the district court to sentence him based upon the mistaken criminal history score. He asked to withdraw his plea. In summation, a defendant seeking to withdraw his or her plea prior to sentencing has the burden to show the existence of good cause for permitting the plea withdrawal. In determining the existence of good cause, the district court should consider whether: (1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understanding^ made. Where a defendant has pled guilty pursuant to a plea agreement which was based upon a mutual mistake as to defendant’s criminal history score, the district court may consider the circumstances giving rise to the mutual mistake to the extent they may implicate the factors applicable to the existence of good cause to withdraw a plea. Below, the district court apparently did not apply the Edgar factors in its determination of whether good cause existed to permit Schow to withdraw his plea. Therefore, we reverse the district court’s denial of Schow’s motion to withdraw plea and remand for the district court to apply the appropriate legal standards to determine whether Schow established good cause and then to exercise its discretion to rule on the motion. Judgment reversed, sentence vacated, and case remanded with directions.
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Per Curiam. This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against Richard E. Jones, an attorney admitted to the practice of law in Kansas on September 14, 1973. Respondent’s last registration address filed with the Clerk of the Appellate Courts of Kansas is in Topeka, Kansas. The office of the Disciplinary Administrator filed two formal complaints against Respondent. The first complaint, filed August 29, 2007, contained four counts of alleged misconduct related to the representation of Justin D. Elnicki (DA9896), Kevin Leroy McLaughlin (DA9897), Linda Scanland (DA10,117), and Victor Torres (DA10,146). The second complaint, filed September 27, 2007, alleged misconduct related to the representation of Janelle L. Grubbs (DA10.065). Ultimately, Respondent filed answers and stipulated that he did not contest the alleged facts and that he stipulated to violating certain provisions of the Kansas Rules of Professional Conduct (KRPC) and Supreme Court Rules. The complaints were consolidated for hearing on March 27,2008, before a panel of the Kansas Board for Discipline of Attorneys, at which Respondent appeared in person and by counsel. HEARING PANEL FINDINGS OF FACT AND CONCLUSIONS OF LAW On April 27, 2008, the hearing panel issued its final hearing report. Respondent does not contest the findings and conclusions set forth in that report, which are as follows: “FINDINGS OF FACT “The Hearing Panel finds the following facts, by clear and convincing evidence: “DA9896 “2. On January 10, 2006, Justin D. Elnicki filed a complaint against the Respondent. The Disciplinary Administrator wrote to the Respondent and directed him to provide a written response to the complaint. The Respondent failed to respond to the Disciplinary Administrator’s requests for a response. Eventually, in May, 2006, the Respondent provided a written response to the complaint. “DA9897 “3. On February 13, 2006, the Disciplinary Administrator received a copy of an order from the United States Court of Appeals for the 10th Circuit. The Disciplinary Administrator docketed the order as a complaint. “4. In the order, the Court provided as follows: ‘This matter is before the court following issuance of an order on December 20, 2005 striking attorney Richard E. Jones from appeal number 05-311, United States v. Kevin Leroy McLaughlin, and referring attorney Jones to the court’s, attorney discipline program. ‘In appeal number 05-3111, Mr. Jones failed to file the preliminary appellate documents, failed to respond to an order of this court directing him to show cause why he should not be stricken from the appeal and referred to the court’s attorney discipline program. ‘Therefore, on or before February 28, 2006, Mr. Jones shall show cause in writing why he should not be sanctioned or otherwise disciplined for his failure to zealously represent his client. See 10th Cir. R. 46.6(C); see also, Addendum III, Plan for Attorney Disciplinary Enforcement, Sections 2.3 and 4.2. Failure to respond may warrant imposition of immediate disciplinary action. A copy of the court’s Plan for Attorney Disciplinary Enforcement is enclosed with this order.’ “5. On March 2, 2006, the Disciplinary Administrator sent the Respondent a copy of the order forwarded by tire 10th Circuit Court. The Disciplinary Administrator directed the Respondent to respond by providing the status of the matter and a copy of documentation to establish that the issue with the 10th Circuit Court had been resolved. The Respondent failed to respond to the Disciplinary Administrator. “6. Eventually, on July 12, 2006, the Respondent provided a written response regarding the 10th Circuit Court’s order. In his response, the Respondent admitted to failing to timely file required documents with the 10th Circuit Court. “7. On November 3, 2006, the 10th Circuit Court indefinitely suspended the Respondent from practicing before its Court. “DA10065 “8. In early 2004, Janelle L. Grubbs retained the Respondent to file a paternity action. On February 24, 2004, the Respondent filed a Petition to Determine Parentage for Ms. Grubbs. “9. Initially, the Respondent communicated with his client and with the alleged father, Dorian Ingram. “10. On October 20, 2004, the Court set the case for hearing. The hearing on the petition was scheduled for November 9, 2004. On that date, the Respondent failed to appear, Ms. Grubbs failed to appear, and Mr. Ingram failed to appear. Because no one appeared, the Court dismissed the case for a lack of prosecution. “11. In May, 2005, Mr. Ingram filed a motion to enforce parenting time. At a hearing on his motion, Mr. Ingram admitted paternity. Thereafter, Ms. Grubbs repeatedly attempted to contact the Respondent regarding child support. The Respondent failed to return Ms. Grubbs’ telephone calls. “12. Eventually, in January, 2007, Ms. Grubbs hired another attorney and resolved the matter of child support. “DA10117 “13. Linda Scanland retained the Respondent to file suit in her behalf as a result of a car accident. While in the process of settling the case with the insurance carrier and to protect against the running of the statute of hmitations, the Respondent filed suit on October 13, 2005, in behalf of Ms. Scanland. “14. The Respondent failed to obtain service of process and, on February 2, 2006, the Court issued a ‘Notice for Further Action or Dismissal.’ In the notice, the Court stated: ‘The Court file reflects no activity on this case since the Summons Returns filed November 2, 2005 indicating “. . . [sic] no service”. Unless the Court is contacted by plaintiff with a satisfactory explanation, this case will be dismissed on March 10, 2006 without further notice.’ The Respondent failed to take any action, and on March 13, 2006, the Court dismissed the case. “15. However, one week later, and after the Respondent filed a request for an alias summons to be issued, the Court reinstated the case. “16. It appears that the Respondent was able to effect service on the defendant. However, service was not made timely and counsel for the defendant filed a motion to dismiss. The Respondent failed to respond to the motion to dismiss. Thereafter, the Court granted the defendant’s motion to dismiss and the case was again dismissed. The Respondent failed to appeal the dismissal of Ms. Scanland’s case. “17. On January 5, 2007, the Respondent wrote to Ms. Scanland and informed her that he failed her. While he did not specifically state that her case had been dismissed, he told her that he is responsible for her not receiving the settlement offer. “DA10146 “18. On Februaiy 19,2007, Victor Torres filed a complaint with the Disciplinary Administrator. The Respondent had previously been appointed to represent Mr. Torres in a criminal case pending before the Shawnee County District Court. “19. The Disciplinary Administrator wrote to the Respondent and directed him to provide a written response to the complaint. Additionally, the attorney investigator wrote to the Respondent and directed him to provide a written response to the complaint. The Respondent never provided a written response to the complaint. “CONCLUSIONS OF LAW “1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.4(c), and Kan. Sup. Ct. R. 207(b), as detailed below. “2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent failed to competently represent Ms. Scanland when he failed to exercise the thoroughness necessary to obtain service of process with the statutory time period. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1. “3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Mr. McLaughlin, Ms. Grubbs, and Ms. Scanland when he failed to diligently advance their cases. Because the Respondent faded to act with reasonable diligence and promptness in representing Mr. Laughlin, Ms. Grubbs, and Ms. Scanland, the Hearing Panel concludes that the Respondent violated KRPC 1.3. “4. KRPC 1.4(a) provides that‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, tihe Respondent violated KRPC 1.4(a) when he failed to keep Ms. Grubbs reasonably informed regarding the paternity action. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a). “5. ‘A lawyer shall not . . . knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.’ KRPC 3.4(c). In this case, the Respondent failed to comply with an order of the 10th Circuit Court. As such, the Hearing Panel concludes that the Respondent violated KRPC 3.4(c). “6. Lawyers must cooperate in disciplinary investigations. Kan. Sup. Ct. R. 207(b) provides the requirement in this regard: ‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinmy Administrator any information he or she may have affecting such matters.’ [2007 Kan. Ct. R. Annot. 288.] The Respondent knew that he was required to forward a written response to the initial complaint filed by Mr. Elnicki, the 10th Circuit Court, and Mr. Torres— he had been instructed to do so in writing by the Disciplinary Administrator and by the attorney investigator. Because the Respondent failed to provide a timely written response to the initial complaints filed by Mr. Elnicki and the 10th Circuit Court and because the Respondent faded to respond to Mr. Torres’ complaint, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 207(b).” HEARING PANEL'S FINDINGS AND CONCLUSIONS In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003); see also Supreme Court Rule 211(f) (2007 Kan. Ct. R. Annot. 304) (misconduct to be established by clear and convincing evidence). Here, Respondent stipulated to the factual allegations contained in the formal complaint and the disciplinary rules violations charged therein. Additionally, he filed no exceptions, the results of which render the final hearing report to be deemed admitted. See Supreme Court Rule 212(c) (2007 Kan. Ct. R. Annot. 317). We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law, and we adopt the panel’s findings and conclusions. HEARING PANEL'S RECOMMENDED DISCIPLINE Factors In making its recommendations for discipline, the hearing panel considered the following factors outlined by the American Bar Association’s Standards for Imposing Lawyer Sanctions: “Duty Violated. The Respondent violated his duty to his clients to provide competent and diligent representation and reasonable communication. The Respondent violated his duty to the legal system to comply with the orders of the Court. Finally, the Respondent violated his duty to the legal profession to cooperate in disciplinary investigations. “Mental State. The Respondent knowingly violated his duties. “Injury. As a result of the Respondent’s misconduct, the Respondent caused potential injury to his clients, the legal system, and the legal profession. “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: “A Pattern of Misconduct. Included in this case are five complaints. Some of the complaints involve similar misconduct. Accordingly, the Respondent engaged in a pattern of misconduct. “Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.4(c), and Kan. Sup. Ct. R. 207(b). As such, the Respondent committed multiple offenses. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1973. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for more than thirty years. Accordingly, the Hearing Panel concludes that die Respondent had substantial experience in the practice of law at the time he engaged in the misconduct. “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 tire following mitigating circumstances present: “Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined. “Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case. “Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. The Respondent suffers from depression. The Respondent’s depression contributed to the violations of tire Kansas Rules of Professional Conduct. “Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct. The Respondent has begun making restitution to Ms. Scanland. The Respondent has promised to malee complete restitution to Ms. Scanland. “The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fully cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct. “Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of the bar in Topeka, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by several letters received by the Hearing Panel. “Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse. “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.’ Standard 4.42. ‘Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.’ Standard 4.43. ‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.2. ‘Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.3.” Recommended Sanction After considering the foregoing factors, the panel made the following recommendations for the sanction to be imposed upon the Respondent: “The Disciplinary Administrator and the Respondent jointly recommended that the Respondent be placed on probation pursuant to the terms and conditions contained in the Respondent’s plan. “The Kansas Supreme Court adopted a rule which dictates the procedure to follow when a Respondent requests probation: ‘(g) Requirements of Probation (1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court. (2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan. (3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless: (i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint; (ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan; (in) the misconduct can be corrected by probation; and (iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’ Kan. Sup. Ct. R. 211(g). “It appears that the Respondent has fully complied with Kan. Sup. Ct. R. 211(g). The Respondent’s plan is workable, substantial, and detailed. The plan of probation contains adequate safeguards that will protect the public and will ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court. Additionally, the Respondent properly distributed the plan of probation to the Hearing Panel and the Disciplinary Administrator and tire Respondent put the plan of probation into effect. Further, the misconduct committed by the Respondent can be corrected by probation. Finally, placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas. “Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent’s license [to] practice law in the State of Kansas be suspended for a period of six months but that the suspension be stayed and the Respondent be placed on probation for a period of 2 years subject to the terms and conditions detailed below: “1. Psychological Treatment. The Respondent shall continue his treatment for depression with William Albott, Ph.D., throughout the period of supervised probation unless, in Dr. Albott’s opinion, continued treatment is no longer necessary. The Respondent shall comply with recommendations made by Dr. Albott. Dr. Albott shall notify the Disciplinaiy Administrator’s office in the event that the Respondent discontinues treatment against his recommendation during the probationary period. On a quarterly basis throughout the period of probation, Dr. Albott shall provide the Disciplinary Administrator and the practice supervisor with a report regarding the Respondent’s progress in therapy. The reports are to be provided January 1, April 1, July 1, and October 1, of each year during the period of probation. The Respondent shall maintain a current release of information to allow Dr. Albott to provide such information to the Disciplinary Administrator and to the practice supervisor. “2. Practice Supervision. The Respondent’s practice will be supervised by John J. Ambrosio, Attorney at Law, of Topeka, Kansas. Mr. Ambrosio shall be acting as an officer and agent of the Court as supervisor of probation in monitoring the Respondent’s practice. The Respondent shall allow Mr. Ambrosio access to his files, his employees, his trust account, and his doctors. Mr. Ambrosio shall monitor the following: the status of each case on the Respondent’s case list, the Respondent’s docketing system, the Respondent’s management of discovery, and the views of the local judges regarding their evaluation of tire Respondent’s performance. “3. Weekly Meetings. During the first year of probation, the Respondent shall meet with Mr. Ambrosio weekly. During the second year of probation, the Respondent shall meet with Mr. Ambrosio at least monthly. Additionally, Mr. Ambrosio shall be available to the Respondent by telephone for additional consultations. During the Respondent’s meetings with Mr. Ambrosio, the Respondent shall disclose the status of his pending cases and, specifically, whether he has failed to timely respond to requests for discovery, to motions to compel, or to orders to show cause. “4. Quarterly Reports. Every quarter, the Respondent shall provide a written report to Mr. Ambrosio regarding the status of each of the Respondent’s cases. The report shall include a current case list which shall identify each case byname, set forth all deadlines scheduled by the court, a statement regarding whether each deadline was met, and an explanation if a continuance was requested. In the event a deadline is missed, the Respondent and Mr. Ambrosio shall immediately report the missed deadline to tire Disciplinary Administrator. Every quarter, Mr. Ambrosio shall provide a written report to the Disciplinary Administrator regarding the Respondent’s compliance with tire terms of probation. The reports are to be provided January 1, April 1, July 1, and October 1, of each year during the period of probation. “5. Calendar. The Respondent shall maintain a comprehensive calendar of court appearances, discovery deadlines, and other pleading deadlines. The Respondent shall allow Mr. Ambrosio access to the calender to review the entries. “6. Limitation of Practice. The Respondent shall not accept any case that he does not have the time, resources, or competence to handle. “7. Communication. The Respondent shall make every effort to return telephone calls within two business days of receipt. “8. Continued Cooperation. The Respondent shall continue to cooperate with the Disciplinary Administrator. If the Disciplinary Administrator requests any additional information, the Respondent shall timely provide such information. “9. Restitution. The Respondent shall complete making restitution to Ms. Scan-land and shall provide proof that complete restitution has been made to Mr. Ambrosio and the Disciplinary Administrator by December 31, 2008. “10. Additional Violations. The Respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the Respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the Respondent and Mr. Ambrosio shall immediately report such violation to the Disciplinary Administrator. The Disciplinary Administrator shall take immediate action directing the Respondent to show cause why the probation should not be revoked. “Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.” DISCIPLINE IMPOSED As noted, the hearing panel unanimously recommends that Respondent be suspended from the practice of law for 6 months but that the suspension be stayed and the Respondent be placed on probation for a period of 2 years. Although the Deputy Disciplinary Administrator agrees with the panel’s recommendation, we are not constrained by the recommendations of either the panel or the Disciplinary Administrator as to the sanction to be imposed. Supreme Court Rule 212(f) (2007 Kan. Ct. R. Annot. 317-18) (sanction recommendations are “advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended.”). After consideration of all of the factors, including Respondent’s compliance to date with the terms and conditions of his probation, a majority of the court accepts the hearing panel’s recommendation. A minority of the court would impose a more severe discipline. It Is Therefore Ordered that Richard E. Jones be suspended from the practice of law in the state of Kansas for a period of 6 months but that the imposition of discipline be suspended and that Richard E. Jones be placed on probation for a period of 2 years from the date this opinion is filed under the terms and conditions set forth above in the hearing panel’s recommendations. It Is Further Ordered that if Richard E. Jones fails to abide by the terms and conditions of his probation, a show cause order shall issue to the Respondent, and this court will take whatever disciplinary action appears just and proper without further formal proceedings. It Is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein are assessed against the Respondent. Luckert, J., not participating. Hill, J., assigned.
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Per Curiam-. This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against Respondent, Bobby Lee Thomas, Jr., an Olathe attorney licensed to practice law in Kansas since September 2000. The alleged misconduct arises from seven complaints, DA10127, DA10143, DA10144, DA10163, DA10178, DA10198, and DA10242. In September 2007, the Disciplinary Administrator filed a formal complaint. A second formal complaint was filed in November 2007. Respondent answered, admitting most of the factual allegations. Respondent also proposed a probation plan. On November 14, 2007, a hearing on the formal complaint was held before a hearing panel of the Kansas Board for Discipline of Attorneys. At the hearing, Respondent stipulated to the facts and rule violations alleged in the formal complaints. Accordingly, the hearing panel concluded as a matter of law that Respondent violated seven rules of professional conduct: KRPC 1.1 (2007 Kan. Ct. R. Annot. 384) (competent representation); KRPC 1.3 (2007 Kan. Ct. R. Annot. 398) (diligence and promptness); KRPC 1.4(a) (2007 Kan. Ct. R. Annot. 413) (communication); KRPC 1.16(d) (2007 Kan. Ct. R. Annot. 487) (terminating representation); KRPC 3.2 (2007 Kan. Ct. R. Annot. 503) (expediting litigation); KRPC 3.4(c) (2007 Kan. Ct. R. Annot. 514) (fairness to opposing party and counsel); and KRPC 8.4(d) (2007 Kan. Ct. R. Annot. 559) (conduct prejudicial to the administration of justice). In addition, the panel concluded that Respondent violated Kansas Supreme Court Rule 207(b) (failure to cooperate in the disciplinary investigation) (2007 Kan. Ct. R. Annot. 288) and Rule 211(b) (failure to respond to the formal complaint) (2007 Kan. Ct. R. Annot. 304). DA10127 - Complaint of J.A. In March 2005, the Johnson County District Attorney charged J.A. with two counts of theft, one count of possession of marijuana, and one count of possession of a firearm. In April 2005, J.A. retained Respondent to represent him in the criminal case. In March 2006, Respondent and the prosecutor entered into a stipulation regarding the facts. After a bench trial, the trial court found J.A. guilty of all four charges. On May 3, 2006, the court sentenced J.A. On May 5,2006, Respondent timely filed a notice of appeal and, thereafter, timely docketed the appeal with the Kansas Court of Appeals. Respondent’s brief was originally due on August 7, 2006. On November 20, 2006, the Court of Appeals granted Respondent’s fourth motion for an extension of time to file a brief. The court ordered Respondent to file the brief on or before December 6, 2006. The court stated that no further extensions would be granted. On December 6, 2006, Respondent filed a fifth motion for an extension of time. On December 19, 2006, the Court of Appeals removed Respondent as counsel and directed the Johnson County District Court to appoint an attorney for J.A. In the order, the court stated: “Mr. Thomas has a history of filing pleadings out of time without providing adequate justification for the delays. He is accordingly dismissed from this appeal.” The Johnson County District Court appointed another attorney, Brian C. Paden. On January 17, 2007, despite the fact that he had been removed as counsel for J.A., Respondent filed an appellate brief on J.A.’s behalf. The Court of Appeals reinstated Respondent, accepted the brief, and directed that Paden remain as cocounsel. DA10143 - Complaint of KK K.K. retained Respondent to represent him in a civil case filed in the Johnson County District Court, case number 04CV5176. During the course of the representation, Respondent failed to keep K.K. informed about the representation. K.K. sent Respondent many letters requesting information regarding the representation. Respondent failed to respond to K.K.’s letters. On November 30, 2005, Respondent filed a motion to withdraw from his representation of K.K. However, Respondent failed to provide K.K. with notice that he was seeking to withdraw from the representation. On December 31, 2006, K.K. fired Respondent. K.K. filed a complaint regarding Respondent with the Disciplinary Administrator’s office. Nancy Wilson was appointed to investigate K.K.’s complaint. Respondent failed to provide a written response to the complaint. Additionally, Respondent failed to cooperate with Wilson’s investigation. DA10144 - Complaint of J.L. On July 24, 2006, the Johnson County District Court appointed Respondent to represent J.L. in an appeal before the Kansas Court of Appeals. On December 8, 2006, the Court of Appeals granted Respondent’s fourth motion for an extension of time to file his brief. The court ordered Respondent to file the brief by December 27,2006. The court made it clear that it would not grant any additional extensions of time and that failure to file a brief would result in dismissal without further notice. Respondent failed to file a brief on behalf of J.L. by December 27, 2006. As a result, on January 16, 2007, the court issued an order and directed that Respondent file a brief by February 6, 2007, or the appeal would be dismissed. Respondent did not file a brief by February 6, 2007. On February 12,2007, the court issued a second order, removed Respondent as counsel for J.L., and directed the district court to appoint new counsel. The Court of Appeals noted: “Mr. Thomas has a history of failing to comply with orders of this court. He has apparently abandoned his representation of his client in this appeal.” DA10163 - Complaint ofT.B.-P. T.B.-P. retained Respondent to represent her in a direct appeal of her conviction for first-degree murder. Respondent represented her and provided her with adequate representation. Later, T.B.-P. retained Respondent to file a motion pursuant to K.S.A. 60-1507. On September 29, 2006, Respondent filed a motion on behalf ofT.B.-P. After filing the motion pursuant to K.S.A. 60-1507, Respondent failed to respond to letters and answer telephone calls from T.B.-P. Additionally, after filing the motion, Respondent took no action to prosecute the motion. On March 9,2007, T.B.-P. filed a complaint against Respondent with the Disciplinary Administrator s office. Nancy Wilson was appointed to investigate the complaint. Respondent failed to provide a written response to the complaint and otherwise failed to cooperate with the disciplinaiy investigation. DA10178 - Complaint ofD.D. Respondent represented D.D. in his appeal of a criminal conviction before the Kansas Court of Appeals. Respondent docketed the appeal out of time. The court initially directed that Respondent file his brief by July 24, 2006, but he failed to do so. Thereaftér, on August 8, 2006, the court directed Respondent to file a brief by August 29, 2006. Respondent filed a motion for additional time. The court granted his motion and directed that he file the brief by September 28, 2006. On September 29, 2006, Respondent filed an untimely second motion for additional time to file the brief. The court granted Re spondent’s second motion and directed that he file the brief by November 29, 2006. On November 29, 2006, Respondent filed a third motion for additional time to file the brief. He explained that he needed additional time because he was working on four other appellate cases. On December 19, 2006, the court denied Respondent’s motion and stated, “Mr. Thomas has a history of filing pleadings out of time without providing adequate justification for the delays.” Accordingly, the court removed Respondent as attorney for D.D. and remanded the case to the district court for the appointment of new appellate counsel. On January 5, 2007, the district court appointed Adrian Gilby to represent D.D. The Court of Appeals directed Gilby to file a brief on behalf of D.D. by February 12, 2007. On February 9, 2007, Gilby filed a motion for additional time to file the brief stating that Respondent had refused to provide D.D.’s file and transcripts of the case without a signed waiver from D.D. The court then directed Gilby to file a brief on behalf of D.D. by March 14, 2007. On March 13, 2007, Gilby filed a motion asking for a stay of the briefing schedule, repeating that even though D.D. had provided a signed waiver, Respondent continued to refuse to provide D.D.’s file and transcripts. The court then issued a show cause order on March 28, 2007, which provided as follows: “The appellant was sentenced on September 15, 2005. Due to delays by trial and appellate counsel, whether appointed or retained, this appeal has not yet reached the briefing stage. It appears from the pleadings that Bob L. Thomas continues to obstruct access to appellate review for his former client. Bob L. Thomas is ordered to show cause by written response to be filed on or before April 11, 2007, why this court should not impose sanctions on him for failing to comply with orders of this court and for hindering his former client’s access to the courts.” Respondent never responded to the court’s order to show cause. In April 2007, the Disciplinary Administrator received information from the Court of Appeals regarding Respondent’s representation of D.D. As a result, the Disciplinary Administrator dock eted a complaint against Respondent. On April 4, 2007, the Disciplinary Administrator wrote to him and directed that he provide a written response. Respondent failed to provide a written response to the initial complaint as directed. Terry L. Morgan, Special Investigator with the Disciplinary Administrator’s office, was assigned to investigate the matter. Respondent failed to respond to repeated inquiries made by Morgan regarding the complaint. DA10198 - Complaint of C.B. C.B. retained Respondent to represent him in a criminal case. Following C.B.’s conviction, Respondent filed a timely notice of appeal on November 15, 2005. Thereafter, however, he failed to timely docket the appeal. Eventually, on May 24, 2006, Respondent filed a motion to docket the appeal out of time. The Court of Appeals granted Respondent’s request to docket the appeal out of time. However, in so doing, the court issued an order to show cause why he should not be dismissed as appellate counsel because of his inability to manage his practice. On June 21, 2006, Respondent responded to the court’s order. In a later order, the court stated that Respondent “assured this court that he had recovered from a medical condition that had hindered his practice of law and that he had ‘already briefed and researched the issues relevant to the appeal.’ He informed the court that he was simply waiting on a copy of the transcripts to complete the Appellant’s brief.” Based upon Respondent’s assurances, the Court of Appeals elected to allow him to proceed as counsel for C.B. Despite Respondent’s assurances, he failed to file the brief on behalf of C.B. On April 19,2007, the court dismissed C.B.’s appeal. Because Respondent was retained counsel, the court refused to remand for new counsel to be appointed. The court also ordered Respondent to notify his client in writing that the appeal had been dismissed and to file a copy of the notice to his client with the court by May 3, 2007. Respondent failed to do so. In April 2007, the Disciplinary Administrator’s office docketed a complaint against Respondent regarding his representation of C.B. before the Court of Appeals. The Disciplinary Administrator directed Respondent to provide a written response. He failed to do so. Thereafter, Investigator Morgan was assigned to investigate the complaint. Respondent completely failed to comply with Morgan’s investigation. DA10242 - Complaint of R.J. In 2005, Respondent was appointed to represent R.J. in an appeal of a denial of a motion filed pursuant to K.S.A. 60-1507. On September 27, 2006, Respondent filed a notice of appeal. Thereafter, on October 5, 2006, Respondent wrote to his client and enclosed a copy of the notice. Respondent informed R.J. that he would be preparing a docketing statement. Respondent, however, failed to timely file one. On June 20, 2007, R.J. filed a complaint against Respondent for failure to take any action to further the appeal after Respondent filed the notice of appeal. Investigator Morgan, again, was assigned to investigate the complaint. Respondent again failed to provide a written response to the initial complaint and to cooperate in the investigation. Because of Respondent’s stipulations, the hearing panel concluded that he violated the Rules as detailed below. Lawyers must provide competent representation to their clients. KRPC 1.1. KRPC 1.1 states: “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Respondent failed to competently represent J.A., T.B.-P., D.D., and C.B. when he failed to exercise proper thoroughness and preparation reasonably necessary for die representations. Accordingly, the hearing panel concluded that Respondent repeatedly violated KRPC 1.1. Attorneys must act with reasonable diligence and promptness in representing their clients. KRPC 1.3. Respondent failed to provide diligent representation to J.A., J.L., T.B.-P., D.D., C.B., and R.J. when he failed to timely prosecute their motions and appeals. Because Respondent failed to act with reasonable diligence and promptness in representing his clients, the hearing panel concluded that Respondent repeatedly violated KRPC 1.3. KRPC 1.4(a) provides that “[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” Respondent failed to provide adequate information to K.K., T.B.-P., and R.J. Accordingly, the hearing panel concluded that Respondent also violated KRPC 1.4(a). 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.” 2007 Kan. Ct. R. Annot. 488. Respondent failed to advise K.K. that he filed a motion to withdraw from the representation. Additionally, Respondent abandoned his representation of j.L. before the Court of Appeals. Because Respondent failed to take reasonable steps to protect the interests of his clients, the hearing panel concluded that Respondent violated KRPC 1.16(d). An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. Respondent failed to expedite the appeals of J.A., D.D., and C.B. Accordingly, the hearing panel concluded that Respondent violated KRPC 3.2. KRPC 3.4(c) provides that “[a] lawyer shall not: . . . knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” 2007 Kan. Ct. R. Annot. 514. Respondent failed to respond to the March 28, 2007, order to show cause in D.D.’s case and failed to comply with the court’s order to inform C.B. in writing that his appeal had been dismissed. As such, the hearing panel concluded that Respondent violated KRPC 3.4(c) in two separate cases. KRPC 8.4(d) provides that “[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.” 2007 Kan. Ct. R. Annot. 559. Respondent prejudiced justice when he caused such extreme delay in J.A.’s case that the court appointed another attorney to represent J.A. and when he took no action to represent T.B.-P. after filing the motion pursuant to K.S.A. 60-1507. As such, the hearing panel concluded that Respondent violated KRPC 8.4(d). Lawyers must cooperate in disciplinary investigations; Kansas Supreme Court Rule 207(b) provides: “It shall be the duly of each member of the bar of this state to aid the Supreme Court, tire Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.” 2007 Kan. Ct. R. Annot. 288. Respondent knew that he was required to forward a written response to the initial complaints filed regarding his representation of K.K., J.L., T.B.-P., C.B. and R.J. because he had been instructed to do so in writing by the Disciplinary Administrator and by the investigators. Because Respondent knowingly failed to provide written responses to the initial complaints as requested, the hearing panel concluded that he violated Kansas Supreme Court Rule 207(b). Attorneys must file answers to formal complaints; Kansas Supreme Court Rule 211(b) provides: “The Respondent shall serve an answer upon tire Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.” 2007 Kan. Ct. R. Annot. 305. Because Respondent failed to file a timely written answer to the formal complaint, the panel concluded that he violated Kansas Supreme Court Rule 211(b). In maldng its recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions, stating: “Duty Violated. The Respondent violated his duty to his client to provide competent and diligent representation and adequate communication. Additionally, the Respondent violated his duty to the legal system to refrain from action which impedes justice. Finally, the Respondent violated his duty to the legal profession to cooperate in disciplinary investigations. "Mental State. The Respondent knowingly violated his duties. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to his clients, to the legal system, and to the legal profession.” The hearing panel found the following aggravating factors present: “A Pattern of Misconduct. Included in this case are seven complaints. The complaints involve similar misconduct. Accordingly, the Respondent engaged in a pattern of misconduct. “Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 3.2, KRPC 3.4(c), KRPC 8.4(d), Kan. Sup. Ct. R. 207(b), and Kan. Sup. Ct. R. 211(b). As such, the Respondent committed multiple offenses. “Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent knew that he was required to provide written responses to all of the complaints. The Respondent failed to do so in five of the seven cases. Investigator Morgan attempted on many occasions to contact the Respondent. The Respondent never made [contact] with Investigator Morgan. The hearing panel, therefore, conclude[d] that the Respondent engaged in a bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary process.” In reaching its recommendation for discipline, the hearing panel found the following mitigating circumstances present: “Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined. “Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness do not appear to be motivating factors in this case. “Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. The Respondent is an alcoholic and suffers from depression and anxiety. At the hearing on this matter, the Respondent testified that he had been sober for two weeks. Although the evidence was limited, it appears that the Respondent’s personal and emotional problems may have contributed to the violations of the rules. “The Present Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. At the hearing, the Respondent acknowledged the wrongful nature of his conduct, stipulated to the facts alleged in the Formal Complaint, and stipulated to the rule violations alleged in the Formal Complaint. “Inexperience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 2000. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of six years. Accordingly, the hearing panel concludes that Respondent was inexperienced in the practice of law at the time he engaged in the misconduct. “Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of the bar in Johnson County, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel. “Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.” In addition to the above-cited factors, the hearing panel examined and considered the following Standards: Standard 4.42: “Suspension is generally appropriate when: ‘(a) a lawyer knowingly fails to perform services for a client and causes injuiy or potential injury to a client; or ‘(b) a lawyer engages in a pattern of neglect and causes injuiy or potential injuiy to a client.’ ” Standard 6.22: “Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injuiy or potential injury to a client or a party, or interference or potential interference with a legal proceeding.” Standard 7.2: “Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injuiy to a client, the public, or the legal system.” The Disciplinary Administrator recommended that Respondent be indefinitely suspended from the practice of law in the State of Kansas. Respondent recommended that he be placed on probation. The panel determined that in order to recommend that a respondent be placed on probation, it must make specific findings. Therefore, it looked to Kansas Supreme Court Rule 211(g) (2007 Kan. Ct. R. Annot. 304) which dictates the procedure to follow when a respondent requests probation: “(g) Requirements of Probation ‘(1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and de tailed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court. ‘(2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan. ‘(3) The Heating Panel shall not recommend that the Respondent be placed on probation unless: (i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint; (ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan; (iii) the misconduct can be corrected by probation; and (iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’ ” 2007 Kan. Ct. R. Annot. 306-07. The hearing panel noted that based upon the letters submitted from members of the criminal defense bar in Johnson County, Kansas, it appears that Respondent did a fine job for his clients until he ran into difficulties with alcohol abuse, depression, and anxiety. The panel noted that it would like to see Respondent return to the criminal defense practice; however, the hearing panel concluded that Respondent is not fit to practice law at this time. The panel determined that it is not in the best interests of the legal profession and the citizens of the state of Kansas for Respondent to be placed on probation and suggested that Respondent cease practicing law until such time as he has achieved a sustained period of sobriety and has received sufficient treatment for depression and anxiety. Therefore, the hearing panel recommended to the court that Respondent be suspended for a period of 6 months; that following the 6-month suspension, Respondent file a petition for reinstatement setting forth any relevant facts and evidence establishing that he is fit to resume the practice of law. The hearing panel further recommended that the court order Respondent to appear before a hearing panel of the Kansas Board for Discipline of Attorneys for the purpose of presenting evidence concerning his petition for reinstatement. In the event Respondent establishes that he is fit and that he has established sufficient safeguards to prevent the recurrence of the original misconduct, the hearing panel recommended that the reinstatement hearing panel entertain Respondent’s plan of probation and then consider placing Respondent on probation for a period of 4 or 5 years. Because Respondent filed no exceptions to the panel’s report, we adopt the hearing panel’s findings of fact and its conclusions of law. Further, we agree with the panel’s recommended discipline of suspension from the practice of law in the state of Kansas for a period of 6 months. It Is Therefore Ordered that Bobby Lee Thomas, Jr. be and he is hereby suspended from the practice of law in the state of Kansas for a period of 6 months from the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2007 Kan. Ct. R. Annot. 261). It Is Further Ordered that Respondent comply with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337) and that Respondent shall not engage in the practice of law until such time as Respondent is reinstated pursuant to Supreme Court Rule 219 as amended effective July 23, 2008 (see 2008 Kan. Ct. R. Annot. 365). It Is Further Ordered that the costs of these proceedings be assessed to Respondent and that this order be published in the official Kansas Reports.
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The opinion of the court was delivered by Beier, J.: This appeal requires us to decide the propriety of the district court’s dismissal of plaintiff Mary Rector’s lawsuit against her defendant siblings to enforce the terms of a mediated settlement agreement. The handwritten agreement at issue — evidently arrived at in hope of resolving several ongoing disputes among Rector and her brother, Clifford Tatham, and her sisters, Patricia Disque and Ruth Strickland, regarding their mother s care and assets, including competing actions for guardianship and conservatorship — stated in pertinent part: “3. [Plaintiff] agrees to purchase the home from her mother for $89,000. [Plaintiff] will assume the existing mortgage and pay her mother $42,900. If [plaintiff cannot] raise the $42,900, the home will be placed on the market and sold. The [proceeds] of sale will be held for [mother]. “4. [The parties agree] that the personal property will be sold. Costs of the appraisal and sale will be deducted from the sale of the personal property. The means of the sale will be by auction. . . . “5. The parties agree that they will request the court to appoint Mike Davies as conservator of the assets of [mother]. The parties agree to petition to terminate the conservatorship once the assets have been collected and accounting has been made. “6. The parties agree that the conservatorship and its successor arrangement will provide that in the event [mother] dies and funds remain, that the remaining balance will be payable on death to [plaintiff].” The agreement was signed by all of the parties except Strickland on January 31, 2003. Strickland is now deceased. After the parties’ mother died in August 2003, the approximately $50,000 left in the conservatorship was distributed evenly among the siblings per their mother’s will. The will is not included in the record before us in this action. Rector then launched this action, alleging entitlement to the amounts distributed to her siblings. The defendants filed a motion to dismiss for failure to state a claim, arguing that K.S.A. 59-2249(a) permitted only three ways to distribute a decedent’s estate: by will, by intestate succession, or by valid K.S.A. 59-102(8) settlement agreement. The January 31, 2003, agreement, in their view, did not meet the statutory requirements of a K.S.A. 59-102(8) settlement agreement and thus was unenforceable. Rector’s response to the motion to dismiss claimed that all parties had asked the district court judge to approve and incorporate the agreement into the guardianship and conservatorship proceedings then before the court. She also asserted that she had performed all of her obligations under the agreement, including “conveying, by quit-claim deed, her Vz interest in her homestead to [mother], representing an estimated $45,000.” Rector also stated that she had never alleged the agreement qualified as a valid settlement agreement under K.S.A. 59-102(8). The district court judge granted the motion to dismiss, stating: “This agreement, if it is not, as plaintiff asserts, a settlement agreement under K.S.A. 59-102(8), attempts to bind parties to act in a manner contrary to Kansas law.” A panel of our Court of Appeals reversed the district court. In the panel’s view, dismissal was error because Rector’s petition could state a claim for assignment of an expectancy interest or for promissory estoppel. The panel rejected Rector’s joint tenancy and incorporation arguments. We granted the defendants’ petition for review of the reversal and remand on the assignment of expectancy interest and promissory estoppel theories. The parties agree on our standard of review. When a district court has granted a motion to dismiss for failure to state a claim, an appellate court must accept the facts alleged by the plaintiff as true, along with any inferences that can reasonably be drawn therefrom. The appellate court then decides whether those facts and inferences state a claim based on plaintiff s theory or any other possible theory. If so, the dismissal by the district court must be reversed. Nungesser v. Bryant, 283 Kan. 550, 559, 153 P.3d 1277 (2007). In addition, we have observed that factual disputes cannot be resolved or decided on a motion to dismiss for failure to state a claim. Judicial skepticism must be exercised when the motion is made before the completion of discovery. Under Kansas’ notice pleading, the petition is not intended to govern the entire course of the case. Rather, the ultimate decision as to the legal issues and theories on which the case will be decided is the pretrial order. Halley v. Barnabe, 271 Kan. 652, 656-57, 24 P.3d 140 (2001). A motion to dismiss typically is filed early in a case, when many of the facts have not yet been discovered and legal theories may be in flux. ARY Jewelers v. Krigel, 277 Kan. 27, 38, 82 P.3d 460 (2003). As defendants did before the district court and Court of Appeals, they initially assert that K.S.A. 59-2249(a) permits only three ways to distribute a decedent’s estate. The statute provides: “Upon settlement and allowance, the court shall determine the heirs, devisees and legatees entitled to the estate and assign it to them by its decree, pursuant to the terms of the will, the laws of intestate succession in effect on the date of the decedent's death or a valid settlement agreement. . . . The decree shall be binding as to all the estate of the decedent, whether specifically described in the proceedings or not.” Defendants cite one case to support this argument, In re Estate of Leathers, 19 Kan. App. 2d 803, 876 P.2d 619 (1994). In that brief opinion, a panel of our Court of Appeals considered a settlement agreement entered into after the death of a testator. They held that the agreement was unenforceable because it was not one of the three exclusive methods for distributing a decedent’s estate under K.S.A. 59-2249(a); it lacked the necessary formalities to qualify as a valid family settlement agreement under K.S.A. 59-102(8). Leathers, 19 Kan. App. 2d at 804. K.S.A. 59-102(8) defines a valid settlement agreement as ”a written and acknowledged instrument which affects the administration or distribution of the estate and which is entered into by all interested heirs, devisees, legatees and persons whose interests are affected by the settlement agreement, all of whom must be competent or authorized to enter into such agreement.” Defendants’ reading of K.S.A. 59-2249(a) and the Leathers case provide the foundation for their further assertion that the January 31,2003, agreement fails to meet the requirements of a valid agreement under K.S.A. 59-102(8). The agreement at issue here, they argue, purports to dispose of their mother’s assets on death, and one of her heirs did not sign it, and none of the signatories acknowledged it, both required formalities. The first problem with this argument is that it misses the point of Rector’s petition and ignores a pivotal factual distinction between this case and Leathers. Rector does not assert that the agreement signed by herself and two of her siblings on January 31,2003, is a valid family settlement agreement under K.S.A. 59-102(8); she does assert that it is an enforceable contract independent of its probate context. And, unlike the agreement at issue in Leathers, the agreement before us here was not entered into after the death of the testator; it was entered into months before the parties’ mother died. Rector may sue for what she regards as a breach of contract, specifically, the defendants’ failure to abide by their assignment of their expectancy interests, as long as such a cause of action is viable in Kansas. Defendants attempt to discount the precedential value of three cases cited by the Court of Appeals to support the continued existence of such a cause of action. In the first of the three cases, Clendening v. Wyatt, 54 Kan. 523, 38 Pac. 792 (1895), John Clendening and his wife assigned their expectancy interests in his mother’s estate to a third party in exchange for $2,500. This court held that an assignment of an expectancy interest is valid if the contract is fair, if adequate consideration is given, and if the contract is neither unconscionable nor induced by fraud. Clendening, 54 Kan. at 524-25. The second case, Knutson v. Hederstedt, 125 Kan. 312, 264 Pac. 41 (1928), expanded on the rule of Clendening to enforce an assignment of an expectancy interest in a contingent remainder. In Knutson, a father bequeathed certain land to his son, Carl. The father’s will stated that the land would pass to Carl’s children at the time of Carl’s death. If Carl died without children, the land would revert to the father’s heirs. Plaintiff Knut, the second son of the father, had assigned his interest in his potential inheritance to a third party. When Carl died without children and the land that had gone to him reverted to the father’s heirs, Knut argued that he had not assigned an expectancy interest. This court disagreed, holding that Knut could validly assign his interest in the contingent remainder from his father’s estate. Knutson, 125 Kan. at 313-318. The third case, Chatterton v. Clayton, 150 Kan. 525, 95 P.2d 340 (1939), began with a promissory note executed and delivered by O.M. Clayton and his wife to Herbert Miller. When Miller died, the administrator of his estate sought to garnish O.M.’s share of his father’s estate, which O.M. had assigned to Miller State Bank. The bank intervened in the garnishment proceeding, and we upheld a district court judgment in its favor. We stated broadly: “Any sort of right or interest in property, whether vested or contingent, may be the subject of barter and sale. [Citation omitted.] An expectancy is ordinarily assignable. [Citations omitted.] No particular form or mode of conveyance is necessary to effect a valid assignment, if the intent to transfer and make over to another certain property is clearly established.” Chatterton, 150 Kan. at 526. Defendants point out that these three cases dealt with fewer than all of the heirs of a testator and with assignments to third parties rather than assignments among heirs. These observations are accurate, but they do not undercut the general holdings of the cases. All three recognized the validity of assignments of expectancy interests and Kansas courts’ enforcement of them, as long as the assignments were fair, were supported by consideration, were not induced by fraud, and were clearly indicative of the intention of the parties. In short, Kansas follows the weight of authority in recognizing a cause of action based on an heir’s assignment of an expectancy interest. See 29 Williston on Contracts § 74:20 (4th ed. 2003). Two more recent cases from our Court of Appeals also lend peripheral support to our decision on this issue. These cases, Johnson v. Johnson, 26 Kan. App. 2d 321, 323, 988 P.2d 244 (1999); and Johnson v. Johnson, 7 Kan. App. 2d 538, 543, 645 P.2d 911, rev. denied 231 Kan. 800 (1982), recognized the controlling power of a settlement agreement over prior and subsequent trust provisions when the settlement agreement was entered into by the trust’s settlor before the settlor’s death. Here, the settlement agreement, allegedly including the assignment of defendants’ expectancies to Rector, was entered into before the death of the parties’ mother. We are also persuaded that such assignments may be effected among heirs. In this, we are supported by two cases from sister jurisdictions, one of which was cited by Rector, Dyblie v. Dyblie, 389 Ill. 326, 59 N.E.2d 657 (1945). In Dyblie, the Supreme Court of Illinois enforced an assignment from one brother to another of “an undivided one-half interest in and to the personal property to eveiy land whatsoever” that he would receive as an heir from their mother. Dyblie, 389 Ill. at 327. In Lena v. Yannelli, 78 N.J. Super. 257, 260, 188 A.2d 310 (1963), a New Jersey court upheld an assignment of a son’s expectancy interest in his mother’s estate to his sisters and brother. We have found no cases disallowing an assignment of an expectancy interest from one heir to another. Before we leave this issue, we note that defendants also assert that the legislature made a deliberate choice to change K.S.A. 59-2249(a) in 1985 to eliminate the theory of assignment of expectancies from Kansas law. We see nothing in the plain language of the statute to demonstrate this intention. And defendants direct us to no legislative history that does so. Rather, we rule today that such assignments remain possible within and outside of probate contexts. Obviously, today we do not decide the merits of Rector’s assignment claim. That decision must follow full factual development in the district court. We rule only that her petition stated a claim based on the assignment theory and that her lawsuit should not have been dismissed on the pleadings as a matter of law. Although defendants do not appear to dispute that the January 31, 2003, agreement was supported by adequate consideration, further proof and argument on this and other salient points of fact and law will now proceed. We also agree with the Court of Appeals panel that Rector’s lawsuit should have survived the defendants’ motion because of the potential for proof of promissory estoppel. “ ‘The doctrine of promissory estoppel may render enforceable any promise upon which the promisor intended, or should have known, that the promisee would act to his detriment, and which is indeed acted upon in such a manner by the promisee, where application of the statute of frauds to that promise would thus work a fraud or gross injustice upon the promisee.’ ” Bittel v. Farm Credit Svcs. of Central Kansas, P.C.A., 265 Kan. 651, 661, 962 P.2d 491 (1998) (quoting Decatur Cooperative Association v. Urban, 219 Kan. 171, Syl. ¶ 5, 547 P.2d 323 [1976]). Although the petition did not explicitly plead the applicability of this doctrine, Rector should have avoided dismissal on the chance that she may be able to meet her burden of proof on that theory. Finally, defendants also argue that Rector pursued only a breach of contract action in district court and thus should be foreclosed on appeal from arguing that the January 31, 2003, agreement constituted an assignment of expectancy interest or that she is deserving of relief under the doctrine of promissory estoppel. This argument is meritless when our standard of review after grant of a motion to dismiss is considered. As discussed above, the Court of Appeals, and now this court, must accept the facts as alleged by Rector and decide whether they could support any theory of recovery. If so, we are compelled to reverse the district court’s dismissal. We thus affirm the Court of Appeals and reverse the district court. This case is remanded to the district court for further proceedings consistent with this decision.
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The opinion of the court was delivered by Beier, J.: This appeal arises on petition for review of our Court of Appeals’ decision foreclosing a late appeal of sentence pursued by defendant Joshua Delore Patton. Patton seeks to take advantage of this court’s ruling in State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), through application of this court’s decision in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). Factual and Procedural Background Patton was originally charged with seven drug-related offenses. He secured retained counsel, and he agreed to plead guilty to one count of attempted manufacture of methamphetamine and one count of possession of anhydrous ammonia in an unapproved container. His plea agreement — signed by him, his lawyer, and an assistant county attorney — was filed March 3,2003, and included the following language: “The Defendant waives his right of appeal, and waives his right to file any motions under K.S.A. 60-1507 arising from this matter. . . . The Defendant agrees that he has read and understands the attached Waiver of Rights form and understands that the information contained therein is made a part of this agreement (that is incorporated by reference).” The Waiver of Rights form does not appear in the record on appeal. In exchange for Patton’s guilty pleas, the State dismissed the remaining five charges against him and agreed to recommend a downward durational departure sentence and to not oppose dis-positional departure to a nonprison sanction. At sentencing, the district court judge accepted the parties’joint recommendation of a downward durational departure but rejected Patton’s bid for a dispositional departure, noting that Patton had been unable to remain drug-free while on bond between the plea and sentencing hearings. The district judge told Patton that he had the right to appeal any of the judge’s rulings or findings, “specifically, in regards to finding against you on the dispositional departure.” The State did not object or otherwise attempt to correct this misstatement of Kansas law. See K.S.A. 21-4721 (denial of downward dispositional departure not among appealable sentences). No timely direct appeal was filed, although both Patton and his mother attempted to contact Patton’s lawyer to pursue one. In January 2004, this court issued its McAdam decision, holding that K.S.A. 65-4159(a) on unlawful manufacturing of a controlled substance, a severity level 1 felony, was identical to K.S.A. 65-4161(a) on unlawful compounding of a stimulant, a severity level 3 felony. Thus a defendant convicted of the greater offense can be sentenced only under the lesser penalty provision. Within weeks of the McAdam decision, Patton filed a motion to correct illegal sentence. The district court denied the motion after a hearing, and a panel of our Court of Appeals affirmed. No. 92,682, unpublished opinion filed May 13, 2005. Patton filed a petition for review of the Court of Appeals’ decision with this court. While the petition for review was pending, Patton filed a K.S.A. 60-1507 motion, alleging that his retained lawyer had provided ineffective assistance of counsel by failing to file a timely sentencing appeal. The district court dismissed the motion without prejudice, because Patton’s appeal on his motion to correct illegal sentence was not yet final. After the petition for review on the motion to correct illegal sentence had been disposed of, Patton again filed a K.S.A. 60-1507 motion. He renewed his argument on ineffective assistance of counsel and sought permission to file a late appeal on the McAdam sentencing issue under this court’s decision in Ortiz. The district judge held an Ortiz evidentiaiy hearing in December 2005. He heard testimony that Patton’s lawyer had faxed a letter to Patton’s mother on the last day for a timely appeal of Patton’s sentence, saying that he “had all the documents done to file the appeal,” that doing so was against his advice, but that the decision was up to her. Patton’s mother testified that the decision was not up to her, that it was up to her son, and that Patton had already told the lawyer repeatedly that he wished to appeal. The district judge ruled that Patton should be permitted to file an out-of-time appeal, because of the lawyer’s failure to abide by Patton’s wish to file an appeal. This action is that appeal. Patton challenges the severity level of the attempted manufacture crime and the sentencing judge’s denial of his motion for dispositional departure. The Court of Appeals’ panel hearing this appeal refused to order resentencing under McAdam. Although the appellate judges agreed with the district judge that the facts of this case fit one of the Ortiz exceptions that would ordinarily permit a late appeal, they concluded that they nevertheless lacked jurisdiction because Patton had waived his right to appeal as part of his plea agreement. Unless that plea agreement was set aside, the court said, it could not address the merits of Patton’s late appeal. “Where a defendant bargained with the State and knowingly and voluntarily agreed to waive his or her right to appeal, in exchange for a sentence reduction and dismissal of additional charges, the district court cannot ignore the waiver because it stands as a bar to the defendant filing an appeal unless the plea agreement is set aside.” State v. Patton, 37 Kan. App. 2d 166, Syl. ¶ 4, 150 P.3d 328 (2007). Patton made two arguments on his petition for review to this court. He first addressed the merits of the waiver argument, specifically whether it could defeat Ortiz application and cut off this late appeal. Patton asserted that the language in his plea agreement could not divest the appellate court of jurisdiction over his sentencing appeal because it dealt only with his right to appeal his convictions. He also argued process, asserting that the Court of Appeals must be reversed because the issue of waiver was not properly before it. In support of this argument, he pointed to the absence of a discussion of waiver in the district court’s decision and the State’s failure to cross-appeal. Analysis We begin our analysis by briefly addressing Patton’s procedural argument. We disagree with his assertion that the Court of Appeals erred in reaching the issue of waiver. The issue of subject matter jurisdiction may be raised at any time by a party or by the court, including an appellate court. See Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007). Our standard of review on the issue is unlimited. See State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003). Here, the possibility that Patton had knowingly and voluntarily waived his right to appeal his sentence had a more than purely theoretical potential to affect subject matter jurisdiction, because there was no question that Patton’s lawyer did not file a notice of appeal within 10 days of sentencing, see K.S.A. 22-3608(c), and a timely notice of appeal ordinarily is jurisdictional. See State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001) (dismissal necessary if appellate jurisdiction lacking); State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980). The Court of Appeals did not err by addressing this possibility, even if it did so without urging by the State. We also note, however, that the State’s appellate brief was not silent on waiver. Rather, it included waiver among the reasons that the Court of Appeals should reject Patton’s invocation of McAdam to obtain a new sentence on his attempted manufacture conviction. We now turn to the merits of whether Ortiz applied to allow this appeal, in the absence of a knowing and intelligent waiver. Kansas appellate courts have jurisdiction only as provided by law, see K.S.A. 22-3608, and an untimely notice of appeal usually leads to dismissal of an action. See State v. Moses, 227 Kan. at 404. In Ortiz, this court recognized three exceptions to the dismissal requirement. Although we applied none of the exceptions in that case, Ortiz, 230 Kan. at 736-37, we stated that fundamental fairness would allow a late appeal if a defendant (1) had not been informed of his or her right to appeal, (2) had not been furnished an attorney to perfect an appeal, or (3) had been furnished an attorney who failed to perfect an appeal. Ortiz, 230 Kan. at 735-36. Our Ortiz decision languished in relative obscurity for 22 years, meriting minimal citation and less commentary before McAdam was decided in 2004. The three situations it outlined were characterized as “narrow exceptional circumstances.” State v. Willingham, 266 Kan. 98, 101-02, 967 P.2d 1079 (1998). At the point we filed the McAdam decision, the understandable desire of defendants to taire advantage of its holding — and later a similar holding regarding K.S.A. 65-7006(a) and K.S.A. 65-4152(a)(3) in State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005) (adopting reasoning of State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188 [2002]) — catapulted Ortiz into the common-law equivalent of superstardom. See State v. Phinney, 280 Kan. 394, 122 P.3d 356 (2005) (suggesting Ortiz could provide avenue to McAdam-based sentence reduction). From the vantage point of nearly 5 years beyond the McAdarn decision, we can see that the rapidly multiplying number of Kansas cases citing Ortiz fall into three general categories. In the first category are cases that merely refer to Ortiz as authority for reaching the merits of an out-of-time appeal but do not discuss the application of Ortiz exceptions in any detail. See State v. Ehrlich, 286 Kan. 923, 189 P.3d 491 (2008); Mitchner v. State, No. 97,729, unpublished opinion filed June 6, 2008 (affirming denial of K.S.A. 60-1507 after evidentiary hearing; plea knowingly and voluntarily entered); State v. Pritchard, No. 98,232, unpublished opinion filed June 6, 2008; State v. Johnson, No. 97,313, unpublished opinion filed April 18,2008; State v. Gregor, No. 96,021, unpublished opinion filed November 21,2007; State v. Kotula, No. 96,556, unpublished opinion filed November 21, 2007; State v. Spooner, No. 97,152, unpublished opinion filed November 21, 2007; State v. Selvey, No. 96,803, unpublished opinion filed October 26, 2007; Gould v. State, No. 96,309, unpublished opinion filed September 14, 2007; see siso State v. Thompson, No. 98,257, unpublished opinion filed July 18,2008 (remanding for Ortiz hearing); Bliss v. State, No. 97,753, unpublished opinion filed April 18, 2008 (remanding for Ortiz hearing); State v. Chase, No. 92,882, unpublished opinion filed May 13, 2005; State v. Abbott, 31 Kan. App. 2d 706, 71 P.3d 1173 (2003) (noting the out-of-time appeal had been retained pursuant to Ortiz); State v. Ypma, No. 89,447, unpublished opinion filed December 19, 2003 (noting untimely appeal had been retained pursuant to Ortiz); State v. Vest, No. 88,314, unpublished opinion filed August 29,2003, rev. denied 276 Kan. 973 (2003) (noting appeal was before Court of Appeals pursuant to Ortiz); State v. Hunter, No. 89,703, unpublished opinion filed August 22, 2003 (noting appeal retained based on Ortiz exception); State v. Patton, 26 Kan. App. 2d 591, 992 P.2d 819 (1999) (same); State v. Curry, 21 Kan. App. 2d 178, 179, 897 P.2d 1053 (1995) (noting defendant entitled to appeal out-of-time “after K.S.A. 60-1507 proceedings,” citing Ortiz); State v. Grant, 19 Kan. App. 2d 686, 875 P.2d 986, rev. denied 255 Kan. 1005 (1994) (rejecting defendant’s suggestion that untimely amended notice of appeal, purporting to raise additional issues not contained in timely original notice of appeal, should be entertained under Ortiz); State v. Irvin, 16 Kan. App. 2d 214, 821 P.2d 1019 (1991) (exercising jurisdiction over defendant’s untimely appeal where defendant furnished an attorney for purpose of filing his appeal, but attorney failed to perfect and complete appeal); State v. Wilson, 15 Kan. App. 2d 308, 808 P.2d 434 (1991) (noting nothing in record supported application of Ortiz); Robinson v. State, 13 Kan. App. 2d 244, 767 P.2d 851 (1989), overruled Brown v. State, 278 Kan. 481, 101 P.3d 1201 (2004) (distinguishing untimely direct appeals from untimely appeals from postconviction rulings). The second category of cases is populated by those that specifically discuss application of the Ortiz exceptions, which are not always completely consistent with each other. See State v. Scoville, 286 Kan. 800, 188 P.3d 959 (2008) (reversing Court of Appeals’ affirmance of district court’s denial of out-of-time appeal after Ortiz hearing; failure to inform of 10-day time limit justified direct appeal out-of-time, resentencing under McAdam appropriate); State v. Hemphill, 286 Kan. 583, 186 P.3d 777 (2008) (affirming Court of Appeals’ remand for Ortiz hearing on late appeal of sentences); State v. Unruh, 39 Kan. App. 2d 125, 177 P.3d 411 (2008) (out-of-time appeal justified when defendant’s appointed appellate counsel failed to perfect appeal); State v. Godfrey, No. 98,984, unpublished opinion filed September 19, 2008 (Ortiz exceptions do not apply when defendant was informed of his or her right to appeal); State v. Adams, No. 98,962, unpublished opinion filed September 19, 2008 (defendant cannot invoke Ortiz exceptions when the right to appeal was thoroughly explained in his or her plea agreement); State v. Berry, No. 98,950, unpublished opinion filed September 12, 2008 (Ortiz exceptions apply to indigent defendant and defendant that retains counsel as long as defendant was not informed of his or her right to appeal); State v. LaFave, No. 98,369, unpublished opinion filed September 12, 2008 (Ortiz exceptions apply when court fails to inform defendant of his or her right to appeal and defendant receives incorrect information about appealing in his or her plea agreement); State v. Larson, No. 98,152, unpublished opinion filed. September 12,2008 (out-of-time appeal permitted because trial court failed to inform defendant of his right to appeal and counsel did not explain 10-day filing deadline); State v. Denton, No. 97,472, unpublished opinion filed August 22, 2008 (defendants not informed of their right to appeal may file an out-of-time appeal under Ortiz even when they plead guilty); State v. Young, No. 97,470, unpublished opinion filed July 3,2008; House v. State, No. 97,333, unpublished opinion filed June 20, 2008 (Ortiz does not allow avoidance of time bar of K.S.A. 60-1507); State v. Leslie, No. 98,243, unpublished opinion filed June 13, 2008 (affirming denial of out-of-time appeal where record revealed defendant aware of limited appeal rights under plea agreement); State v. Anderson, No. 98,655, unpublished opinion filed June 6, 2008 (Ortiz does not extend exception to timely appeal requirement when counsel failed to advise of likelihood of success on appeal); State v. Amack, No. 98,478, unpublished opinion filed June 6, 2008 (late direct appeal permitted under third Ortiz exception; resentencing under McAdam appropriate); State v. Sperling, No. 97,820, unpublished opinion filed May 16,2008 (invoking Ortiz exception to reach appeal filed prematurely); State v. Gilliland, No. 97,791, unpublished opinion filed May 9,2008 (affirming denial of out-of-time appeal, holding no Ortiz exceptions apply); State v. Christianson, No. 97,790, unpublished opinion filed May 2, 2008 (reversing denial of out-of-time appeal under Ortiz, re-sentencing under McAdam appropriate); State v. Reeves, No. 97,344, unpublished opinion filed April 25, 2008 (first exception of Ortiz satisfied when sentencing court failed to inform defendant of his right to have attorney appointed for appeal); State v. Collins, No. 97,360, unpublished opinion filed April 18, 2008 (affirming denial of out-of-time appeal, holding no Ortiz exceptions apply); State v. Barron, No. 97,378, unpublished opinion filed April 11, 2008 (affirming Ortiz exception applied when “court did not specifically tell the defendant that his appointed attorney would represent him to file a notice of appeal and his attorney did not inform him that he would file the appeal for him”); State v. Roberts, No. 98,366, unpublished opinion filed April 4, 2008 (remand for Ortiz hearing to determine whether, despite district court failure to advise of time limit for filing appeal, right to appointed counsel, defendant otherwise aware of appeal rights); State v. Rust, No. 98,528, unpublished opinion filed April 4, 2008 (when both counsel, district court affirmatively advise defendant he or she has no right to appeal, such statements override any acknowledgment to contrary in written plea agreement, giving rise to Ortiz exception); State v. Mendoza, No. 97,660, unpublished opinion filed March 7, 2008 (reversing denial of out-of-time appeal under Ortiz; resentencing under McAdam appropriate); State v. Gray, No. 97,403, unpublished opinion filed February 22, 2008 (holding defendant entitled to appeal out-of-time under Ortiz; dismissing as moot because sentence served); State v. Moore, No. 97,424, unpublished opinion filed February 22, 2008 (reversing denial of out-of-time appeal, remanding for Ortiz hearing, written explanation of appellate rights did not adequately advise); Shaw v. State, No. 98,200, unpublished opinion filed January 25, 2008 (affirming denial of out-of-time appeal when no Ortiz exception applied); State v. Harp, 283 Kan. 740, 748, 156 P.3d 1268 (2007) (Ortiz exception may excuse defendant’s untimely appeal of presumptive sentence when the defendant asserts change in law, challenges severity level of crime; when a direct appeal granted under an Ortiz exception, appeal subject to law in effect at time of grant); State v. Thomas, 283 Kan. 796, Syl. ¶ 2, 156 P.3d 1261 (2007) (appeal subject to law existing at time of grant under Ortiz); Guillory v. State, 285 Kan. 223, 170 P.3d 403 (2007) (Ortiz exceptions inapplicable to out-of-time appeal from summary denial of K.S.A. 60-1507 motion); Casner v. State, 37 Kan. App. 2d 667, 674-75, 155 P.3d 1202 (2007) (first exception of Ortiz satisfied when sentencing court fails to fully inform of right to appointed counsel on appeal; State cannot cross-appeal from ruling at Ortiz hearing on ground of fundamental fairness); State v. Romero, No. 96,215, unpublished Kansas Supreme Court opinion filed December 7, 2007 (entertaining merits of appeal after affirming district court’s ruling that Ortiz permitted late appeal); State v. Darnell, No. 97,042, unpublished opinion filed November 16, 2007 (affirming denial of out-of-time appeal when no Ortiz exception applied); State v. Lowrey, No. 97,048, unpublished opinion filed November 16, 2007 (affirming denial of out-of-time appeal when defendant failed to meet burden to prove he was not informed of 10-day time limit); State v. Lenz, No. 97,285, unpublished opinion filed November 9, 2007 (affirming denial of out-of-time appeal, holding no Ortiz exception applied); State v. Rust, No. 97,414, unpublished opinion filed November 2, 2007 (remanding for resentencing after determining late appeal permitted under Ortiz); State v. Moyer, No. 96,440, unpublished opinion filed September 21, 2007 (reversing denial of out-of-time appeal when defendant not advised of deadline for appeal); State v. Flynn, 274 Kan. 473, 477-78, 55 P.3d 324 (2002) (defendant’s response to Supreme Court’s show cause order on why untimely appeal should not be dismissed included affidavit asserting defendant wanted to appeal, instructed her attorney to appeal, believed attorney would file timely notice of appeal, but attorney failed to do so; affidavit sufficient to support review of untimely appeal under Ortiz); State v. Dreiling, 274 Kan. 518, 539-41, 54 P.3d 475 (2002) (defendant had attorney for purpose of perfecting appeal, but attorney failed to do so; “fundamental fairness require[d] this court to retain jurisdiction over the appeal”); State v. Dugan, 29 Kan. App. 2d 71, 25 P.3d 145 (2001), rev. denied (2001), abrogated on other grounds Phinney, 280 Kan. 394 (Ortiz does not supply appellate court with jurisdiction to entertain untimely appeal from a presumptive sentence); Willingham, 266 Kan. at 101-02 (defendant did not knowingly waive right to appeal, when district court failed to advise at sentencing of right to appeal, defense counsel did not advise of time limit); State v. Barnes, 263 Kan. 249, 261, 948 P.2d 627 (1997) (when defendant furnished attorney for purpose of filing notice of appeal, attorney failed to perfect, court would entertain untimely appeal filed 5 days after deadline pursuant to Ortiz); City of Dodge City v. Hadley, 262 Kan. 234, 237-39, 936 P.2d 1347 (1997) (court declines to overrule Ortiz, permits appeal filed late because of counsel’s error); State v. Medina, 256 Kan. 695, 701, 887 P.2d 105 (1994) (counsel who files timely appeal that fails to raise all meritorious appealable issues not generally effective counsel; and Ortiz applies both when defendant furnished counsel who fails entirely to perfect appeal, when counsel attempts to perfect an appeal but does so ineptly; remand for Ortiz determination); State v. Shortey, 256 Kan. 166, 168, 884 P.2d 426 (1994) (untimely appeal permitted when appointed counsel’s affidavit establishes defendant did everything necessary to ensure appeal prosecuted); State v. Redmon, 255 Kan. 220, 222-23, 873 P.2d 1350 (1994) (circumstances warrant permitting untimely appeal when sentencing court’s statement on record did not clearly inform defendant of rights concerning appeal; defendant had informed trial counsel of desire to appeal; counsel failed to perfect appeal; defendant contacted prisoner legal services, Appellate Defender Office, administrative judge in effort to appeal); State v. Parker, 23 Kan. App. 2d 655, 934 P.2d 987, rev. denied 262 Kan. 967 (1997), abrogated on other grounds Phinney, 280 Kan. 394 (Ortiz exceptions do not apply when appeal clearly would raise no issues appellate court could address); State v. Thomas, 21 Kan. App. 2d 504, 900 P.2d 874 (1995) (defendant’s untimely appeal seeking conversion under sentencing guidelines denied despite agreement defendant not informed of right to appeal; court upholds denial when not justified by fundamental fairness; defendant not eligible for conversion; appeal would raise no addressable issues); State v. Hervey, 19 Kan. App. 2d 498, 501, 873 P.2d 188 (1994), overruled without reference to Ortiz by State v. Waterbury, 258 Kan. 614, 907 P.2d 858 (1995) (sufficient factual basis existed for appellate court to conclude Ortiz applied to permit untimely amended notice of appeal from denial of motion to modify; attorney appointed to perfect appeal ineffective in filing timely notice of appeal identifying only judgments previously appealed by same counsel in direct appeal); State v. McDaniel, 249 Kan. 341, 342-45, 819 P.2d 1165 (1991) (reversing ruling that Ortiz did not apply to permit untimely appeal; district court based ruling on defense counsel’s experience); State v. Mitchell, 231 Kan. 144, 146-47, 642 P.2d 981 (1982), overruled on other grounds State v. Nioce, 239 Kan. 127, 716 P.2d 585 (1986) (when defendant not informed of right to appeal at time sentence imposed, did not know time frame for exercise of right, appeal considered out of time). Cases in the third category form a subset of the second category. They discuss not only the Ortiz exceptions but in some way relate one or more of them to the constitutional law concept of fundamental fairness or procedural due process and/or the constitutional concept of effective assistance of counsel. See Penn v. State, 38 Kan. App. 2d 943, 173 P.3d 1172 (2008) (when, through counsel’s errors, movant denied right to appeal adverse decision, movant denied right to competent counsel); State v. O’Grady, No. 97,341, unpublished opinion filed June 20,2008 (limited discussion of permitting direct appeal out-of-time for resentencing under McAdam because of counsel’s ineffectiveness); Pouncil v. State, No. 98,276, unpublished opinion filed May 30, 2008; Schale v. State, No. 97,475, unpublished opinion filed April 11, 2008; Guillory v. State, 285 Kan. 223, 170 P.3d 403 (2007) (Ortiz exceptions inapplicable to out-of-time appeal from summary denial of K.S.A. 60-1507 motion; no statutory right to appeal attached to this civil action); Kargus v. State, 284 Kan. 908, 169 P.3d 307 (2007) (right to competent counsel extended to discretionary appeals); Swenson v. State, 284 Kan. 931, 169 P.3d 298 (2007) (same); State v. McConnell, No. 97,253, unpublished opinion filed December 21, 2007; see also Brown v. State, 278 Kan. 481, 484-85, 101 P.3d 1201 (2004); State v. Ransom, 268 Kan. 653, 654, 999 P.2d 272 (2000) (defendant argued notice of appeal sufficient to give Court of Appeals jurisdiction; if not, defendant sought remand for Ortiz hearing; court held defendant entitled to have appeal heard, stating “[t]he appellate courts either have jurisdiction or [defendant]’s court-appointed attorney made a basic error depriving [defendant] of the appeal he requested”); State v. McBride, 23 Kan. App. 2d 302, 304, 930 P.2d 618 (1996) (defendant claimed trial counsel ineffective for failing to file a timely notice of appeal; court nevertheless declined to permit late appeal under Ortiz when appeal prevented on other separate, distinct jurisdictional grounds); State v. Bost, 21 Kan. App. 2d 560, 564, 903 P.2d 160 (1995) superceded by statute L. 1995, ch. 251, sec. 17 (court declined to consider application of Ortiz exception because defendant “makes no claims of ineffective assistance of counsel”; appeal failed on other separate, distinct jurisdictional grounds); State v. McGraw, 19 Kan. App. 2d 1001, 1003, 879 P.2d 1147 (1994) (fundamental fairness doctrine underpinning Ortiz applies to permit jurisdiction over appeals filed too early, too late); State v. Rios, 19 Kan. App. 2d 350, Syl. ¶ 7, 869 P.2d 755 (1994) (same, holding “[i]n the interest of fundamental fairness, an appeal from a criminal conviction filed prior to sentencing may be entertained when [1] the trial court furnishes a defendant with an attorney who fails to properly perfect the appeal; [2] the State fails to raise the jurisdiction issue; and [3] the State does not claim prejudice from the fact the appeal was filed too early”); State v. Cook, 12 Kan. App. 2d 309, 741 P.2d 379 (1987) (fact notice of appeal not filed in criminal case, absent indication in record defendant desired to appeal but precluded from doing so because of attorney error, insufficient to support ineffective assistance of counsel claim; defendant not entitled to evidentiary hearing to determine whether she waived right to appeal; defendant advised of right to appeal, right to have appointed counsel, nothing in record indicated she failed to understand rights, precluded from exercising them); compare State v. Irvin, 16 Kan. App. 2d 214, 821 P.2d 1019 (1991) (noting court’s decision to allow untimely appeal, when defendant furnished attorney but attorney failed to perfect appeal “not dependent upon a finding by the trial court of ineffective assistance of counsel”). Our Court of Appeals also has extended allocation of Ortiz in two civil cases; they fit into this third category, as they mention the constitutional right to counsel. See In re T.A., 30 Kan. App. 2d 30, 35-36, 38 P.3d 140 (2001) (grandparents’ out-of-time appeal pursued under Ortiz rejected in visitation rights proceeding; grandparents have no fundamental right to effective counsel in such proceeding); In re T.M.C., 26 Kan. App. 2d 297, 299, 988 P.2d 241 (1999) (parent’s constitutional right to counsel in termination proceeding makes application of Ortiz’ fundamental fairness exceptions appropriate). A few of these cases, including at least one in each categoiy, have also discussed whether counsel for a criminal defendant was appointed or retained. See, e.g., State v. Unruh, 39 Kan. App. 2d 125, 126-31 (appointed attorney failed to perfect and complete appeal); State v. Irvin, 16 Kan. App. 2d at 217 (same); State v. Berry, No. 98,950, unpublished opinion filed September 12, 2008 (Ortiz exceptions apply to indigent defendants, defendants who can retain counsel). The majority have not. See, e.g., State v. Abbott, 31 Kan. App. 2d 706, 71 P.3d 1173 (2003); State v. Bost, 21 Kan. App. 2d 560, 903 P.2d 160 (1995); State v. Curry, 21 Kan. App. 2d 178, 897 P.2d 1053 (1995); State v. Grant, 19 Kan. App. 2d 686, 875 P.2d 986, rev. denied 255 Kan. 1005 (1994). Some also have focused on the court’s obligation to inform a defendant of his or her appeal rights. See State v. Reeves, No. 97,344, unpublished opinion filed April 25, 2008 (court obligated to inform defendant of right to appeal within 10 days, explain right to appointed attorney); State v. Barron, No. 97,378, unpublished opinion filed April 11, 2008 (same); Casner v. State, 37 Kan. App. 2d at 674 (defendant may file out-of-time appeal when court fails to inform of right to appeal). Some have focused on counsel’s obligation to advise a client. See Scoville, 286 Kan. at 807 (defendant may not appeal out-of-time when evidence proves counsel informed defendant of his rights to appeal); State v. Willingham, 266 Kan. at 100-01 (failure of court to advise defendant not fatal if counsel informs defendant of appeals’ process). Relatively recent case law discussing Ortiz and its underpinning of fundamental fairness includes Guillory v. State, 285 Kan. 223, in which we ruled that Ortiz could not be applied to allow a late appeal from denial of a K.S.A. 60-1507 motion. Guillory, 285 Kan. at 228-29. We emphasized in Guillory that fundamental fairness related to the fact that, in each of the three situations outlined in Ortiz, the defendant would have been deprived “of a right to which he or she was entitled by law.” Guillory, 285 Kan. at 228. We said that a defendant’s right to be informed about the possibility of appeal and to be provided counsel for that purpose were statutory and that a defendant’s right to effective performance had constitutional dimension. Guillory, 285 Kan. at 228. Also, in Kargus v. State, 284 Kan. 908, 169 P.3d 307 (2007), on the way to setting forth rules for when counsel must file a petition for review after denial of a direct appeal, we engaged in a full comparison of the standards applicable under (1) the second and third of the three Ortiz exceptions, which implicate adequacy of counsel’s performance; (2) the performance and prejudice prongs of Sixth Amendment ineffective assistance of counsel analysis pursuant to Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), which this court adopted in Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985), and which we have applied to allegations of constitutionally deficient representation in the course of a proceeding; and (3) Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000), when counsel’s behavior has caused complete forfeiture of a proceeding. Kargus, 284 Kan. at 918-22. We stated in Kargus that Kansas had never directly applied Flores-Ortega to determine whether an attorney provided ineffective assistance in failing to file an appeal. Rather, under our “somewhat different approach,” i.e., Ortiz, there could, in limited circumstances, be a “two-step process. The first step . . . focuses upon the three exceptions and is applied in every Ortiz analysis. Under the second step, ‘ “A defendant properly informed of his appellate rights may not let the matter rest’ . . . and then claim that he did not waive his rights to appeal.” ’ ” Kargus, 284 Kan. at 922. We characterized this second step, necessarily applicable only when a defendant pursued a late appeal under the second or third exceptions of Ortiz, as a “type of prejudice requirement.” Kargus, 284 Kan. at 922. We need not repeat the rest of our Kargus discussion here. Suffice it to say that the decision exposed the possibility of analytical tension and confusing overlap among Ortiz, Strickland, and Flores-Ortega. That possibility, and the rising flood of Ortiz-based arguments we observe in cases coming before our Court of Appeals and in petitions for review addressed to this court — many seeking extremely fact-specific and thus not especially useful rulings on exactly which information about direct appeal must be imparted, and by whom, and when, and on whether defendant’s oral or written statements or behavior constitute a waiver, and on what measures defense attorneys are required to take to preserve their clients’ appeal rights when there has been no specific direction from those clients — motivate us to attempt clarification and, to the extent necessary, reconciliation of the controlling and persuasive law on the permissibility of late criminal appeals in Kansas. To begin, it is important to recognize what Ortiz did not do. It did not endow criminal defendants with any additional constitutional rights. It did not impose affirmative duties on counsel or the court. It did not set up new requirements that must be met to prevent a late appeal. Arguments based on any of these approaches twist its intention and application. Ortiz merely recognized the basic principle that a criminal defendant enjoys certain procedural due process protections, not only at trial or plea but also on appeal. These protections form the parameters and fill in the content of fundamental fairness; when they are ignored or violated, a remedy is necessary. We set out three narrowly defined, truly exceptional circumstances, when that remedy takes the form of permission for a late direct appeal. We place conscious emphasis on “exceptional.” Even after Ortiz, even in the glaring light emitted by its recent superstardom, the general rule remains that timely filing of a notice of appeal is indispensable and jurisdictional. The Ortiz court relied on Brizendine v. State, 210 Kan. 241, 242-44, 499 P.2d 525 (1972). In that case, counsel had been appointed to perfect a defendant’s direct appeal from his conviction of burglary. Because of a misunderstanding, the appeal was not perfected. Defendant filed a K.S.A. 60-1507 motion, alleging that his counsel’s failure to perfect the appeal necessitated his discharge from confinement. The district judge rejected discharge as a remedy but gave the defendant the option to take an out-of-time direct appeal from his conviction. On appeal, this court affirmed the approach, including the optional remedy of out-of-time appeal. Brizendine, 210 Kan. at 244. In so holding, this court noted that several federal courts had expressed a similar amenability to a limited exception, when ineffective assistance of counsel had prevented filing of a timely direct appeal. See Brizendine, 210 Kan. at 244 (citing, inter alia, Kent v. United States, 423 F.2d 1050 [5th Cir. 1970]; Benoit v. Wingo, 423 F.2d 880 [6th Cir. 1970]; Atilus v. United States, 406 F.2d 694 [5th Cir. 1969]). Ortiz specifically held that any exception to the general rule requiring a timely notice of appeal for jurisdiction was “limited.” Ortiz, 230 Kan. at 736. And it relied upon a decision of the Fifth Circuit for the idea that a defendant who had been properly informed of his or her appellate rights could not “ let the matter rest’ ” and avoid waiver. Ortiz, 230 Kan. at 736 (quoting Norris v. Wainwright, 588 F.2d 130, 137 [5th Cir. 1979] [quoting Worts v. Dutton, 395 F.2d 341, 344 (5th Cir. 1968)]). Norris had specifically stated that neither the Sixth Amendment nor the Fourteenth Amendment to the United States Constitution required the record to reflect that a defendant “made a knowing and intelligent decision not to appeal before he [or she] can be precluded from appellate review.” Ortiz, 230 Kan. at 736 (quoting Norris, 588 F.2d. at 137). Neither the State nor the court would have to demonstrate a subjective waiver, Ortiz said. Rather, “[t]he courts only can be expected and required to show on the record that a defendant was advised of the right to appeal and that an attorney was or would have been appointed to assist the defendant in such an appeal. . . . [W]hen that is done, there is no further requirement that will enable a defendant to obtain a right of appeal [out-of-time] merely because he or she asserts that no knowing and intelligent decision not to appeal was made.” 230 Kan. at 736. Ortiz did not apply the “exception recognized in Brizendine” to defendant Celestino Ortiz in that case. After conviction and sentencing, Ortiz signed a written waiver of his right to appeal. He had been provided with an attorney and an interpreter before doing so, and the waiver recited that it had been read and explained to him before signature. Our opinion concluded: “No lack of fundamental fairness is shown which would justify authorizing an appeal [out-of-time] at this late date.” Ortiz, 230 Kan. at 736-37. Our syllabus in Ortiz repeated that the limited exceptions to the requirement of timely notice to support appellate jurisdiction existed “in the interest of fundamental fairness,” invoking a due process rather than a Sixth Amendment right to counsel concept. See Ortiz, 230 Kan. 733, Syl. ¶ 3; see also K.S.A. 20-111 (syllabus shall contain holding of the court). It is evident to us today that what have come to be known in Kansas as the three “Ortiz exceptions” are grounded not only in fundamental fairness (here, procedural due process) but in the Sixth Amendment right to counsel. The first of the exceptions— applicable when a defendant was not informed of the right to appeal — goes to procedural due process alone. The second and third exceptions — applicable when a defendant was not furnished an attorney to perfect an appeal or was furnished an attorney for that purpose who failed to perfect and complete an appeal — go to the right of counsel and effectiveness of counsel. We have attempted to take the distinction in the constitutional bases of the exceptions into account in developing the following rules. First Ortiz Exception A criminal defendant may qualify to take a late appeal under the first Ortiz exception if he or she has been denied basic procedural due process, i.e., timely and reasonable notice and an opportunity to be heard. See State v. Willingham, 226 Kan. 98, 100-01, 967 P.2d 1079 (1998); State v. Reeves, No. 97,344, unpublished opinion filed April 25,2008; State v. Barron, No. 97,378, unpublished opinion filed April 11, 2008; Casner v. State, 37 Kan. App. 2d 667, 674, 155 P.3d 1202 (2007). Three Kansas statutes provide specific procedural safeguards of the right to appeal by certain criminal defendants. First, K.S.A. 22-3210(a)(2) requires a judge who accepts a felony guilty or nolo contendere plea to inform the defendant of the “consequences” of the plea. These consequences include waiver of the right to appeal any resulting conviction. K.S.A. 22-3424(f) instructs that a sentencing judge must inform a defendant who has gone to trial of “defendant’s right to appeal” and of the right of a person who is unable to pay the costs of an appeal to appeal informa pauperis. We note that Phinney, 280 Kan. at 402, and State v. Pickerill, No. 93,595, unpublished opinion filed July 28, 2006, rev. denied 282 Kan. 795 (2006), have interpreted this provision broadly to apply to all defendants. In keeping with these precedents, we hold explicitly that the requirements of K.S.A. 22-3424(f) apply regardless of whether a defendant went to trial and regardless of whether he or she is indigent. K.S.A. 22-4505 requires the district judge to inform an indigent felony defendant of the “right to appeal . . . [a] conviction” and the right to have an attorney appointed and a transcript of the trial record produced for that purpose. Due process is denied — and an out-of-time appeal may be permissible under the first Ortiz exception — -if a district judge fails to abide by one of these statutes, as they have been interpreted by our earlier case law. Thus a district judge must inform a criminal defendant at sentencing, regardless of whether the defendant has entered a plea or gone to trial, that: (1) a right to appeal the severity level of the sentence exists; (2) any such appeal must be taken within 10 days (see Phinney, 280 Kan. at 400; Willingham, 266 Kan. at 100-01 [citing Mitchell, 231 Kan. at 146]); and (3) if the defendant is indigent, an attorney will be appointed for the purpose of taking any desired appeal. Compare Fed. R. Crim. P. 32(j) (allocating to court responsibility to inform criminal defendant of right to appeal). The evidentiary burden of showing that the district judge failed to communicate one or more of these three pieces of information at sentencing is on the defendant, who must demonstrate deficiency from the transcript of the sentencing hearing. Based on analogous United States Supreme Court decisions, we are confident that this allocation of the evidentiary burden does not offend due process. In Medina v. California, 505 U.S. 437, 120 L. Ed. 2d 353, 112 S. Ct. 2572 (1992), the United States Supreme Court held that, while the criminal trial of an incompetent defendant would violate due process, there was no due process violation in a statutory presumption of competence, which placed the burden on defendant to prove his or her incompetence by a preponderance of the evidence. In so holding, the Medina Court recognized that the traditional balancing test of Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), that applied to procedural due process claims in civil cases, did not provide an appropriate framework for assessing the validity of state procedural rules in criminal cases. Medina, 505 U.S. at 442-43. Rather, the appropriate analytical approach set forth in Patterson v. New York, 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977), governs. The issue in Patterson was whether defendant’s conviction of second-degree murder under a New York statute deprived him of due process by placing on him the burden to prove, by a prepon derance of the evidence, the affirmative defense of acting under the influence of extreme emotional distress, in order to reduce the crime to manslaughter in the first degree. The Court held it did not. Patterson, 432 U.S. at 209-10. In particular, the Patterson decision held that the power of a State to regulate procedures for carrying out criminal laws, including the burden of producing evidence, “is not subject to proscription under the Due Process Clause unless it ‘offends some principle of justice so rooted in the traditions and conscience of our people so as to be ranked as fundamental/ ” Patterson, 432 U.S. at 201-02; see Medina, 505 U.S. at 445. The high Court’s rationale underlying this “less intrusive” inquiry into due process concerns in criminal cases is that many aspects of criminal procedure are already defined by specific guarantees of the United States Constitution Bill of Bights, and that, beyond those, the Due Process Clause has limited operation. See Medina, 505 U.S. at 443 (citing, e.g., Dowling v. United States, 493 U.S. 342, 352, 107 L. Ed. 2d 708, 110 S. Ct. 668 [1990]). Although we have not previously adopted the “less intrusive” due process analysis set out in Medina for criminal cases, we have acknowledged or relied upon other aspects of that decision. See State v. Davis, 281 Kan. 169, 176, 130 P.3d 69 (2006) (citing Medina for State v. McKinney, 265 Kan. 104, 107, 961 P.2d 1 (1998) Medina in holding Kansas’ competency statutes, presuming competence and implicitly requiring defendant to prove incompetence by preponderance of the evidence, do not violate due process); State v. Cellier, 263 Kan. 54, 948 P.2d 616 (1997) (same). When the applicability of the first Ortiz exception is in issue, if the defendant discharges the burden of demonstrating from the sentencing hearing transcript that the district judge failed to communicate one or more of the three required pieces of information, the State still may prevent a late appeal by proving that the defendant possessed actual knowledge of all of the required information by some means other than the district judge’s oral statements at sentencing. The source of such actual knowledge may be counsel’s advice, the wording of an agreement signed by the de fendant, or some other person or document; but the State bears the evidentiary burden on this point. If the sentencing hearing transcript demonstrates that the district judge did not adequately inform the defendant orally, and the State is unable to demonstrate that the defendant had actual knowledge of the required information from some other source, the defendant must then prove that, had he or she been properly informed, a timely appeal would have been sought. This evidentiary burden rests on the defendant. This requirement for application of the first Ortiz exception is consistent with this court’s original admonition that a defendant may not “let the matter rest” and with our previous decisions. See Phinney, 280 Kan. at 405-06; Mitchell, 231 Kan. at 147. In addition, we believe it is true to United States Supreme Court precedent. See Peguero v. United States, 526 U.S. 23, 24, 143 L. Ed. 2d 18, 119 S. Ct. 961 (1999) (relief from sentencing court’s error in failing to inform defendant of appeal right requires showing of prejudice); Cody v. United States, 249 F.3d 47, 52 (1st Cir. 2001); Soto v. United States, 185 F.3d 48, 55 (2d Cir. 1999). Second Ortiz Exception As stated above, the Sixth Amendment right to counsel informs the second Ortiz exception, which focuses on whether the defendant has been provided counsel. Read literally, the second exception would apply only to those defendants for whom appointed counsel is provided at public expense, i.e., those who are indigent at the point an appeal needs to be taken. Read sensibly, it means the same thing. However, not all of our Ortiz cases appear to have read the exception so narrowly. Compare Phinney, 280 Kan. at 405-06, with Ortiz, 230 Kan. at 735-36, and Brizendine, 210 Kan. at 243. Indeed, although most cases in this area have involved indigent defendants, see, e.g., Phinney, 280 Kan. 394; Willingham, 266 Kan. at 98; Ortiz, 230 Kan. at 733; Brizendine, 210 Kan. 241; State v. Singleton, 33 Kan. App. 2d 478, 104 P.3d 424 (2005); some have not, Bryant v. State, 280 Kan. 2, 118 P.3d 685 (2005); and the difference has been of no significance. We rectify this anomaly now by stating that the second Ortiz exception applies only to defendants who were indigent when they desired to take a timely appeal. A defendant who had appointed counsel at the district court level is entitled to have counsel appointed for the purpose of appeal; either district court counsel may continue representation, or new counsel must be appointed. A defendant who, on the other hand, had the resources to retain counsel at the district court level and had been advised by the court of the right to be appointed counsel will be assumed to have the resources to retain counsel for any desired appeal as well, unless he or she informs the sentencing judge that the situation is otherwise. Ortiz did not create additional constitutional rights, and it did not create a common-law right to appointed appellate counsel for those who can afford to retain a lawyer. If proceedings through sentencing have exhausted a given defendant’s resources to retain an attorney to handle an appeal, the defendant must make a timely motion for appointment of counsel for appeal. If the defendant fails to seek such an appointment, then he or she cannot later complain that counsel was not furnished to facilitate timely filing of a notice of appeal under the second Ortiz exception. Further, to pursue a late appeal under the second Ortiz exception, the defendant bears the evidentiary burden of demonstrating that he or she was in need of appointed counsel to pursue an appeal and that no such counsel was appointed, despite a timely request. The defendant must also demonstrate that, had counsel been made available, he or she would have instructed counsel to file the appeal. Third Ortiz Exception The third Ortiz exception allows a late appeal if a defendant was furnished an attorney for the purpose of an appeal but the attorney faded to perform. Again, read literally, the use of the word “furnished” could apply only to counsel appointed for an indigent defendant at public expense. However, read sensibly, this third exception, in contrast to the second exception, does not focus on whether a lawyer has been assigned to a case through any particular mechanism; it focuses on whether that lawyer performs up to a minimum constitutional standard once that assignment is made. Thus we hold that the third Ortiz exception may apply to retained counsel as well as appointed counsel. A defendant who hires private counsel “furnishes” his or her own lawyer. Furthermore, we hold that the standard of performance to be applied to measure the adequacy of appellate counsel under the third Ortiz exception is that found in Roe v. Flores-Ortega, 528 U.S. 470, 470-72, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000). That case distinguishes between situations in which counsel’s performance in the course of a proceeding is alleged to be deficient and those cases in which counsel’s performance or failure to perform leads to forfeiture of a proceeding. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), governs the former and Flores-Ortega the latter. See Flores-Ortega, 528 U.S. at 476-86. We have long employed Strickland to judge whether a criminal defendant received ineffective assistance of counsel under the Sixth Amendment in the course of a criminal proceeding in the district court. See Chamberlain v. State, 236 Kan. 650, 656, 694 P.2d 468 (1985) (adopting and applying Strickland two-part standard). Under that standard, before counsel’s assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things: first, that counsel’s performance was deficient, and second, that counsel’s deficient performance prejudiced the defense. See Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). Likewise, we use an adapted version of the Strickland standard to judge whether a criminal defendant received ineffective assistance of counsel during the course of a direct appeal. See Kargus v. State, 284 Kan. 908, 919, 169 P.3d 307 (2007). The situation contemplated by the third Ortiz exception is different, involving as it does the complete destruction of the right to pursue a direct appeal through counsel’s failure to file a timely notice or otherwise protect his or her client’s right. As recognized in Flores-Ortega, where appointed counsel said he or she would file a notice of appeal on behalf of the defendant but failed to do so, no “presumption of reliability” can be afforded a “proceeding . . . that never took place.” Thus, the two-part Strickland deficiency-plus-prejudice analysis must bend. Under Flores-Ortega, if appointed or retained counsel has failed to file or perfect a direct appeal by a criminal defendant, we will presume the existence of prejudice. This is not, however, the same as a finding of prejudice per se, requiring application of the third Ortiz exception. The defendant must still demonstrate that, but for counsel’s failure, he or she would have taken a timely direct appeal. The defendant need not show, as he or she would have had to show if we were using the Strickland standard as our benchmark, that such a timely direct appeal would have been successful. Compare Peguero, 526 U.S. at 30-31 (O’Connor, J., concurring). Application of Ortiz Exceptions to Patton In this case, Patton was informed of his right to appeal his sentence, although the district judge’s misstatement of Kansas law meant he may have been misled about the issues that would be appropriate for appellate consideration. Patton had retained counsel who clearly understood that any appeal would be counsel’s responsibility to perfect and otherwise pursue, and Patton expressed his desire to have an appeal filed. This situation calls for application of the third Ortiz exception. Patton should be permitted to file a late direct appeal. The undisputed testimony in the record before us is that Patton did not “let the matter rest.” He attempted to ensure that his lawyer would protect his appeal rights. Had the lawyer followed Patton’s instructions, Patton would have been entitled to resentencing under McAdam. One final note on general applicability of the Ortiz exceptions bears mention: The rules we have outlined in this opinion shall be applied to all cases not yet final on direct appeal and those to be appealed in the future. See State v. Gould, 271 Kan. 394, 414, 23 P.3d 801 (2001). Effect of Waiver Language in Plea Agreement We now address the substance of the State’s-argument that, regardless of the applicability of any of the Ortiz exceptions, Patton waived his right to appeal his sentence when he signed his written plea agreement. A defendant who pleads guilty may still challenge the sentence imposed in some circumstances. State v. Phinney, 280 Kan. 394, 398, 122 P.3d 356 (2005). However, a “knowing and voluntary waiver by the defendant of his statutory right to appeal is generally enforceable.” State v. Campbell, 273 Kan. 414, 424-25, 44 P.3d 349 (2002) (citing United States v. Hernandez, 134 F.3d 1435, 1437 [10th Cir. 1998]). In Campbell, defendant Kenyon Campbell bargained with the State for a reduced sentence in exchange for his cooperation, testimony against another individual, and a waiver of his “right to appeal the verdict against him.” 273 Kan. at 425. In his direct appeal, Campbell challenged both his convictions and sentence. The court entertained Campbell’s challenge to his sentence but held that Campbell had knowingly and voluntarily waived his right to appeal his convictions when he entered into the sentencing agreement with the State. In State v. Boley, 279 Kan. 989, 997, 113 P.3d 248 (2005), defendant Charles Boley had pleaded no contest to manufacture of methamphetamine. He appealed his sentence successfully and was resentenced in accord with McAdam. When the State sought to rescind the plea agreement based upon a mistake of law, this court held that the State was precluded from doing so. Boley did not breach his plea agreement by attacking his sentence. He had not agreed to advocate for any particular sentence; the agreement did not prohibit him from seeking a lesser sentence; and he had not waived his right to appeal or to argue about the severity level of his crime. We wrote: “[T]lie State bore the risk that Boley would appeal his sentence. The prosecutor could have protected against this risk by including a provision in the plea agreement requiring the defendant to waive his right to appeal or indicating that if the defendant successfully challenged his sentence, such action would be considered a breach of the agreement.” Boley, 279 Kan. at 997. In this case, again, the plea agreement stated that Patton waived “his right to appeal” and that he had read and understood an attached and incorporated “Waiver of Rights form.” We do not have the Waiver of Rights form in the record on appeal, so it can add nothing to our understanding of Patton’s intent in signing the plea agreement. The waiver language in the agreement is general. Although, given its timing and other content, it must refer to appeal of Patton’s two convictions, it need not be understood as specifically addressing his sentence for either offense, neither of which, of course, had yet been handed down. In addition, the record shows that, when sentencing did occur, the district judge told Patton he had a right to appeal any of the judge’s rulings or findings. The sentencing transcript demonstrates irrefutably that the judge told Patton his right to appeal remained intact, at least, incorrectly, as to denial of a downward dispositional departure, on which the waiver in the plea agreement had no bearing. The judge said that, if the plea agreement waiver was to concern “such issues,” it should have stated that it “applied to all issues involved at sentencing.” Moreover, to the extent the immediately subsequent behavior of the defendant is revealing of his understanding of what he had waived and what he had not waived at the time of his plea and/or sentencing, there is no dispute that Patton attempted to appeal his sentence within 10 days. In other words, it is apparent he believed he would not be prevented from doing so. Counsel was on the same page. He would not have inquired of Patton’s mother about her son’s desire to appeal if counsel believed no right of appeal existed. See State v. Harmon, 243 S.W.2d 326, 330 (Mo. 1951) (appellate court should not hold criminal defendant waived right to appeal unless record, acts of defendant, all circumstances inconsistent with any other interpretation). Furthermore, Patton is correct that the decisions relied upon by the Court of Appeals to dismiss his late appeal here actually support him. Those decisions involved defendants who had explicitly and unambiguously waived the particular appeal right they later sought to exercise. In Ortiz itself, the defendant had signed an explicit written waiver of his right to appeal his sentence, disqualifying himself from application of any of the exceptions permitting late appeals laid out in his case. Ortiz, 230 Kan. at 734; see also Campbell, 273 Kan. at 425 (defendant’s plea agreement specifically stated “[defendant] waives any right to appeal the verdict against him”); State v. Willingham, 266 Kan. 98, 101, 967 P.2d 1079 (1998) (in dicta, the court commented that the defendant may not have been granted the ability to file an out-of-time appeal if he had signed a written waiver of his right to appeal). The Tenth Circuit and sister jurisdictions also have recognized the need to tread carefully when courts are asked to hold that a criminal defendant waived his or her right to appeal a sentence. See United States v. Hahn, 359 F.3d 1315, 1325-28 (10th Cir. 2004) (rejecting suggestion that presentencing waiver of appellate rights can never be enforceable, but noting defendant who waives right to appeal does not subject himself or herself to any sentence handed down by district court; court applies three-part test to determine whether waiver occurred, reading ambiguities in plea agreement in favor of defendant); United States v. Lang, 440 F.3d 212 (5th Cir. 2006) (waiver of appeal in plea agreement does not deprive appellate court of jurisdiction over appeal of defendant’s sentence); United States v. Story, 439 F.3d 226 (5th Cir. 2006) (same); People v. Sherrick, 19 Cal. App. 4th 657, 659, 24 Cal. Rptr. 2d 25 (1993) (defendant’s general waiver of right to appeal, part of negotiated plea agreement, does not bar appeal of sentencing errors occurring after plea). As the district court suggested in this case, it is not too onerous a burden to require the State to be explicit about the terms it requires in plea agreements. The State was not explicit about a waiver of appeal of sentence in this case. The agreement’s general waiver language is, at best, ambiguous about the availability of any appeal of the sentences yet to come. We have previously stated: “Where a statute is ambiguous, we require that it be strictly construed in favor of the accused. [Citation omitted.] We find no compelling reason to adopt a different rule in interpreting ambiguous plea agreements.” State v. Wills, 244 Kan. 62, 69, 765 P.2d 1114 (1988); see also United States v. Chavez-Salais, 337 F.3d 1170, 1173 (10th Cir. 2003) (court will not enforce waivers of appellate rights beyond scope of plea agreement; “[l]ike most waivers, a defendant’s waiver of his right to appeal . . . is to be construed narrowly”); United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (in determining waiver’s scope, “any ambiguities in . . . agreements will be read against the Government and in favor of a defendant’s appellate rights”). Conclusion Because Patton qualifies for application of the third Ortiz exception—he was furnished an attorney who failed to perfect his direct appeal—and because the waiver in his plea agreement did not address appeals from sentencing, the Court of Appeals erred in dismissing his late appeal. The judgment of the district court allowing defendant’s late appeal is therefore affirmed. The decision of the Court of Appeals dismissing defendant’s late appeal is reversed; and the case is remanded to the Court of Appeals for further proceedings consistent with the opinion of this court. NUSS, J., not participating. Buser, J., assigned.
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The opinion of the court was delivered by Nuss, J.: After a jury trial, Patrick Angelo, Jr., was convicted of two counts of first-degree murder and sentenced to consecutive hard 25 terms. He directly appeals his convictions. Our jurisdiction is under K.S.A. 22-3601(b)(l), convictions of an off-grid crime. The issues on appeal, and this court’s accompanying holdings, are as follows: 1. Was Angelo’s right to a speedy trial violated? No. 2. Did the State’s use of peremptory challenges violate the Equal Protection Clause and Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986)? No. 3. Did the trial court commit reversible error in failing to instruct on the lesser included offense of second-degree murder? No. 4. Did the trial court commit reversible error in finding that Angelo introduced evidence of his good character? No. 5. Did the trial court err in failing to grant a mistrial? No. 6. Did the trial court commit reversible error in allowing the State to play the recorded statement of a witness after she had been excused? No. 7. Did cumulative error deprive Angelo of his right to a fair trial? No. Accordingly, we affirm Angelo’s convictions. FACTS Michael Hampton owned a house on Haskell Avenue in Kansas City, Kansas. Hampton made an agreement with the defendant’s son, Patrick Angelo, III (Little Pat), and friends that they could rent the house for several months to help remove it from foreclosure. Little Pat and friends planned to gamble and have “some girls” there. Hampton later learned that some of these people, a group he referred to as the “Thundercats,” were buying and selling drugs out of the house. Hampton had moved out but was again living in the Haskell house in February 2004. Little Pat, Curtis Brooks, Kevin Brown (Geechie), and a drug-addict friend of Hampton, a woman named Jamie Wilson, also stayed there. On February 18, 2004, police officers raided the house. They seized drugs, guns, and money and arrested several people, including Hampton. Two nights later, police were called to the house on the report of a double homicide. They found Geechie had been shot twice on the left side of his head, with one hole a “contact gunshot wound,” and Wilson had a single contact gunshot wound to the back of her head. Two days later the defendant, Patrick Angelo, Jr., also known as “Big Pat,” was charged by information. Because he was discovered to be in Missouri custody, he was not brought back to Kansas until June 2004. Hampton testified at the 2005 murder trial that Angelo and Geechie “got along with each other” and had even talked about getting a place together. But, some time before the murders, Angelo told Hampton that he was missing a ring and that Geechie was the “last person that he gave the ring to.” According to Hampton, Angelo was “pretty concerned about the ring. He didn’t — he didn’t show any intent or that he was angiy or that he was sad about it, but he was like he wanted the ring.” According to Hampton, a few weeks before the murders he had been in an altercation with Angelo because of a misunderstanding over Angelo’s girlfriend, Christine Johnson. She told Angelo that “Arkansas” had tried to get her to come downstairs and have sex. Because Hampton was known as Arkansas, Angelo then attacked him, striking Hampton in the head with his pistol butt. Hampton denied Johnson’s allegations. Hampton testified that a day or two after this attack, Angelo brought Johnson to the house. She told Angelo that she had confused the names and that Geechie — not Hampton — was the man who had wanted sex. Angelo then apologized to Hampton and gave him some drugs. Geechie’s friend and housemate, Curtis Brooks, testified that at approximately 8 or 9 on the night of the murders, Angelo and Little Pat knocked on the house’s front door. They were both upset. Once inside, Angelo walked to the air vent and pulled something out. Brooks believed it was a gun. Angelo then asked where Geechie was, and Brooks told him “in the basement.” As Angelo instructed, Brooks told Geechie to go into the bathroom because Angelo wanted to yell at him. Geechie complied. According to Brooks, he was afraid Little Pat had come after him for money owed. Brooks therefore asked another person there to take him to the house of his nephew, Horace. When Brooks left the house, Angelo and Little Pat were in the bathroom with Geechie, and Wilson was in the room next to the bathroom. When Brooks arrived at Horace’s house, he asked for a gun because “something’s going to happen.” Horace advised Brooks to tell Little Pat that Horace would cover Brooks for the money owed, so Brooks returned to the Haskell house without a gun. Ten minutes after he had initially left the Haskell house, he discovered the bodies of Geechie and Wilson. Maurice Williams, Jr., testified that he was among those who had been arrested during the February 18 house raid. On the night of his release from custody, February 20, Little Pat picked him up from the jail. They then went to a basketball game and to Little Pat’s grandmother’s house to meet Angelo. Little Pat and Angelo wanted to go to the Haskell house so Little Pat could retrieve some money he had hidden there. According to Williams, Angelo drove them to the street behind the Haskell house. Williams did not enter because he had been arrested there just 2 days earlier. Angelo and Little Pat both entered the house and came running back to the car 10 to 15 minutes later. Angelo said Geechie was dead. Williams further testified that he and Little Pat hung out for the rest of the night. When Williams asked Little Pat what happened, Little Pat said there was no arguing but he heard gunshots and saw Geechie fall onto Angelo. Little Pat then ran out of the house. Later that night, Williams heard Little Pat tell Angelo on the telephone that he was not going to jail “for nothing he didn’t do.” Like Hampton, he was somewhat aware that Angelo and Geechie “was kind of into it about some girl and the ring.” Little Pat’s testimony was mostly consistent with Williams’. He confirmed that he picked up Williams from jail, they went to the grandmother’s house, and then they went to a basketball game. Angelo called Little Pat wanting to go to the Haskell house. Little Pat thought he had some money at the house and that Williams had left some keys there. According to Little Pat, Angelo drove to the street behind the house and Brooks let the father and son inside. Little Pat went upstairs to look for the money and keys. When he came downstairs, he heard a “little loud noise” and saw Geechie hunched over, leaning on Angelo, so he ran out the door. When outside, he heard another loud noise. He and Angelo were in the house for about 10 or 15 minutes. The first trial ended in a hung juiy. During the retrial on November 14-18, 2005, the jury convicted Angelo of two counts of first-degree murder. He was sentenced to consecutive hard 25 terms. More facts will be provided as necessary to the analysis. ANALYSIS Issue 1: Angelo’s right to a speedy trial was not violated. Angelo first argues his right to a speedy trial was violated when his trial was not commenced within 90 days of his arraignment as required by K.S.A. 22-3402. The State acknowledges this right. It argues, however, that Angelo’s situation is controlled by the interstate Agreement on Detainers (Agreement), K.S.A. 22-4401 etseq., and his trial was commenced within the extra time granted by that Agreement. There is no dispute that Angelo’s trial began more than 90 days after his arraignment but within the extended time under K.S.A. 22-4401. Whether K.S.A. 22-4401 applies is a question of law subject to unlimited review. State v. Hargrove, 273 Kan. 314, 319, 45 P.3d 376, cert denied 537 U.S. 982 (2002). We begin by examining the speedy trial statute, K.S.A. 22-3402, which provides in relevant part: “(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).” (Emphasis added.) Based upon the italicized language, the State argues that K.S.A. 22-3402 does not apply because Angelo was not in its custody “solely” on the murder charges. Rather, he was in a Missouri prison because of criminal charges arising in that jurisdiction when he was transferred to the Wyandotte County jail in June 2004 to face that county’s murder charges. Based upon the plain language of the statute, we agree with the State. See State v. Sanders, 224 Kan. 138, 140, 578 P.2d 702 (1978) (“The first subparagraph of the act is designed to provide trial within 90 days for persons held in custody only because of the pending charge.”); see also Steffes v. City of Lawrence, 284 Kan. 380, Syl. ¶ 2, 160 P.3d 843 (2007) (When a statute’s language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.). As additional support for our holding, we examine the Agreement on Detainers and analogous case law. K.S.A. 22-4401, Article III, states: “(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: Provided, that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” (Emphasis added.) This court has previously spoken to the interplay between the general speedy trial statutes and the detainers statutes. In State v. Dolack, 216 Kan. 622, Syl. ¶ 4, 533 P.2d 1282 (1975), the court rejected defendant’s claim that he had not been brought to trial within the prescribed 180 days under the Agreement on Detainers, K.S.A. 22-4401. In so holding, we noted: “The right of an inmate to a speedy trial who is confined in a penal or correctional institution in this state, or confined in a penal or correctional institution in another state, is governed solely by the detainer statutes — in the first instance, by the Uniform Mandatory Disposition of Detainers Act (K.S.A. 22-4301 et seq.), and in the second instance, by the Agreement on Detainers (K.S.A. 22-4401 et seq.). (The second instance includes an inmate who is confined in the United States Penitentiary at Leavenworth, Kansas.)” (Emphasis added.) Dolack, 216 Kan. 622, Syl. ¶ 4. We have also previously discussed in some detail the application of the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq. — where a prosecution is pending against an in-state inmate accused of another offense — in the speedy trial context. In Townsend v. State, 215 Kan. 485, 524 P.2d 758 (1974), an inmate of the Kansas penitentiary was convicted in Leavenworth District Court for assaulting a guard. He argued that the State had failed to comply with that part of K.S.A. 62-2901 (Corrick) (now K.S.A. 22-4301) which provides that if his request for speedy trial is properly served and filed, he must be brought to trial within 180 days of the request. In rejecting his argument, among other things this court explained: “At the time of appellant’s trial the general legislative definition of a speedy trial was found in K.S.A. 62-1431 and 62-1432, providing for trial within two or three terms of court, depending on whether the accused was in jail or free on bond. Those statutes were repealed in 1970 by what is now K.S.A. 1973 Supp. 22-3402. [Citation omitted.] So long as the statutory deadlines are met, an accused is not heard to claim a denial of a speedy trial. [Citations omitted.] “As to inmates of a penal institution, however, those statutes are inapplicable. Inmates’ rights are governed solely by the detainers act. [Citations omitted.] In State v. Brooks, [206 Kan. 418, 479 P.2d 893 (1971)], we held: ‘Where a prosecution is pending against an accused confined in a state penal institution for another offense, the definition of a speedy trial and the procedure for relief are governed by the provisions of the Uniform Mandatory Disposition of Detainers Act, K.S.A. 62-2901 et seq., and the provisions of K.S.A. 62-1431 have no application.’ (Syl. ¶ 1.) “. . . He had a constitutional right to a speedy trial, but that right was defined in the detainer’s act. He concedes as much.” (Emphasis added.) Townsend, 215 Kan. at 487-88. While the Townsend court was discussing the detainers act dealing with in-state inmates, its reasoning extends to the detainers act dealing with out-of-state inmates. See Dolack, 216 Kan. at 633 (fact the Uniform Mandatory Disposition of Detainers Act rather than Article III[a] of the Agreement on Detainers were used inter changeably by the trial court is immaterial since the rights of inmates to a speedy trial are governed solely by the detainers statutes). Both detainers acts establish speedy trial deadlines for inmates separate from the one contained in K.S.A. 22-3402, which is simply inapplicable to Angelo under these circumstances. Issue 2: The State’s use of peremptory challenges did not violate the Equal Protection Clause and Batson v. Kentucky. Angelo, an African-American, next contends the State’s striking of prospective jurors 8, 31, and 38 — also African-Americans — violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution as analyzed in Batson v. Kentucky, 476 U.S. 79. Specifically, he alleges that the trial court failed to perform the third step in the Batson analysis: determining whether the defendant “carried his burden of proving purposeful discrimination.” See State v. Pham, 281 Kan. 1227, Syl. ¶¶ 3, 6, 136 P.3d 919 (2006). As a result, he asks for remand. The State admits that the trial court did not express its holding in this exact language but essentially argues that the determination is implicit in the court’s performance of the first two steps and in its ultimate rejection of Angelo’s Batson challenge. Our analysis begins with an examination of the standard of review for Batson challenges as stated by this court in Pham, 281 Kan. 1227: “When we review a challenge under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), concerning the State’s use of a peremptory challenge, we ask whether the trial court abused its discretion in determining if the challenged strikes were constitutionally permissible. [Citation omitted.] Discretion is abused only when no reasonable person would take the view adopted by the trial court. The defendant bears the burden of establishing such an abuse of discretion. [Citation omitted.]” Pham, 281 Kan. at 1236. “ ‘The Batson analysis involves a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. In this second step, the prosecutor is only required to put forth a facially valid reason for exercising a peremptory strike .... Finally, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination.’ (Emphasis added.) “The standard of review of the first step — the prima facie showing on the basis of race — is a question of legal sufficiency subject to plenary review. [Citation omitted.] “Regarding the second step — the prosecutor’s burden to show a race-neutral explanation for striking the jurors in question — it does not demand a prosecutor’s explanation that is persuasive, or even plausible, but merely facially valid. [Citation omitted.] Further, unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral. Accordingly, the ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike. [Citation omitted.]” (Emphasis added.) Pham, 281 Kan. at 1237. For the third step, the one at issue in the instant case, we stated: “Finally, the standard of review of the third step — the trial court’s decision on the ultimate question of whether the defendant has carried the burden of proving purposeful discrimination — is greatly deferential because the determination is factual. [Citation omitted.] “Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding will ‘largely turn on evaluation of credibility.’ [Citation omitted.] In the typical peremptory challenge inquiry, the decisive questions will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge . . . [the evaluation of which] lies ‘peculiarly within a trial judge’s province.’ [Citations omitted.]” ’ ” (Emphasis added.) Pham, 281 Kan. at 1237 (quoting Hernandez v. New York, 500 U.S. 352, 364-65, 114 L. Ed. 2d 395, 111 S. Ct. 1859 [1991]). As die United States Supreme Court has observed, Batson requires the judge to assess the plausibility of the State’s reason in light of all evidence bearing on it. Miller-El v. Dretke, 545 U.S. 231, 252, 162 L. Ed. 2d 196, 125 S. Ct. 2317 (2005). During voir dire, Angelo’s counsel pointed out that the State had struck six black, five white, and one Asian panel members. He then challenged the State’s strikes of African-American jurors 8,31, and 38 because they “just show a pattern of racially motivated strikes.” The court invited the State to respond. The State explained that juror 8 previously had been on a hung jury and juror 16 — a white female — was struck for the same reason. The brother of juror 31 had been arrested for distribution of drugs, and the State was striking all jurors with family members who had been arrested. Two white males indeed had been struck for this reason. Juror 31 was also familiar with the area where the crimes occurred, i.e., a “drug house.” The court invited Angelo’s counsel to respond to the State’s proffered reasons, which he did at length, denying that they constituted race-neutral grounds for jurors 8 and 31. He did not, however, address the issue of white panel members who had been struck for the same reasons. After initially stating that “so far I’ve not detected a pattern of racial[ly motivated] strikes” supporting Angelo’s claims, the judge eventually found that the State’s given reasons were race-neutral: “Well, the basis for peremptory challenge is you don’t have to have a lot of reason to do it as long as it’s a race neutral reason. And so far [the prosecutor] has stated race neutral reasons for striking juror number 8 and 31.” The State then turned to juror 38'. It noted that he was a 43-year-old housekeeper without a spouse or children. The State explained that “he had a very unfavorable disposition through his body language and facial expressions, frowning when [the prosecutor] was mentioning certain aspects of the case, even though he did not comment.” The court then asked Angelo’s counsel if he wished to be heard. His entire response, which did not focus on body language, was as follows: “I don’t think that does it, Judge. I mean again, there’s been nothing presented by the way of any comments he’s made, anything — and I can’t imagine what his occupation or his social — his personal background by the fact that he’s single or any of those issues would establish how he could not be a fair and impartial juror and that provides a race neutral reason for striking him.“ The court then replied, “The Court is going to find that again that [the prosecutor] has stated, a race neutral reason for striking that particular juror [38].” It ascertained from Angelo’s counsel that he was not complaining of any more strikes. After a colloquy between the court and all counsel ascertaining the final makeup of the jury — two black, one Hispanic, one white with a Hispanic surname, and eight white — the court ruled, “[Defense counsel], your Batson challenge is noted for the record and it’s overruled and we’re going to go forward with the people that we have here.” Turning to Angelo’s specific complaint that the trial court did not perform the third Batson step, we initially observe that per step one, Angelo challenged the State’s strikes to jurors 8, 31, and 38. Per step two, the State then responded with its purported race-neutral explanations for the strikes. We acknowledge the record does not reflect a clearly articulated identification of the third step. For example, the court simply stated that it found race-neutral reasons, which could be suggestive of only step two and not step three’s determination of whether Angelo had carried his burden of proving purposeful discrimination. Nevertheless, we hold that the trial court essentially performed its analysis under the third Batson step. Specifically, after initially stating that it had not detected a pattern of discrimination, it heard the State’s reasons and supporting information for striking the jurors and then asked for, and received, Angelo’s responses. It later ruled that the prosecutor had stated race-neutral reasons and ultimately, and specifically, overruled the Batson challenge. One factor a court may consider in the determination of whether a defendant has carried his or her burden of purposeful discrimination is the presence of other members of the same minority on the jury. State v. Trotter, 280 Kan. 800, 812, 127 P.3d 972 (2006); State v. Dean, 273 Kan. 929, 933, 46 P.3d 1130 (2002). The trial court observed that the panel began with 34 white, 16 black, 4 Hispanic, and 1 Asian members. It also specifically observed that two African-Americans remained on Angelo’s jury. Another factor that may be considered is whether white potential jurors were removed for the same reasons African-Americans were removed. See Miller-El, 545 U.S. at 241. Here, the prosecutor pointed out that several white members were removed for the same reasons that black jurors 8 and 31 were. Angelo’s counsel never responded to this specific information. A third factor, particularly regarding juror 38, is a juror’s body language. See Snyder v. Louisiana, 552 U.S. 472, 170 L. Ed. 2d 175, 181-84, 128 S. Ct. 1203 (2008). This court has upheld peremptoiy strikes based on counsel’s intuition and a juror’s body language. See Dean, 273 Kan. at 933; State v. Hood, 245 Kan. 367, 375, 780 P.2d 160 (1989). Here, the State proffered that factor as an explanation for striking juror 38. Angelo’s counsel also never specifically responded to this reason. Based upon this record, we conclude that the trial court considered this information and impliedly held Angelo failed to prove that the State’s reasons were pretextual and that he therefore failed in his ultimate burden to prove purposeful discrimination. The case of United States v. Corley, 519 F.3d 716 (7th Cir. 2008), is of great guidance on this issue. There, as in the instant case, the defendant argued that the trial court did not follow the three-step Batson process. The Seventh Circuit Court of Appeals noted that the government proffered its race-neutral reasons about the stricken juror. And like the instant case: “The district court did not then explicitly declare that the government had provided a race-neutral reason and that the inquiry would proceed to step three. That is because defense counsel proceeded directly into the argument that the reasons were insufficient. . . . The ensuing discussion was clearly a step three argument, and there is no formalistic requirement that the steps be labeled and explicitly delineated, as long as it is clear from the record that each step was in fact considered. Here, the prosecutor proved facially neutral reasons, and therefore the defense counsel properly progressed to the final step of attempting to prove that the strike was discriminatory. [Citation omitted.] The district court proceeded to hear [defendant’s] arguments .... The court then held that the government had provided race-neutral non-discriminatory reasons . . . .” (Emphasis added.) 519 F.3d at 722-23. The Corley court held that the trial court had accepted the government’s argument and the determination was factually supported by the record, and affirmed the rejection of the Batson challenge. 519 F.3d at 723. Similarly, in Messiah v. Duncan, 435 F.3d 186, 198-200 (2d Cir. 2006), the Second Circuit Court of Appeals affirmed the trial court’s rejection of a Batson challenge, although the lower court did not label or explicitly delineate the steps of its analysis. After the prosecutor proffered a race-neutral explanation for striking juror Woodbury, a short colloquy ensued between defense counsel and the court. The trial court then asked him, “Anything else you wish to add?” After reciting the trial court’s clarification to counsel of anything more regarding the State’s five strikes, the Second Circuit then held: “The trial judge listened to the arguments, asked defense counsel if he had anything more to contribute and then unequivocally stated on the record his acceptance of all five of the prosecutor’s strikes, including that of Woodbury. It is evident that tire trial judge did not discredit or find unpersuasive die prosecutors race-neutral explanations for striking Woodbuiy. Clear acceptance of that strikefollowing the Batson challenge, the proffered race-neutral explanation, and the ensuing discussion was a succinct but adequate Batson ruling.” (Emphasis added.) 435 F.3d at 199. The Messiah court summarized: “As long as a trial judge affords the parties a reasonable opportunity to make their respective records, he may express his Batson ruling on the credibility of a proffered race-neutral explanation in the form of a clear rejection or acceptance of a Batson challenge. [Citation omitted.]” 435 F.3d at 198. In so doing, the Second Circuit specifically rejected the concept that “a trial judge is obligated to provide ‘a talismanic recitation of specific words in order to satisfy Batson.’ ” 435 F.3d at 199 n.6. The case of People v. Robinson, 187 P.3d 1166 (Colo. App. 2008), is of particular guidance because its trial court’s language was similar to that in the instant case. There the trial judge heard the State’s reasons for striking the only African-American from the panel and then rejected defense counsel’s Batson objection, stating: “ ‘The Court finds that . . . the DA has stated an articulable non-racial [basis] for his peremptory, which is the standard. So, the motion for, I guess, reinstating [the panel member] into the jury is denied.’ ” (Emphasis added.) 187 P.3d at 1171. The Robinson court found that the prosecutor had met his burden under Batson’s step two of offering a race-neutral explanation for striking the panel member. 187 P.3d at 1173. It then proceeded to the third step of the analysis. As in the instant case, it held that the “district court obviously (albeit implicitly) found the prosecutor’s stated reasons credible.” 187 P.3d at 1174. The language of the trial court’s finding obviously did not label it step three or explicitly delineate it. Nevertheless, the appellate court had no problem in ultimately concluding that the trial court did not err in denying defendant’s Batson challenge, i.e., that the defense made no showing of purposeful discrimination. 187 P.3d at 1174. Even assuming Angelo is correct, i.e., that the trial court in the instant case only completed the second Batson step, then it was Angelo, not the trial court, who failed to proceed with the third. That failure is fatal to his claim. In Davis v. Baltimore Gas and Elec. Co., 160 F.3d 1023 (4th Cir. 1998), the defendant proffered his racially neutral reasons, but the record revealed no further comment on the matter. The Fourth Circuit Court of Appeals stated: “Plaintiff made no attempt to satisfy the third step in the Batson-Edmonson scheme. [See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 114 L. Ed. 2d 600, 111 S. Ct. 2077 (1991).] The burden is on the party alleging discriminatory selection of the venire to prove the existence of purposeful discrimination, see Batson, 476 U.S. at 93, 106 S. Ct. 1712, yet when faced with [defendant’s] presentation of a seemingly race-neutral explanation, Plaintiff stood mute — effectively abandoning his Batson-Edmonson challenge.” 160 F.3d at 1027. The Davis court also addressed plaintiff s claim that the trial court made no findings of fact and stated no rationale for its decision that the defendant had properly exercised its peremptory strikes. Here, the same might be said of the trial court’s mere statement that the reasons for the strikes were racially neutral. The Davis court held, however, that the trial court was not required to make on the record rulings articulating its reasons for overruling a Batson objection where the movant fails to pursue the objection after racially neutral reasons are given. “By fading to dispute [defendant’s] explanations, Davis appeared to acquiesce in them. As a result, there was no need for the trial judge to make a more precise on-the-record ruling.” 160 F.3d at 1028. The Fourth Circuit stated that it was joining the Eighth and Second Circuits in holding that the plaintiff waived his Batson challenge by failing to pursue his objection, e.g., by arguing pretext, once defendant offered a legitimate, nondisciiminatory explanation. 160 F.3d at 1027. See, e.g., Hopson v. Fredericksen, 961 F.2d 1374, 1376 (8th Cir. 1992) (plaintiff made no attempt to rebut the defendant’s advancement of presumably racially neutral reasons; by failing to pursue Batson objection, movant failed to preseive the issue for appeal); United States v. Rudas, 905 F.2d 38 (2d Cir. 1990) (because defendant’s counsel said nothing in response to the government’s explanations for its peremptory challenges, objection has been waived: “Once the [nonmovant] has offered reasons for its peremptory challenges, [the movant] must expressly indicate an intention to pursue the Batson claim”); see also United States v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993) (citing Rudas, held that by failing to dispute prosecutor’s explanation for strike in the trial court, defendants waived their right to object to it on appeal; therefore stood as uncontested basis for excluding them and no resultant need to consider other prosecutor explanation); cf. United States v. Jackson, 347 F.3d 598, 605 (6th Cir. 2003) (if defendant fails to rebut a race-neutral explanation at the time it was made, the trial court’s ruling on the objection is reviewed for plain error). In further addressing the assumption that Angelo is correct, i.e., that the trial court only completed the second step, we independently observe that not only did Angelo fail to proceed with the third one, but that he also failed to object at the time to the court’s purported incomplete Batson analysis. See State v. Kirtdoll, 281 Kan. 1138, Syl. ¶ 7, 136 P.3d 417 (2006) (ordinarily an appellate court will not consider an issue which has not been raised in the trial court). Such an objection would have given the trial court an opportunity to clarify or to cure the purported defect. We agree that the better practice is for the trial court to identify and follow each of the Batson steps in its analysis and, in the third step, to clearly articulate something like “the defendant has not carried his burden of proving purposeful discrimination.” Nevertheless, we conclude that Angelo has not shown that the trial court failed to follow Batson in rejecting his challenge. Issue 3: The trial court did not commit reversible error in failing to instruct on the lesser included crime of second-degree murder. Angelo next argues the trial court committed reversible error in failing to instruct the jury on the crime of second-degree murder because some evidence exists to justify a conviction of this lesser included offense. See K.S.A. 22-3414(3). The State responds that the failure to so instruct was invited error about which Angelo cannot complain on appeal. See Kirtdoll, 281 Kan. 1138, Syl. ¶ 7. At the instruction conference, defense counsel informed the court that a juiy “compromise verdict” of two second-degree murder convictions would essentially equate to a life sentence for Angelo, who was in his 40’s. Accordingly, counsel stated that he and Angelo wanted an “all-or-nothing” stance before the jury. Angelo stated on the record that he agreed. The court advised it would be willing to instruct on second-degree murder. However, the court wanted Angelo to understand that if he were convicted of first-degree murder, he would not have grounds for appeal because it was at his specific request that a second-degree instruction was not given. Again on the record, Angelo replied that he understood and acknowledged that he did not wish such an instruction. The court then omitted it. Angelo contends that trial courts have a nondiscretionaiy duty to give instructions on lesser included crimes if they are supported by the evidence. He cites K.S.A. 22-3414(3), which states in relevant part: “In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (2) of K.S.A. 21-3107 and amendments thereto, the judge shall instruct the jury as to the crime charged and any such lesser included crime.” (Emphasis added.) Accordingly, Angelo further argues that the trial court should have given the second-degree murder instruction over his objection, citing State v. Cordray, 277 Kan. 43, 82 P.3d 503 (2004). He contends that Cordray reaffirmed the obligation of the trial court to instruct on lesser included offenses when supported by the evidence, “regardless of the defendant’s wishes.” See 277 Kan. at 53-55. As a result, Angelo argues, he may appeal the court’s failure to instruct on lesser included crimes, and the issue should be analyzed as one in which he simply made no objection to the court’s decision not to instruct, i.e., whether the failure was clearly erroneous. See K.S.A. 22-3414(3). We acknowledge that on Cordray’s face the opinion appears to provide some comfort to Angelo. There, Cordray argued that the trial court’s instructing on lesser included offenses over his objection denied him of a fair trial by precluding an all-or-nothing de fense. This court rejected Cordray s argument, holding that a criminal defendant does not have a right to an all-or-nothing defense. 277 Kan. at 55. We further held that trial courts have a duty to instruct on all lesser included offenses reasonably justified by the evidence presented at trial. 277 Kan. at 53. Here, the trial court determined that a second-degree murder instruction was justified based upon the facts presented at trial. Therefore, under Cordray, the court erred in failing to give that instruction. However, in Cordray, the trial court gave the required instructions over defendant’s objection. By contrast, here the trial court acceded to Angelo’s request and did not give it. In short, Angelo invited this error. A litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal. See Kirtdoll, 281 Kan. at 1150-51. There, the defendant championed the use of an eyewitness jury instruction and then claimed on appeal the trial court erred in using it. By the same rationale, because Angelo requested that the instruction not be given, he is barred from claiming the court erred in acceding to his request. Although not critical to our conclusion, we note that a denial of relief is particularly appropriate where Angelo twice told the court personally that he did not want the instruction, even after acknowledging that he could not appeal from the consequences of his decision, e.g., because of invited error. Issue 4: The trial court did not commit reversible error in finding that Angelo introduced evidence of his character. Angelo next argues the trial court committed reversible error in finding that he had introduced evidence of his own good character and thereby allowed the State to present evidence of his prior convictions under K.S.A. 60-447. He contends the State initially opened the door to his character on direct examination of its own witness. The State responds that the trial court correctly found that Angelo had instead opened the door on cross-examination. Generally, evidentiary rules governing admission and exclusion of evidence may be applied either as a matter of law or in the exercise of the trial court’s discretion, depending on the contours of the rule in question. When the adequacy of the legal basis of a trial judge’s decision on admission or exclusion of evidence is questioned, we review the decision de novo. See State v. Reid, 286 Kan. 494, Syl. ¶ 2, 186 P.3d 713 (2008). On direct examination by the State, Hampton testified about his altercation with Angelo over Angelo’s girlfriend, Christine Johnson: “Q: Did there come a time when you and Big Pat had a disagreement over this female? “A: Yeah. There was a time — that was the first time that I ever seen Pat really violent and confrontational with me or with anybody. “Q: Can you describe the confrontation for the jury? “A: Yeah. Like 1 was saying, that’s the first time that Pat had ever got violent or confrontational with me at all, and he wasn’t himself to me. Okay, I was downstairs in Geechie’s part of the house and I heard a bunch of the young Thundercats hollering, calling my name, Arkansas. And when I came up and walked through the door, Big Pat just took off on me and start swinging and knocked me down and just kind of, you know, dogged me out, jumped on me. ... I got up and was leaning up against that window by the mailbox right there on the inside of that house. And he pulled out the butt of his gun and said, I told you about fucking with my girl, Nigga, and hit me on the head with the butt of his gun.” (Emphasis added.) On cross-examination, defense counsel asked several questions about the incident. The following colloquy then occurred: “Q: You said something on direct examination. The time that Pat, Big Pat, got upset with you about thinking that you were hitting on Christine, you said it’s the first time you’ve ever seen him get violent, rightP “A: Yes. “Q: You would agree that Pat’s a pretty easy-going guy, isn’t he? “A: Yeah.” (Emphasis added.) The State then sought to introduce evidence of Angelo’s prior convictions, arguing that defense counsel had opened the door to Angelo’s character by referring to him as a “pretty easy-going guy.” Defense counsel responded that he had not opened the door to his client’s criminal record. The trial court found that Angelo’s counsel’s question, and Hampton’s response, constituted evidence of Angelo’s good character, which allowed the State to then offer contrary evidence. See K.S.A. 60-447 (if offered by the prosecution to prove guilt, evi dence of a trait of an accused’s character as tending to prove guilt of the offense charged may be admitted only after the accused has introduced evidence of his or her good character). Specifically, the Wyandotte County District Attorney testified that Angelo had previously been convicted of one count of aggravated battery, one count of battery on a law enforcement officer, and one count of batteiy. Angelo’s wife, Jolynn, testified about a separate aggravated battery conviction in which she was his victim. Angelo argues the State itself introduced evidence of Angelo’s character by failing to object when its own witness, Hampton, testified that the Christine Johnson episode was the first time he had ever seen Angelo violent. Accordingly, Angelo claims the “pretty easy-going guy” question was merely cross-examination development of a subject already addressed on direct, citing Humphries v. State Highway Commission, 201 Kan. 544, 547, 442 P.2d 475 (1968). The State responds that on Hampton’s direct examination he was merely expressing his observations about Angelo’s behavior. We agree with Angelo. Hampton’s direct testimony identifying the Johnson episode as the first time he had ever seen Angelo violent and confrontational is quite similar to defense counsel’s follow-up characterization of Angelo on cross-examination as a “pretty easy-going guy.” In short, the State opened the door and defense counsel basically commented on it. The State, however, may not open the door for itself. See K.S.A. 60-447. Having found error, we now examine its magnitude. We expressed our standard of review in State v. Drayton, 285 Kan. 689, 702, 175 P.3d 861 (2008): “Errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done. State v. Voyles, 284 Kan. [239,] 252[, 160 P.3d 794 (2007)]; see K.S.A. 60-261. Among other things, this court specifically considers whether the error is of such a nature as to affect the outcome of the trial. See State v. Englehardt, 280 Kan. 113, 130, 119 P.3d 1148 (2005) (reversal is required only where an erroneous admission of evidence is of such a nature as to affect the outcome of the trial and deny substantial justice).” As a result of the court’s erroneous ruling, evidence of Angelo’s prior convictions was incorrectly admitted. Nevertheless, Hamp ton’s testimony on direct examination, which was not objected to, established that Angelo just “took off’ on him. Angelo swung, knocked Hampton down and jumped on him. After Hampton got to his feet, Angelo pulled out a gun and struck Hampton in the head with its butt. Angelo’s language essentially established that he had promised this treatment if Hampton ever “fucked with” Angelo’s girlfriend, Johnson. This admissible episode gave the jury an unmistakable picture of Angelo’s violent behavior toward a resident of the Haskell house several weeks before the murder of other residents there. Accordingly, we hold that admitting evidence of prior convictions for other violent behavior did not affect the outcome of Angelo’s trial. The error is not reversible. Issue 5: The trial court did not err in failing to grant a mistrial. Angelo argues that the trial court abused its discretion in refusing to declare a mistrial after his wife erroneously testified that he had been convicted of attempted murder. The State responds that the measures taken by the court were sufficient to correct the mistake. The Kansas mistrial statute, K.S.A. 22-3423(1), states in relevant part: “The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because: “(c) prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” (Emphasis added.) As a general rule, a motion for a mistrial is reviewed under an abuse of discretion standard and the party alleging the abuse bears the burden of proving that his or her substantial rights to a fair trial were prejudiced. State v. White, 284 Kan. 333, 342, 161 P.3d 208 (2007) (citing State v. Patton, 280 Kan. 146, 181, 120 P.3d 760 [2005]). We examined a court’s duty to declare a mistrial in State v. Lewis, 238 Kan. 94, 97, 708 P.2d 196 (1985): “It is necessary when justice so requires to declare a mistrial where there is some fundamental failure of the proceeding. When an event of prejudicial mis conduct, the damaging effect of which cannot be removed by admonition and instruction, is presented to the jury, the trial judge must declare a mistrial.” As mentioned, Angelo’s wife, Jolynn, was called by the State to testify about a prior conviction. When asked what he was convicted of in 1992, she replied, “Assault to me.” When the State asked if she knew the name of the charge, she replied, “I guess attempted murder. I don’t —.” Unfortunately for the State’s case, in 1992 Angelo was not charged with attempted murder; rather, he was charged with and convicted of aggravated battery. Accordingly, defense counsel objected and asked that the answer be stricken and a mistrial granted. In the alternative, he requested jury clarification that Angelo had not been charged with attempted murder. The trial court sustained the objection and advised the jury that Angelo had neither been “charged nor convicted of the crime of attempted murder . . . and you should disregard the last matter.” Jolynn then confirmed Angelo had been charged with aggravated battery in that episode. We first observe that this court has rejected a claim of abuse of discretion for failure to grant a mistrial when a witness offered an unsolicited or nonresponsive answer to a proper question. In State v. Goodwin, 223 Kan. 257, 573 P.2d 999 (1977), Goodwin complained because a police officer testified that he found defendant while looking for a car connected with an armed robbery or a possible homicide. Goodwin claimed that the mention of a homicide was so prejudicial as to warrant a mistrial. The Goodwin court noted that unsolicited and unresponsive answers to proper questions are impossible to exclude in advance, so the proper inquiry is the degree of resulting prejudice. 223 Kan. at 260. The court determined the remark was harmless and the trial court did not abuse its discretion in refusing to grant a mistrial. 223 Kan. at 260; see also State v. Rinck, 256 Kan. 848, 853-54, 888 P.2d 845 (1995) (no abuse of discretion in denying a request for mistrial where, without solicitation by the State, a witness improperly referred to the defendant’s recent release from prison and a limiting instruction was offered but defendant'refused the offer). Because the question was asked, Jolynn’s answer cannot truly be said to be unsolicited. But it was inaccurate and surprising to the prosecutor. He informed the court and counsel that he had spoken with her before trial and understood from her responses that she knew the charge against Angelo had been aggravated battery. More important, we have said that “an admonition to the jury normally cures the prejudice from an improper admission of evidence.” State v. Navarro, 272 Kan. 573, 582, 35 P.3d 802 (2001). Therefore, where the trial court sustains an objection and admonishes the jury to disregard the objectionable testimony, reversal is not required unless the remarks are so prejudicial as to be incurable. State v. Gleason, 277 Kan. 624, 642, 88 P.3d 218 (2004). Here, the trial court sustained Angelo’s objection and admonished the jury to disregard. Accordingly, it is the defendant’s burden to prove that he was substantially prejudiced by the remarks, i.e., that the prejudice was incurable. Angelo, however, simply claims that “[jjurors would reasonably wonder if such a conviction actually existed but should not have been brought to their attention, or if the charge was originally filed and was later plea bargained to something else.” But the jury easily could have concluded, from Jolynn’s admission that she was “guessing,” that she simply was mistaken about the name of the charge. Indeed, the jury then heard her testify that Angelo actually had been convicted of aggravated battery. Under these circumstances, we cannot hold that the prejudice was incurable. Consequently, we hold that Angelo has not met his burden of showing his substantial rights to a fair trial were prejudiced. The trial court did not abuse its discretion in refusing to declare a mistrial. Issue 6: The trial court did not commit reversible error in allowing the State to play the recorded statement of a witness after she had been excused. Angelo next claims the trial court committed reversible error in allowing the State to play a tape recording of Johnson’s statement to law enforcement in which she allegedly stated that Angelo implicated himself in the murder. Specifically, Angelo claims that because the tape was played only in rebuttal to her testimony, she was prevented from having an opportunity to explain her statements as required by K.S.A. 60-422(b). Because the State repeatedly characterized the statement as Angelo’s confession, he claims the error prejudiced his right to a fair trial. The State responds that Johnson was given an opportunity to explain her statement because she was presented its transcript and allowed to deny that she had made it. It also argues Angelo was not prejudiced by the procedure, i.e., any error was harmless under K.S.A. 60-261. In this vein, the State contends that if anything, it was the State that suffered prejudice by the procedure. We agree the State’s case was damaged, not Angelo’s. As a result, a detailed factual recitation, as opposed to a thorough legal analysis pursuant to an evidentiary standard of review, is appropriate. Johnson testified that around the time of the murders Angelo was acting strange. He eventually told her that “some stuff went down at [the house on Haskell]” and that two people had been murdered. When Johnson asked if Angelo had anything to do with the murders, he told her no, but they were “trying to pin it on him.” The State then questioned Johnson about a recorded statement she gave to Detective Michael Vega, in which she allegedly said that Angelo had told her, “You know that dude that I killed, that’s the dude that owed me.” When the State handed her a transcription to this effect, Johnson repeatedly denied ever making this particular statement. Detective Vega then testified on rebuttal that Johnson had, in fact, made the statement. When the State sought to introduce the actual recording of the statement as proof, defense counsel objected, arguing that Johnson had been excused and was not present to explain her statements. He also said it would be proper to play the tape while Johnson was on the stand, giving defense counsel an opportunity to cross-examine her on the contents of the tape. The court overruled the objection, finding that “there was plenty of confrontation about the written statement in court.” After playing the tape, the State asked Detective Vega whether the written transcript was the same as the tape he just heard. He agreed. Angelo’s counsel did not suggest that the tape failed to match the transcript. While the jury was deliberating, the judge told the parties that the court reporter believed the tape provided “the dude that got killed” rather than “the dude that I killed.” (Emphasis added.) The judge stated that he had listened to the tape a couple of times and was “persuaded that the tape does not say ‘that dude that I killed.’ ” (Emphasis added.) When he offered to read a statement to the jury about the tape, the State argued that the tape was not clear but that the court could offer to let the jury listen to it. The court brought back the jury and said: “Ladies and gentlemen, members of the jury, there may have been a misstatement by the State. It appears that the audiotaped statement of Christine Johnson may have said, quote, ‘that dude that got killed,’ instead of, quote, ‘that dude that I killed’. “There was no intent to mislead the jury by either party on this regard. If the jury wishes to hear State’s Exhibit 45, it may do so in order to make its own determination.” At the jury’s request, the tape was played twice. If anything, the repeated playing of the tape helped, not harmed, Angelo. If it had not been played, the jury could have mistakenly believed, from the transcript and Detective Vega’s testimony in reliance upon it, that Angelo had essentially confessed and actually said “that dude that I killed.” Accordingly, any purported violation of K.S.A. 60-422(b) was certainly harmless to him, under both K.S.A. 60-261 and the federal rule articulated in Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). Issue 7: Angelo was not denied a fair trial due to cumulative errors. Angelo finally argues that cumulative errors require reversal of his convictions and remand for a new trial. The State responds no error was committed; but if so, any accumulation did not deny Angelo a fair trial. Cumulative trial errors require reversal when the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. Reid, 286 Kan. 494, Syl. ¶ 20. We have concluded that the trial court erred in failing to instruct on second-degree murder, but we have additionally determined that Angelo is barred from benefitting from that error because he and counsel invited it. We have also concluded that the trial court erred in admitting evidence of his prior convictions, but we have additionally determined that the error was harmless in light of other evidence. As there is no other error damaging him, we must reject his contention. Affirmed.
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The opinion of the court was delivered by Nuss, J.: Twenty years after Carl E. Howard was sentenced for convictions of aggravated kidnapping, two counts of rape, and six counts of aggravated criminal sodomy, he filed a motion to correct an illegal sentence. He now appeals the district court’s denial of his motion. We have jurisdiction to review the denial because a life sentence had been imposed. See K.S.A. 22-3601(b)(l); State v. Thomas, 239 Kan. 457, Syl. ¶ 2, 720 P.2d 1059 (1986). The sole issue on appeal is whether the district court erred in summarily denying Howard’s motion. We hold the court did not err and affirm. FACTS In 1987, a jury convicted Carl Howard of one count of aggravated kidnapping, two counts of rape, and six counts of aggravated criminal sodomy. The convictions arose out of a single episode involving the sister of his former girlfriend and were affirmed by this court in State v. Howard, 243 Kan. 699, 763 P.2d 607 (1988). According to the 1987 journal entry of judgment, the court imposed a base sentence of life on Count I, the aggravated kidnapping charge; sentences of 20 years to life on Counts IV and VIII, the rape charges; and sentences of 15 years to life on Counts II, III, V, VI, VII, and IX, the aggravated criminal sodomy charges. The rape sentences were concurrent with each other, but consecutive to the aggravated kidnapping sentence. Similarly, the aggravated criminal sodomy sentences were concurrent with each other, but consecutive to the rape sentences. In short, according to the journal entry, Howard was to serve a life sentence, consecutive to two concurrent sentences of 20 years to life, which were in turn consecutive to six concurrent sentences of 15 years to life. In 2007, Howard filed a pro se motion to correct an illegal sentence pursuant to K.S.A. 22-3504. He asserted that he was wrongly serving the journalized sentence because he had actually only been sentenced to life, plus 15 years to life. Howard’s motion is based upon confusing statements of the trial judge made at sentencing hearings held on consecutive days. According to the transcript of the sentencing hearing on July 29, 1987, the trial judge first imposed a sentence of life, plus 10 years to life. The State interrupted, pointing out that this sentence was illegal because the minimum sentence for aggravated criminal sodomy was 15 years, not 10. The court corrected the sentence to life, plus 15 years to life. Later in the hearing, defense counsel asked for sentence clarification. After a lengthy exchange between the court and counsel for both sides, the following colloquy occurred: “[DEFENSE COUNSEL]: Okay. So he has life plus fifteen [to life] plus twenty [to life]? “THE COURT: Right. “[DEFENSE COUNSEL]: Thank you. “THE COURT: Anything further in this case? “[DEFENSE COUNSEL]: No. Thank you, Your Honor.” (Emphasis added.) The proceedings then adjourned. According to the transcript, the next day, July 30, the judge brought everyone back “on the court’s own motion” to “clear up” its previous ruling. He stated, “So at this time the Court is going to restate the sentence which the Court intended to give, which this Court believed that it made in this case.” (Emphasis added.) The judge then described the sentence he believed he had imposed, which was life, plus 15 years to life. The prosecutor quickly pointed out that the judge had just pronounced a different sentence than the one he had previously imposed: “Yesterday in this courtroom you said that the sentence was life plus thirty-five to life. And now you’ve given us life plus fifteen to life.” The judge responded, “Well, it’s not my intention to give [life] plus fifteen to life. It’s my intention to give the same sentence today as I gave yesterday.” (Emphasis added.) He reiterated, “I want it [the sentence] to be exactly as I gave it yesterday.” After another lengthy discussion between the court and all counsel about the actual sentence imposed, the following colloquy occurred: “[PROSECUTOR]: Your Honor, probably five, ten minutes into the sentencing yesterday, at some point you said the controlling term was life plus twenty to life. You clarified that later on, and that was no longer true. The version’s changed. At the end of the hearing yesterday, the final word was life plus twenty plus fifteen. That was your final sentencing at the end of the hearing yesterday. And that’s what you just repeated here today. Yesterday there were any number of different versions, but that’s what the bottom line was at the end of the hearing yesterday. And 1 don’t believe there’s a change been made. “THE COURT: Well, it’s still life plus twenty to life plus fifteen [to life.]. It’s still the sentence of this Court.” (Emphasis added.) The colloquy immediately following concerned preparation of the journal entry. It confirmed that the prosecutor had correctly recited the judge’s actual sentence: “[DEFENSE COUNSEL]: Your Honor, would it be improper for me to request that this Court do the journal entry on this so that— and of course, I don’t mean— “THE COURT: Well, I think that it’s proper for the State to do the journal entiy. I will be glad to listen to any arguments over that. It seems to me like [the prosecutor] understands exactly what the sentence is at this time.” (Emphasis added.) As mentioned, the journal entry signed by the judge and counsel and filed 2 weeks later reflected the judge’s clarification of the sentence and its reiteration. Among other things, it provided: “Thereafter, on the 30th day of July, 1987, this case comes on for further hearing on the Court’s own motion for clarification of sentence, all parties appearing as aforesaid. Whereupon, the court reiterates the sentences imposed herein on the 29th day of July, 1987.” (Emphasis added.) Twenty years later when Howard filed his motion to correct an illegal sentence, a different judge summarily denied it. That judge held that the sentence was not illegal; the journal entry accurately reflected the original judge’s actual sentence. ANALYSIS Issue: The district court did not err in summarily denying Howard’s motion to correct an illegal sentence. Howard claims the district court erred by improperly denying him a full evidentiary hearing and appointment of counsel, as well as in its ruling on the merits. Specifically, he claims his sentence became ambiguous because the sentencing judge articulated multiple sentences over the course of 2 days. Howard argues that the journal entry does not control and must be corrected to reflect the sentence purportedly pronounced from the bench: life, plus 15 years to life. The State responds that the sentence was unambiguous because the court’s final oral pronouncement was life, plus 20 years to life, plus 15 years to life. That pronouncement was correctly memorialized in the journal entry. The State argues that because the sentence was unambiguous, it clearly was not illegal, and that the district court was therefore correct in summarily denying Howard’s motion. Standard of Review We first acknowledge that K.S.A. 22-3504 does not automatically require a full hearing upon the filing of a motion to correct an illegal sentence. State v. Hoge, 283 Kan. 219, 224, 150 P.3d 905 (2007). The district court first makes a prehminary examination of the motion. Based upon that examination, the court can deny the motion “without a hearing or appointment of counsel if the district court determines the motion, files, and records of the case conclusively show the defendant is not entitled to relief.” Hoge, 283 Kan. at 224. Here, the district court summarily denied Howard’s motion. Howard contends that the district court’s decision is reviewed de novo because statutory interpretation is required. The State responds that an abuse of discretion standard should instead be apphed. We agree with Howard but for a different reason. Howard correctly notes that this court has traditionally treated motions under K.S.A. 60-1507 in the same manner as it has treated motions to correct an illegal sentence. See State v. Davis, 271 Kan. 892, 894, 26 P.3d 681 (2001) (“In both cases, the district court is to make a prehminary examination to determine whether substantial questions of law or fact are raised, and, if the findings are in the negative, the court may summarily deny the motion.”); see also Hoge, 283 Kan. at 224. Accordingly, the K.S.A. 60-1507 case of Bellamy v. State, 285 Kan. 346, 172 P.3d 10 (2007), provides guidance on our standard of review. There, the defendant argued that the Court of Appeals applied the wrong standard — abuse of discretion — in reviewing the district court’s denial of his habeas corpus motion. 285 Kan. at 350. In clarifying that the de novo standard of review for 60-1507 motions is hmited to those cases involving summary denial, the Bellamy court reasoned that in those circumstances deference need not be given to the district court’s factual findings because appellate courts have the same access to the motion, records, and files as the district court. 285 Kan. at 350; see State v. Laymon, 280 Kan. 430, 437, 122 P.3d 326 (2005). Because this court has treated K.S.A. 60-1507 motions in the same manner as it has treated motions to correct an illegal sentence, we conclude that whether a district court erred in summarily denying the latter is also reviewed de novo. Discussion Like the district court, we must determine whether Howard’s motion, records, and files conclusively show that he is entided to no relief. Howard argues that he has made a showing sufficient to avoid summary denial by demonstrating the existence of a substantial question of fact, i.e., he received five different sentences in 2 days. The State responds that no substantial issues of law or fact have been presented and Howard is serving the sentences pronounced. We have repeatedly held that K.S.A. 22-3504 only applies if a sentence is illegal. Whether a sentence is illegal is a question of law over which this court has unlimited review. Hoge, 283 Kan. at 225. An illegal sentence under the statute is one “imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be sewed.” (Emphasis added.) State v. Deal, 286 Kan. 528, Syl. ¶ 1, 186 P.3d 735 (2008). Howard argues his sentence is illegal because it became ambiguous with respect to the time and manner in which it is to be served. Specifically, he claims ambiguity because the court pro nounced from the bench a sentence of life, plus 15 years to life; but the journal entry erroneously reported a sentence of life, plus 20 years to life, plus 15 years to life. Howard correctly observes that a journalized entry is merely a record of the sentence imposed, and that the actual sentencing occurs when the court pronounces the sentence from the bench. See State v. Moses, 227 Kan. 400, 402, 607 P.2d 477 (1980). In further support of his argument, he cites State v. Royse, 252 Kan. 394, 845 P.2d 44 (1993), and State v. Zirkle, 15 Kan. App. 2d 674, 814 P.2d 452 (1991). The State counters that the trial judge may have misspoken, but the confusion was cleared up before the end of the proceeding. It also argues that the judge consistently indicated his intent to sentence Howard to life, plus 20 years to life, plus 15 years to life. It primarily relies upon State v. Crawford, 253 Kan. 629, 861 P.2d 791 (1993). Of the cases cited by the parties or discovered during our independent research of Kansas law, Crawford is the most analogous to the instant case. There, the trial judge pronounced a sentence of 15 years to life on four counts, with three sentences to “run consecutively to the first.” 253 Kan. at 647. He also pronounced a sentence of 15 years to life on four other counts, with all of those four sentences to run concurrently to the first. He stated, “I believe the net effect of the sentence in this case is to impose a sentence from 60 years to life. In effect, the defendant has received a sentence of from 15 years to life for the crimes involving each of the four victims.” 253 Kan. at 648. The State immediately sought clarification as to whether all (eight of) the 15-years-to-life sentences ran consecutively to each other. The trial judge answered, “No, the four of them are,” clarifying that he intended to run four of the sentences consecutively to each other. He stated, “Well, my intention was to impose a sentence from 60 years to life.” 253 Kan. at 648. The resultant journal entry was consistent with four consecutive sentences. Defendant appealed, arguing that the trial judge had not issued a controlling sentence of 60 years to life. Rather, his oral pronouncement was actually less severe: the three sentences running “consecutively to the first” sentence, but concurrently to each other, equate instead to 30 years to life. The Crawford court acknowledged the general rule in Moses— that what the trial court said at sentencing in open court controls rather than what is written in the journal entry. It held, however, that application of the Moses rule did not resolve the question in the case. In language descriptive of the instant case, the Crawford court stated: “Here, at the time of sentencing in open court, the district court judge concluded his recitation of the numerous terms hy stating that he believed that he had imposed a sentence of 60 years to life. Here the discrepancy is between what the judge stated he intended to impose and what the judge [actually] stated when he articulated the terms and how they were to run in relation to each other.” (Emphasis added.) 253 Kan. at 649. The Crawford court held that the trial judge did not change his mind, vacate the sentence, and try to change the length. Rather, “[h]ere the judge consistently intended to sentence Crawford to 60 years to life. In articulating the terms, however, he either miscalculated or misspoke. However, upon inquiry by the State, he clarified that the four 15-years-to-life sentences were to run consecutively to each other.” (Emphasis added.) 253 Kan. at 649. The Crawford court also established that the actual sequence of the trial judge’s statements was not critical to the imposition of sentence: “The imposition of sentence included the statement by the district court judge that the four 15-years-to-life sentences will run consecutively to each other. The trial judge is not required to make this determination in any particular sequence when imposing sentence. Ml that is required is that it be made at the time sentence is imposed. That requirement was met here. The journal entry properly reflects the sentence imposed by the district court at the time of sentencing.” (Emphasis added.) 253 Kan. at 649-50. Similarly, here, the trial judge either miscalculated or misspoke, but essentially stated that he never intended to impose a sentence like Howard alleges: life, plus 15 years to life. When apprised of this characterization, the judge responded, ‘Well, it’s not my intention to give [life] plus fifteen to life. It’s my intention to give the same sentence today as I gave yesterday.” Indeed, on his own motion he had brought everyone back to “clear up” and to “restate” the sentence which he had “intended to give” the day before. As in Crawford, upon further inquiry by the parties about the exact sentences imposed, the trial judge eventually clarified them. Finally, at the conclusion of both sentencing hearings, the original one and the later one of clarification and reiteration, he pronounced the same sentence — life, plus 35 years to life — that was also reflected in the journal entry. As for the cases that Howard cites, Royse, 252 Kan. 394, and Zirkle, 15 Kan. App. 2d 674, they are easily distinguishable from the instant case. They do not concern mere clarification and reiteration of sentences, but rather substantial changes to those originally imposed sentences. In Zirkle, the trial court simply changed its mind after sentencing and then quickly imposed a harsher sentence. Indeed, the Crawford court distinguished its facts from Zirkle’s on this basis. 253 Kan. at 649. Specifically, the Zirkle trial judge sentenced defendant to a term of 1 to 5 years’ imprisonment. Immediately after this imposition, the judge inquired as to the jail time defendant had already served. Upon learning defendant had already served 6 months, the judge vacated the sentence and ordered that the sentence be increased to 2 to 5 years. Zirkle, 15 Kan. App. 2d at 675. Citing Moses for the principle that a judgment is effective upon its pronouncement from the bench, the Court of Appeals held that the defendant was sentenced when the trial court announced the 1- to 5-year sentence. The sentence could not be increased. Zirkle, 15 Kan. App. 2d at 677-78. Our holding in Royse is also readily distinguishable. There, the trial judge imposed maximum sentences of 15 years to life on two counts of second-degree murder, but failed to state whether the sentences were to run concurrently or consecutively. One week later, the judge brought the defendant back to court, acknowledged his prior negligence, and ordered that the sentences run consecutively. Citing Moses and Zirkle, the Royse court held for the defendant, ruling that the sentencing was complete when orally pronounced during the first court proceeding. It also cited K.S.A. 1991 Supp. 21-4608(1), which provides that whenever the record is si lent as to the manner in which two or more sentences imposed at the same time shall be served, they shall be served concurrently. 252 Kan. at 396. Consequently, the sentencing could not be increased 1 week later and “[t]he sentences must be served concurrently.” 252 Kan. at 398. In sum, the trial judge in the instant case merely clarified, and did not change his mind about, the sentences pronounced from the bench. Accordingly, “[t]he journal entry properly reflects the sentence imposed by the district court at the time of sentencing.” Crawford, 253 Kan. at 650. As a result, there is no problem under Moses, and the sentences which Howard is serving are unambiguous and therefore are not illegal. This determination was correctly made by the 2007 district court from the motion, records, and files. As a result, that court did not err in summarily denying Howard’s motion. Affirmed.
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The opinion of the court was delivered by Johnson, J.: This appeal and cross-appeal emanate from the Shawnee Mission School District’s (school district) application to the City of Shawnee (City or City Council) for a special use permit to allow the construction of an illuminated softball complex and stadium next to property owned by Robert and Jane Manly. Although the facility has been constructed and in use for some time, the City appeals the district court’s ruling on the number of votes required to issue a special use permit under K.S.A. 12-757(d) and, alternatively, challenges the district court’s refusal to consider the City Council’s second vote on the application. The Manlys likewise continue to litigate the genesis of the completed project by cross-appealing, wherein they contend that the district court should have considered and rejected the City Council’s second vote; that the district court erred in ruling the zoning change was reasonable; and that the district court erred in failing to recognize and find a violation of the Manlys’ due process rights. Finding that the district court misinterpreted K.S.A. 12-757(d), we reverse its ruling that the initial vote by the City Council was unlawful, and we remand for a dismissal of all further proceedings in this case. FACTUAL AND PROCEDURAL HISTORY The procedural history of this case is rather tortured and convoluted, and we perceive that a detailed recitation is unnecessary for our decision. We will begin with a factual overview, describing only the relevant portions of the proceedings. The Manlys owned 38 acres of land in Shawnee, Kansas, adjacent to an 18-acre tract owned by the school district. The school district land was zoned for agricultural use, which would have permitted a softball field, but not one with lights and a stadium. On October 14, 2005, the school district applied to the City for a special use permit for a proposed softball facility with four playing fields, parking for 300 cars, seating capacity for 700, and sports lighting on the fields. A storage building and a concession/restroom building were also included. The school district planned to use the fields for five high school varsity, junior varsity, and “C” teams, and anticipated the possibility of leasing the facility to outside youth organizations. The construction was scheduled to begin in the spring of 2006 and to be completed in time for the spring 2007 season. The planning commission scheduled a pubhc hearing on the application for November 21, 2005, and appropriate notice was given to neighboring landowners and the pubhc. The City planning staff studied the plan proposal and submitted a memorandum in which it recommended approval with certain conditions to address concerns about parking, lighting, and site buffering. At the November 21 meeting, the planning commission heard from and questioned the City associate planner about the staff review of the school district’s plan. The commission heard extensive comments from the public, including Robert Manly. Thereafter, the planning commission discussed the proposal and ultimately voted 4 to 3 to recommend that the City deny the special use permit, citing the frequency with which the facility would be used and its impact on surrounding properties. The City Council considered the application on December 12, 2005. The council members heard from and questioned the City planning director, a school district administrator, the project architect, and members of the public, including Manly and his attorney. Some of the council members voiced a concern that the site plans had been modified since the planning commission considered them. On a 5 to 3 vote, the City Council remanded the application to the planning commission for further review, specifically requesting an examination of the following items: “(1) the revised site plan lowering the elevation of the parking lot along the south side of the property an additional two feet; (2) revisions in the proposal to turn the lights of the field off earlier than originally proposed; (3) Using a board on board fence along the south property line or consider requiring solid fencing also along the east and north property lines to assist in the reduction of noise; (4) Whether further restrictions should be imposed on the rental of the facility between June and October.” The planning commission reconsidered the application on January 4, 2006. Although the commissioners received conflicting opinions on whether it could reopen the public hearing, it voted not to do so, although it accepted a letter from the Manlys’ attorney to be included in the record. After discussing the proposed changes to the plan, the commission voted 5 to 3 to reaffirm its previous recommendation of denying the special use permit. The City Council reconsidered the application on January 9, 2006. The City Council heard from a number of people, including members of the public. A motion to deny the permit failed on a 4 to 4 vote. A motion to grant the special use permit in contravention of the planning commission recommendation and to modify any conflicting portion of the City’s comprehensive plan passed on a 5 to 4 vote, with the mayor casting the tie-breaking vote. On January 23, 2006, the Manlys filed eight protest petitions, pursuant to K.S.A. 12-757(f)(l). The record does not reflect if any direct action was taken on those petitions. On February 7,2006, the Manlys filed a petition in district court, pursuant to K.S.A. 12-760(a), requesting a determination of the reasonableness of the City’s approval of the special use permit and seeking an injunction during the pendency of the litigation. Ultimately, on December 4, 2006, the district court issued a memorandum decision in which it found that the City’s action in overriding the planning commission recommendation with a simple majority was unlawful, in contravention of K.S.A. 12-757(d). The court also held that the public hearing was officially concluded on November 21, 2005, rendering the protest petitions untimely. Accordingly, the City’s approval of the special use permit was reversed and the application was remanded to the City Council for further proceedings consistent with the court’s ruling. The district court declined to malee any findings on the reasonableness of the proposed special use permit. Thereafter, all parties filed assorted motions with the district court; the school district and the City made unsuccessful attempts to appeal to the Court of Appeals. Meanwhile, the City Council had a special meeting on December 19, 2006, and voted 6 to 2 to ratify and reaffirm the action taken at the January 9,2006, meeting which granted the special use permit. On February 8, 2007, the district court held a status hearing on the posttrial matters and set a briefing schedule. On May 31,2007, the district court issued a memorandum decision finding the Manlys had failed to sustain their burden of proving the City’s decision to grant the special use permit was unreasonable and that the permit did not constitute impermissible spot zoning. However, the district court reiterated that the simple majority vote at the January 9 meeting was unlawful. The district court further opined that it did not have jurisdiction to consider the City’s actions at the post-trial special meeting on December 19, because that action had not been appealed. After further posttrial motions and premature notices of appeal, an appeal and cross-appeal were finally docketed with the Court of Appeals. Upon the Manlys’ motion, the appeal was transferred to the Supreme Court, pursuant to K.S.A. 20-3018(c). INITIAL CITY COUNCIL VOTE The core question in this case is whether the City had the authority to grant the special use permit with a simple majority vote, after the planning commission had reconsidered the proposal and reaffirmed its recommendation to deny the permit. The answer is found in the applicable statutes. Therefore, our review is unlimited, and we need not afford any deference to the district court’s interpretation. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007). The controlling statutory provision is found in K.S.A. 12-757(d), which provides, in relevant part: “Unless otherwise provided by this act, the procedure for the consideration and adoption of any such proposed amendment shall be in the same manner as that required for the consideration and adoption of the original zoning regulations. . . . When the planning commission submits a recommendation of approval or disapproval of such amendment and the reasons therefor, the governing body may: (1) Adopt such recommendation by ordinance in a city or by resolution in a county; (2) override the planning commission’s recommendation by a % ma jority vote of tire membership of the governing body; or (3) return such recommendation to the planning commission with a statement specifying the basis for the governing body’s failure to approve or disapprove. If the governing body returns the planning commission’s recommendation, the planning commission, after considering the same, may resubmit its original recommendation giving the reasons therefor or submit new and amended recommendation. Upon the receipt of such recommendation, the governing body, by a simple majority thereof, may adopt or may revise or amend and adopt such recommendation by the respective ordinance or resolution, or it need take no further action thereon. If the planning commission fails to deliver its recommendation to the governing body following the planning commission’s next regular meeting after receipt of the governing body’s report, the governing body shall consider such course of inaction on the part of the planning commission as a resubmission of the original recommendation and proceed accordingly.” (Emphasis added.) The well-settled starting point for interpreting a statute is to look at what the legislature actually said by reading the words of the statute and ascribing ordinary meanings to ordinary words. See State v. McElroy, 281 Kan. 256, 262, 130 P.3d 100 (2006). We have explained: “When we are called upon to interpret a statute, we first attempt to give effect to the intent of the legislature as expressed through the language enacted. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent. See State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 (2006); CPI Qualified Plan Consultants, Inc. v. Kansas Dept. of Human Resources, 272 Kan. 1288, 1296, 38 P.3d 666 (2002).” In re K.M.H., 285 Kan. 53, 79-80, 169 P.3d 1025 (2007). Beginning that process, we first discover that the statute clearly establishes that, if the governing body (hereafter “city”) wants to take action upon a proposed zoning amendment when it first receives a planning commission recommendation, it has three options. The city can: (1) take the recommended action by a simple majority vote; (2) take action contrary to the recommendation by a two-thirds majority vote; or (3) return the proposal to the planning commission with a statement specifying the basis for the city’s failure to follow the recommendation, i.e., remand the proposal to the planning commission for reconsideration. If, as here, the city chooses the third option of remanding the proposal, the planning commission, after a reconsideration, may: (1) resubmit its original recommendation with reasons for its action; (2) submit a new and amended recommendation; or (3) fail to deliver a recommendation to the city after the planning commission’s next regular meeting following the remand. If the planning commission follows the third course of action, i.e., doing nothing, the original recommendation is deemed to have been resubmitted. Upon receipt of the post-remand, reconsidered planning commission recommendation, the city is given three options: (1) adopt the planning commission’s recommendation, i.e., take the action which the planning commission recommends; (2) adopt a revised or amended recommendation; or (3) take no further action. The statute specifically provides that the city’s adoption of either the planning commission recommendation or a revised or amended recommendation may be accomplished “by a simple majority thereof.” K.S.A. 12-757(d). The district court interpreted the statute as requiring a two-thirds majority vote for the City to grant the special use permit in contravention of a recommended denial, both before and after the remand to the planning commission. The court opined that, by granting the permit, the City did not “revise or amend and adopt” the planning commission recommendation, but rather it “overrode the . . . recommendation.” Therefore, the district court apparently imported the override language applicable to the City’s first consideration of the original recommendation and grafted it onto tire post-remand, reconsideration procedure. Of course, the statute plainly does not say anything about a two-thirds vote after a proposal has been returned to tire planning commission and resubmitted to the City, but rather it explicitly prescribes that post-remand action will be taken by a simple majority. In effect, then, the district court both added something that is not in the statute, i.e., a two-thirds vote requirement following remand, and eliminated something that is explicitly stated in the statute, i.e., the simple majority directive. See McElroy, 281 Kan. at 262 (courts should not add something that is not readily found in the statute or ehminate that which is readily found therein). The district court was persuaded to reconstruct the statute because of its belief that to do otherwise “would create an absurd loophole allowing the City Council to return a recommendation by a simple majority when it does not have the required two-thirds majority to override it, and then override the recommendation with only a simple majority when it is returned.” As will be discussed later, the plain statutoiy language does not create an absurd loophole, but rather makes perfect sense. Nevertheless, with respect to our statutory interpretation discussion, the district court was not imbued with the discretion or authority to ignore the legislature’s words in its quest to divine what the law should or should not be. See Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). Interestingly, the Manlys acknowledge that the district court did not read the statute as it is written. They contend that the clear language of the statute permits the City only to “adopt” or “revise or amend and adopt” the recommendation upon the second submission following remand, and there is no provision for an “override” of the resubmitted recommendation. Therefore, the Manlys read the statute as manifesting an apparent legislative intent to preclude the City from ever granting the special use permit once the planning commission has resubmitted a recommendation to deny it. However, the Manlys do not urge that construction upon us because they acknowledge that such a preclusion would usurp the governing body’s authority. We wholeheartedly agree with the Manlys’ assessment of the separation of powers. A planning commission is created to fulfill an advisory function. See, e.g., K.S.A. 12-757(b) (“All such proposed [zoning regulation] amendments first shall be submitted to the planning commission for recommendation.” [Emphasis added.]); see also Houston v. Board of City Commissioners, 218 Kan. 323, 330, 543 P.2d 1010 (1975) (function of planning commission is advisory only). If the legislature intended to allocate the ultimate authority to grant or deny a zoning amendment to the planning commission, it would be impermissibly shifting the City’s governance from the elected City Council to an appointed advisory commission. See K.S.A. 12-104 (in acts granting or limiting powers to city governments or prescribing procedure, “governing body” is defined as mayor and council, mayor and commissioners, or board of commissioners, based on the status of the cities affected). To the contrary, we have previously declared that “[t]he final authority in zoning matters rests with the governing body possessing legislative power.” Houston, 218 Kan. 323, Syl. ¶ 3. While the Houston case was decided prior to the current version of K.S.A. 12-757, it remains good law with respect to the basic allocation of governing power. Where we begin to part company with the Manlys is with their assessment that the district court’s phantom two-thirds super-majority requirement does not likewise usurp the City Council’s governing authority. As illustrated in this case, that requirement would permit a simple majority of the planning commission to govern over a simple majority of the Ciiy Council. We do not believe the legislature intended for the tail to wag the dog, i.e., an advisory body should not have the authority to trump the decision of the governing body that appointed it. Nevertheless, we need not rely on public policy considerations. As noted, 12-757(d) plainly gives the City the authority to “revise or amend and adopt” a planning commission recommendation by a simple majority vote. To circumvent that plain language, the Manlys attempt to convince us that the City’s authority to “revise or amend” a recommendation does not include the right to reject or overrule the recommendation. However, that contention defies logic. Obviously, when the City revises or amends a recommendation before taking action, it has implicitly rejected or overruled that part of the recommended action which was not followed. Moreover, where the recommendation is to completely deny a special use permit, i.e., to tell the applicant “no,” it is difficult to imagine how one revises or amends that recommendation without overriding it to some extent, i.e., the only way to revise or amend “no” is to say “yes” to something. Viewing the current statute in a historical perspective corroborates our view of its meaning. Although the Manlys suggest that the statute’s language is plain and unambiguous, so as to preclude a consideration of the legislative histoiy, their arguments in support of rewriting the statute belie that suggestion. When there is ambiguity the court “ ‘ “is not limited to the mere consideration of the language employed, but may also look to the historical background of the enactment, the circumstances accompanying its passage, the purposes to be accomplished, and the effect the statute may have under the various suggested constructions.” ’ City of Lenexa v. City of Olathe, 228 Kan. 773, 776, 620 P.2d 1153 (1980) (determining legislative intent in amending annexation statutes), modified on other grounds on rehearing 229 Kan. 391, 625 P.2d 423 [1981]).” Dillon Real Estate v. City of Topeka, 284 Kan. 662, 679, 163 P.3d 298 (2007). Prior to K.S.A. 12-757(d), the City would have had no option upon initially receiving a planning commission recommendation with which it did not agree. It had to return the proposal to the planning commission. The specific statutory language was: “Upon receipt of a recommendation of the planning commission which the governing body disapproves, the governing body shall return such recommendation to the planning commission with a statement specifying the basis for disapproval and such recommendation shall be considered in like manner as that required for the original zoning recommendations returned to the planning commission.” K.S.A. 12-708 (Ensley 1982). The procedures upon remand to the planning commission and upon its return to the City were the same as in the current statute. Indeed, the language over which the parties squabble in this case, “revise or amend and adopt,” was identical: “The planning commission, after reconsidering the same, may resubmit its original recommendations giving the reasons therefor or submit new and amended recommendations. Upon the receipt of such recommendations, the governing body may adopt or may revise or amend and adopt such recommendations by ordinance, or it need taire no further action thereon.” (Emphasis added.) K.S.A. 12-708 (Weeks 1975). In K.S.A. 12-757(d), the legislature gave the City another option upon receiving an initial recommendation with which it did not agree. Rather than remanding to the planning commission for re consideration, a City could move forward with taking action in contravention of the recommendation if two-thirds of the governing body did not feel the need for further input from its advisoiy commission. That option eliminates the need for a pointless remand. However, the legislature clarified that the two-thirds super-majority vote is only applicable to the streamlined, “no remand” initial option by specifying that the post-remand action is to be effected by a simple majority. The legislative history of our current statute is enlightening as well. K.S.A. 12-741 et seq. was enacted in 1991. L. 1991, ch. 56, sec. 1. The statute was introduced by Senate Bill 23 (S.B. 23) and was the result of a study and report completed by the interim Local Government Committee. Minutes of the Senate Local Government Committee, Jan. 23, 1991. The report was submitted to the Senate Committee; it recommended recodification of planning and zoning laws contained in S.B. 23, and also recognized that despite the solid foundation of S.B. 23, further changes may be needed. The recodification project had begun over 10 years before the bill was introduced. Of note, the report stated approval authority for zoning regulations remained with the governing body. Minutes of the Senate Local Government Committee, Jan. 23, 1991, attachment 3-6. During the January 24, 1991, meeting of the Senate Local Government Committee, the Director of Planning for the City of Overland Park raised the following issue: “The question we have is what percentage or number of votes is needed by the governing body to approve an application [for subdivision regulations] that has been returned to the governing body by the planning commission for a second consideration. We assume that a simple majority vote is sufficient to approve, however, the legislation is not clear. We are concerned that with the present wording a %rds majority vote may be argued as being necessary when the item returns from the planning commission. This same concern holds true for Page 12, Line 9-23 and Page 15, Line 11-23. These two sections deal with the adoption of zoning regulations and rezoning ordinances, respectively.” Minutes of the Senate Local Government Committee, January 24, 1991, attachment 3-2. Apparently in response to this concern, the bill was amended to add the “simple majority” language found in the current statute. Minutes of the Senate Local Government Committee, February 6, 1991. The legislative intent is crystal clear. In conclusion, we hold that under K.S.A. 12-757(d), the City was permitted to issue the special use permit by a simple majority vote notwithstanding the resubmitted planning commission recommendation to deny the permit. Accordingly, we find that the district court erred in ruling that the special use permit was unlawfully approved. Alternative Arguments Citing to Smith v. Yell Bell Taxi, Inc., 276 Kan. 305, 311, 75 P.3d 1222 (2003), the Manlys argue that, even if we find that the district court erred in its interpretation of the statute, we can affirm its ruling under the “right for the wrong reason” analysis. They then proceed to argue that (1) the City failed to provide the remand statement required by statute, rendering the action invalid; (2) the defendants acquiesced in the ruling by presenting the issue for a second vote; (3) the City failed to accept timely protest petitions which would have required a three-fourths majority vote; (4) the City failed to follow the statutory requirements for revising the comprehensive plan; and (5) the City violated its own ordinances. In effect, the Manlys attempt to raise new issues under the guise of being an alternative rationale to uphold the district court’s erroneous statutory interpretation. That attempt is unavailing. They presented these alternative issues to the district court, which either explicitly or implicitly ruled against the Manlys. If they wanted a review of those rulings, they should have identified the issues in their cross-appeal. Because the issues are not properly before this court, we decline to review them. THE SECOND VOTE The City argues in the alternative that the district court erred in refusing to consider its second vote, where it granted the special use permit by a three-fourths majority vote, which was more than the alleged two-thirds majority requirement. The Manlys contend that the district court erred in failing to find the second vote ineffective or barred by res judicata. Given our holding that the first vote was lawful, the issues raised concerning the remand to the City and the efficacy of the revote are rendered moot. Any decision on those issues would not change the fact that the special use permit was lawfully granted. See Rodarte v. Kansas Dept. of Transportation, 30 Kan. App. 2d 172, 183, 39 P.3d 675, rev. denied 274 Kan. 1113 (2002) (case is moot where the controversy between the parties no longer exists and any judgment of the court would be ineffective). DISTRICT COURTS RULING ON REASONABLENESS In their cross-appeal, the Manlys challenge the district court’s finding of reasonableness. First, the Manlys contend that the district court’s holding that the Cily unlawfully approved the special use permit contradicted its ruling that the issuance of the permit was reasonable. They argue that an action cannot be both illegal and reasonable. But, of course, it can be. The question of whether the City employed the correct procedure in granting a special use permit is separate and distinct from the question of whether it was reasonable to permit the requested use of the land. Next, the Manlys contend that the district court failed to conduct the appropriate analysis before declaring the City’s action in granting the special use permit to be reasonable. When reviewing a decision on zoning, special use permits, and conditional use permits, we are guided by principles set forth in McPherson Landfill, Inc. v. Board of Shawnee County Comm’rs, 274 Kan. 303, 304-05, 40 P.3d 522 (2002) (quoting Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 28, 605 P.2d 533 [1980]): “ ‘(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning. “ '(2) The district court’s power is limited to determining (a) the lawfulness of the action taken, and (b) the reasonableness of such action. “ ‘(3) There is a presumption that the zoning authority acted reasonably. “ '(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence. “ ‘(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence. “ ‘(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate. “ ‘(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to die zoning authority. “ ‘(8) An appellate court must malee the same review of die zoning authority’s action as did the district court.’ ” In Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978), this court set forth factors which a zoning body should consider when making a land use decision: (1) the character of the neighborhood; (2) the zoning uses of nearby properties; (3) the suitability of the property for the uses to which it is restricted; (4) the extent to which the change will detrimentally affect nearby property; (5) the length of time the property has been vacant as zoned; (6) the gain to the public health, safety, and welfare by the possible diminution in value of the developer s property as compared to the hardship imposed on the individual landowners; (7) the recommendations of a permanent or professional planning staff; and (8) the conformance of the requested change to die city’s master or comprehensive plan. The Manlys complain that the district court did not specifically analyze these factors. However, formal findings and conclusions are not mandatory and a governing body’s decision is not unreasonable merely because the Golden factors were not more specifically enumerated or subjected to an issue-oriented analysis. See Board of Johnson County Comm’rs v. City of Olathe, 263 Kan. 667, 678, 952 P.2d 1302 (1998). Moreover, the district court had the minutes from the City planning commission and City Council meetings, the City planning staff reports, the comprehensive plan, and an audiotape of the meetings, at which there was a great deal of debate on the project’s impact on the surrounding property. From that evidence, the court found that die Manlys had not met their burden of proving unreasonableness. We are convinced that the district court applied the appropriate analysis. The Manlys focus on only two of the Golden factors, the character of the neighborhood and the City’s comprehensive plan, in arguing that the City’s action was unreasonable. The City went above and beyond in providing an opportunity for people to discuss the character of the neighborhood and the anticipated impact the project would have on the surrounding area. Obviously, there were differing viewpoints on how the softball field would fit into the neighborhood. The City may have disagreed with the Manlys’ viewpoint in that regard, but that does not translate into a failure to consider the factor or into an unreasonable action. The Manlys also assert that the City failed to consider the conformance of the special use to the master plan. However, they then argue that the City went so far as to vote to amend the comprehensive plan if it conflicted with the special use. It makes scant sense to complain that the City did not take the comprehensive plan into account, when the comprehensive plan was specifically mentioned in the motion to approve the special use permit. Again, the City took the factor into consideration but did not agree with the Manlys’ point of view. The Manlys do not point to any other specific factors that the City faded to consider. The record demonstrates that the special use permit was thoroughly considered by both the planning commission and the City Council. Both bodies had the benefit of reports from the City planning staff and the opportunity to question the school district about the plans; the plans were modified during the process to mitigate concerns; and the public provided input and neighboring landowners were questioned about their concerns. In other words, plenty of evidence relating to the Golden factors was put before the governing body. Moreover, tire district court reviewed the Golden factors, concluding that under the presumption that the City acted reasonably, the district court could not determine that the evidence was so overwhelming or compelling that the City’s decision in favor of the special use permit was unreasonable. We affirm that determination. DUE PROCESS For their final issue on cross-appeal, the Manlys assert that “[t]he District Court erred in ruling Plaintiffs did not have a protected property interest as affected property owners within 200 feet of the subject tract which gives them independent due process rights, and the City violated those rights by failing to follow procedure established by statute and its own ordinance and by failing to allow Plaintiffs an opportunity to be heard at a Planning Commission meeting.” Citing to Schlup v. Bourdon, 33 Kan. App. 2d 564, 567, 105 P.3d 720 (2005), the Manlys assert that our review is de novo. The City concurs. We first note that the record does not disclose a ruling by the district court that the Manlys did not have a protected property interest as affected property owners. Moreover, we are unconvinced by Manlys’ suggestion that they have some sort of property interest in the procedures employed by the City. We perceive the only question before us is whether the proceedings that led to the granting of the special use permit were fair, open, and impartial. See McPherson Landfill, Inc., 274 Kan. at 317. We believe that they were. The Manlys received the appropriate notice under K.S.A. 12-757(b). They appeared and had an opportunity to be heard at the public hearing before the planning commission on November 21, 2005. The Manlys and their attorney had an opportunity to be heard at the December 12, 2005, City Council meeting. Again, at the January 9, 2006, meeting, the Manlys and their attorney took advantage of their opportunity to address the City. The only meeting that did not have public comment was the planning commission meeting to reconsider the remanded proposal. Contrary to the Manlys’ contention, the public hearing does not remain open after the planning commission votes on its recommendation. Further, there is no statutory provision for another public hearing when the governing body remands the matter back to the planning commission for reconsideration. In short, the notice and hearing requirements of K.S.A. 12-741 et seq. were followed. The record confirms that the hearings before both the planning commission and the City Council were unquestionably fair, open, and impartial. The Manlys fail to establish any due process violation which would invalidate the City’s action. In conclusion, we reverse the district court’s holding that the City’s granting of the special use permit upon a simple majority vote was unlawful. We affirm the district court’s finding that the City acted reasonably in granting the special use permit. Therefore, the project which has been completed was effected based upon a lawful special use permit. We remand to the district court for a dismissal of all further proceedings. Reversed and remanded for dismissal.
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The opinion of the court was delivered by Beier, J.; The State petitions for our review of the Court of Appeals’ reversal of defendant Anthony Jefferson’s conviction of aggravated battery. We examine one issue: Whether a refusal to testify by State witness Jesse Villa made him unavailable, thus permitting admission of his preliminary hearing testimony at Jefferson’s trial. Factual and Procedural Background Jesse Gomez awoke early on February 1, 2004, to the sound of yelling and then a gunshot. A few moments later, there was a knock at his door. Jesse Villa, Gomez’ neighbor, was standing on Gomez’ porch. Villa was bleeding from a wound in his ear and asked Gomez to call 911. Villa was taken to the Hutchinson Hospital. Jessica Vigil was Villa’s old girlfriend. She had begun dating Jefferson and was with him on the morning Villa appeared on Gomez’ porch. According to Vigil, Jefferson was jealous of her relationship with Villa, and he decided he was going to “show [Vigil] what would happen to anybody else that [she] would be with.” He dialed Villa’s number, gave the phone to Vigil, and directed her to have Villa meet her in an alley by a certain church near Gomez’ house. Vigil would testify that Jefferson drove a red Ford Fiesta to the alley, hitting Vigil along the way. Jefferson also pulled out a gun and told Vigil that she was going to have to shoot Villa. Jefferson then took the gun back, thinking aloud that Vigil probably would shoot him instead. He then began beating her with the gun. When Jefferson and Vigil arrived at die meeting point, Villa initially was nowhere to be seen. As Jefferson drove down the alley, accusing Vigil of setting him up, he and Vigil saw Villa. Jefferson directed Vigil to get out of the car and call to Villa, which she did. When Villa approached, according to Vigil, Jefferson brandished the gun and demanded Villa empty his pockets, asking if Villa knew why he was there. Villa said he did not. Jefferson then asked Vigil if Villa and she had been together; when Vigil said yes, Jefferson told Villa that was why he was there. Jefferson then grabbed Villa; they wrestled; Jefferson tried to force Villa into the car; and Villa ended up with his hands on the back of the Fiesta’s hatchback, with Jefferson pointing the gun at his head. At this point, Vigil said, she turned her head because she did not want to see Villa die. She heard a gunshot, and she jumped into the driver’s seat of the car. She did not drive away because she did not know how to drive the Fiesta’s stick shift. Jefferson then joined her in the car. He told her Villa was dead, got angry that she could not drive, and threatened to kill her too. After Vigil’s attempt to operate the car was unsuccessful, leading to a minor accident, Jefferson switched seats with her and drove away. After the crime had been reported, officers discovered blood and fresh tire tracks at the scene. They also found a pocketknife but no gun and no bullet. The knife had no blood on it. Officers testified that they contacted Vigil for an interview about a week after the incident. She was very nervous, had a black eye, and had bruises and lumps on her head and face. Officers did not want to scare her away, and they did not push her to make any statements at that time. Vigil voluntarily came forward about a week later — nearly 2 weeks after the crime — and implicated Jefferson. Villa testified at Jefferson’s preliminary hearing and was subpoenaed to testify at trial. By that time, he was incarcerated; and, although he appeared, he refused to testify. After voir dire but before the jury was sworn in, the district judge appointed counsel for Villa. Villa claimed no privilege, and he maintained that he had not been threatened; he said he was not afraid to testify; he simply refused to do so. The district judge held him in contempt and sentenced him to 6 months in the Reno County jail. The State then asserted that it could admit Villa’s testimony from the prefiminary hearing. In its view, the defense had an opportunity to cross-examine Villa at the prefiminary hearing, which eliminated any Confrontation Clause problem, and Villa was unavailable. The defense argued that a refusal to testify does not make a witness unavailable under Kansas hearsay statutes. It also challenged the sufficiency of the earlier cross-examination opportunity because Jefferson’s attorney at the time of the prefiminary hearing had a conflict. The public defender who had represented Jefferson at the prefiminary hearing withdrew between the hearing and trial; although he had been vaguely aware at the time of the preliminary hearing that another lawyer in his office was representing Villa in a different case, he later concluded that the representation required Jefferson to have a different lawyer. The district judge ruled in favor of the State and admitted Villa’s preliminary hearing testimony at trial. Villa’s version of events was that he got a call to meet Vigil in the alley by the church. She arrived with Jefferson as he was walking away. When she called to him and he approached, Jefferson was standing outside the car with his back to Villa. Jefferson then turned around, faced Villa, and asked Villa if he knew him. Villa did not. Jefferson pulled a gun, pointed it at Villa, and ordered Villa to get his hands out of his pockets. Then, when Villa was positioned against Jefferson’s car, Jefferson asked if Villa had any money or drugs and patted him down. Jefferson then hit Villa a couple of times with the gun and fired it. Villa heard Jefferson tell Vigil to get into the car and drive. The two men wrestled, and Jefferson tried to pull Villa into the car. Villa managed to get away and ran to Gomez’ house. Gomez called police. As for Vigil, in addition to testifying about her version of events, she said at trial that she had been threatened not to testify against Jefferson and that she was afraid of him. A former cellmate of Jefferson testified to Jefferson’s unsuccessful effort to employ the cellmate to support an invented alibi. The defense introduced testimony from the responding paramedic who described Villa’s injuries and his initial refusal of treatment. In addition, a friend of Jefferson testified that he had driven Jefferson from Newton to Hutchinson on the night of the crime because Jefferson’s car, a blue Corsica, had broken down. Jefferson testified on his own behalf. His version of events began with Vigil calling him several times, claiming to have been beaten. According to him, she asked Jefferson what he was going to do about it and said she would set up a meeting with Villa. After Jefferson’s friend drove him from Newton to Hutchinson, he met Villa in the alley, where Vigil had arranged for the two men to fight. Jefferson testified that he did not own a gun and that he brought no weapons to the meeting. Jefferson said that he asked Villa if he knew why he was there, and Villa said yes. The two then exchanged words and scuffled. Jefferson wrestled Villa to the ground. At some point, Villa dropped a knife. After Jefferson let Villa up from the ground, Villa pulled a gun from under his coat. The men wrestled again, and the gun went off. Jefferson maintained that he did not go to the meeting with the intent to kill Villa. He also maintained that, although he had punched Villa a few times during the first part of their fight, he never gained possession of the gun. After Jefferson fled on foot, he said, he later met with Vigil, saw her injuries, and told her what had happened. On cross-examination, the prosecutor succeeded in pointing out inconsistencies between Jefferson’s account of events at trial and his earlier statements to law enforcement. During deliberations, the juiy sent out the question: “Why did Jess[e] Villa not testify in person in Case No. 04 CR 203?” In response and without objection, the district judge directed the jury to refer to instructions on avoidance of inferences drawn from evidentiary rulings, on the jury’s responsibility to determine the weight and credibility of testimony and to use common sense, and on the standards governing weighing of witness testimony given at another time and place. The jury ultimately convicted on aggravated battery but acquitted Jefferson of several other charges— attempted first-degree murder, attempted aggravated robbery, attempted kidnapping, and criminal possession of a firearm. Jefferson appealed on several issues but dropped his challenge to the district judge’s decision on the Confrontation Clause question. Our Court of Appeals reversed on the issue of Villa’s unavailability, ruling that his mere refusal to testify did not make him “unavailable as a witness” as that phrase is used in K.S.A. 60-460 and defined in K.S.A. 60-459(g), and vacated Jefferson’s conviction. State v. Jefferson, No. 95,049, unpublished opinion filed April 6, 2007, slip op. at 4-6 (citing State v. Johnson-Howell, 255 Kan. 928, 940, 881 P.3d 1288 [1994]). We accepted the State’s petition for review on this issue. Standard of Review The State invokes an abuse of discretion standard of review. Although this court has, on numerous occasions, stated that “the finding of unavailability of a witness is entirely within the court’s discretion” see, e.g., State v. Ransom, 239 Kan. 594, 598, 722 P.2d 540 (1986), the situations prompting these statements have tended to involve a district judge’s decision on whether a party’s efforts to secure a witness’ presence were adequate. See State v. Stano, 284 Kan. 126, 140-45, 159 P.3d 931 (2007) (district court did not abuse discretion when witness could not be located for trial); State v. Young, 277 Kan. 588, 598, 87 P.3d 308 (2004) (State showed reasonable diligence in effort to bring witness to testify live at trial); State v. Watie, Heard and Heard, 223 Kan. 337, 340-41, 574 P.2d 1368 (1978) (within court’s discretion to determine unavailability as long as prosecutor makes good-faith effort to obtain witness’ presence at trial); State v. Mims, 222 Kan. 335, 338, 564 P.2d 531 (1977) (sufficiency of proof of unavailability of witness within discretion of district judge; when defendant not reasonably diligent in securing witness’ presence, no abuse of discretion to disallow admission of testimony from earlier trial); State v. Steward, 219 Kan. 256, 263-65, 547 P.2d 773 (1976) (no abuse of discretion in allowing admission of testimony from earlier trial of same action, when witness unavailable because of advanced pregnancy); State v. Washington, 206 Kan. 336, 338, 479 P.2d 833 (1971) (no abuse of discretion to permit admission of preliminary hearing testimony when good-faith, but unsuccessful effort made to locate witness). In contrast, the facts before us are not subject to interpretation or weighing that could affect the reasonableness of a district judge’s application of the hearsay statutes. See State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006) (no abuse of discretion unless no reasonable person would take the position of the judge). Here, neither Villa’s presence nor the State’s efforts to secure it were the problem. The problem was his flat refusal to testify, even in the face of a contempt citation and its resulting sanction of 6 months in jail. Furthermore, we have recently clarified that rules governing admission and exclusion of evidence may be applied either as a matter of law or in the exercise of a district judge’s discretion, depending on the contours of the rule in question. The admission of hearsay evidence such as that at issue here requires evaluation of statutory applicability, including, first, interpretation of the statute’s language. Interpretation of a statute raises a question of law, reviewable de novo on appeal. See State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008). We also observe that the issue, as framed by the parties, requires us to consider the continuing viability of an earlier holding from this court. This exercise also raises a question of law reviewable de novo. See Johnson v. Brooks Plumbing, 281 Kan. 1212, Syl. ¶ 2, 135 P.3d 1203 (2006). Unavailability There is no dispute that Villa’s preliminaiy hearing testimony was hearsay. K.S.A. 60-460 sets out exceptions to the general rule that hearsay is inadmissible. K.S.A. 60-460(c) creates an exception for depositions and prior testimony: “Subject to the same limitations and objections as though the declarant were testifying in person, (1) testimony in the form of a deposition taken in compliance with the law of this state for use as testimony in the trial of the action in which offered or (2) if the judge finds that the declarant is unavailable as a witness at the hearing, testimony given as a witness in another action or in a prehminary hearing or former trial in the same action, or in a deposition taken in compliance with law for use as testimony in the trial of another action, when .. . (B) the issue is such that the adverse party on the former occasion had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the testimony is offered, but the provisions of this subsection (c) shall not apply in criminal actions if it denies to the accused the right to meet the witness face to face.” (Emphasis added.) The legislature has defined witness unavailability in K.S.A. 60-459(g), which reads: “ ‘Unavailable as a witness’ includes situations where the witness is (1) exempted on the ground of privilege from testifying concerning the matter to which his or her statement is relevant, or (2) disqualified from testifying to the matter, or (3) unable to be present or to testify at the hearing because of death or then existing physical or mental illness, or (4) absent beyond the jurisdiction of the court to compel appearance by its process, or (5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts. “But a witness is not unavailable (1) if the judge finds that his or her exemption, disqualification, inability or absence is due to procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the witness from attending or testifying, or to the culpable neglect of such party, or (2) if unavailability is claimed under clause (4) of the preceding paragraph and the judge finds that the deposition of the declarant could have been taken by the exercise of reasonable diligence and'without undue hardship, and that the probable importance of the testimony is such as to justify the expense of taking such deposition.” As our Court of Appeals recognized and Jefferson has emphasized, in Johnson-Howell, 255 Kan. at 940, this court ruled that a refusal to testily did not render a witness unavailable. The State now argues that Johnson-Howell misinterpreted the statutory definition of unavailability and that we should use this case to correct its legal error. In Johnson-Howell, defendant Faye Johnson-Howell was tried and convicted of first-degree murder on an aiding and abetting theory and conspiracy to commit the murder of her estranged husband. Her coconspirator, Lajuan Clemons, had waived his privilege against self-incrimination under the Fifth Amendment to the United States Constitution by testifying at his own trial for the same crime; had been convicted of first-degree murder; and was called as a witness for the State in Johnson-Howell’s case. Outside the presence of the jury, Clemons acknowledged he would be held in contempt if he refused to answer questions. When he refused, the court held him in contempt. However, in order to preserve defendant’s confrontation rights, the court withdrew the contempt order and decided to allow the State to examine him before the jury. Clemons was sworn in. When he refused to answer questions, he was declared hostile, and the State asked leading questions, which Clemons still refused to answer. Because there was no direct examination, there was no cross-examination. Clemons was held in contempt Over defendant’s hearsay objection, the State was permitted to introduce Clemons’ statements to police following the murder. On appeal, defendant asserted, inter alia, a violation of her Sixth Amendment right to confrontation. In addition, she argued that the statements were not admissible under any of the statutory hearsay exceptions. In its discussion of the challenge to the admission of Clemons’ statements, this court stated simply that Clemons’ statements were not admissible under K.S.A. 60-460(d)(3) — which permits introduction of an out-of-court statement by an unavailable witness if the statement was made “by the declarant at a time when the matter had been recently perceived . . . and while the declarant’s recollection was clear and [the statement] was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort” — because Clemons’ circumstances did not match any of the situations of an unavailable witness listed in K.S.A. 60-459(g). Johnson-Howell, 255 Kan. at 936-37. In this way, although the Johnson-Howell opinion did not state that the list of circumstances in K.S.A. 60-459(g) was exclusive, its approach appeared to assume as much. The Johnson-Howell court also stated that “[a] witness’ refusal to testify in a criminal trial is not a recognized ground for unavailability of the witness in this state,” a sentence picked up and repeated in its syllabus. 255 Kan. 928, Syl. ¶ 6 (text of opinion, 255 Kan. at 940, citing State v. Lomax & Williams, 227 Kan. 651, 660, 608 P.2d 959 [1980]). However, we consider it significant that this statement appears only in the section of the opinion discussing Johnson-Howell’s constitutional argument, i.e., that admission of Clemons’ statements to police violated the Confrontation Clause because Johnson-Howell had been provided no opportunity for cross-examination. Johnson-Howell, 255 Kan. at 938-44. Likewise, the case Johnson-Howell cited for this sentence dealt primarily with a defendant’s right to confront witnesses under the federal and state Constitutions. In that case, Lomax & Williams, 227 Kan. at 658, this court made only a passing reference to K.S.A. 60-460, and interpretation of the Kansas statutes governing admission of out-of-court statements by an unavailable witness bore no analytical weight in reaching the holding on the right of confrontation. 227 Kan. at 655-62. Ultimately, in Johnson-Howell, in addition to ruling Clemons’ statements inadmissible under the hearsay statutes, the court ruled that the defendant’s lack of opportunity to cross-examine Clemons violated the right of confrontation. 255 Kan. at 944. Still, the defendant’s convictions were affirmed, because the court viewed the statutory and constitutional errors as harmless. 255 Kan. at 944-45. Having recognized a certain internal weakness in the Johnson-Howell decision, we also note that it was in conflict with earlier precedent from this court. In State v. Terry, 202 Kan. 599, 451 P.2d 211 (1969), two witnesses who had previously testified against the defendant at his prehminaiy hearing refused to testify at trial, despite a grant of immunity. Under those circumstances, their testimony was treated as “just as ‘unavailable’ as though [their] phys ical presence could not have been procured.” 202 Kan. at 603. We concluded that the unavailability requirement had been met, as it did not depend completely on the physical presence or absence of a witness but on the inaccessibility of his or her testimony. 202 Kan. at 602-603. The court specifically declined to hold that K.S.A. 60-459 or K.S.A. 60-460 required a different result, Terry, 202 Kan. at 603, and this holding of Terry was not overruled by Johnson-Howell. In this case, Villa’s circumstances, like Clemons’ in Johnson-Howell, did not fit neatly under any of those listed in K.S.A. 60-459(g). There was no Fifth Amendment or other privilege that exempted him from testifying; he was not disqualified from testifying in any way; he was not unable to be present because of death or physical or mental illness; he was not beyond the jurisdiction of the court; and he was not “absent from the place of hearing” because the State did not know or could not know, with the exercise of diligence, his whereabouts. See K.S.A. 60-459(g). If we treat the list of unavailable witness situations in K.S.A. 60-459(g) as exclusive, then Villa’s preliminary hearing testimony should not have been admitted under K.S.A. 60-460(c)(2)(B). The State urges us to treat the K.S.A. 60-459(g) fist as exemplary rather than exclusive. We agree with its position on this point for several reasons. First, we examine the text of the statute, which introduces the list in this way: “ ‘Unavailable’ as a witness includes situations where a witness is . . . .” (Emphasis added.) K.S.A. 60-459(g). This plain language means that the classification “unavailable as a witness” encompasses the situations listed but could also encompass others. The State is correct that this reading is consistent with our recent decision in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), in which we interpreted the plain language of the list in K.S.A. 60-455 of material facts subject to proof by introduction of prior convictions or civil wrongs preceded by the word “including” as being exemplary rather than exclusive. 282 Kan. at 52-53 (material facts in list are among possibilities, not only possibilities). Jefferson’s attempt to distinguish Gunby is not persuasive. A second textual point supports the State as well. The legislature has demonstrated that it is fully capable of making a statutory list exclusive when it desires to do so by using the introductory phrase “includes only.” (Emphasis added.) See K.S.A. 13-13a04(a); K.S.A. 20-2916(a); K.S.A. 46-282; K.S.A. 59-2246; K.S.A. 65-1,172(d); K.S.A. 74-4954b(4); K.S.A. 74-4986g(c); K.S.A. 79-32,175(d). Having determined that the plain language of K.S.A. 60-459(g) permits situations other than those listed to equal witness unavailability, we disregard the Johnson-Howell decision’s apparent assumption to the contrary. It does not control us here because it is analytically flawed; it fails to acknowledge the existence of contrary precedent; and its syllabus taken from discussion of a constitutional point has been misread as a statutory interpretation holding. This brings us to the question of whether Villa’s situation or circumstances, i.e., his refusal to testify in this case, qualified him as “unavailable” under K.S.A. 60-459(g). The answer is yes. There was no practical distinction between Villa and any of die out-of-court declarants described in K.S.A. 60-459(g). His five testimony was just as inaccessible and just as necessary. His late-blooming reticence, likely generated by events that had transpired between Jefferson’s preliminary hearing and trial, should not be permitted to undermine the court’s truth-finding purpose. The federal courts recognize the pragmatic aspect of our decision. The federal counterpart to K.S.A. 60-459(g) — Federal Rule of Evidence 804(a)(2) — states that an out-of-court declarant who “persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so” qualifies as unavailable. Also, Professors Charles Alan Wright and Arthur R. Miller interpret the federal rule’s use of the word “include” to introduce an illustrative list of unavailable witnesses rather than a definitive universe. See 30B Graham, Federal Practice and Procedure § 7072, p. 723 (4th Interim ed. 2006) (“[Ajlthough not falling within any of the five illustrative alternatives, a child witness who is too frightened of the defendant, defense counsel, or the courtroom to be able and willing to testify, or who is found to be incompetent to testify, is similarly unavailable.”). Conclusion Because we hold that Villa qualified as an unavailable witness under K.S.A. 60-459(g), his prehminary hearing testimony was admissible under K.S.A. 60-460(c)(2)(B). The district court did not err, and we need not consider harmlessness. The judgment of the Court of Appeals vacating the defendant’s conviction is reversed. The judgment of the district court is affirmed.
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The opinion of the court was delivered by Johnson, J.: Raymond Gill challenges the district court’s summary denial of his motion to file a direct appeal out of time, claiming that he received inadequate notification of his right to appeal his criminal sentence. Finding that Gill failed to establish the applicability of an exception to the time limits within which to file an appeal, we affirm. Gill was originally charged in 1997 with first-degree murder and aggravated criminal sodomy. Following plea negotiations, he entered guilty pleas on March 30, 1998, to an amended charge of murder in the second degree-intentional, in violation of K.S.A. 1996 Supp. 21-3402(a), an off-grid person felony, and to the pending charge of aggravated criminal sodomy, a violation of K.S.A. 21-3506(a)(3)(A) & (B) (Furse 1995), a severity level 2 person felony. In conjunction with the pleas, Gill signed a document titled Entry of Plea, Acknowledgment of Rights and Stipulation, which included the following language: “6. I understand from discussions with my attorney that by entering a plea pursuant to the plea agreement that I am surrendering and waiving the following legal rights which I would otherwise be able to exercise if I choose to go to trial. j. If I were to be convicted of any offenses in this Court, and should my motion for a new trial be denied, I would have the right to appeal my convictions and sentences to the Kansas Court of Appeals or the Supreme Court of Kansas where I would be entitled to have such court review the transcripts and record of my trial for any prejudicial error.” During the plea hearing, the district court made direct inquiries of the defendant, including the following exchange: “THE COURT: If you went to trial and were convicted you would then have the right to appeal your conviction to a higher court. “RAYMOND E. GILL: Yes. “THE COURT: Once again, you have given up that right to appeal your conviction; do you understand that? “RAYMOND E. GILL: Yes, sir. “THE COURT: Now it may be possible that if you or your attorney thought that any sentence imposed at a later date was an illegal or improper sentence in any way you may have the right to appeal your sentence to a higher court. But you do not have the right to appeal the underlying conviction. “RAYMOND E. GILL: Yes, sir. “THE COURT: You understand the difference? “RAYMOND E. GILL: Yes, sir.” On April 15, 1998, the court imposed concurrent sentences of life imprisonment for the second-degree murder conviction and 200 months’ imprisonment for the aggravated criminal sodomy conviction. In calculating the term of imprisonment under the sentencing guidelines, the district court designated aggravated criminal sodomy as the primary crime for determining the base sentence, i.e., the sentence to which Gill’s total criminal history score was assigned. Gill objected, arguing that the second-degree intentional murder conviction was the primary crime and so should be assigned the base sentence, so that the sentence for the sodomy conviction would then be calculated utilizing a criminal history score of I. The court rejected Gill’s argument as being contrary to explicit statutory language: “An off-grid crime shall not be used as the primary crime in determining the base sentence when imposing multiple sentences.” K.S.A. 1996 Supp. 21-4720(b)(2). Just shy of 2 years later, on February 7, 2000, Gill commenced efforts to obtain transcripts and case records of his district court proceedings. His initial motion indicated that he was requesting the materials in order to pursue relief from his conviction and/or a K.S.A. 60-1507 motion. On February 9, 2000, the district court filed a journal entry denying the pro se motion. The court indicated that the 60-1507 motion had to be filed prior to the court’s consideration of a transcript request. Approximately 3Vz years later, on September 24, 2003, Gill filed a pro se motion asking the court to furnish him with transcripts without cost. Again, the district court found that the request was premature and denied the motion because a proper motion pursuant to K.S.A. 60-1507 had not been filed. Shortly thereafter, in December 2003, Gill wrote a letter to the Clerk of the District Court of Crawford County requesting information on how to obtain his transcripts so that he could “perfect my appeal action.” The letter indicated that Gill’s trial attorney and his or her firm were under investigation for possible embezzlement or fraud. The district court responded with a letter stating that the order denying the earlier request was still binding. On August 20, 2004, Gill again wrote to the county clerk, stating that he was seeking postconviction remedy without the benefit of an attorney. He requested copies of any documentation on file for his case, as well as requesting information on how to obtain a transcript of his statement to investigating officers. A notation by the county clerk shows that “info & motions” were mailed to Gill. Gill followed up with another letter, filed October 7, 2004, asking for a copy of his journal entiy and for information on how to obtain transcripts. The district court responded by letter, providing a copy of the journal entiy and directing Gill to contact his attorney or the court reporter for transcripts. Apparently, Gill filed another pro se motion requesting transcripts on January 31, 2005; however, it is not in tire record on appeal. The record does contain a Februaiy 4, 2005, journal entry denying a motion for transcripts because a K.S.A. 60-1507 motion had not been filed. Another year later, on Februaiy 21, 2006, Gill filed a pro se motion to allow him to file an appeal out of time pursuant to the holdings in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). The motion argued that Gill had not been advised pursuant to 22-3608(c) that he had a right to appeal his sentence within 10 days of its imposition and, therefore, in the interest of fundamental fairness, he should be permitted to appeal out of time. The motion also alleged that Gill had been sentenced pursuant to a different grid box than the one his counsel had informed him would apply. In a February 23, 2006, journal entry, the district court summarily denied the motion. The court noted that Gill’s motion had failed to state the basis of any intended appeal, even though Gill did allege that he was sentenced from a grid box different from that which his trial attorney had said would apply. The court referred to the written plea agreement, which provided that a presentence investigation would determine the defendant’s criminal history in order for the court to impose a proper sentence under the Kansas Sentencing Guidelines Act. Thus, finding that the defendant had never objected to his criminal history score, the district court opined that Gill had “received exactly the sentence he plea bargained for when the guilty pleas were entered.” Moreover, the court observed that Gill had not manifested a desire to appeal until nearly 8 years after sentencing. On appeal, Gill contends that the district court erred in summarily denying his motion for an out-of-time appeal. However, Gill does not complain about the summary nature of the motion denial and does not ask us to remand for an evidentiary hearing. Rather, his prayer is that we reverse the district court based upon the record before us and order that he be allowed to proceed with his appeal. Gill specifically argues that he received inadequate notice of his right to appeal because: (1) the written plea agreement incorrectly stated that a guilty plea would waive Gill’s right to appeal his sentence; (2) the district court’s advice that “it maybe possible” to appeal “an illegal or improper sentence” failed to notify Gill that he had “an affirmative right to appeal of his sentence”; and (3) the court failed to advise Gill of the 10-day limitation on fifing an appeal. STANDARD OF REVIEW The parties agree that we review the factual findings underlying a trial court’s Ortiz ruling for substantial competent evidence, but that we apply a de novo standard when reviewing the ultimate legal determination of whether those facts fit within an Ortiz exception. See State v. Phinney, 280 Kan. 394, 404, 122 P.3d 356 (2005). THE BIGHT TO APPEAL The appellate courts of this state have been unable or unwilling to find a right to appeal among the provisions of die United States Constitution or the Kansas Constitution; rather, our courts have declared that the right to appeal emanates solely from our statutes. See, e.g., State v. Legero, 278 Kan. 109, 111, 91 P.3d 1216 (2004). Accordingly, we have opined that Kansas appellate courts obtain jurisdiction to entertain an appeal only where the appeal is taken in the manner prescribed by our statutes. 278 Kan. at 111. Moreover, an appellate court has a duty to question jurisdiction on its own initiative and to dismiss an appeal if the record indicates an absence of jurisdiction. Phinney, 280 Kan. at 398 (citing State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 [2001]). One of the applicable procedural rules is found in K.S.A. 22-3608(c), which provides: “For crimes committed on or after July 1, 1993, the defendant shall have 10 days after the judgment of the district court to appeal.” We have specifically said that the filing of a timely notice of appeal is jurisdictional and if the defendant has not complied with the filing deadline, the appellate court must dismiss the appeal. State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980). The district court sentenced Gill on April 15,1998; Gill filed his motion to appeal out of time on February 21, 2006. Quite clearly, Gill’s appeal was not taken in the manner prescribed by statute, and under our general pronouncements he would not have invoked appellate jurisdiction. THE ORTIZ EXCEPTIONS However, Ortiz judicially created an exception to the general rule that strict compliance with the temporal requirement of K.S.A. 22-3608(c) is a prerequisite to appellate jurisdiction. In Phinney, we described the exception as follows: “A limited exception to the general rule requiring a timely appeal from sentencing is recognized in tire interest of fundamental fairness only in those cases where an indigent defendant was either: (1) not informed of the rights to appeal; (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. Ortiz, 230 Kan. at 735-36 (relying on Brizendine v. State, 210 Kan. 241, 242-44, 499 P.2d 525 [1972]). If these narrow exceptional circumstances are met, a court must allow an appeal out of time. See Willingham, 266 Kan. at 99-102.” Phinney, 280 Kan. at 401-02. During the pendency of this appeal, our court has endeavored to clarify the parameters of the Ortiz exceptions and to define the process for analyzing whether Ortiz mandates an out-of-time appeal in a given case. The result of those efforts is set forth in State v. Patton, 287 Kan. 200, 195 P.3d 753 (2008), which establishes the inquiries to be made for each of the separate exceptions. Gill summarizes his complaint as follows: “The sentencing court failed to properly notify Mr. Gill of his right to appeal by inadequately advising of his absolute right to appeal his sentence, and the time frame in which he must file an appeal.” Accordingly, Gill has implicated the first Ortiz exception. Patton instructed that due process is denied and the first Ortiz exception is placed in issue unless the district court informs the criminal defendant at sentencing that “(1) a right to appeal the severity level of the sentence exists; (2) any such appeal must be taken within 10 days; and (3) if the defendant is indigent, an attorney will be appointed for the purpose of taking any desired appeal.” 287 Kan. 200, Syl. ¶ 6. Patton explained that an analysis of the first exception should proceed through the following progression. Initially, the defendant bears the evidentiary burden of showing, through the transcript of the sentencing hearing, that the district judge failed to communicate one or more of the items of required information. Obviously, if the record reveals that the sentencing judge adequately informed the defendant of his or her appeal rights, the first exception analysis ends with a denial of the requested out-of-time appeal. If the defendant meets the initial burden of showing a deficiency in the sentencing judge’s communication, the burden shifts to the State to prove that the defendant possessed actual knowledge of all of the required information from a source independent of the district court, such as through the advice of defense counsel or the wording of a written plea agreement. If the State meets that burden, the inquiry ends and the defendant loses his or her challenge based on the first Ortiz exception. If the State cannot make a showing of actual knowledge, the defendant must then bear the evidentiary burden of proving that “had he or she been properly informed, a timely appeal would have been sought.” Patton, 287 Kan. 200, Syl. ¶ 8. Patton noted that this final requirement to invoke the first Ortiz exception “is consistent with this court’s original admonition that a defendant may not ‘let the matter rest.’ ” 287 Kan. at 222. Here, Gill contends, the State concedes, and the record corroborates that the sentencing judge failed to advise Gill of the 10-day limitation for taking an appeal and that there is no evidence to indicate that Gill actually knew of that temporal constraint. Therefore, we can progress rapidly to the third step of determining whether Gill was prejudiced by that lack of information, i.e., whether he would have sought a timely appeal if properly informed. Although the district court did not have the benefit of Patton, it made the specific findings that “nothing in the file indicates that the defendant ever manifested a desire to pursue an appeal” and that “[a] delay of eight years in voicing his concern over a lack of an appeal clearly does not support the defendant’s claims in his pro se motion.” Moreover, on appeal, the State argues that Gill “failed to provide any evidence that he in fact wished to appeal his sentence,” relying in part on the 8-year delay between sentencing and Gill’s motion for an out-of-time appeal. Gill does not directly contend that, but for the lack of information, he would have appealed his sentence within 10 days of judgment. Rather, he challenges the district court’s findings in this regard on two grounds. First, he suggests that a stated desire to appeal is not germane to the application of Ortiz, specifically arguing that according to State v. Willingham, 266 Kan. 98, 101, 967 P.2d 1079 (1998), “a defendant’s failure to state a desire to appeal from such a sentence is not sufficient evidence of his desire to waive such a right.” As Patton clarifies, the State need not prove an affirmative waiver of the right to appeal, but rather under the third step of the first Ortiz exception analysis the defendant must prove that he or she wanted to appeal the sentence. Second, Gill contends that the district court’s finding of an 8-year delay in requesting an appeal is erroneous because he commenced correspondence with tire court in January 2000, less than 2 years after his April 15, 1998, sentencing. Ironically, Gill’s ap pellate brief acknowledges that his correspondence advised the district court that he “was preparing a motion ‘for relief of his conviction’ and requested his transcripts for preparing the motion.” As the State points out, Gill’s correspondence clearly indicated to the court that Gill intended to seek relief from his conviction through a K.S.A. 60-1507 proceeding. In no way did Gill manifest a desire to obtain relief from his sentence through an out-of-time direct appeal until he filed his motion in 2006. Gills numerous letters and motions to the district court over a 6-year period provided a logical vehicle for him to express the notion that he wanted to file a direct appeal of his sentence. In other words, the record supports the district court’s findings. Without suggesting any bright-line temporal rules, we find that this case presents an example of a defendant who “let the matter rest” in contravention of the requirement that he or she prove that a timely appeal would have been sought if the appropriate information had been communicated at sentencing. The denial of Gills motion to file an appeal out of time is affirmed. Affirmed. Davis, J., not participating. Greene, J., assigned.
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The opinion of the court was delivered by Luckert, J.: This appeal raises questions of whether a medical malpractice plaintiff may state a claim for fraud and for violations of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., after a juiy found that the physician did not commit medical malpractice, and whether the statute of limitations for battery based upon a fraudulently obtained consent begins to run when the fraud is discovered or when the batteiy occurred. We hold that where the alleged fraud occurs as part of the informed consent process during medical treatment, a common-law fraud claim may not be stated independent of the medical malpractice claim. On the other hand, a KCPA claim may be, and a defense verdict on the medical malpractice claim does not foreclose the KCPA claims, which in this case were severed for a separate trial. Finally, we hold the statute of limitations begins to run on a battery claim at the time of the touching, even if the consent leading to the touching was vitiated by fraud not discovered immediately. The legislature defines periods of limitations and has not provided an exception to or stated any circumstances extending the statute of limitations for battery based upon concealment of fraud or an inability to discover the battery. Facts William J. Kelly’s family physician, Dr. Edward Lind, examined a lump in Kelly’s groin area. After diagnosing a hernia, Lind told Kelly he needed surgery and recommended two surgeons — Dr. Whitney L. VinZant and another doctor. Kelly went to VinZant, who examined Kelly, confirmed the diagnosis of a hernia, and recommended surgery. VinZant. described the procedure he would perform to repair the hernia and gave Kelly a pamphlet explaining the surgery. On October 22, 1999, VinZant performed inguinal hernia surgery on Kelly. At a follow-up visit on October 28, 1999, Kelly complained of soreness in his groin area and that his left testicle was missing. VinZant performed an examination and, according to Kelly, said, “There it is. It’s right there at the base. It should drop . . . down where it belongs.” Kelly asked whether VinZant had done something to cause the testicle to be missing. Kelly summarized Vin-Zant’s response as, “All my surgeries are good; I do not do bad surgeries.” Kelly saw VinZant again on November 4,1999. Kelly’s groin pain was better, but his left testicle had still not dropped. Over the next 6 weeks, VinZant performed weekly examinations of Kelly; during this time, there was no change in Kelly’s condition. Kelly then saw his family physician, Lind, and reported that his left testicle had not dropped since the hernia surgery. Lind called VinZant’s office, and VinZant examined Kelly again. At that point, VinZant told Kelly he needed another surgery. VinZant explained that Kelly’s testicle was in his body cavity and, if it was still functional, it could be pulled back down; if it was not functional, it would need to be removed because it could become cancerous. On April 7, 2000, VinZant performed exploratory surgery and removed a mass of tissue, which he thought was the testicle. Subsequent testing revealed the tissue was not the testicle, and, on April 13, 2000, VinZant told Kelly another surgery was necessary. After a sonogram was performed, VinZant performed a third surgery on April 15, 2000, and was able to locate and remove the necrotized testicle. Two years later, on April 15, 2002, Kelly filed three separate lawsuits, each based on one of the three surgeries. All of the petitions contained a claim for medical malpractice based on allegations that the respective surgeries were performed negligently and/ or without informed consent. The petitions relating to the last two surgeries each alleged common-law fraud based on VinZant’s statement that “[a]ll my surgeries are good; I do not do bad surgeries”; battery in the form of the two subsequent surgeries, which Kelly alleged were induced by the fraudulent statement; and violations of the KCPA based on the statement. The district court consolidated the three lawsuits but bifurcated the proceedings, holding that the malpractice action would be tried first; then the common-law fraud, battery, and KCPA claims would be presented in a second, separate trial. Damage issues already decided in the first trial would not be relitigated. Prior to trial, VinZant filed a motion for partial summary judgment on Kelly’s KCPA, fraud, and battery claims. After a hearing, the district court granted summary judgment to VinZant on the KCPA claims, holding that under the rationale of State ex rel. Stovall v. ConfiMed.com, 272 Kan. 1313, 38 P.3d 707 (2002), the statements made by VinZant to Kelly in the context of an office visit did not constitute marketing and were not entrepreneurial in nature and therefore did not fall within the context of the KCPA. However, the district court declined to grant summary judgment on the two common-law fraud claims or two claims for battery based on fraudulently obtained consent. The case proceeded to trial. VinZant’s statement that “[a]ll my surgeries are good; I do not do bad surgeries” was not introduced at trial. Nor was there any evidence introduced concerning Vin-Zant’s record as a surgeon. The district court had held that such information would be inadmissible in the negligence trial under K.S.A. 60-455 as evidence of a prior civil wrong and would be reserved for the second trial on the fraud and battery claims. The jury rendered a verdict in favor of VinZant by answering “No” to each of the following questions submitted to it: “1. Do you find Defendant Whitney VinZant to be at fault in connection with the October 22, 1999 surgery? “2. Do you find Defendant Whitney VinZant to be at fault in failing to perform imaging studies prior to the April 7, 2000 surgery? “3. Do you find Defendant Whitney VinZant to be at fault in failing to inform Mr. Kelly of the potential risks of nerve damage prior to any of the operations?” Following the verdict, the district court dismissed the fraud claims, holding “it would be inconsistent to ask the jury to go forward and to deliberate upon an allegation of fraud on all my sur geries are good, I don’t do a bad surgery, . . . when in fact, the juiy has found that he didn’t do a bad one [in] this case.” The district court also dismissed the battery claims based on fraudulently obtained consents, holding that the statute of limitations had expired. Finally, the district court denied motions for a judgment notwithstanding the verdict and for a new trial based on juror misrepresentations during voir dire and assessed various expenses as costs to Kelly. Kelly appealed, arguing that the district court erred in granting partial summary judgment to VinZant on the KCPA claims; the district court erred in dismissing his fraud and battery claims following the defense verdict on his allegations of medical malpractice; and the district court abused its discretion in disallowing certain evidence, in denying Kelly’s motion for a new trial based on juror misconduct, and in awarding certain costs and expenses. VinZant cross-appealed the district court’s failure to grant summary judgment on the fraud claims. In addressing Kelly’s first argument, the Court of Appeals noted in Kelly v. VinZant, 2007 WL 1239300 (Kan. App. 2007) (unpublished opinion), that after the district court’s ruling in this case regarding the KCPA, this court in Williamson v. Amrani, 283 Kan. 227, Syl. ¶ 1, 152 P.3d 60 (2007), held that “a physician providing care or treatment to a patient can be found to have engaged in deceptive acts and practices in violation of K.S.A. 50-626 and unconscionable acts and practices in violation of K.S.A. 50-627.” Nevertheless, the Court of Appeals concluded the district court correctly granted judgment on the KCPA claims, albeit for the wrong reason, because the issue of fraud was implicitly resolved by the jury’s finding of no negligence. Under these facts, which the Court of Appeals stressed were unusual and unique, the alleged statement of fraud — “All my surgeries are good; T do not do bad surgeries” — was disproved with regard to Kelly as a result of the no-fault finding in the medical malpractice action, i.e., the statement was not untrue because the surgeries were not performed negligently. The Court of Appeals also upheld the district court’s dismissal of the battery claims based on the applicable statute of limitations, agreeing with the district court that “ ‘[t]he fact that what looked like a consensual surgeiy is later determined to have been induced fraudulently vitiates the consent but doesn’t change the time from which the battery occurred.’ ” Because the batteries occurred at the time of the second and third surgeries, the 1-year limitations period had expired prior to the filing of Kelly’s petition. Furthermore, the Court of Appeals held that Kelly did not properly preserve for appeal his argument that the district court abused its discretion in disallowing certain evidence; the district court did not abuse its discretion in denying Kelly’s motion for a new trial based on juror misconduct; and the district court did not abuse its discretion in awarding certain costs and expenses. Kelly filed a petition for review alleging the Court of Appeals erred in upholding the district court’s rulings on the KCPA, fraud, and battery claims and maintaining that he was entitled to a new trial based on juror misconduct. This court granted review as to the rulings on the KCPA, fraud, and battery claims only and has jurisdiction pursuant to K.S.A. 22-3602(e) and K.S.A. 20-3018(b). Standard of Review Procedurally, this appeal presents a unique situation in that the district court decided several of the issues after a jury trial on the medical malpractice claims. In essence, the district court considered whether the KCPA claims were valid and, in light of the jury verdict, whether Kelly stated claims for fraud or for battery. In reviewing the district court’s resolution of these questions, the Court of Appeals applied the standard of review applicable when a claim is dismissed for failure to state a claim as a matter of law. Under this standard, the court must accept the facts alleged by the plaintiff as true, along with any inferences that can be reasonably drawn therefrom. The court then decides whether those facts and inferences state a claim based on the plaintiff s theory or any other possible theory. Nungesser v. Bryant, 283 Kan. 550, 559, 153 P.3d 1277 (2007). The parties do not dispute that this is the appropriate standard for our review. In addition, the issue of whether the statute of limitations had expired on the battery claims presents an issue of law requiring the interpretation of statutes. These matters present questions of law subject to our de novo review. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007) (statutory interpretation and other issue of law reviewed de novo); see also Robbins v. City of Wichita, 285 Kan. 455, 460, 172 P.3d 1187 (2007) (summary judgment standard). Fraud In determining that the jury verdict foreclosed Kellys common-law fraud claims, the Court of Appeals enumerated the elements of an action for fraud, which require proof by clear and convincing evidence that: (1) false statements were made as a statement of existing and material fact; (2) the representations were known to be false by the party malting them or were recklessly made without knowledge concerning them; (3) the representations were intentionally made for the purpose of inducing another party to act upon them; (4) the other party reasonably relied and acted upon the representations made; and (5) the other party sustained damage by relying upon them. See Bomhoff v. Nelnet Loan Services, Inc., 279 Kan. 415, 421, 109 P.3d 1241 (2005); DuShane v. Union Nat’l Bank, 223 Kan. 755, 576 P.2d 674 (1978) (fraud may be based upon a suppression of facts the party is obligated to communicate); Timi v. Prescott State Bank, 220 Kan. 377, 389, 553 P.2d 315 (1976) (to constitute fraud, statements must relate to fact rather than mere opinions or puffing); Wolf v. Brungardt, 215 Kan. 272, 524 P.2d 726 (1974) (representation is material when relating to matter so substantial as to influence party to whom it was made); PIK Civ. 4th 127.40. The Court of Appeals concluded some of these elements were not met, first noting that the statement was not necessarily untrue because Kelly s surgeries were not performed negligently. In addition, the panel stated: “Perhaps the district court’s rationale is better stated by saying Kelly did not justifiably rely on VinZant’s statement to his detriment because the medical malpractice action failed. ... It would not be consistent to say that the surgeiy was not done negligently and then require another trial to determine if Kelly was defrauded by having needed surgery performed in a nonnegligent manner. This would be akin to negligence in air’ where alleged negligence has nothing to do with possible damages. Only here, according to the jury, there was no negligence, although there were damages.” Kelly, 2007 WL 1239300, at *4. Kelly argues this analysis ignores the nature of his allegations. Specifically, in his petition, Kelly asserts that the “statement was a substantial contributing factor to Plaintiff s decision to continue to seek care and treatment from Defendant VinZant and to submit to the April 15, 2000 surgery.” In other words, he alleges VinZant robbed him of his right to self-determination. See Natanson v. Kline, 186 Kan. 393, 406, 350 P.2d 1093, reh. denied 187 Kan. 186 (1960) (“Anglo-American law starts with the premise of thoroughgoing self determination.”). When the elements of fraud are viewed with this dignitary tort in mind, Kelly argues the elements of fraud were met because the statement “[a]ll my surgeries are good; I do not do bad surgeries” was a false statement of fact, VinZant knew all of his surgeries were not good, VinZant intended to discourage Kelly from going to another physician for a second opinion, Kelly reasonably relied upon the statement, and Kelly would have gone to a different surgeon and not allowed VinZant to touch him if Kelly had known of the bad results with other patients. Regarding damages, Kelly argues that he may recover damages for violation of his absolute right to have accurate information before consenting to VinZant performing any further surgeries on him. In addition, he emphasizes that he was precluded from introducing in the negligence trial the bulk of evidence he intended to present in support of the fraud and KCPA claims, i.e., there were problems with surgeries performed by VinZant on other patients which had resulted in other claims against VinZant. In response, VinZant raises several arguments as to why Kelly cannot establish these elements and, in addition, argues Kansas law does not allow a fraud claim founded on Kelly s theory; rather, the theoiy is subsumed in and subject to the rules governing a medical malpractice action based upon a lack of informed consent. Regarding this latter point, in Williamson this court acknowledged a series of Kansas cases holding that “a plaintiff cannot bring a claim for breach of contract or fraud where the gravamen of the claim is medical malpractice.” 283 Kan. at 240; see Bonin v. Vannaman, 261 Kan. 199, 210-11, 929 P.2d 754 (1996) (plaintiff alleged physician failed to disclose information on a chest x-ray and failed to diagnose her condition; cause of action sounded in medical malpractice, not fraud, although conduct technically fulfilled elements of claim for fraud by silence; fraudulent concealment doctrine did not extend the statute of limitations); Malone v. University of Kansas Medical Center, 220 Kan. 371, 374-76, 552 P.2d 885 (1976) (action for failure of medical center to furnish all needed treatment sounded in tort; action could not be characterized as one in contract in order to avoid bar of governmental immunity); Travis v. Bishoff, 143 Kan. 283, 284-85, 54 P.2d 955 (1936) (action against surgeon for failure to perform operation according to proper surgical practice was one for malpractice even though petition stated action was for breach of contract). In Bonin, 261 Kan. 199, this court stated: “ ‘ “As malpractice covers every way in which a patient is injured through the dereliction of a doctor in his professional capacity, the approach, depending on the facts, can be through any of several familiar forms of action. But no matter what the approach, it remains an action for malpractice, not one for deceit, contract or anything else. A well recognized ground for recovery is where a physician represents that he has the skill to perform a certain operation when in fact he does not. This form of action requires the same elements of proof that an action in fraud requires, yet it could not be successfully disputed that as between the two it is an action for malpractice.” ’ [Citations omitted.]” 261 Kan. at 211. However, by its own language, Bonin does not stand for the proposition that a doctor can never be hable for fraud or breach of contract: “[Our holding] does not mean that a doctor can never be liable for fraud or breach of contract. Instead, this simply means that a fraud or breach of contract cause of action can only be based upon a physician’s misconduct if that misconduct is beyond a breach of the legal duty which every doctor has the obligation to uphold. [Citation omitted.]” 261 Kan. at 210. See also Noel v. Proud, 189 Kan. 6, Syl. ¶ 1, 367 P.2d 61 (1961) (patient’s action against physician for alleged breach of express warranty that surgery would not worsen patient’s condition did not raise allegations of negligence, gravamen not malpractice; subject to 3-year statute of limitations on oral contracts, rather than 2-year statute for torts). Indeed, there is also Kansas precedent holding that when alleged fraud occurs separately from and subsequent to the malpractice and gives rise to damages separate and distinct from those flowing from the malpractice, a plaintiff is entitled to allege and prove such a cause of action. Typically, these actions arise from fraudulent statements intended to conceal malpractice. See Robinson v. Shah, 23 Kan. App. 2d 812, 936 P.2d 784 (1997). In arguing that VinZant’s fraud prevented the exercise of self-determination, Kelly does not allege the fraud was designed to conceal malpractice or arose independent of the course of treatment or the consent to allow that treatment. Rather, he focuses upon the fraud as an inducement to allow the subsequent surgeries, surgeries which he argues were batteries because of the fraudulent statements. This claim goes to one of the fundamental facets of the physician-patient relationship — informed consent. As Bonin states, when fraud is a part of the informed consent process, the claim is for malpractice, not fraud. Bonin specifically noted a patient could not state an independent claim based upon a physician’s false representation that he or she possessed a skill. Essentially, Kelly makes the same allegation, i.e., that VinZant represented his skill was such that he performed only good surgeries. See, e.g., Ditto v. McCurdy, 86 Hawaii 84, 90-91, 947 P.2d 952 (1997) (failure to disclose lack of board certification as plastic surgeon, as opposed to other board certifications possessed, did not render doctor liable for fraud); Paulos v. Johnson, 597 N.W.2d 316, 320 (Minn. App. 1999) (allegation of misrepresentation stating physician was board certified is not actionable as independent fraud claim); Howard v. University of Medicine, 172 N.J. 537, 553-54, 800 A.2d 73 (2002) (fraud cause of action not allowed based upon surgeon’s misrepresentation of qualifications and credentials). The conclusion that the claim sounds in medical malpractice, not fraud, does not change even if the fraud vitiates the consent, according to this court’s holding in Funke v. Fieldman, 212 Kan. 524, 512 P.2d 539 (1973). In that case, a physician anesthesiologist informed a patient that headaches were the only risk related to a spinal anesthesia. In fact, there are other risks, many of which are far greater in severity than a headache. Hence, the physician “misinformed and misled” the patient, and the “the misleading statement was equivalent to a false statement by [the physician] and vitiated [the patient’s] consent.” 212 Kan. at 535. Nevertheless, the court determined the patient must prove the elements of a malpractice action. See 212 Kan. at 535-36. Consistent with these authorities, we hold that under Kelly’s theory that VinZant’s fraudulent misrepresentation of his skill vitiated Kelly’s consent to treatment, Kelly did not state a claim for fraud but for medical malpractice based upon a lack of informed consent. In addition, to the extent Kelly’s claim of fraud can be interpreted as an attempt to conceal malpractice or as otherwise being independent of the treatment process, the district court’s and Court of Appeals’ analyses are directly applicable. Both of these courts concluded the jury’s verdict establishes that Kelly’s reliance on the statement did not result in a detriment — there was no malpractice to conceal and the subsequent treatment did not result in harm. The only harm Kelly points to is the intangible harm of his not being able to exercise his self-determination in a knowing manner. As discussed, this harm is subsumed in the malpractice claims. The district court did not err in dismissing Kelly’s common-law fraud claims. KCPA In addition to the common-law fraud claims, Kelly’s petitions alleged that VinZant’s statement “[a]ll my surgeries are good; I do not do bad surgeries” constituted a “deceptive” or “unconscionable act or practice” in violation of the KCPA. These claims, in contrast to a common-law fraud claim that cannot be stated independent of a claim for medical malpractice, are based upon a statutorily created cause of action providing a remedy even in situations where a different remedy, including a medical malpractice claim, may also be available. See Williamson, 283 Kan. at 241-42. Nevertheless, both the district court and Court of Appeals concluded the KCPA claims could be dismissed as a matter of law, although the two courts reached the conclusion on different grounds: The district court ruled the KCPA did not apply when a physician was providing medical care to a patient; the Court of Appeals concluded the jury’s verdict precluded the KCPA claims. District Court Rationale As noted by the Court of Appeals, this court’s holding in Williamson — i.e., a physician providing care or treatment to a patient can be considered a supplier of services who is potentially hable for violations of the KCPA — reveals the error in the district court’s grant of summary judgment to VinZant on the KCPA claims. In Williamson, Tracy Williamson brought an action against her orthopedic surgeon pursuant to the KCPA based on a claim that the surgeon engaged in unconscionable and deceptive acts and practices by willfully misrepresenting or concealing material facts regarding his lack of success rate with respect to the back surgery he had recommended to her. Specifically, Williamson alleged that her surgeon represented that the surgery he was recommending had a high likelihood of successfully relieving her pain when, in fact, that surgery had been unsuccessful in the majority of cases where he had performed the same procedure. The district court granted summary judgment, finding that the KCPA did not apply to a medical provider’s professional care and treatment of a patient. Before this court, Williamson made the same arguments Kelly made to the district court. In Williamson, this court reversed the grant of summary judgment, holding that the plain language of the KCPA was broad enough to encompass medical care and treatment services provided within a physician-patient relationship; the KCPA did not provide an exemption for medical providers; a physician can be found to have engaged in deceptive acts and practices, K.S.A. 50-626, or unconscionable acts and practices, K.S.A. 50-627; the KCPA applied to Williamson’s claim that her surgeon willfully misrepresented or concealed material facts regarding his success rate with tire back surgery; and, under K.S.A. 50-626(b)(3), proof of an allegation that a physician has willfully failed to state a ma terial fact or has willfully concealed a material fact requires expert testimony to establish the disclosures that would be made by a reasonable medical practitioner under the same or like circumstances. 280 Kan. at 232, 240, 242, 244, 246. A question arises, however, whether an intervening statutory amendment, which effectively overruled Williamson, applies to this case. Effective May 24, 2007, the legislature amended the KCPA to specifically exclude medical professionals from its coverage. L. 2007, ch. 194, sec. 1 (H.B. 2451). K.S.A. 2007 Supp. 50-635(b) now reads: “The Kansas consumer protection act does not allow for a private cause of action or remedy against a licensed health care provider for causes of action for personal injury or death resulting, or alleged to have resulted, from medical negligence. For purposes of this subsection, ‘health care provider’ shall have the same meaning as provided in subsection (a)(1) of K.S.A. 65-4915, and amendments thereto.” Our consideration of whether the provision applies to this case— in other words, whether it applies retroactively — is governed by two general rules. First, a statutory amendment operates prospectively unless the language of the statute clearly shows that it is the intention of the legislature that it operate retroactively. Second, even if there is a clear indication the legislature intends the amendment to operate retroactively, it will not be applied if doing so interferes with vested, substantive rights. Owen Lumber Co. v. Chartrand, 276 Kan. 218, 220-21, 73 P.3d 753 (2003); Olathe Community Hospital v. Kansas Corporation Comm’n, 232 Kan. 161, 166, 652 P.2d 726 (1982); Jones v. Garrett, 192 Kan. 109, 115, 386 P.2d 194 (1963). Applying these rules to this provision, we conclude the 2007 amendment to K.S.A. 50-635(b) — i.e., K.S.A. 2007 Supp. 50-635(b) — cannot be applied retroactively. The legislature did not express or evidence a clear intent that the amendment was to be retroactive, and the amendment is substantive and is not merely procedural because the amendment excludes one class of “suppliers” previously covered by the KCPA. Consequently, the amendment would terminate the substantive rights of litigants in pending cases filed under the prior version of the KCPA. Hence, our holding in Williamson applies to this case, and an application of Williamson reveals that the district court erred in granting summary judgment to VinZant on Kelly s KCPA claims on the basis that the KCPA had no application on the facts. Court of Appeals Nevertheless, we must consider the Court of Appeals’ conclusion that the district court was right for the wrong reason because the jury’s resolution of the malpractice action prevented Kelly from proceeding on the fraud and KCPA claims. See Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 239, 32 P.3d 705 (2001) (decision will be upheld even though wrong ground relied upon if result was correct). As previously discussed, the Court of Appeals considered the fraud and KCPA claims together, rejecting the claims on several grounds. Two of these grounds have already been discussed: (1) The alleged statement of fraud was disproved with regard to Kelly as a result of the no-fault finding in the medical malpractice action and (2) “Kelly did not justifiably rely on VinZant’s statement to his detriment because the medical malpractice action failed.” In addition, the Court of Appeals concluded that “where there are no damages, this discussion is academic.” Kelly, 2007 WL 1239300, at *4-5. In reaching these conclusions, the Court of Appeals noted that there are several significant differences between a statutoiy KCPA claim and one sounding in common-law fraud. For example, the KCPA prohibits deceptive acts and practices in regard to consumer transactions whether or not a consumer was in fact misled. K.S.A. 50-626(b); PIK Civ. 4th 129.01. In addition, the burden of proof differs; KCPA claims may be established by a preponderance rather than clear and convincing evidence applied to common-law fraud claims. See Ray v. Ponca/Universal Holdings, Inc., 22 Kan. App. 2d 47, 913 P.2d 209 (1995); PIK Civ. 4th 129.02. Similarly, there are differences between a claim under the KCPA and negligence; in fact, there is little (or no) similarity between a KCPA claim and a medical malpractice negligence claim. Thus, it is pos sible for Kelly to prove a claim under the KCPA even if he cannot prove a negligence or common-law fraud claim. In considering the specifics of this action, there are several statutorily defined deceptive acts and practices that are potentially applicable to the statement that “[a]ll my surgeries are good; I do not do bad surgeries.” First, “the willful use, in any oral or written representation, of exaggeration, falsehood, innuendo or ambiguity as to a material fact” is a violation. K.S.A. 50-626(b)(2). Second, “the willful failure to state a material fact, or the willful concealment, suppression or omission of a material fact” meets the definition of a deceptive act or practice. K.S.A. 50-626(b)(3). Finally, the statement could be considered an unconscionable act if “(1) [t]he supplier took advantage of the inability of the consumer reasonably to protect the consumer s interests because of the consumer’s physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement or similar factor” or “(6) the supplier made a misleading statement of opinion on which the consumer was likely to rely to the consumer’s detriment.” K.S.A. 50-627(b)(3), (6). Obviously, the jury did not consider the elements of these provisions. Instead, after hearing, inter alia, expert testimony concerning the standard of care, the anatomy of a hernia, the operating procedure, and VinZant’s defense, the jury concluded that VinZant was not at fault in connection with the October 22, 1999, surgery (the first of the three); for failing to perform imaging studies prior to the April 7, 2000, surgery (the second surgery); or in failing to inform Kelly of the potential risks of nerve damage prior to any of the surgeries. Yet, to the extent the statement “[a]ll my surgeries are good; I do not do a bad surgeiy” is considered as meaning “I do not commit malpractice” or as an attempt to conceal malpractice, the Court of Appeals is correct that the verdict answers that there was no malpractice and nothing to conceal. Thus, the verdict negates an allegation that VinZant made “ [representations made knowingly or with reason to know that . . . services have . . . characteristics, . . . benefits or quantities that they do not have” or that “services are of particular standard [or] quality . . . which differs materially from the representation.” K.S.A. 50-626(b)(l)(A), (D). On the other hand, when considering Kelly s argument that the allegedly false statement induced his consent to the subsequent surgeries, nothing inherent in the answers supplied by the jury on the special verdict form answers whether VinZant’s statement violated the KCPA. That is, the jury was not asked, nor does its verdict tell us, whether VinZant willfully exaggerated a material fact, K.S.A. 50-626(b)(2), or concealed a material fact, K.S.A. 50-626(b)(3). Nor does the jury’s verdict resolve whether VinZant “took advantage” of Kelly’s inability to protect his own interest because of his ignorance of VinZant’s procedure or surgical track record, a potential ground for unconscionability, which is a question for the court. See K.S.A. 50-627(b)(l), (6); Williamson v. Amrani, 283 Kan. 227, 152 P.3d 60 (2007). Consequently, the jury’s conclusion that VinZant did not commit negligence in performing either the second or third surgeries is not necessarily determinative of whether any violations of the KCPA occurred. The other reason cited by the Court of Appeals for upholding the judgment on the KCPA claims 'was that “where there are no damages, this discussion in academic.” Kelly, 2007 WL 1239300, at *5. There are at least two flaws in this conclusion. First, the juiy’s verdict does not eliminate the possibility that Kelly suffered damages. By finding no negligence, the juiy may have agreed that VinZant did not breach his standard of care. Or it may have concluded that any breach of the standard of care in the first surgery, or in failing to perform imaging studies prior to the second surgeiy, or in failing to inform Kelly of the potential risks of nerve damage was not the proximate cause of Kelly’s injuries. These conclusions do not foreclose the possibility of damages that could be recoverable on a ground other than negligence. Second, the KCPA allows recovery for damages apart from those recoverable in a successful medical malpractice claim. K.S.A. 50-634 allows recovery for damages or civil penalties, whichever is greater, and for attorneys fees for KCPA violations; see PIK Civ. 4th 171.02 (types of damages allowed in personal injury suit); PIK Civ. 4th 171.44 (punitive damages); see also Lantz v. City of Lawrence, 232 Kan. 492, 500-01, 657 P.2d 539 (1983) (stating circumstances in which Kansas case law permits recovery of damages for mental distress without physical injuiy). To recover these damages, a party must establish that he or she was aggrieved by a violation of the KCPA. K.S.A. 50-634; Finstad v. Washburn University, 252 Kan. 465, 845 P.2d 685 (1993). As stated in Findstad: “ ‘ “A party is aggrieved whose legal right is invaded by an act complained of or whose pecuniary interest is directly affected by the order.” ’ [Citation omitted].” 252 Kan. at 472. Kelly alleges his right to self-determination was invaded by VinZant and he suffered damages as a result. Hence, we conclude the Court of Appeals erred in holding that Kelly’s KCPA claims could be dismissed as a matter of law because of the jury verdict, and we reverse. We note that VinZant raised several other arguments regarding the viability of Kelly’s KCPA claims and the nature of Kelly’s damages. Because of the nature of the district court’s decision, these issues were not developed on appeal, are not subject to the petition for review, and are not framed for our resolution. We, therefore, remand to the district court for further proceedings on Kelly’s KCPA claims. Battery Kelly alleges VinZant committed batteries by performing surgery on April 7 and April 15, 2000. It was not until April 15, 2002, that Kelly filed his lawsuits. Obviously, this means the two actions were not timely filed if the 1-year statute of limitations for battery, K.S.A. 60-514(b), applies and if the statute began to run when the surgeries occurred and was not tolled. Kelly seeks to avoid this result by arguing the statute of limitations was tolled because he was not aware of VinZant’s fraud and it was the fraud that invalidated his consent to the surgeries. As Kelly notes, while K.S.A. 60-513(a)(3) states that a cause of action for fraud shall not be deemed to have accrued until the fraud is discovered, K.S.A. 60-514(b) is silent as to the moment when a cause of action for battery accrues. Kelly argues, in part, that the fraud discovery provision should be grafted onto the battery statute of hmitations. The district court rejected this argument, concluding the 1-year battery limitation applied without any tolhng, and dismissed Kelly’s battery claims based on the statute of hmitations. The Court of Appeals agreed with this conclusion. As a prehminary matter, part of Kelly’s argument that the district court erred in dismissing the battery claims relies on a “Tolhng Agreement” allegedly reached by the parties early in the litigation. This agreement does not appear in the record on appeal. An appellant has the burden to designate a record sufficient to establish the claimed error; without such a record, the claim of error fails. City of Mission Hills v. Sexton, 284 Kan. 414, 435, 160 P.3d 812 (2007). In addition, Kelly argues also that the district court and Court of Appeals erred in ruling that the statute of hmitations for battery is not subject to tolhng based on the fraud. Although Kelly agrees that consent is a defense to battery, see Charley v. Cameron, 215 Kan. 750, 757, 528 P.2d 1205 (1974), and admits that he gave consent to VinZant to perform the second and third surgeries, he asserts where consent is initially given but has been procured by fraud it is invalid and an action for battery will he. See Spikes v. Heath, 175 Ga. App. 187, 189-90, 332 S.E.2d 889 (1985), superceded by statute as stated in Albany Urology v. Cleveland, 272 Ga. 296, 528 S.E.2d 777 (2000); 6 Am. Jur. 2d, Assault and Battery § 118 (consent is ineffective and does not provide a defense where it is obtained by fraud or duress); Restatement (Second) of Torts § 892B (1977). Building upon this legal foundation, he argues his consent to the batteries (the second and third surgeries) was induced by VinZant’s statement that “[a]ll my surgeries are good; I do not do bad surgeries” and it was only once the fraudulent character of that statement was discovered that the hmitations period began running. In other words, Kelly asks this court to apply the hmitations period applicable to a fraud claim to his batteiy claims, because fraud is an “indispensable element” of those claims. To support his argument, Kelly cites Spitler v. Dean, 148 Wis. 2d 630, 436 N.W.2d 308 (1989), in which the Wisconsin Supreme Court held “ ‘[t]he statute [of hmitations] should not commence to run until the plaintiff with due diligence knows to a reasonable probability of injury, its nature, its cause, and the identity of the allegedly responsible defendant/ [Citation omitted.]” 148 Wis. 2d at 635. VinZant counters that this creative cause of action — battery by fraud — is not legally supported by Kansas law. Specifically, he argues that fraud and battery are distinct theories of recovery. The statute of hmitations for batteiy is 1 year and accrues at the time of the batteiy. The statute of hmitations for fraud is 2 years and accrues at the time the fraud is discovered. We agree with VinZant’s position. Our law is clear: A cause of action for battery accrues when, as the district court stated, “the scalpel is put to the skin.” Further, “ ‘ “[t]hrough clever pleading or by utilizing another theory of law, the assault and battery cannot be [transformed] into another type of action subject to a longer statute of hmitations as it would circumvent the statute of hmitations for assault and batteiy to allow that to be done.” ’ [Citations omitted.]” Baska v. Scherzer, 283 Kan. 750, 766, 156 P.3d 617 (2007). The legislature defines periods of hmitations and, in several instances, has provided that the action does not accrue until discovered. The obvious example is the fraud hmitations provision which states the “cause of action shah not be deemed to have accrued until the fraud is discovered.” K.S.A. 60-513(a)(3). Similarly, K.S.A. 60-513(b), which applies to “[a K.S.A. 60-513(a)(7)] cause of action arising out of the rendering of or the failure to render professional services by a health care provider” (and which is not relied upon by Kelly), provides the 2-year hmitations period “shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of hmitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party.” K.S.A. 60-513(b). In contrast, however, the battery hmitations provision does not contain any similar language, merely providing an action for batteiy shall be brought within 1 year. K.S.A. 60-514(b). Kelly asks us to graft an exception onto K.S.A. 60-514 such as the legislature has provided in K.S.A. 60-513. That argument belongs in the legislature, not here. Applying the statute as written, we hold the statute of hmitations begins to run on a battery claim at the time of a touching, even if a consent leading to the touching was vitiated by fraud not discovered immediately. The legislature has not provided an exception to or stated any circumstances extending the statute of hmitations for battery based upon concealment of fraud or an inability to discover the battery. One final consideration is whether the gravaman of Kelly’s causes of action is battery or fraud. Although Kelly alleges battery by fraud in his petition, calling for the application of a 2-year statute of hmitations, “this court is not bound by the claims as set forth in the petition. Instead, ‘ “[t]he law of this state is realistic. Substance prevails over form.” ’ [Citations omitted.]” Baska, 283 Kan. at 755. Kelly's “battery by fraud” claims seek damages arising from the surgeries themselves, that is, from the alleged unlawful touchings that occurred April 7, 2000, and April 15, 2000. Those causes of action accrued at the times of the touchings. The alleged fraud does not resurrect the otherwise expired claims of battery or prevent their accrual. Affirmed in part, reversed in part, and remanded to the district court with directions.
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Per Curiam: This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Douglas W. Dowell, a Kansas City attorney admitted to the practice of law in Kansas in 2002. The hearing panel found that the respondent violated Kansas Rules of Professional Conduct (KRPC) 1.1 (2007 Kan. Ct. R. An-not. 384) (competence); KRPC 1.3 (2007 Kan. Ct. R. Annot. 398) (diligence); KRPC 1.4(a) (2007 Kan. Ct. R. Annot. 413) (communication); KRPC 1.15 (2007 Kan. Ct. R. Annot. 473) (safekeeping property); KRPC 8.4(g) (2007 Kan. Ct. R. Annot. 559) (engaging in conduct adversely reflecting on fitness to practice law); and Kansas Supreme Court Rule 211 (2007 Kan. Ct. R. Annot. 304) (formal hearings). Before a panel of the Kansas Board for Discipline of Attorneys, the respondent stipulated that the factual allegations contained in the formal complaint were true and resulted in the disciplinary rules violations set forth therein. Respondent then testified in mitigation of his conduct. The Deputy Disciplinary Administrator recommended the respondent be suspended from the practice of law for an indefinite period. The hearing panel unanimously accepted this recommendation. Respondent filed no exceptions to the final hearing report. The panel made the following findings of fact and conclusions of law: “FINDINGS OF FACT “Based upon the Respondent’s stipulation and the evidence introduced at the hearing, the Hearing Panel finds the following facts, by clear and convincing evidence: “2. The Respondent practiced law with Brad Medlin until July, 2005, when Mr. Medlin left the practice and moved to Florida. Thereafter, in September, 2005, the Respondent formed a partnership with Sarah A. Sypher. “3. The Respondent and Ms. Sypher remained as law partners from September, 2005, until April 20, 2007. “4. During the period of time the Respondent practiced law with Ms. Sypher, the Respondent failed to return telephone calls to clients, the Respondent failed to diligently represent clients, the Respondent faded to take necessary action in many bankruptcy cases and received 12 orders to show cause based upon his inaction, the Respondent accepted cases that he was not competent to handle, and the Respondent provided Ms. Sypher with false information regarding the status of cases. “5. On April 20, 2007, Ms. Sypher and Christopher Kuehn, an attorney, confronted the Respondent regarding the problems in his practice. Ms. Sypher and Mr. Kuehn encouraged the Respondent to seek assistance in handling what appeared to be personal problems. “6. At the hearing on this matter, the Respondent acknowledged that he suffers from depression, that he may suffer from attention deficit disorder, and that he is an alcoholic. Following his meeting with Ms. Sypher and Mr. Kuehn on April 20,2007, the Respondent reported to Mirror’s, Inc., for intensive outpatient alcohol treatment. The Respondent successfully completed the program and continues to participate in AA meetings. Additionally, after the Respondent ceased practicing law, the Respondent contacted Don Zemites with the Kansas Impaired Lawyers Assistance Program. The Respondent worked with Mr. Zemites in addressing his alcoholism until Mr. Zemites’ death. Since Mr. Zemites’ death, the Respondent has not sought or obtained assistance from the Kansas Impaired Lawyers Assistance Program. “7. The Respondent has not sought or obtained an evaluation or treatment for depression or attention deficit disorder. “8. After leaving the practice of law on April 20, 2007, the Respondent did not contact his clients, opposing counsel, or the courts in which he had pending cases to notify them that he would no longer be practicing law. The Respondent left the practice with the understanding that Ms. Sypher would take over the representation and assist his clients. The Respondent took no action to assist Ms. Sypher with the transition. “Representation of [D.G.] “9. In May, 2006, [D.G.] retained the Respondent to file an action in bankruptcy in her behalf. At that time, [D.G.] was three months behind in her pay ments on her home mortgage. The Respondent recommended that she file a Chapter 13 bankruptcy action. “10. The Respondent filed a Chapter 13 bankruptcy case in behalf of [D.G.]. After [D.G.] made her first payment on her plan, the bankruptcy court dismissed [D.G.’s] Chapter 13 case because the Respondent failed to file copies of pay stubs and income tax returns. “11. The Respondent filed a second Chapter 13 case in behalf of [D.G.]. However, the bankruptcy court dismissed [D.G.’s] second Chapter 13 case because the Respondent failed to include a confirmable plan. “12. After the court dismissed the second Chapter 13 case, [D.G.] began negotiating directly with the lender on her home mortgage. [D.G.] and the mortgage company reached an agreement. [D.G.] agreed to make her monthly payments and pay an additional amount to cover her arrearage. The mortgage company agreed that if [D.G.] paid as agreed for a period of time, the mortgage company would restore the mortgage to good standing. “13. The Respondent advised [D.G.] to not make the agreed payments because the mortgage company could still foreclose on the loan. Relying on the Respondent’s advice, [D.G.] discontinued making payments. “14. The Respondent also advised [D.G.] that she should file a Chapter 7 bankruptcy to satisfy her indebtedness. However, the Respondent failed to properly research the possibility of [D.G.] filing a Chapter 7 bankruptcy. As it turns out, [D.G.] was ineligible to file a Chapter 7 bankruptcy because of the recency of her husband’s prior Chapter 7 bankruptcy. As a result, [D.G.] lost her home and her vehicle. [D.G.] would not have been eligible to file a Chapter 7 bankruptcy until 2008. “Representation of [T.J.] “15. In March, 2005, [T.J.] retained Brad Medlin to file an action in bankruptcy. After Mr. Medlin left the practice of law, the Respondent replaced Mr. Medlin as [T.J.’s] attorney. “16. While the bankruptcy case was pending, . . . a hen [was filed] on [T.J.’s] home. [T.J.] became aware of the hen in July, 2006, when he attempted to take a reverse mortgage on the property. The trustee informed [T.J.] that the hen was not valid. [T.J.] requested that the Respondent take action to have the hen removed. The Respondent took no action to have the hen removed. “17. [T.J.] and his friend, [M.A.], repeatedly telephoned the Respondent seeking information regarding the representation. The Respondent failed to return their telephone calls. “18. On November 30, 2006, [T.J.] died. Following [T.J.’s] death, the Respondent filed a motion to avoid the hen. The Court found that the Respondent failed to file a motion for substitution of parties and that the motion to avoid the hen was improper because [T.J.] was deceased and the Respondent lacked standing to file tlie motion. “19. Because of the posture of the bankruptcy case, the Respondent informed [T.J.’s] family that he was not competent to handle the case and instructed [T.J.’s] family to find a new lawyer. The Respondent took no action to assist [T.J.’s] family in finding competent counsel. “Representation of [T.L.P.] “20. During 2004, [T.L.P.] retained the Respondent to represent him in a bankruptcy action and to represent him in a lawsuit against Commerce Bank in Joplin, Missouri, for providing inaccurate information to the credit reporting agencies. [T.L.P.] paid the Respondent an attorney fee. “21. Thereafter, the Respondent filed an action in bankruptcy, pursuant to Chapter 13 in behalf of [T.L.P.]. However, the bankruptcy court dismissed the action because the Respondent failed to file the appropriate documents. Later, in 2005, [T.L.P.] paid the Respondent an additional attorney fee and the Respondent refiled the bankruptcy case. “22. In early 2007, the Respondent moved to a different residence and his law firm moved to a different office. The Respondent employed [T.L.P.] to assist him with moving. While assisting the Respondent in moving the Respondent’s residence, [T.L.P.] was carrying bags of trash to the receptacle. When doing so, some items fell out of the bags. When [T.L.P.] went to return the trash to the bags, he discovered that what had fallen out of the trash bags included original documents from [T.L.P.’s] bankruptcy case, [T.L.P.’s] only copy of his income tax return, his actual Lowe’s credit card, and his credit card documents. [T.L.P.] looked through the trash and observed what appeared to be other bankruptcy clients’ documents and properly. The Respondent instructed [T.L.P.] to dirow the items away. “23. After leaving the practice of law in April 20,2007, the Respondent failed to notify [T.L.P.] that he would no longer provide him with representation in his Chapter 13 bankruptcy case and his action against Commerce Bank. “CONCLUSIONS OF LAW “1. Based upon the Respondent’s stipulations and the findings of fact above, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.15, and KRPC 8.4(g), and Kan. Sup. Ct. R. 211(b), as detailed below. “2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent violated KRPC 1.1 when he (1) accepted cases that he was not competent to handle, (2) failed to provide the bankruptcy court with required documentation in behalf of [D.G.] and [T.L.P.], (3) failed to file a confirmable plan for [D.G.], (4) advised [D.G.] to not make the agreed payments to her mortgage company, (5) advised [D.G.] to file a Chapter 7 bankruptcy case at a time when she was ineligible to do so, and (6) filed a motion to avoid the hen in behalf of [T.J.] after [T.J.] died. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1. “3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to [D.G.], [T.J.], and [T.L.P.] by failing to timely advance their cases. Recause the Respondent failed to act with reasonable diligence and promptness in representing his clients, the Hearing Panel concludes that the Respondent violated KRPC 1.3. “4. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to return his clients’ telephone calls, including [T.J’s] and [M.A.’s] telephone calls. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a). “5. Lawyers must keep the property of their clients safe. See KRPC 1.15. The Respondent failed to keep [T.L.P.’s] property safe when he deposited it into the trash at his residence. Accordingly, the Hearing Panel concludes that the Respondent failed to properly safeguard [T.L.P.’s] property. “6. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). The Respondent provided Ms. Sypher, his partner, with false information regarding the status of his cases. Additionally, the Respondent placed [T.L.P’s] personal property in his trash at his residence. Providing false information to his partner and throwing away [T.L.P.’s] personal property adversely reflects on the Respondent’s fitness to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g). “7. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provides the requirements: ‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’ In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).” RECOMMENDED DISCIPLINE In considering the appropriate discipline, the hearing panel addressed the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions, specifically, the duty violated, the lawyer’s mental state, the potential or actual injuiy caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “Duty Violated. The Respondent violated his duty to his clients to provide diligent representation and adequate communication. The Respondent also violated his duly to his clients to safeguard his clients property. “Mental State. The Respondent knowingly violated his duty. “Injury. As a result of the Respondents misconduct, the Respondent caused actual injury to his clients. [T.J.] died while waiting for the Respondent to provide the assistance for which he was hired. Additionally, Ms. Sypher testified that two additional clients . . . died while waiting for the Respondent to take action in their pending cases. “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: “A Pattern of Misconduct. Included in this case are two complaints. The complaints involve similar misconduct. Accordingly, the Respondent engaged in a pattern of misconduct. “Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 8.4(g), and Kan. Sup. Ct. R. 211(b). As such, the Respondent committed multiple offenses. “Vulnerability of Victim. The Respondent’s clients were vulnerable to tire Respondent’s misconduct because of their financial difficulties. “Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present: “Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined. “Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. According to the Respondent, he has suffered from depression during the course of the past few years. Additionally, the Respondent identifies himself as an alcoholic. The Respondent participated in intensive outpatient treatment for alcoholism and has attended, on average, three Alcoholics Anonymous meetings each week for the past year. The Respondent’s impairments contributed to his misconduct. “The Present and Past Attitude of the Attorney as Shown by tire Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fully cooperated in the disciplinary hearing as exhibited by his complete acknowledgment of the misconduct. “Inexperience in the Practice of Law. The Kansas Supreme Court admitted Hie Respondent to practice law in 2002. At the time the Respondent’s misconduct began, he had been practicing law for a period of three years. Accordingly, the Hearing Panel concludes that Respondent was inexperienced in the practice of law at the time he engaged in the misconduct. “Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse. “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injuiy or potential injuiy to a client.’ Standard 4.12. ‘Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injuiy or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injuiy or potential injury to a client.’ Standard 4.42. ‘Suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injuiy to a client.’ Standard 4.52.” The hearing panel then stated: “Accordingly, based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be indefinitely suspended from the practice of law in the State of Kansas. The Respondent shall comply with Kan. Sup. Ct. R. 218. “It is clear to the Hearing Panel that the Respondent is not currently fit to practice law. The Respondent acknowledges that he suffers from depression and the Respondent also believes that he may suffer from attention deficit disorder. However, the Respondent has not sought or obtained evaluation or treatment for these conditions, because, as he testified, of his financial limitations. It is incumbent upon the Respondent to seek and obtain evaluation, and if appropriate, sufficient treatment for these conditions prior to seeking reinstatement to the practice of law.” DISCUSSION In a disciplinary proceeding, this court considers die evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003); see also Supreme Court Rule 211(f) (2007 Kan. Ct. R. Annot. 304) (misconduct to be established by clear and convincing evidence). Here, respondent stipulated to the factual allegations contained in the formal complaint and the disciplinary rules violations charged therein. Additionally, he filed no exceptions, the results of which render the final hearing report to be deemed admitted. Supreme Court Rule 212(c) (2007 Kan. Ct. R. Annot. 317). We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law, and we adopt the panel’s findings and conclusions. By virtue of respondent’s stipulation before the panel to the facts and disciplinary rule violations, the only matter at issue before the panel was the appropriate discipline to be recommended. At the hearing before this court, respondent concurred with the hearing panel’s recommendation, stating he was not able to practice law at the present time because of his depression. Consequently, we adopt the panel’s recommendation. It Is Therefore Ordered that Douglas W. Dowell be and he is hereby indefinitely suspended from the practice of law in Kansas, effective upon the filing of this opinion. It Is Further Ordered that Douglas W. Dowell shall comply with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337). It Is Further Ordered that Douglas W. Dowell shall comply with Supreme Court Rule 219 (2007 Kan. Ct. R. Annot. 350) if he seeks reinstatement. As part of the reinstatement procedure, the Disciplinary Administrator may require an evaluation by a health care provider chosen by the Disciplinary Administrator in order to determine if respondent is mentally and physically competent to engage in the active and continuous practice of law in this state. It Is Further Ordered that this opinion be published in the official Kansas Reports and that respondent pay the costs of these proceedings.
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The opinion of the court was delivered by Johnson, J.: Marsha Inez Preston appeals the district court’s ruling that the amount of time she participated in an inpatient drug treatment program while on probation would not be credited as service on her underlying prison sentence. Acknowledging that K.S.A. 21-4603d(n) specifically precludes jail time credit for participation in the certified drug abuse treatment program mandated by K.S.A. 21-4729, Preston argues that (1) K.S.A. 21-4603d(n) should be construed as not conflicting with the jail time credit provisions of K.S.A. 21-4614a, as interpreted in State v. Theis, 262 Kan. 4, 10, 936 P.2d 710 (1997); (2) her inpatient treatment was not a part of the mandatory drug treatment program; or (3) K.S.A. 21-4603d(n)’s preclusion of jail time credit violates the equal protection guaranties of the Fourteenth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights, § 1. We affirm. Preston pled nolo contendere to possession or control of cocaine in violation of K.S.A. 2007 Supp. 65-4160(a), a drug severity level 4 felony. Preston was sentenced on May 5, 2006, to an underlying prison term of 17 months. However, in accordance with the legislative scheme known as Senate Bill 123 (S.B. 123), L. 2003, ch. 135, she was placed on community corrections probation for 18 months to complete a certified drug abuse treatment program. See K.S.A. 21-4729. Preston failed to report to her intensive supervisor to commence probation supervision, and on June 14, 2006, the probation officer filed a motion for an order to show cause why probation should not be revoked for the failure to report. The motion requested that Preston be ordered to serve 60 days in jail, followed by inpatient treatment, and an order to comply with aftercare requirements. A show cause hearing was held on October 12, 2006. Preston stipulated that she failed to report, and the court revoked her probation. Preston was reinstated on community corrections supervision with the additional conditions of following the aftercare recommendations of the inpatient treatment facility, Valeo, and serving a 60-day jail sanction. The order of probation reinstatement read in relevant part: “[Y]ou have been placed on Community Corrections Probation on this date, October 12,2006, for a period of 18 months per SB 123 for the offense of Drugs; Opiates or Narcotics; Possession; First Offense.” On January 8, 2007, the probation officer filed a second motion for an order to show cause, alleging that Preston failed to report for supervision and had not complied with the aftercare treatment recommendation that she attend the First Step Hallway House. At the March 26, 2007, show cause hearing, Preston stipulated to the failure to report and the failure to comply with her treatment program. Her attorney acknowledged that Preston was a “Senate Bill 123 Person,” and advised the court that Preston had recommenced her drug use after being discharged from inpatient treatment and while waiting for space to open at the First Step House. The district court revoked Preston’s probation and ordered her to serve her underlying prison term. On April 2, 2007, Preston filed an objection to the proposed journal entry of sentencing because it did not include jail time credit for her inpatient treatment time at Valeo. The district court considered the objection as a motion for jail credit. The court refused to grant credit “for the approximately 44 days [Preston] was in inpatient treatment at Valeo as a condition of her SB 123 probation.” Following Preston’s timely appeal, the case was transferred to the Supreme Court pursuant to K.S.A. 20-3018(c). STANDARD OF REVIEW Preston’s first two issues require us to interpret statutory provisions, invoking an unlimited review. In that regard, we are not bound by the trial court’s statutory interpretation. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). Likewise, as a question of law, we exercise an unlimited review of Preston’s equal protection challenge. See State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007). CONFLICT IN STATUTES First, Preston complains about the State’s argument before the district court that K.S.A. 21-4603d(n) and K.S.A. 21-4614a were in conflict. The point of the State’s argument was that K.S.A. 21-4603d(n), as the specific provision, governed over the general provisions of K.S.A. 21-4614a and likewise trumped the holding in Theis which found that credit should be given for time spent in an inpatient drug treatment program. K.S.A. 21-4603d(n), in relevant part, provides: “If the defendant fails to participate in or has a pattern of intentional conduct that demonstrates the offender’s refusal to comply with or participate in the treatment program, as established by judicial finding, the defendant shall be subject to revocation of probation and die defendant shall serve the underlying prison sentence as established in K.S.A. 21-4705, and amendments thereto. For those offenders who are convicted on or after the effective date of this act, upon completion of the underlying prison sentence, the defendant shall not be subject to a period of postrelease supervision. The amount of time spent participating in such program shall not be credited as service on the underlying prison sentence.” (Emphasis added.) In contrast, K.S.A. 21-4614a(a) provides that when a defendant’s probation is revoked and the defendant is sentenced to confinement, the sentencing date “shall be computed as an allowance for the time which the defendant has spent in a residential facility while on probation, assignment to a conservation camp or assignment to community correctional residential services program.” In Theis, 262 Kan. at 10, this court reasoned “that K.S.A. 21-4614a(a) should be liberally construed to give offenders . . . jail time credit for time spent in inpatient drug treatment while on probation, thus reserving jail space for more violent offenders.” Preston contends that when the legislature enacted S.B. 123, it was aware of the provisions of K.S.A. 21-4614a but did not choose to amend that statute to preclude credit for inpatient treatment. Further, Preston asserts that it was well established and the legislature would have known that a defendant did not receive jail time credit for time spent on probation or in outpatient treatment programs. Therefore, Preston suggests that such knowledge somehow indicates a legislative intent to simply clarify that a S.B. 123 probationer does not get credit for that portion of the mandatory drug treatment program which is outpatient, but does continue to get credit for the inpatient portion of the program. That argument is counterintuitive and contrary to our rules of statutory construction. If the legislature had intended for S.B. 123 probationers to receive the same jail time credit treatment that regular probationers were then already receiving, there was no reason for the legislature to even mention jail time credit in K.S.A. 21-4603d(n). Moreover, when die legislature revises an existing law, we presume that it intended to change the law as it existed prior to the amendment. See State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006). Furthermore, the provisions of K.S.A. 21-4603d(n) specifically apply to S.B. 123 probationers who refuse to comply with or participate in their mandatory drug treatment program, i.e., the provision addresses a specific violation by a subset of all probationers. Thus, the legislature needed to retain the provisions of K.S.A. 21-4614a to apply in those probation violation cases not covered by the specific provisions of K.S.A. 21-4603d(n). Therefore, we reject Preston’s suggestion that K.S.A. 21-4603d(n) merely clarified the existing law governing jail time credit. INPATIENT TREATMENT REQUIREMENT In the alternative, Preston argues that, if K.S.A. 21-4603d(n) is not construed to allow jail time credit for inpatient treatment which is a component of a S.B. 123 probation, then her specific inpatient treatment is nevertheless subject to credit because it was not part of her K.S.A. 21-4729 mandatory drug treatment program, i.e., was not a component of her original S.B. 123 probation. She makes two arguments in that regard. First, Preston points out that her initial probation revocation was for failing to report to her community corrections supervisor. She suggests that this was not a violation of the K.S.A. 21-4729 drug treatment program, but rather a violation of a condition of a concurrently imposed regular probation. Therefore, she argues that the court ordered her to inpatient treatment as a modified condition of the regular probation sanction, pursuant to K.S.A. 21-4610, rather than incorporating the inpatient treatment into the drug abuse treatment program mandated by the S.B. 123 sanction. Alternatively, Preston cites to K.S.A. 22-3716(f), which provides that offenders who have violated a condition of their K.S.A. 21-4729 drug and alcohol abuse treatment program are “subject to an additional nonprison sanction” for the violation. One of the statutoiy examples of nonprison sanctions that may be imposed for noncompliance with the treatment program is “intensified treatment.” Preston suggests that the use of the word, “additional,” means that the sanction imposed for violating a condition of the original drug abuse treatment program is separate and distinct from and not a part of the of the original treatment program contemplated by S.B. 123. Accordingly, Preston argues that her Valeo inpatient treatment was ordered as an “intensified treatment” sanction, making it part of her “regular probation” which is not subject to the jail time credit preclusion of K.S.A. 21-4603d(n). Essentially, under Preston’s reasoning, the S.B. 123 probation would consist solely of the originally adopted drug treatment program which could not be modified or revised. The State counters that Preston did not make these creative arguments to the district court and should not be permitted to raise the issues for the first time on appeal. See State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006). Trial counsel did not suggest that Preston was concurrently serving two or more nonprison sanctions; that only one of the sanctions was contemplated by S.B. 123 and subject to K.S.A. 21-4603d(n); and that the inpatient treatment was not a component of the S.B. 123 sanction. To the contrary, counsel specifically said that Preston was a “Senate Bill 123 Person.” Nevertheless, the interpretation of K.S.A. 21-4603d(n), in light of other statutes dealing with probation violations, specifically K.S.A. 21-4614a, was placed in issue before the trial court, leading us to address the merits of Preston’s claims. Preston has moved to include her LSI-R report in the appeal record, presumably because it would show that inpatient treatment was not initially recommended as part of the K.S.A. 21-4729 drug abuse treatment program. We deny that motion because we do not deem the LSI-R report to be necessaiy for our decision. K.S.A. 21-4729(b)(l) provides for a drug abuse assessment and “a recommendation concerning drug abuse treatment for tire offender.” (Emphasis added.) It is the court that commits the offender to a drug treatment program. K.S.A. 21-4729(c). Therefore, evidence of the recommended treatment would not prove that inpatient treatment was omitted from the district court’s originally ordered mandatoiy drug treatment program. Even if the court did initially order a drug treatment program in accord with the LSI-R and that report did not include an inpatient treatment component, we would not find the LSI-R to be helpful. As will be discussed below, we reject Preston’s suggestion that a sentencing court cannot revise or modify a K.S.A. 21-4729(c) drug abuse treatment program, but rather that it can only order an additional “regular” probation sanction. Therefore, proof of the originally ordered treatment program does not affect our decision. We turn now to Preston’s contention that the court ordered Valeo inpatient treatment as a regular probation sanction for failing to report. The court’s pronouncement belies that assertion. To reiterate, at the hearing which dealt in part with the inpatient treatment, the court announced: “[Y]ou have been placed on Community Corrections Probation on this date, October 12, 2006, for a period of 18 months per SB 123 for the offense of Drugs; Opiates or Narcotics; Possession; First Offense.” Clearly, the district court intended the Valeo inpatient treatment to be part of a S.B. N3 probation. Next, we reject Preston’s contention that the legislature, through its enactment of K.S.A. 22-3716(f), intended any modification or revision to the original drug abuse treatment program to be outside the parameters of S.B. 123. A review of the legislative history suggests that the legislative intent was to make S.B. 123 comprehensive in effecting its goals. In a February 12, 2003, memorandum to the Senate Judiciary Committee, the Kansas Sentencing Commission identified the goal of the alternative drug policy (S.B. 123) as: “to provide community punishment and the opportunity for treatment to nonviolent offenders with drug abuse problems in order to more effectively address the revolving door of drug addicts through the state prisons, which should be reserved for serious, violent offenders.” The memorandum commented that the treatment continuum must include long-term residential and intensive outpatient substance abuse education and relapse prevention and emphasized that the ordered substance abuse treatment program needed to match the level of treatment to the offender’s particular substance abuse needs. Obviously, then, to effect the goals of the legislation, the S.B. 123 substance abuse treatment program must be amenable to modification or revision to meet the offender’s current needs, as those needs change or become more clearly defined. In this instance, Preston’s conduct suggested that she was unable to handle her addiction problem while on her own. Accordingly, the district court ordered inpatient treatment to address Preston’s needs, which fell squarely within the purpose of the S.B. 123 probation. Clearly, when ordering inpatient treatment, the district court intended to modify Preston’s mandatory drug treatment program, and we find such modification to have been proper. In conclusion, we find that Preston’s inpatient treatment at Valeo was time spent participating in the treatment program contemplated by K.S.A. 21-4603d(n)- and that such time shall not be credited as service on her underlying prison sentence. EQUAL PROTECTION VIOLATION Finally, Preston contends that, if K.S.A. 21-4614a and K.S.A. 21-4603d(n) are in conflict, then such conflict violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights, § 1. The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The Kansas Constitution Bill of Rights, § 1, is given the same effect as the Equal Protection Clause of the Fourteenth Amendment. State v. Limon, 280 Kan. 275, 283, 122 P.3d 22 (2005). Preston concedes that the rational basis test applies to her constitutional claim because the legislative classification does not target a suspect class or burden a fundamental right. “ ‘The rational basis test contains two substantive hmitations on legislative choice: (1) legislative enactments must implicate legitimate goals, and (2) the means chosen by the legislature must bear a rational relationship to those goals. These limitations amount to a prescription that all persons similarly situated should be treated alike.’ ” State v. Mueller, 271 Kan. 897, 903, 27 P.3d 884 (2001), cert. denied 535 U.S. 1001 (2002) (quoting Chiles v. State, 254 Kan. 888, 895, 869 P.2d 707, cert. denied 513 U.S. 850 [1994]). Preston then attempts to refute that there is any legitimate goal in the differing treatment of persons who are ordered to complete inpatient treatment as a condition of probation. While a persuasive argument may be made for the legitimate goals supporting the unequal treatment of probationers ordered to inpatient treatment, we perceive a more basic impediment to Preston’s equal protection claim. Preston’s arguments rely on her classification of persons who are similarly situated as being all probationers. However, in S.B. 123, the legislature established a separate class of probationers whose circumstances differ from that of other probationers. “It is well settled that, when circumstances differ, drawing distinctions under the KSGA does not violate the Equal Protection Clause.” Gaudina, 284 Kan. at 373. Accordingly, Preston is similarly situated with all other S.B. 123 probationers; members of that class are not treated unequally; and K.S.A. 21-4603d(n) does not violate equal protection. Affirmed.
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The opinion of the court was delivered by Rosen, J.: This personal injuxy case comes before the court on review of a decision by the Court of Appeals. The appellant, Mary A. Hale, seeks review of an opinion holding that tire proximate cause doctrine bars her tort action against a driver involved in a one-car accident when another car ran into her car after she slowed down at the scene of the one-car accident. We find as a matter of law that, under the facts of this case, the driver involved in the one-car accident did not proximately cause the succeeding rear-end collision and is therefore not liable for that accident. Because the district court has granted a motion to dismiss Hale’s claim prior to submission of evidence, the appellate court must accept the facts alleged by plaintiff as true, along with any inferences that can be reasonably drawn therefrom. See Nungesser v. Bryant, 283 Kan. 550, 559, 153 P.3d 1277 (2007). FACTS On November 17, 2003, Jason R. Packard, an employee of Topeka Electric Construction, Inc., was driving east on 1-470 in Topeka, Kansas, when he began to feel lightheaded. He lost consciousness and drove his truck into a tree near the Gage Boulevard off-ramp. Traffic on 1-470 became congested as a result of the accident. About 35 minutes later, Hale was also driving east on 1-470. She noticed that traffic was slowing down, and she also slowed down and then stopped. Judy Brown was driving behind Hale and collided with the rear of Hale’s stopped car. Hale sustained physical injuries from the collision. Hale filed a petition seeking damages for negligence against Brown, Packard, and Topeka Electric Construction. Hale settled her claims against Brown. The district court granted Packard and Topeka Electric Construction’s motion to dismiss for lack of proximate cause. Hale took a timely appeal. In Hale v. Brown, 38 Kan. App. 2d 495, 167 P.3d 362 (2007), the Court of Appeals affirmed the judgment of the district court. This court granted the appellant’s petition for review. ANALYSIS Hale asks this court to address two intertwined questions. She contends that the adoption of comparative negligence in Kansas renders it unnecessary to determine whether a party’s negligence was the proximate cause of injuries to a plaintiff, and the legal proceeding instead determines the percentage of causation attributable to the various parties. She also contends that this allocation of causation is a factual matter for the jury, not a legal matter for the court to decide. ■ The well-reasoned opinion of the Court of Appeals is thorough in its discussion of the development of proximate cause in light of the adoption of comparative negligence and the Restatement (Third) of Torts. The proximate cause of an injuiy is the cause that in a natural and continuous sequence, unbroken by any superceding cause, both produced the injuiy and was necessary for the injury. The injuiy must be the natural and probable consequence of the wrongful act. Yount v. Deibert, 282 Kan. 619, 624-25, 147 P.3d 1065 (2006). Individuals are not responsible for all possible consequences of their negligence, but only those consequences that are probable according to ordinary and usual experience. Aguirre v. Adams, 15 Kan. App. 2d 470, 472, 809 P.2d 8 (1991). We review a district court’s decision granting a motion to dismiss under a de novo standard of review. Wachter Management Co. v. Dexter & Chaney, Inc., 282 Kan. 365, 368, 144 P.3d 747 (2006). When the district court has granted a motion to dismiss, this court must assume the truth of the facts alleged by the plaintiff, along with any inferences that can reasonably be drawn from those facts. This court will then decide whether those facts and inferences state a claim under any possible theoiy. Jones v. State, 279 Kan. 364, 366, 109 P.3d 1166 (2005). In order to establish a negligence claim, the plaintiff must establish the existence of a duty, a breach of that duty, an injury, and proximate cause, which means a causal connection between the duty breached and the injury. D.W. v. Bliss, 279 Kan. 726, 734, 112 P.3d 232 (2005). Hale contends that this court has modified, or should modify, the proximate cause element of a negligence cause of action. She asks this court to hold that the requirement that a tortious act include the element of proximate cause be rejected or that the court act to reject the definition of proximate cause set out in Yount and a myriad of prior cases, and proposes instead that the rule should be whether “the risk of harm is reasonably foreseeable.” See Reynolds v. Kansas Dept. of Transportation, 273 Kan. 261, 269, 43 P.3d 799 (2002); Nero v. Kansas State University, 253 Kan. 567, 583, 861 P.2d 768 (1993). These cases may suggest that with the adoption of comparative fault, Kansas has “moved beyond the concept of proximate cause in negligence,” Reynolds, 273 Kan. at 269, and adopted a different, less demanding set of elements in negligence actions. This court has continued, however, to adhere to the common-law requirement of proximate cause. In Deal v. Bowman, 286 Kan. 853, 188 P.3d 941, 946 (2008), the court reiterated that the plaintiff must prove that “ ‘the negligent act or acts of the party against whom recovery is sought [were] the proximate cause of the injury and damage.’ ” In Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008), the court retained proximate cause as an element of medical negligence actions. And this court recognized a requirement of proving proximate cause in the years following Reynolds. See, e.g., Yount, 282 Kan. at 624-25; Bliss, 279 Kan. at 734. What is more, the Reynolds court did not reject proximate cause out of hand. The court instead noted that “[p]roximate cause is not an obsolete concept in Kansas law.” 273 Kan. at 268. “Intervening and superseding causes, which cut off liability for earlier negligence, are still recognized in extraordinary cases.” 273 Kan. at 269. Furthermore, our legislature has continued to recognize proximate cause as an element of negligence actions. In addressing the effects of traffic speed limits on civil actions, the legislature has declared: “The provisions of this article declaring maximum speed limitations shall not be construed to relieve the plaintiff in any action from the burden of proving negligence on the part of the defendant as the proximate cause of an accident.” K.S.A. 8-1564(b). In addressing liability for actions by government entities or employees, the legislature has provided that an entity or employee shall not be hable for “any claim for injuries resulting from the use of any public property . . . unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injuiy.” K.S.A. 2007 Supp. 75-6104(o). The appellant asks this court to jettison the traditional concept of proximate cause and replace it with a requirement that a plaintiff be able to prove that injury resulting from the defendant’s conduct was foreseeable and that the defendant’s conduct contributed to the injury. As the Court of Appeals noted, such an expansive causation element would greatly increase the number of potential de fendants in negligence actions and the concomitant costs of litigation. A revision of the rule would also bring our case law into conflict with the statutes mentioned above. The Court of Appeals correctly resolved the issue of intervening events and viability of proximate cause. The appellant notes that proximate cause is ordinarily a question of fact that is reserved for the trier of fact. Cullip v. Domann, 266 Kan. 550, 556, 972 P.2d 776 (1999). Under comparative fault, the appellant reasons, any contribution to the plaintiff s injuries should be left for the jury to calculate as a percentage of overall fault. This court has recognized, however, that when all the evidence on which a party relies is undisputed and susceptible of only one inference, the question of proximate cause becomes a question of law. Cullip, 266 Kan. at 556. In the present case, the trial court decided the case on a motion to dismiss prior to the introduction of evidence, and this court must accept the facts alleged by plaintiff as true, along with any inferences that can be reasonably drawn therefrom. See Nungesser v. Bryant, 283 Kan. at 559. Because in considering proximate cause we retain the principle that an intervening cause component breaks the connection between the initial negligent act and the harm caused, the second issue does not favor the appellant. Assuming the facts to be true as alleged, the length of time between the first and second accidents and the intervening negligent act on the part of Brown were appropriate factors for the district court to consider in determining whether proximate cause existed as a matter of law. The court then properly considered and ruled as a matter of law that Packard’s driving was not the proximate cause of Hale’s accident. A review of the factual allegations confirms the district court’s legal conclusion that the passage of time and Brown’s negligence interrupted the continuing chain of causality from Packard’s asserted negligence to Hale’s accident. The judgment of the Court of Appeals affirming the district court is affirmed. The thorough, well-reasoned judgment of the district court is affirmed.
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The opinion of the court was delivered by Luckert, J.: Toriana L. Henson was convicted of premeditated first-degree murder for the shooting death of Randy Davis and of criminal possession of a firearm. He appeals, raising a four-pronged attack on his murder conviction. This court has jurisdiction under K.S.A. 22-3601(b)(l) (life sentence; off-grid crime). We reject Henson’s attacks on the verdict and conclude the trial court correctly ruled: (1) evidence of specific acts of violence committed by the murdered victim was not relevant because there was no showing the fights had any connection to the murder, the fights did not involve or relate to the defendant, and there was no evidence the fights affected the actions of the defendant, who did not claim defense of self or another; (2) a lesser included offense instruction for voluntary manslaughter was not appropriate because the evidence established that the victim’s provocation of Henson occurred 20 to 30 minutes before the shooting, and during this time Henson had cooled off and planned an act of retribution; and (3) lesser included instructions for second-degree murder or involuntary manslaughter were not appropriate because there was no evidence the shooting was reckless. Because we do not find error in any of these issues, we also reject Henson’s argument that cumulative error denied him a fair trial and affirm his convictions. Facts Davis suffered a fatal gunshot wound to his head in the early morning hours of Saturday, May 20, 2006. The shooting occurred at an auto sales business in Kansas City, Kansas, operated by Louis Novello and located on Novello’s property. Novello detailed some of the events leading up to the shooting during his trial testimony. He testified that on Friday, May 19, 2006, Davis and Kevin Leopard repaired pavement at the car lot. Around 8 p.m., after the auto business had closed, Novello noticed that Davis and some of Davis’ friends were still there. Novello left for several hours. When he returned, Davis and others were talking and drinking beer on the front porch of Novello’s home, which was located near Novello’s car lot and garage. Novello told Davis he “didn’t want the drinking going on” and then went inside his house. At that point, according to the testimony of Leopard, Davis, Leopard, and Adolph Moreno, Jr., went to a bar. Leopard testified that after the three men left the bar they returned to the car lot where they gathered outside the garage located at the business and continued drinking along with some others. Henson arrived at some point when Davis had gone to purchase more beer. When Davis returned, the men started talking about boxing and self-defense. Henson was joking around and, referring to Davis, said: “[T]he bigger they are, the harder they fall.” With that, “just out of the blue,” Davis punched Henson, who fell to tire ground. Henson was knocked out for about 10 minutes. Davis stood ranting and tried to kick Henson in the head, but one of the others pulled Davis away. Then Davis retreated into the garage. When Henson gained consciousness, he managed to stumble away with the help of Shannon Hall. Hall told the others he was taking Henson to the hospital, and Henson indicated he was going to the hospital. At approximately the same time as Henson regained consciousness, Novello came back onto the porch of his house and saw Hall helping Henson walk around. To Novello, it appeared that Henson had either been punched or was drunk. Henson fell onto the porch and mumbled something unintelligible, and Hall led Henson off the porch. Novello saw the two men drive off together in a minivan. After Hall and Henson left, Leopard tried to get Davis to leave the scene because he had a bad feeling about the night’s events, but according to Leopard: “[Davis] didn’t listen to me or anybody else that whole night.” Instead, Davis stayed at the garage and bragged about knocking out Henson. During this time, according to one witness, Davis said he felt threatened when Henson made tire “harder they fall” remark and thought Henson might try to do something. Meanwhile, Hall and Henson went to Henson’s home instead of going to the hospital. When they arrived at the home around 1 a.m., Henson’s wife, Cathleen, was asleep. She awoke when she heard Henson, running water in the upstairs bathroom and got out of bed to check on him. She saw blood trailing from his mouth to both ears, his lip was injured, he had blood on his shirt, and he had a dirty spot on the back of his bald head. Henson told his wife he had been hit and knocked out by someone she did not know. According to Cathleen, Henson indicated that he and the other individual had been drinking when the “guy just hit him.” He stated that he “didn’t see it coming.” After Henson had cleaned up, he and Cathleen went downstairs where he introduced his wife to Hall, who was waiting near the front door. Cathleen returned upstairs, but before the men left the house, Cathleen saw a gun in Henson’s hand. She assumed it was the gun he kept on top of the grandfather clock in the dining room. Cathleen told the jury, “[N]othing he said really made me believe that, you know, he was going to do something horrible.” Henson and Hall returned to the car lot 20 to 30 minutes after they had left. Moreno, who was outside when Henson and Hall returned, testified that Henson walked up with a gun in his hand. Moreno tried to talk Henson out of shooting Davis, but Henson uttered no response and continued walking into the garage where Davis and several others were sitting around talking, drinking, and smoking methamphetamine. Henson walked into the garage wearing a dark hooded jacket, which he had not had on earlier. He wore the hood, but his face was still visible. Henson — standing to Davis’ left — pointed the gun at Davis’ head, saying, “What’s up now, Randy?” Davis turned, started to rise up, and lifted his left hand as if he was trying to move the gun. Henson fired one shot into Davis’ head, and Davis fell to the ground. Everyone else, including Henson, fled the garage. Then, Henson and Hall left the car lot once again. Henson and Hall went to Wendy Foster’s apartment, arriving at her apartment around 2 a.m. on May 20. According to Foster’s testimony, Henson had been “dating” a friend of hers named Amanda Trott (apparently despite his marriage), and Trott was at Foster’s apartment on the night of the murder. When the men arrived at the apartment, Henson was still angry about being punched, and his lip was bleeding. Henson said a guy hit him for no reason, so he shot him in the head. Foster testified that she saw Henson pull two guns out from underneath his shirt and place them into Trott’s suitcase. Henson left Foster’s apartment with Hall for a brief time, returned alone, and stayed at her apartment until around 5:30 a.m. During that time, Henson drank a few beers and talked about the murder and about running to Oklahoma. Then, Henson and his girlfriend Trott left with a suitcase and two guns. According to Henson’s wife Cathleen, Henson returned home around 5 a.m. After telling Cathleen he wanted to go to Oklahoma for a few days, Henson left. Later that evening, Henson returned. The next day, Henson voluntarily talked to detectives, after which he was arrested and charged with the murder of Davis. Prior Acts of Violence The first issue raised by Henson is that the trial court wrongfully refused to allow cross-examination of State witnesses regarding prior acts of violence committed by Davis, the murdered victim. Henson contends that evidence concerning specific instances of conduct was admissible to establish Henson’s state of mind and to dispute the State’s proof of intent and premeditation, two requisite elements of premeditated first-degree murder. He points out that this court has stated: “Premeditation ‘is a state of mind’ relating to a person’s reasons and motives for acting as he or she did.” State v. Saleem, 267 Kan. 100, 105, 977 P.2d 921 (1999); see also State v. Warledo, 286 Kan. 927, 949, 190 P.3d 937 (2008) (premeditation is “ ‘the time of reflection or deliberation’ ”). By excluding this evidence, Henson argues, he was prevented from presenting his theory of defense (on which he fails to elaborate in his brief). The trial court rejected Henson’s argument that the evidence was relevant to his motive or intent. Appellate review of a trial court’s exclusion of evidence as irrelevant is guided by the statutory definition of relevant evidence, which is defined in K.S.A. 60-401(b) as “evidence having any tendency in reason to prove any material fact.” As we recently stated, this definition embodies two components: whether the evidence is probative and whether it is material. State v. Vasquez, 287 Kan. 40, 50, 194 P.3d 563 (2008); State v. Reid, 286 Kan. 494, 504-05, 186 P.3d 713 (2008). When an appellate court considers a trial court’s ruling on relevance, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. Reid, 286 Kan. at 507-09. “[I]f either the probative or materiality element’s standard is not met, then the evidence is inadmissible.” 286 Kan. at 509. Generally, evidence of intent is relevant in a first-degree murder trial because intent is an element of the crime. Motive, although not an element, may be relevant because it explains the motivating force behind the crime. Vasquez, 287 Kan. at 52. This does not mean that evidence of specific violent acts of the murdered victim that are unrelated to the shooting are probative of intent or motive, and, in the opinion of the trial court, they were not in this case. The first ruling to this effect occurred during defense counsel’s cross-examination of Novello. In questioning Novello, defense counsel had asked a series of questions about Davis’ reputation and violent character. For example, defense counsel asked if Novello knew Davis “to be somebody who lilce[d] to get into altercations or fights.” Novello answered in the affirmative. Also, Novello testified that Davis had previously fought in “Tough Man contests” and continued to be involved in fights or altercations. When defense counsel asked whether Davis approached people to “just pick fights with them,” Novello answered, “Probably. I mean I couldn’t say for sure. I only seen a few fights . . . .” After that answer, defense counsel asked: “[Did] Randy talk to you about fights that he had been in, in altercations?” It was at that point that the prosecutor objected. During a bench conference, defense counsel proffered evidence showing that in the hours preceding the murder, Davis had become violent with individuals at the bar. Defense counsel contended that Henson heard about these altercations from Davis and “other people,” which caused Henson to be fearful and to “get something to protect himself.” The trial court found there was no evidence to support this argument, noting Henson left and went home to get his gun after Davis punched him, not after he heard of the other fights. The other line of questioning not allowed by the trial court arose during the State’s cross-examination of Moreno. Defense counsel asked about bruises on Davis’ chest, which Moreno acknowledged Davis had shown him. When Moreno was asked how Davis obtained the bruises, the court sustained the State’s relevance objection after defense counsel proffered that the bruises resulted from a fight on the day before the murder. The trial court did not foreclose all evidence of Davis’ violent behavior, however. For example, the trial court did not limit evidence relating to events that took place during the late evening hours of May 19 or early morning hours of May 20 involving those who were at the scene of the shooting. As a result, defense counsel was allowed to ask Novello whether he had observed any fights between Davis, Henson, Hall, or Moreno on the night of the murder; Novello indicated he had not seen any fights. Nevertheless, through other witnesses, defense counsel was able to elicit testimony that earlier in the day of the murder Davis was “very irate” and was “poking [Hall] in the chest with his finger and pushing him a bit.” A witness indicated that Hall, who Davis had pushed up against a truck, was “pretty scared.” In addition, although the trial court did not allow Moreno to testify about a fight that caused Davis’ ribs to be bruised, defense counsel was able to ask Moreno questions about Davis’ general character, leading to Moreno testifying that Davis “was a bully. [He] was always very aggressive and, you know, if you want to say that, you know, some people took him wrong if you didn’t know him, he was loud and was pushy.” Thus, contrary to Henson’s arguments, the trial court’s decision to prohibit counsel from probing into the bar fight or a fight on the previous day did not deprive Henson of the ability to present his defense. Witnesses’ testimonies conveyed the victim’s general aggressive nature to the point that the district court commented, when making a ruling outside the presence of the jury, that everyone in the courtroom knew Davis was a bully. Further, defense counsel characterized Davis as “an individual who followed the Tough Man life” in her closing argument, stating in part: “[A]ll Randy Davis did was try to pick fights with people. He was constantly involved in fights. “On this particular night — and you can use your own common sense, by the way, as far as what type of individual that was, what type of individual is somebody who’s always trying to pick a fight with somebody, always trying to intimidate people, always trying to scare people.” The trial court’s rulings merely foreclosed questions relating to the bar altercation and a fight the previous day, and Henson does not explain how these fights were probative of any material fact, including intent or motive. As the trial court noted, the evidence was that Henson interacted with Davis, presumably after having been told of the fights by Davis or others, and even antagonized Davis with the “harder they fall” statement. Additionally, Henson did not claim either self-defense or defense of another. Nor did he tie the previous altercations to any other potential issue; there was no evidence nor a proffer establishing that anyone involved in the fight the previous day or at the bar was present at the time of the shooting. In other words, the trial court did not abuse its discretion when it ruled two specific fights involving the murdered victim were not probative of any material issue in the case; there was no showing the fights had any connection to the murder, the fights did not involve or relate to the defendant, and there was no evidence the fights affected the actions of the defendant, who did not claim defense of self or another. Moreover, Henson was not prevented from presenting his defense. Voluntary Manslaughter Next, Henson raises the issue that the trial court erred by failing to instruct the jury on the lesser included crime of voluntary manslaughter. Henson’s contention lacks merit. The standard of review for determining this issue varies depending upon whether the instruction was requested. Compare State v. Cook, 287 Kan. 1098, Syl. ¶ 4, 191 P.3d 294 (2008) (if instruction is not requested, claim of error reviewed under clearly erroneous standard; K.S.A. 22-3414[3]) with State v. Moore, 287 Kan. 121, 130, 194 P.3d 18 (2008) (if instruction is requested, claim of error reviewed by examining evidence to determine if lesser included offense is established by evidence when viewed in light most favorable to requesting party). In this case, the determination of which standard applies is not clear. The record on appeal does not reflect a specific request for an instruction on voluntary manslaughter. Nevertheless, during the instructions conference, the trial court acknowledged that defense counsel had “informally requested instructions on basically voluntary manslaughter and involuntary manslaughter.” Then, after a recess during which the trial court reviewed testimony regarding a witness’ observation of the shooting, the court ruled that the evidence did not support “an instruction ... on reckless involuntary manslaughter.” In response, defense counsel argued in favor of giving such an instruction. The trial court was not persuaded and further ruled that an instruction on voluntary manslaughter was not warranted either. Specifically, the court determined the evidence did not support a voluntary manslaughter instruction, finding that in this case “there was a period of time for a cooling off period that an ordinary person would have regained reasoning.” Although any “request” for a voluntary manslaughter instruction was unclear, we will deem the request as having been made because the trial court mentioned an “informal” request by defense counsel and there was discussion by the court regarding the appropriateness of a voluntary manslaughter instruction. When an instruction has been requested, “[a] district judge has a duty to instruct the jury on any lesser included offense established by the evidence, regardless if that evidence is weak or inconclusive. There is, however, no duty to instruct on a lesser included offense if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented. [Citations omitted.] When reviewing a district judge’s refusal to give a requested instruction, this court must view the evidence in the light most favorable to the requesting party.” Moore, 287 Kan. at 130. Applying this standard of review, we must determine whether there was evidence of voluntary manslaughter, which includes the intentional killing of a human being upon a sudden quarrel or in the heat of passion. K.S.A. 21-3403(a). To constitute voluntary manslaughter, the killing must have resulted from severe provocation. “The test for whether severe provocation exists is objective, and the provocation must be sufficient to cause an ordinary person to lose control of his or her actions or reason.” State v. Bell, 266 Kan. 896, 918, 975 P.2d 239, cert. denied 528 U.S. 905 (1999); see State v. Drennan, 278 Kan. 704, 713, 101 P.3d 1218 (2004). In this case, the trial court’s ruling assumed that Davis’ sucker punch, which knocked Henson unconscious, was evidence of provocation that was sufficient for a reasonable person to lose control of his or her actions or reason. See State v. Guebara, 236 Kan. 791, 797, 696 P.2d 381 (1985) (“An assault or battery resulting in a reasonable belief that the defendant is in imminent danger of losing his fife or suffering great bodily harm may be of sufficient provocation to reduce the killing to voluntary manslaughter. 2 Wharton’s Criminal Law § 158.”); State v. Yarborough, 39 Kan. 581, 18 Pac. 474 (1888) (fight which knocked participant “senseless” constituted provocation). Nevertheless, the trial court determined a voluntary manslaughter instruction was not warranted because 20 to 30 minutes elapsed between the punch and the shooting. This ruling is supported by decisions upholding similar rulings by trial courts and establishing that an act of violence separated from the provocation by sufficient cooling-off time is not the product of heat of passion. '“With the passing of time after provocation, passion cools and gives way to reason and mastery over one’s passion. An act of violence separated from the provocation by sufficient cooling time is the product of malice and cold calculation rather than heat of passion.” State v. Follin, 263 Kan. 28, 38, 947 P.2d 8 (1997). Most recently, in State v. White, 279 Kan. 326, 109 P.3d 1199 (2005), this court noted that White, after being overcome with emotion because he lost custody of his grandchild to his son-in-law, whom he considered abusive, drove from his home in Great Bend to Augusta, walked into a Wal-Mart during daytime hours and, in front of several witnesses, shot his son-in-law, walked out of the Wal-Mart, and stood in the parking lot awaiting arrest. We concluded there was not provocation sufficient to instruct on voluntary manslaughter on the basis of heat of passion or a sudden quarrel. For support of this holding, the court cited Follín, 263 Kan. 28, for the proposition that an act of violence separated from the provocation by a sufficient cooling-off time is not the product of heat of passion. White, 279 Kan. at 343. In Follín, the defendant, suspecting his wife was being unfaithful, taped a conversation in which his wife told someone “how much she missed him.” 263 Kan. at 30. Follín listened to the tape one morning and again when he left work at around 2:30 p.m. After listening to the tape the second time, Follín picked up his daughters at day care, went to the bank, and then went home and called his wife who was at work, telling her what he had heard. After this conversation, Follín took his daughters and drove around for more than 2 hours. Then, at about 6:15 p.m., Follín called his wife once again. After the two talked, Follín drove his daughters from Wichita to El Dorado. During the drive, the girls made a recording in which they sang and talked, evidencing playful interaction between Follín and his daughters. Once they arrived in El Dorado, Follín took his daughters to the lake where they counted stars. Then, according to Follin’s statement to police: “ T just — I just sit there. My body just was — felt like a furnace. It felt like I was on fire, and my head . . . just felt like it was gonna just explode, and everything was just black.’ ” 263 Kan. at 31. Although he claimed not to remember doing so, Follín stabbed his daughters, causing their death. The trial court denied Follin’s request for a voluntary manslaughter instruction and that ruling was affirmed on appeal, even though the court noted his listening to the tape and his conversations with his wife might be considered provocation. The court determined the passage of time mitigated any argument of provocation: “Between his listening to the tape and his murdering the girls, however, many hours passed in which Follín methodically adhered to routine and interacted with his girls in a manner that they did not seem to find unusual. Thus, immediacy and spontaneity, which would seem to be essential elements of the form of voluntary manslaughter defined in K.S.A. 21-3403(a), is wholly missing in tire present case.” 263 Kan. at 37. The court cited and discussed an earlier case, Yarborough, 39 Kan. 581. In that case, like this one, two men were involved in a fight in which one of them was knocked “senseless.” 39 Kan. at 583. Several hours later, after eating supper and borrowing a revolver, Yarborough went to the other man’s rooming house and shot him. The Yarborough court determined the circumstances did not justify the giving of an instruction on the lesser offense of voluntary manslaughter, stating: “The law carefully distinguishes between a sudden transport of passion, which springs instantaneously from what it allows as a sufficient provocation, and which prompts to an immediate act of violence, and a purpose of revenge, which usually follows such passion. In the first case, in condescension to the frailty of our nature the law allows the provocation to extenuate a homicide committed at the instant, from murder to manslaughter. In the other, the provocation furnishing an incentive to revenge, so far from extenuating the crime, is a circumstance to be looked to as evidence of malice; and especially would this be so if the prisoner, in consequence of the provocation, had made threats against the fife of the deceased.” 39 Kan. at 590. The court in Yarborough considered whether a question of fact or an issue of law was raised when a trial court needed to determine if a reasonable time had elapsed for passion to cool and reason to resume its control. The court concluded: “Most courts seem to agree that if it is clear that there was sufficient time between provocation and the killing to enable the court to determine that the passions had cooled, and so instructed the jury, no error would be committed. Of course, the case should be very clear.” 39 Kan. at 589. Although the court noted that an hour had been ruled as sufficient time for there to have been a cooling off, it observed a reasonable cooling-off time was not set by rule. 39 Kan. at 589. Discussing these authorities, Henson argues it is not clear his passion had cooled. Contrary to his argument, however, the evidence established that Henson, while still angry, had control of his actions. His reaction to the punch was not immediate or instantaneous. Rather, he drove to his home, cleaned up, and took his gun from its usual hiding place. While there, he talked to his wife and introduced her to Hall, an action of such civility and politeness as to contradict the assertion that Henson was acting without control. His wife testified that “nothing he said really made me believe that, you know, he was going to do something horrible.” He then drove back to the garage and, wearing a sweatshirt with the hood pulled up, walked by one man who tried to stop him, deliberately entered the garage, and pointed the gun at Davis, asking, “What’s up now, Randy?” In other words, like the defendants in White and Yarborough, Henson took deliberate steps showing a plan to commit the shooting, i.e., Henson obtained a weapon, traveled to seek out the victim, and threatened Davis. Further, like the defendants in Yarborough and Follín, during the time between the provocation and the murder, Henson engaged in activities that suggest control of his emotions and reason, i.e., he cleaned up, introduced his wife to Hall, and conversed with her in a way that did not alert her to a loss of control. Although the elapsed time between the provocation and the shooting was shorter than in the other cases, it was a sufficient cooling-off time for a person to regain reason. And, as stated in Yarborough, there is no rule as to how much time is sufficient. The evidence, even when viewed in the light most favorable to Henson, shows clearly that Henson had ample time to exercise control over his passion and, in fact, did gain control of his actions and regained his reasoning. Given the evidence, a jury could not reasonably convict Henson of voluntary manslaughter, and the trial court did not err in refusing to give a lesser included jury instruction on voluntary manslaughter. Second-Degree Reckless Murder or Involuntary Manslaughter Next, Henson contends the trial court erred by refusing to instruct the jury on second-degree reckless murder and involuntary manslaughter. This contention lacks merit also. As previously stated, during the jury instruction conference, defense counsel clearly requested an instruction on involuntary manslaughter. Therefore, the standard of review for this issue is the same as applied to the prior issue: a lesser included offense instruction should have been given if there was evidence supporting the lesser offense, even if the evidence is weak, as long as a jury could reasonably convict Henson of the lesser included offense. See Moore, 287 Kan. 121, Syl. ¶ 1. Conversely, if the evidence at trial excludes a theory of guilt on the lesser offense, an instruction need not be given. State v. Calderon, 270 Kan. 241, 256, 13 P.3d 871 (2000); State v. Moncla, 262 Kan. 58, 73-74, 936 P.2d 727 (1997). In order to meet this standard when reckless homicide instructions have been requested, there must be some evidence that the death resulted from conduct propelled by recklessness rather than by a-more culpable intent, such as premeditation. According to K.S.A. 21-3201(c), “[rjeddess conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard for drat danger.” If the killing is committed recklessly under circumstances manifesting extreme indifference to the value of human life, the homicide is second-degree murder. K.S.A. 21-3402(b); see State v. McClanahan, 254 Kan. 104, 109, 865 P.2d 1021 (1993). When there is a lesser degree of recklessness, the homicide may be involuntary manslaughter, as defined in K.S.A. 21-3404(a). The difference between involuntaiy manslaughter and second-degree reckless murder is the degree of recklessness required to prove culpability. See State v. Hebert, 277 Kan. 61, 105-06, 82 P.3d 470 (2004); Calderon, 270 Kan. at 255-56; State v. Davidson, 267 Kan. 667, Syl. ¶ 2, 987 P.2d 335 (1999). Considering these definitions, the trial judge concluded the evidence excluded a verdict based upon reckless conduct. Specifically, the judge indicated he would not give “an instruction on second-degree murder-reckless because I don’t believe the evidence warrants such an instruction.” The judge continued: “And I think the evidence is clear in this case that the person that approached Mr. Davis approached him with a gun, pointed the gun and fired the gun and shot Mr. Davis basically in the back or top of the head and I don’t think that . . . falls within the meaning of the term reckless conduct.” The trial court, therefore, refused to give a jury instruction on either form of reckless homicide — second-degree reckless murder or involuntary manslaughter. Arguing this ruling was erroneous, Henson suggests pointing the loaded gun at Davis’ head was reckless conduct that turned into a homicide when Davis swung his arm while rising out of his chair, causing the gun to accidentally discharge. While one witness testified the contact occurred after the gun was fired, two witnesses testified that Davis may have bumped the gun or Henson’s arm at the same time as the gun went off. The question is whether this defensive action is evidence that Davis’ death was the result of a reckless act. In other words, do the circumstances allow a logical inference that the discharge of the gun was the result of a reckless act? Stated another way, could a jury rationally draw an inference of recklessness from the circumstances? In considering this question, cases from this and other jurisdictions have not focused upon the one piece of evidence on which the inference was based but have considered whether the inference is logical under the circumstances. One piece of evidence “cannot be plucked out of the record and examined in a vacuum.” Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. 1986). This does not mean that the court should resolve inconsistencies; rather the court examines whether any evidence supports the inference the defendant wants to argue. For example, in State v. Bolton, 274 Kan. 1, 49 P.3d 468 (2002), this court concluded the failure to give lesser included reckless homicide instructions was not error because the inference suggested by the defendant was not supported by any other evidence. In that case, a convenience store clerk was shot during a robbery that was videotaped by the store’s security camera. The defendant pointed to the video depiction of an individual who approached the sales counter, leaped onto the counter, and grabbed money from the cash register. He argued that the combination of leaping onto the counter and grabbing the money from the register, while holding a loaded weapon pointed at the clerk, made it possible that the gun accidentally fired. Nevertheless, the circumstances of the crime did not support the conclusion that the gunshot resulted from this allegedly reckless act. Specifically, eyewitness testimony substantiated that the money had been grabbed and the robber had backed away before the shot was fired. In other words, the inference the defendant tried to draw was not logical given the circumstances. Similarly, in this case there is no evidence on which to base an inference other than the testimony that Davis raised his arm at the same time as the shot was fired. The coroner s testimony was that the fatal gunshot wound “traveled ... in a downward direction from the top of the head on the left-hand side, a little bit towards the back and ending up just about the level of the right ear. So it’s going downwards . . . .” No witness testified that the gunshot seemed like an accident; rather, at least one witness tried to talk Henson out of the shooting. In addition, there was overwhelming evidence of a premeditated act. And, Henson never alleged there was an accident. Rather, according to Foster, Henson told her he “shot him [Davis] in the head” because he was angry about being punched. This admission, which was never contradicted, excludes the potential of reckless behavior. See Hebert, 277 Kan. at 105 (although in statement to officers defendant indicated he did not intend to shoot victim, at trial defendant testified he did intend to shoot; admission “excludes any theory of guilt that the murder was unintentional but reckless”). The inference that Henson attempts to draw from the evidence is not supported by any other evidence or the circumstances of the crime. A jury could not have reasonably convicted Henson of a reckless homicide, and the trial court did not err in refusing to give the lesser included instructions. Cumulative Error Finally, Henson contends that even if the errors he alleges on appeal do not individually require this court to reverse his conviction, the cumulation of the alleged errors denied him a fair trial. “Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction.” State v. Ackward, 281 Kan. 2, 29, 128 P.3d 382 (2006). This is not such a case, however. Henson has failed to establish that any error or prejudice occurred at the trial level. Under such circumstances, his claim of cumulative error is without merit. Henson received a fundamentally fair trial. Affirmed.
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The opinion of the court was delivered by Beier, J.: This is an original action in mandamus filed by petitioner Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc. (CHPP), to challenge respondent Phill Kline’s handling of patient records obtained from CHPP pursuant to an inquisition subpoena issued when Kline was Attorney General. We decide whether CHPP has met its burden to obtain relief in mandamus and whether Kline’s behavior merits sanction as civil contempt or otherwise. Factual and Procedural Background On February 3, 2006, this court issued its opinion in Alpha Med. Clinic v. Anderson, 280 Kan. 903, 128 P.3d 364 (2006), which arose out of Kline’s issuance of inquisition subpoenas duces tecum under K.S.A. 22-3101(1). Our decision identified three constitutional privacy interests implicated by subpoenas for patient records directed to Women’s Health Care Services of Wichita, P.A. (WHCS), and CHPP, identified in the opinion as Alpha Medical Clinic and Beta Medical Clinic. Both clinics perform abortions. We balanced the patients’ individual privacy interests against the societal necessity and compelling State interest in pursuing criminal investigations, outlining procedures to be followed for redaction of the records before the district court allowed them to be turned over to the Attorney General. See Alpha, 280 Kan. at 924-25. We did not rule upon exactly which data was to be redacted or how the records were to be handled once they were placed in Kline’s hands. See Alpha, 280 Kan. at 924-25. During oral argument in Alpha, Chief Deputy Attorney General Eric Rucker, who argued the case on behalf of then Attorney General Kline, asserted that Kline was not seeking patient names. In Alpha, the clinics urged us to hold Kline in contempt of court, in part because he had attached to his brief portions of a district court transcript and order, had discussed the inquisition at a press conference, and had permitted distribution of the transcript after the conference concluded, all allegedly in violation of court seal orders. In response to the clinics’ contempt argument, we first observed that those allegations over which this court had jurisdiction concerned indirect criminal contempt. Indirect contempt deals with conduct occurring outside the presence of a judge. Alpha, 280 Kan. at 926. Proceedings in criminal contempt attempt to “ ‘ “ preserve the power and vindicate the dignity of the courts and to punish for disobedience’ ” ’ of court orders; criminal contempt tends to obstruct the administration of justice.” Alpha, 280 Kan. at 927 (quoting State v. Davis, 266 Kan. 638, 645, 972 P.2d 1099 [1999]). We continued: “In his initial response to this court’s Order to Show Cause, the attorney general contended that the documents attached to his brief were ‘but a very small fraction of the entire record before the lower court in the inquisition; we attached only what we believed necessary to support our arguments in this segment of the proceedings.’ As for the news conference, Kline asserted that he ‘stressed the privacy protections put in place by tire lower court and the law to prevent public disclosure of the medical records sought. ... I did not refer to the transcript of the lower court’s hearing, nor did I provide it at the news conference. Later that day, my communications director, after our brief had been filed, provided the transcript electronically to those who requested a copy.’ He argued that ‘it was seemingly inconsistent to keep these pleadings under seal while at the same time suggesting that oral argument was likely.’ Kline also argued that the press conference was ‘necessitated by the false impression left by the public filing of Petitioners’ brief and [Petitioners’] representation of the record.’ “Kline’s initial responses were troubling. He admitted that he attached sealed court records to a brief he knew would be unsealed; that he did so knowingly because, in his sole estimation, he believed it to be necessary to further his arguments; that he held a press conference on this criminal matter merely because he determined that petitioners had painted his previous actions in an unflattering light; and that he later permitted his staff to provide electronic copies of the sealed transcript to anyone who requested them. In essence, Kline has told this court that he did what he did simply because he believed that he knew best how he should behave, regardless of what this court had ordered, and that his priorities should trump whatever priorities this court had set. Furthermore, although there is conflict between the parties on exactly what was said in the press conference, i.e., whether the actual content of the sealed documents was discussed, Kline’s stated reason for holding the conference — to combat what he saw as unflattering earlier press coverage- — does not appear to be among the permissible reasons for an attorney in his position to engage in extrajudicial statements under Kansas Rule of Professional Conduct 3.6 (2005 Kan. Ct. R. Annot. 473) [now KRPC 3.8 (2007 Kan. Ct. R. Annot. 520)]. This too is troubling. “At oral argument before this court, Kline’s [personal] lawyer, a former four-term attorney general, wisely altered the tone of Kline’s response. He characterized whatever mistakes Kline may have made as honest ones and said his client was acting in good faith. He also, as Kline eventually had done for himself in his written response, made a classic no harm, no foul’ argument: Any disclosure of sealed material did nothing to impair the orderly nature of this proceeding or the soundness of its eventual result; the attorney general and his staff did not release information harmful to personal privacy, prejudicial to the administration of justice, or detrimental to this court’s performance of its duties. “We conclude that, despite the attorney general’s initial defiant tone, he should not be held in contempt at this time. No prejudice has resulted from his conduct, a distinguishing feature of the cases cited to us by petitioners. . . . “This is . . . the first [case] in memory when this court has required public briefs and oral argument on a sealed record. Although we believe this directive was more challenging than confusing, and although tire actions complained of here might well be characterized as criminal contempt in a different case, we are inclined to grant the attorney general the benefit of the doubt here. This is an unusually high-profile case attracting keen public interest throughout the state. We caution all parties to resist any impulse to further publicize their respective legal positions, which may imperil the privacy of the patients and the law enforcement objectives at the heart of this proceeding.” 280 Kan. at 928-30. On May 23, 2006, approximately 3Vz months after this court released Alpha, District Judge Richard Anderson of Shawnee County, the judge overseeing the inquisition, issued what the record before us reveals as his only written post-Alpha protective order concerning the patient records from the clinics. The order set forth the procedure to be followed to effect the safeguards outlined in Alpha, appointing a Topeka lawyer to assist the judge and act as “special counsel for adult patients and as guardian ad litem for minor patients for the purpose of making recommendations to the Court to protect the confidentiality of the identity of any patients . . . and to protect against release of sensitive, confidential, and privileged information which is not relevant to the medical procedure and/or the criminal investigation. Special Counsel shall supervise the reproduction and release of copies of all medical records. In addition, Special Counsel shall make duplicate copies of all medical records in the form released to the Attorney General and return complete copies of such copied medical records to the medical facilities.” Judge Anderson would later testify that, aside from this order and earlier nondisclosure provisions contained in the subpoenas directed to the clinics, he relied on a series of conversations with Kline and his subordinates, what he called an oral “working agreement,” to control dissemination of information generated in the inquisition, including the redacted patient records. Judge Anderson also would testify that, although he thought the guidelines of Alpha had been adhered to, he believed a parent of a patient described in the redacted records would be able to identify his or her daughter. Judge Anderson trusted Kline to behave ethically and professionally. “My expectation, as in any case, I have to trust the prosecutor that comes in to open inquisitions not to do things with information that would harm the legal proceeding. So I did not expect anything that would be ascertained as evidence or accumulated as evidence would be shared with the public .... “But all of my focus would be on . . . legitimate law enforcement objectives. I don’t believe the public at that stage of the proceeding, the press, or the Legislature for that matter, needs to get involved in the prosecutor’s business of prosecuting the crimes or the defendant — affecting the defendant’s right to defend tire crimes. I feel very strongly about that.” Judge Anderson thus left any restrictions on potential witnesses who were given access to the redacted patient records from the clinics entirely up to Kline and his subordinates. The redacted records were given to Kline’s subordinates on October 24, 2006. They took approximately 2 weeks to make two copies and then return the originals of the redacted records to Judge Anderson. Shortly after the records were given to Kline, he and two of his subordinates, lawyers Rucker and Stephen Maxwell, presented Judge Anderson with a summary of the records that Kline wanted to disclose publicly. Kline was in the final days of a highly contentious political race to retain his position; his opponent was then Johnson County District Attorney Paul Morrison. According to Judge Anderson, Kline — who had argued unsuccessfully to Judge Anderson while Alpha was pending before this court that the judge should not subject Kline to the nondisclosure provision in the subpoenas directed to the clinics — took an “aggressive” position on the summary and his potential use of it. In Judge Anderson’s view, Kline appeared “somewhat desperate” to counter charges advanced by Morrison in the campaign. Kline also told Judge An derson that he did not believe the judge could control what an attorney general disclosed to the public. Regardless of the merit or lack of merit of that view, Judge Anderson warned Kline that he would have trouble persuading Judge Anderson to rule in his favor on any future inquisition issues if he publicly disclosed information from the patient records. At no point in this discussion with Judge Anderson did Kline, Rucker, or Maxwell divulge any plans for television or other public appearances concerning the inquisition or its results. On November 3,2006, the Friday before election day and before Kline’s subordinates returned the originals of the redacted records to Judge Anderson, Kline was a guest on a nationally televised program, “The O’Reilly Factor.” During the broadcast, host Rill O’Reilly suggested that O’Reilly had been made privy to the contents of the redacted records. Kline later testified that he “certainly” considered his appearance on O’Reilly’s show to be appropriate despite this court’s cautionary language about publicity in Alpha and apparently despite Judge Anderson’s insistence that Kline and his subordinates were bound by the subpoenas’ nondisclosure provision. Kline testified that he had decided to appear on the O’Reilly program because his office had been inundated with calls about his intentions, and he wanted to alleviate fears that his office was seeking identities of patients. Kline’s appearance on “The O’Reilly Factor” prompted the clinics to press Judge Anderson to hold Kline in contempt before election day. They also filed a sealed action for writ of mandamus and a motion with this court on the day before election day, November 6, 2006, seeking a stay of the inquisition, sealing of the records from Kline’s office, and deposit of the records with a special prosecutor or master appointed to investigate any leak of information from, or other mishandling of, the records. Morrison defeated Kline in the attorney general’s race. Approximately 2 weeks after the election, Judge Anderson declined to launch contempt proceedings against Kline in connection with the O’Reilly show. Although Judge Anderson would later testily that he was “very upset” with Kline for putting himself in a position allowing O’Reilly to claim he had seen the redacted patient records, Judge Anderson had concluded after questioning Kline, Maxwell, and Kline investigator Tom Williams under oath that Kline had not given the records to O’Reilly, if, in fact, O’Reilly had seen them at all. We denied the clinic’s November 6 petition for writ of mandamus on November 30, 2006. During the 2 weeks after the elections, Kline, Rucker, Maxwell, and Williams shared information from the redacted patient records and other inquisition results with at least three potential medical experts, 'including Dr. Richard Gilmartin, a pediatric neurologist from Wichita, and Dr. Paul McHugh, a psychiatrist from Baltimore, Maryland. Rucker had obtained Gilmartiris name from a representative of Kansans for Life; he would later testify that he may have told the representative about the nature of the records. Kline had obtained McHugh’s name from a representative of Women Influencing the Nation. Both Kansans for Life and Women Influencing the Nation are anti-abortion advocacy organizations. The record before us reflects that Gilmartin took no notes and that no patient records were left with him. Maxwell and Williams evidently left copies of patient records and other inquisition documents with McHugh. These other documents included pregnancy termination information obtained from the Kansas Department of Health and Environment (KDHE) which, when cross-referenced to patient records and/or other sources mined by Kline and his subordinates during the inquisition, enabled Kline to identify patients by name. The record reflects that the time period when Kline and his subordinates were seeking the cross-reference data was before or during the pendency of Alpha. The record is unclear on exactly when McHugh returned the records left with him or whether he first made copies before returning the set he had been given. Judge Anderson had not required Kline or his subordinates to obtain confidentiality agreements from any persons to whom the records themselves or information within them was disseminated; and Kline and his subordinates did not taire this step on their own. On December 11, 2006, Republican precinct committee members in Johnson County selected Kline to complete Morrison’s term as Johnson County District Attorney, once Morrison was sworn in as Attorney General on January 8, 2007. It was in this time frame that Kline and Maxwell conversed with Judge Anderson about Kline’s desire to send the patient records produced by the clinics in the inquisition to other prosecutors, specifically mentioning Shawnee, Sedgwick, and Johnson Counties. According to Judge Anderson, Kline and Maxwell did not tell him how this would be accomplished; they did not tell him that the records would not be received in Johnson County until Kline had taken office there; they did not tell him that they also would send the records from WHCS, a clinic in Sedgwick County, to Johnson County. Kline did tell Judge Anderson that the transformation of his Attorney General inquisition into a Johnson County District Attorney investigation would be “seamless.” Judge Anderson would eventually testify that, during one of his conversations with Maxwell about the movement of patient records to Johnson County, he told Maxwell, “Just be sure that you do that in a very orderly and regular sort of way.” Shortly before leaving the Attorney General’s office, on December 20, 2006, Kline filed charges in Sedgwick County against Dr. George Tiller of WHCS. Kline supported the charges with an affidavit from McHugh, an affidavit from Williams, and information from the redacted patient records. The following day, District Judge Paul Clark dismissed the Sedgwick County charges at the request of Sedgwick County District Attorney Ñola Foulston. On December 27 or 28,2006, Kline announced that, as Attorney General, he would appoint Wichita lawyer and anti-abortion activist Donald McKinney as a special prosecutor. The climes filed a joint motion for a protective order with Judge Anderson, seeking to ensure that the patient records produced in the inquisition would remain with Judge Anderson and in the Attorney General’s office on Kline’s exit from that office. The record reflects that Judge Anderson received this motion on Wednesday, January 3, 2007, but he did not rule on it immediately. Judge Anderson did, however, tell Maxwell that he wanted a full and accurate written report on where all copies of the patient records were as of the time of the transition between Kline and Morrison at the Attorney General’s office. Although Kline later testified that he directed Rucker to transport the records from the Attorney General’s office to Johnson County in mid-December 2006, the actual physical movement of the records did not begin until the Friday before Morrison was sworn in as Attorney General, January 5, 2007, and did not end until Kline had been in office as the Johnson County District Attorney for several weeks. In the intervening time, the patient records were stored in more than one automobile; in Maxwell’s residence; and, from January 8,2007, until mid-February 2007, in the dining room of an apartment of another investigator, Jared Reed. The several weeks tihat the records sat in Reed’s dining room included the day that elapsed between the point when Reed’s employment with Kline’s Attorney General’s office ended and the point when his employment by Kline’s Johnson County District Attorney’s office began. On Friday, January 5, 2007, the same day that Rucker signed a 6-month contract with McKinney, McKinney’s fees to be funded by up to $25,000, apparently from the budget of the Attorney General’s office, Williams removed all of the patient records obtained through the inquisition from the Attorney General’s office, along with additional investigation materials and records obtained from other agencies, and placed them in a state-owned vehicle. This Friday was to be Maxwell’s last day of work for the Attorney General’s office. The following day, Saturday, January 6, Williams delivered the records and other materials to Maxwell’s residence. At Maxwell’s residence that day, Maxwell and Williams sorted the records for distribution to various places. At some point that day, Williams contacted Reed, who came to Maxwell’s residence and witnessed this process. Maxwell also was preparing a Status and Disposition Report, the written report Judge Anderson requested. The patient records and other materials were then locked in the trunk of a state-owned vehicle Williams was driving. Williams returned a set of materials to the Attorney General’s office, not including any CHPP or WHCS patient records, and left the rest of the materials sorted earlier at Maxwell’s house in the vehicle. The vehicle spent the rest of that weekend parked in a secure state parking lot. Shortly after 8 a.m. on Monday, January 8, 2007, the day Morrison was to be sworn in as Attorney General and Kline sworn in as Johnson County District Attorney, Williams and Reed met at the Shawnee County courthouse. They left five boxes of investigation materials at Judge Anderson’s chambers, as well as a copy of the Status and Disposition Report. Williams and Reed also left several boxes of materials, including patient records, at Shawnee County District Attorney Robert D. Hecht’s office. After these two distributions had been accomplished, Williams received a telephone call from Rucker, who had spoken to Kline that morning before Kline was sworn in as Johnson County District Attorney. Kline had called Rucker to make sure that the patient records would be available in Johnson County and told Rucker for the first time that the materials going there needed to include records from WHCS as well as from CHPP. Kline indicated to Rucker that Judge Anderson had given permission for this to occur. Rucker, in turn, told Williams that the records headed for Johnson County needed to include the records from WHCS as well as CHPP. Williams expressed surprise and displeasure with what he apparently viewed as a last-minute change in his instructions and because the Status and Disposition Report produced and signed by Maxwell and left earlier that morning with Judge Anderson did not state that the WHCS records would go to the Johnson County District Attorney’s office. According to Williams, Rucker told him that Kline had nevertheless ordered this action and that Kline had spoken to Judge Anderson about it. Williams asked for written confirmation of this order. After the call from Rucker, Williams and Reed had to retrieve the patient records that had already been left at Hecht’s office. On Rucker’s instruction, they then took the records to a downtown Topeka photocopy store. Although Reed’s and Williams’ recollections vary slightly, apparently Reed began making copies of the WHCS records for use by Kline as Johnson County District Attorney (at the expense of the Attorney General’s office) while Williams returned the state automobile they had been using. After the cop ying was completed, Williams and Reed returned the set meant for Hecht to his office. All of the material intended for the Johnson County District Attorney s office was then transported in Reed’s personal automobile and delivered to Reed’s apartment, where it was placed in his dining room. According to the record, at 3:43 that afternoon, several hours after all of the distribution steps were completed and Morrison had been sworn in as Attorney General, in apparent compliance with Williams’ request for written confirmation of the earlier order, Rucker sent an electronic mail to Williams. It stated: “Per the direction of AG Kline, I am directing you to copy all medical files and AG Kline is directing the copies be delivered ... to the District Attorney for the 10th Judicial District before noon . . . K. Rucker Chief Deputy Attorney General (sent at 9:30 am)[.]” Although Kline’s subordinates had placed at least three boxes of materials connected to the inquisition at the Attorney General’s office before they left it, the precise content of these boxes cannot be determined at this stage because no specific inventory of them was created at the time. We understand, however, as mentioned above, that the boxes contained no copies of the patient records obtained from CHPP or WHCS. On January 9, 2007, Judge Anderson sent a letter to Morrison, directing Morrison to determine whether McKinney possessed any materials in his role as special prosecutor and to supplement the Status and Disposition Report accordingly. He also directed Morrison to communicate with potential expert witness McHugh directly regarding return of the records left with him in Baltimore and offered to permit Morrison to pick up the inquisition evidence that had been left at the judge’s chambers by Williams and Reed the day before. The sufficiency of access to inquisition material granted Morrison and, eventually, his replacement as Attorney General, Stephen N. Six, remains under consideration in another original action pending before this court, State ex rel. Six v. Anderson, Case No. 99,050. Three days later, on January 12, 2007, in response to a letter from Morrison’s chief counsel at the Attorney General’s office, Kline sent a letter representing, among other things, that a report had been filed with Judge Anderson reflecting Kline’s handling of inquisition documents. The Status and Disposition Report, produced and signed by Maxwell and delivered to Judge Anderson, had not been corrected and was never corrected by Kline or by Maxwell or by any other Kline subordinate. According to Reed, he asked Williams repeatedly whether he could bring the materials sitting in his dining room to the Johnson County District Attorney s office. He testified that his mother and apartment maintenance personnel may have been in his apartment during the time the records were stored in his dining room. Reed finally received permission from Williams to move the materials in mid-February 2007, after Williams had reassured himself about secure storage at the Johnson County District Attorney’s office. On April 9, 2007, Judge Anderson learned for the first time that Kline had taken the WHCS patient records as well as the CHPP patient records to Johnson County. Kline inadvertently disclosed this fact to Judge Anderson, and this disclosure prompted another heated discussion about the extent of the judge’s authority. Judge Anderson declined to require Kline to return CHPP records; however, he ordered Kline to return the WHCS records. Had Kline refused, Judge Anderson later testified, an order citing Kline in contempt had been prepared and would have been filed. When the WHCS records were returned to Judge Anderson at a hearing on April 11,2007, Judge Anderson asked Kline if Kline’s office had kept any copies; ¿fine told Judge Anderson that no copies were kept. The record reflects that Kline has admitted more than once— although not in response to direct questioning by this court at oral argument in this case on June 12, 2008 — that his staff members have created summaries of at least three WHCS patient records and have kept and employed those summaries in their activities in Johnson County. Judge Anderson would later testify that Kline mentioned to him in this time period that Kline expected to be subpoenaed to testify by a legislative committee. In response, Judge Anderson told Kline “those records are riot to go anywhere.” Judge Anderson also would testify that, beyond the patient records themselves, he had communicated that Kline was not to share “information [from the investigation] with people that shouldn’t have it. v . . I did not ex pect the prosecutor to share information outside of his law enforcement objectives.” Judge Anderson and Kline also disagreed during this time frame on whether Kline, as District Attorney from Johnson County, had authority to open a new inquisition in Shawnee County or to seek relief from Judge Anderson under Morrison’s continuation of the inquisition in Shawnee County. Reed would later mention that he had concerns about Kline’s effort as Johnson County District Attorney to obtain or maintain WHCS records. He said to Rucker: “[I]f you continue down one path to help the cause, you actually hurt the cause. When you’re— you know, sometimes it’s best to kind of take a step back and reevaluate and maybe approach it a different way.” Reed said Rucker replied that “sometimes the personal losses — or the benefit or gain of a — of a larger cause outweighs that of a personal impact.” On May 14, 2007, CHPP filed a motion with Judge Anderson, seeking an order to show cause why Kline should not be held in contempt, asking that Kline be required to surrender all copies of all patient records he had obtained through the inquisition and that he be required to appear and give an accounting under oath about the disposition of all such records. Kline and his staff had, at that point, maintained no written log of persons given access to the patient records. Judge Anderson denied CHPP’s motion on May 15, 2007. CHPP filed this mandamus action on June 6, 2007, asking this court to: (1) compel Kline to “comply with [the court’s] directives” in Alpha; (2) compel Kline to “return any copies of Petitioner’s medical records” to the Attorney General’s Office; (3) direct Kline to provide an accounting for those records; (4) issue an order to show cause why Kline should not be held in contempt of the mandate in Alpha; and (5) grant any other appropriate relief, including attorney fees. CHPP also filed a motion to proceed under seal, which was granted. Six days later, Morrison’s staff approached Judge Anderson in an effort to prevent McHugh from appearing at a public event in Overland Park organized by Women Influencing the Nation. Judge Anderson directed Morrison’s staff to contact McHugh directly, believing McHugh to be the current Attorney General’s witness, even though no charges had been filed by Morrison at that point in time. (This would be the same position Kline and Maxwell eventually took in testimony, i.e., that they had no control over McHugh after Morrison became Attorney General on January 8, 2007, and could not direct his activities or prevent him from disclosing information obtained in the course of his earlier service to Kline as Attorney General.) Morrison’s office issued a letter to McHugh to prevent his public discussion of the information shared with him by Kline and Kline’s subordinates. McHugh nevertheless submitted to an interview about his review of the patient records and the information they contained, a video recording of which has been published electronically. Kline has admitted that he met with McHugh before the interview and listened in on the live exchange between the interviewer and McHugh via telephone to ensure that information he considered private was not disclosed. Judge Anderson, who had listened to at least a portion of McHugh’s interview, eventually would testify that a parent of a patient described in the redacted records might be able to identify his or her daughter from the information disclosed by McHugh in the interview. On June 22, 2007, this court ordered Kline to respond to the mandamus petition filed in this case. Five days later, one of Kline’s subordinates at the Johnson County District Attorney’s office made a copy of the patient records from CHPP for a fourth potential medical expert. Kline responded per this court’s order on July 12, 2007. He argued that mandamus was not an appropriate remedy and that Judge Anderson had authorized the transfer of patient records from the Attorney General’s office to the Johnson County District Attorney’s office. In late August 2007, at Judge Anderson’s request, Kline prepared a second affidavit for McHugh. According to Anderson, the affidavit, which the judge sought through Kline to defend the judge from allegations by Morrison of mishandling McHugh, contained “more information than [Anderson] had requested.” Anderson did not expect this second affidavit to be made public. He expected it only for filing in a sealed case. On September 4, 2007, this court permitted Morrison to intervene in this action. By this time, Morrison had closed the inquisition launched by Kline in Shawnee County, had sent CHPP a letter saying that no charges would be filed, and had begun his pursuit of 19 misdemeanor charges against Dr. George Tiller in Sedgwick County. On September 25, 2007, when Morrison filed his memorandum in support of CHPP’s petition for mandamus, he attached a sworn statement of Reed, detailing the movement of patient records from the Attorney General’s office to the Johnson County District Attorney’s office that had occurred under Kline’s direction. Morrison alleged that patient records from CHPP and other material had been taken without authorization from the Attorney Genéral’s office when Kline’s term was over; that the patient records had been mishandled; and that copies of the records had been disseminated improperly. Morrison did not seek any relief beyond that sought by CHPP, asking only that the CHPP patient records be returned to the Attorney General’s office. On September 6, 2007, the second McHugh affidavit was offered for the public record in a hearing of the legislature’s Special Committee on Federal and State Affairs by the same representative of Women Influencing the Nation who had earlier given McHugh’s name to Kline. The committee also was given the video recording of McHugh’s interview and a purported transcript of the same interview. On October 5, 2007, this court ordered Kline to cease copying and disseminating patient records except to the extent necessaiy for law enforcement and to maintain a written record of any patient records henceforward copied or disseminated. On October 17, 2007, this court directed the parties to answer three specific questions of law. Meanwhile, Kline filed more than 100 criminal counts against CHPP in Johnson County. Because several facts underlying this action remained in dispute, on October 24, 2007, this court appointed District Judge David King as a special master to conduct an evidentiary hearing and make factual findings. We provided Judge King with a list of 17 questions to guide tire proceedings before him. On November 2, 2007, Judge King directed Kline and Morrison to provide sworn responses to each of this court’s 17 fact questions. On November 9, 2007, Kline filed a motion for rehearing and dismissal in this court, arguing that this court should rescind its order appointing Judge King and dismiss this action. Kline’s principal argument in his motion was not responsive to the allegations made regarding his handling of the patient records. Rather he insisted only that he had built strong criminal cases against Tiller in Sedgwick County and against CHPP in Johnson County and that this court’s oversight could impede his law enforcement goals. We did not rescind the order appointing Judge King or dismiss the action. Kline filed his sworn responses to the 17 questions with King on November 13, 2007. Those responses included the following: “1. What was the date on which records from Women’s Health Care Services, P.A. (WHCS), and/or Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc. (CHPP), arrived in Respondent Kline’s possession as Attorney General? “RESPONSE: “On October 24, 2006, pursuant to Kansas Supreme Court order and pursuant to a valid subpoena issued by the Honorable Richard D. Anderson, the records in question were provided to the Office of Attorney General. They were not provided to myself but were provided to and housed in the Office of Attorney General.” “2. What is the name of any individual who was or is responsible for any aspect of receipt, storage, copying, dissemination, or transmission of the WHCS and/ or CHPP records and/or copies of them, of the contents of them, and/or of any description of the contents of them a. During the time Respondent Kline held the office of Attorney General? “RESPONSE: “I delegated responsibility for housing and maintaining the records to my Chief Investigator Tom Williams and Assistant Attorney General Steve Maxwell, or their designees. This delegation lasted the entire time that I served as Attorney General. b. Between the time Respondent Kline held the office of Attorney General and the time he has held the office of Johnson County District Attorney? and “RESPONSE: “I do not believe there was any time between the time I held the office of Attorney General and the time I held the office of Johnson County District Attorney. Whether there was any such gap in time is a question of law. If there was a gap in time between my holding of each office, then the responsibility for hous ing and maintaining the records remained with Chief Investigator Tom Williams and Assistant Attorney General Steve Maxwell, or their designees, c. During the time Respondent Kline has held the office of Johnson County District Attorney? “RESPONSE: “As District Attorney, the delegation of authority for maintaining the records remained with Tom Williams and Steve Maxwell for the first several weeks while I served as District Attorney. At some point, the redacted records were brought to the Office of District Attorney and placed in a secure place locked in my office. The primaiy responsibility for maintaining the records at that time fell to myself and my Administrative Assistant Megan Harmon. Sometime during the spring or summer of 2007 the records were transferred to a locked filing cabinet near Megan Harmon’s workstation. “4. What is the professional position and/or inquisition or investigation role of any individual to whom the WHCS and/or CHPP records and/or copies of them, any contents of them, and/or any description of the contents of them have been disclosed since the date they arrived in Respondent Kline’s possession as Attorney General? “RESPONSE: “For purposes of clarify, I am responding to this question in two parts. First, in part (a), I list the four positions or roles that actually viewed the records themselves, copies of the records, or contents of the records. In part (b), I list the positions or roles that could arguably have viewed or received a ‘description of the contents of [the records].’ I make this response based on my personal knowledge only, which would only relate to acts taken on behalf of my Attorney General or District Attorney’s offices. However, as discussed below, I have information and belief (and in some cases personal knowledge) of disclosures made by third parties, including Petitioner, Dr. George Tiller, and Attorney General Morrison or his staff. a. The following classifications of individuals have received or viewed records or copies of records or any contents of WHCS and/or CHPP records: 1. Witnesses including experts; 2. Courts; 3. Investigators; 4. Other prosecutors in offices of various jurisdictions. b. The following classifications of individuals have received, or viewed copies of, descriptions of the contents of WHCS and/or CHPP records. The phrase ‘description of the contents of [the records]’ could have various meanings and it is not clear to me how expansive this request is. For example, the question could relate only to disclosures of information (such as identities) which this Court or Judge Anderson have held must remain private, or it could encompass all discussions of the records that make even a reference to the cumulative meaning or legal significance of the records. To aid this Court in gathering information I have tried to view it as expansively as common sense allows. Therefore, without waiving any objection to the scope or relevance of the question to this mandamus proceeding, my response construes this phrase to include three categories of statements, in decreasing order of specificity, that could be considered by some to be disclosures: (I) verbatim quotation of information or data contained in the redacted records; (ii) verbal or written statements that aggregate and summarize information or data contained in the redacted records; and (iii) verbal or written statements that summarize the meaning or legal significance of information or data contained in the redacted records. Additionally, because the question is not limited to disclosures by my office, my response includes disclosures (pursuant to the criteria listed above) made by other individuals of which I have either personal knowledge or, where indicated, information and belief. 1. Witnesses. 2. Courts and court clerks. 3. Investigators. 4. Other prosecutors of various jurisdictions. 5. Media. 6. Attorney General Paul Morrison during his tenure as Attorney General. “5. What was the date of any disclosure described in response to 4 above? “RESPONSE: “The disclosures identified in part (a) and parts (b)(1) through (6) of my response to question 4, above, sometimes occurred on multiple occasions. For example, there were numerous phone conversations with expert witnesses and potential expert witnesses that often included discussions regarding record contents which fell anywhere along the three-category continuum of ‘specificity’ that I identified in part (b) above, from more specific discussions (category (I)) to very generalized discussions that were more about the conclusions to be drawn from the records than about the contents of the records themselves (category (iii)). I cannot pinpoint the dates or times of such conversations. Furthermore, investigators and other prosecutors in my office generally led the investigative effort. They had numerous conversations with prospective witnesses which I cannot delineate and of which your Respondent is not fully aware. “Nonetheless, there are a few specific dates that I can identify or come close to identifying. These dates and occasions are as follows: a. In November, 2006[,] I first spoke with Dr. Paul McHugh of Johns Hopkins University about serving as an expert in the potential case against Dr. George Tiller for criminal late-term abortion. Our first phone conversation lasted approximately 5 minutes. I gave a generalized description of the case sufficient to confer with Dr. McHugh regarding the subject matter of the case and determine whether to use Dr. McHugh. (Based on his responses, I decided to retain his services.) Immediately prior to that phone conversation I had initiated a nationwide search for a top psychiatric expert which led to Dr. McHugh. In that search I gave generalized descriptions of the case and informed those with whom I spoke that the late-term abortions were being performed for ‘mental health’ reasons. This gave them sufficient information to assist me in finding an expert regarding such issues. Subsequent to this time, I believe that Dr. McHugh also received hard copies of some of the files from my staff. I believe that Dr. McHugh also received a summary of the records which I had drafted. e. Copies of the records provided to Shawnee County District Attorney Robert Hecht were provided in person in late December of 2006 or early January of 2007. f. In mid-December of 2006 I issued an order to my staff that copies of the redacted records be made ready for transfer to the Johnson County District Attorney’s office. I was not personally involved in or familiar with the details of the referral or the timing of the provision of the copies. g. . . . Upon information and belief, Dr. Gilmartin was consulted as a potential expert witness by Chief Deputy Attorney General Eric Rucker. I am not aware whether Dr. Gilmartin did in fact review copies of the documents or was given any information regarding the contents of the records. h. During the Spring or Summer of20071 began to consult with potential expert witnesses regarding the records. These discussions included numerous phone conversations and writings regarding record contents to new experts. These communications continue to this day. k. During 2007, various potential witnesses in the Johnson County matter have been given generalized descriptions of the files. This did not involve viewing the records or quoting verbatim any data from the files, and these were made in a very general nature. Certain expert witnesses or potential expert witnesses were shown the records or a portion of the records. l. I, by phone, have discussed in general terms the contents of the medical files with numerous authors of various papers and studies relating to fetal viability, determination of gestational age of a fetus, fetal gram weight and development, preparation of pathology reports, counseling measures for women and children, etc. These conversations did not involve viewing the records or quoting verbatim any data from the files. I do not recall the specific dates or times of these discussions. m. I have discussed, by phone, the general contents of the records with various legal counsel representing women and children who have engaged in civil actions against affiliates of Petitioner and with law enforcement agencies involved in investigations of Petitioner and/or affiliates of Petitioner. Again, I do not remember the times and dates of such discussions. “6. What was the method of transmission for the disclosure described in response to 4 above? “RESPONSE: [Using the same alphabetic designations above, the following specifies the method of transmission for each disclosure mentioned in response to question 5.] f. I have no personal knowledge as to how the files were copied or transferred. k. I have no personal knowledge as to how information regarding the files was disclosed. “7. What is the explanation for the necessity of or desire for any disclosure described in response to 4 above? “RESPONSE: “The Need and Reasons for Information-Sharing in this Case “In many ways, this case is similar to the investigation of the criminal electronic solicitations of a child. The investigation involved an ongoing investigation, an inquisition and the procurement of record subpoenas in that inquisition, and numerous discussions with potential witnesses in order to further the investigation and/or individuals that would assist in an understanding of the evidence. Once Judge Anderson affirmed that the mandates of this Court in the Alpha case were met, the only restriction[s] on dissemination were considerations of Rule 3.6 and other applicable Kansas Supreme Court rules. “Pursuant to those ethical standards, any generalized discussions with the media were done to correct misperceptions or to confirm and ensure that identities of adult women were not sought nor available in the file. This was necessary due to a massive campaign through media, direct mail and phone calling that led thousands to believe that their personal medical records were in jeopardy and about to be released to the public. Further, the clinics always maintained a media posture that intimate psychiatric details and sexual histories specific to certain individuals were about to be released by the Attorney General’s office. I did all I could to address those fears and bolster public confidence in the prosecutor’s office, the Kansas courts, and the criminal system. “9. Exactly what Inquisition records and/or documents, other than WHCS and/ or CHPP records, were transferred by Respondent Kline in his position as Attorney General to Respondent Kline in his position as Johnson County District Attorney? “RESPONSE: “This question asks about ‘inquisition records and/or documents.’ It is my understanding that the only items at issue in this case are the medical records of Petitioner or any documents containing information from those medical records. However, the question is not so limited, and without waiving any objection as to the relevance or scope of this question, my response will construe this phrase as broadly as common sense allows. “There are roughly four categories of documents that could fall under the phrase ‘inquisition records and/or documents.’ First, there is the small amount of records actually obtained from Petitioner in this ease. I understand this category has been excluded from this question by the phrase ‘other than WHCS and/or CHPP records.’ Second, there is tire large mass of evidence produced pursuant to the many subpoenas obtained by my staff during the course of the inquisition over several years. Third, there are pleadings and other papers filed with the Court in which the inquisition was opened. Fourth, there are draft pleadings, attorney notes, and summaries compiled by attorneys and investigators working on the inquisition. Of course, there are also investigative files separate and apart from the inquisition, into which I do not understand this question to have inquired. “With this clarification, I have no knowledge of any ‘inquisition records and/or documents’ that have been transferred by me in my position as Attorney General to myself in my position as District Attorney. I do have information and belief that electronic copies and drafts of pleadings and legal research compiled by Assistant Attorney General Stephen Maxwell (category 4, above) were transferred by Mr. Maxwell to his new office at the Johnson County District Attorney during transition. However, it is my information and belief that these did not include attorney notes and summaries, as I am not aware of any summaries of the files, etc. that were transferred and as District Attorney have had to ask staff to recreate such summaries. I have made requests to Attorney General Morrison for assistance in this regard, however, such assistance has been not forthcoming. “10. What was the date and time of any transfer described in response to 9 above? “RESPONSE: “I do not know. “11. What was the method of transmission for the transfer described in response to 9 above? “RESPONSE: “The only such transmission that I recall is the one identified in [my] answer to question 9. I have been informed that this occurred by making a disc copy of Mr. Maxwell’s file that he maintained on his computer. “13. What was the legal authority supporting any transfer described in response to 9 above? “RESPONSE: “Upon information and belief, Mr. Maxwell was granted permission to obtain a disc copy by Mr. Eric Rucker who served as Chief Deputy Attorney General. “14. What, if any, security measures have been imposed to ensure confidentiality of the WHCS and/or CHPP records and/or copies of them, of the content of them, and/or of any description of their content, from the time they came into tire possession of Respondent Kline as attorney general through the present? “RESPONSE: “As discussed in my response to question 2,1 have delegated management of the files to Assistant Attorney General Stephen Maxwell and Chief Investigator Thomas Williams, or their designees. The files were generally kept under lock and key and access restricted. I did not have direct access and could only review the files with others present. I am not aware of what other measures were put in place by Mr. Maxwell, Mr. Williams, or their designees.” Judge King held his evidentiary hearing on November 19, 20, and 21, and December 3 and 4, 2007. Kline’s testimony in that hearing mirrored his previous sworn written responses to our 17 questions. For example, when Kline was asked about the content of Williams’ affidavit supporting the charges filed in December 2006 in Sedgwick County, Kline responded: “I don’t know if I actually read Mr. Williams’ affidavit before its submittal.” Kline’s testimony regarding the second McHugh affidavit, which Kline had typed personally, and how it had reached the legislative committee also is illustrative. Kline testified that he didn’t “recall” sending the affidavit to anyone but Judge Anderson but later said: “A. [By Kline] Well, wait, wait, wait. There was a request by the Legislature as to whether Doctor McHugh would come and testify in Kansas. . . . [T]here was a request of me to put persons in contact. I provided that information. “Q. [By Michael C. Leitch for the Attorney General] Did you talk to Doctor McHugh about providing such an affidavit to the Legislature? “A. I don’t recall. “Q. Did you ask him to send a copy to the Legislature? “A. I don’t believe I did. “Q. And can you tell us why you believe that the affidavit from McHugh may have been given to that committee by [a particular doctor]? “A. I would imagine they thought it relevant to the proceedings. “Q. Okay. That wasn’t my question. I’m asking you why you believe that the committee may have gotten that from [a particular doctor], “A. They believed it was relevant to the proceedings. “Q. Yes. Why do you believe that [a particular doctor] was the source of the affidavit identified in Intervenor’s Exhibit 17? “A. I suppose because he had it. “Q. Okay. And can you tell us the basis for — for your knowledge that [a particular doctor] had the affidavit? “A. I’m not sure. “Q. Okay. Well, why do you — I mean, you’ve told us that you believed that it could have come from [a particular doctor]. What’s the factual basis for that belief? “A. As you mentioned in your brief, my wife was at the proceeding. And I — she informed me as I recall. “Q. Okay. So the only basis of your knowledge of — of [a particular doctor] providing that affidavit is statements to you by your wife? “A. As I recall, I became aware that [a particular doctor] provided this affidavit by statements of my wife. That’s what I recall. “Q. And what do you recall as to who gave the affidavit to [the particular doctor.] “A. I don’t recall. “Q. Did your wife give the affidavit to [the particular doctor]? “A. Again, I don’t know. I don’t recall how [the particular doctor] obtained the affidavit. “Q. Did you give a copy of the affidavit to your wife? “A. I don’t recall.” Later in the hearing, Judge King followed up on this topic. “Q. Okay. Final area and then well be off to lunch here pretty shortly. You were asked about you have information that the affidavit which is Intervenor’s Exhibit 17 that was presented to the Federal and State Affairs Committee, that this may have been presented through the testimony of [a particular doctor.] And you indicated that the basis of that testimony was that your wife attended the hearing; is that correct? “A. My wife was present at the hearing, as I recall. I was informed that the affidavit was presented, an affidavit from Doctor McHugh was presented. “Q. Okay. That prompted the question whether you gave a copy of the affidavit to your wife. And your testimony was ‘I don’t recall.’ “A. I don’t believe I did. “A. Doctor McHugh did not provide any services to the Office of District Attorney of Johnson County, and he’s not an expert in any of the cases or contemplated to be an expert in any of the cases that I’m investigating or proceeding with. So he’s received no compensation relating to his duties or he’s had no duties while I’ve been District Attorney. “Q. This was a short time ago relatively. You’re talking about giving something that has some significance in your professional responsibilities to a person who is veiy significant to you, your wife. As a fact-finder, it is hard for me to understand how you would not recall whether you had or had not given a copy of this affidavit to your wife. So I am going to invite you, if you can be more specific about your recollection. “A. Okay. I don’t believe I gave a copy of this affidavit to my wife. I don’t recall any instance of giving this affidavit to my wife. “Q. If you would have, would you recall it? “A. Probably. You have [given] me a hint that I should. But Judge — “Q. Well — “A. — I’m not — “Q. I just said as a fact-finder that — I understand people’s memory and — and things, but there are certain things that they just have the ring that it’s hard to see why you wouldn’t recall that. And so I wanted to invite you, if you had a more specific recollection or to explain to me why you can’t recall whether you had done that. “A. Sure. “Q. It’s a short period of time ago, it’s an important record, it’s a high-profile record and it’s given to a person who’s very significant, you know, the— “A. If I may, let me try to explain. I didn’t see this record as that significant. All of the information in that record was already public knowledge. Doctor McHugh had already presented himself in Kansas City, it was a request of Judge Anderson, it was in no way sealed. I don’t see this record as significant, it doesn’t identify patients, it states his role in the case which had already been reported on, and it states his opinions which had already been made public. So I — ■ “Q. Okay. “A. I did not have a concern about that particular affidavit, which was not in any court proceeding that I was aware of. “Q. I’m satisfied with the explanation concerning its significance. . . . [I]f I provided it to my spouse or I think that a reasonable person if they provided it to their spouse would remember it or not, especially when it was only, what was it, two months ago. It just seems to me that I would have — I would expect someone to have a recollection. And — and so that’s why I’m asking you if you can — and you answered your question — answered the question by saying ‘I don’t believe I did.’ Is that — that what your best recollection is? “A. Absolutely that’s my best recollection. I don’t know of any reason why I would give that to my wife. I doubt my wife has read it, but— “Q. Do you believe that you would remember it if you had given it to your wife? “A. Your honor, probably.” When Judge King asked Kline whether he had placed restrictions on reuse of the information provided to experts or consultants, Kline said: “I don’t know if my office did, Your Honor. . . . The primaiy duties rested with Mr. Maxwell, Mr. Williams and at times Mr. Rucker.” When Judge King asked if Kline recalled instructing his subordinates on such restrictions, Kline said: “I don’t recall doing so.” King then asked whether Kline would recall if he had done so. Kline said: “I think it’s likely that I would. I don’t recall doing so.” King pressed on, asking again about Kline’s meaning, and Kline finally responded that, to the best of his information, he did not communicate any instructions on reuse of information by witnesses. Kline took the position before Judge King that he was both the Attorney General and the District Attorney of Johnson County for approximately 1 hour on January 8, 2007, but he insisted that he did not perform any act in either capacity during that period. Judge King asked: “[D]id it occur to you that to protect the legitimacy of your actions in any reasonable mind that every “T” ought to be crossed, every “I” dotted in relation to the transfer of these records to Johnson County? In other words, . . . make sure that that was done in a very . . . meticulously careful, well-documented, open to . . . any reasonable scrutiny manner?” Kline said that he believed he had effected the movement of the patient records from the Attorney General’s office to the Johnson County District Attorney’s office in such a manner and that he didn’t want to compromise the investigation or have to start over once he reached Johnson County. Judge King also attempted to walk Kline through his sworn written responses to this court’s 17 questions during the evidentiary hearing. Again, however, Kline repeatedly professed ignorance and attempted to deflect the inquiry by invoking his delegation of responsibility to Maxwell and Williams. Judge King finally admonished Kline and counsel. He ordered Kline to submit supplemental sworn written responses, specifically instructing him that institutions, i.e., public officers such as the Attorney General and the Johnson County District Attorney, are charged with knowledge of their subordinates and their activities. Judge King explained to Kline and counsel that it was not sufficient for Kline to disclaim personal knowledge; rather, he had a responsibility to obtain information in the possession of others within his institution and be responsive to the questions. Kline filed his supplemental sworn written responses to this court’s questions on November 30,2007. The record demonstrates continuing insufficiency. One example is the supplemental responses’ failure to disclose that Brian Burgess, Kline’s spokesman, is among those who have had repeated access to the patient records in Kline’s possession. Nor is any reason given for Burgess’ access, although his name clearly appears multiple times in the written record Kline was ordered by this court to begin maintaining on October 5, 2007, and to file twice thereafter. In addition, despite Judge King’s earlier admonition, Kline’s supplemental responses continued to point out his lack of personal knowledge. Judge King submitted his final report to this court on January 10, 2008. His findings, in addition to those covered by the background recited above, included the following: Kline’s movement of patient records and other inquisition materials from the Attorney General’s office to the Johnson County District Attorney’s office was not done in an ordinaiy manner. Although there are no written protocols or procedures for exactly how prosecutors are to go about sending investigation materials from one office to another, Judge King wrote, “the exchange of records in this case was handled differently than any other such information exchange described by any of the witnesses. It was also different from any other information exchanges that Attorney General Kline undertook in relation to these records.” No written documentation of the movement of the patient records in this case was created or maintained, and the Status and Disposition Report ordered by Judge Anderson was incorrect. Attempts by witnesses to characterize Kline’s behavior here as a “transfer” or “referral” or “sharing” were merely attempts to justify the procedure’s shortcomings; and the patient records were not handled in a manner that “stood up to the highest scrutiny. Such scrutiny surely should have been expected.” In addition, Judge King wrote: “Kline and his subordinates gave various reasons why the transfer of [inquisition] materials, including the CHPP and WHCS records, to the Johnson County District Attorney’s office was handled in the manner it was.” Judge King also found that Morrison made public statements that were hostile to the merit of Kline’s inquisition. In addition, “Morrison and his transition staff were not cooperative with Kline and his transition staff: Kline was denied a secure storage area at the Johnson County District Attorney’s office; Kline was not provided with office space . . . .” Judge King also found that the evidence did not support any allegation that Kline or his subordinates gave patient records to O’Reilly. In addition, according to Judge King, the evidence did not support an allegation that Kline or his subordinates were directly responsible for the disclosures made by and through McHugh to the legislative committee. Judge King also found that, although the inquisition material left in the Attorney General’s office by Kline was in boxes with address labels for McKinney, McKinney never received or saw that material. Judge King also wrote in his report: “158. It is reasonable to conclude that the initial failure to disclose in the Status and Disposition Report that WHCS records were being taken to Johnson County was not a deliberate attempt to deceive, or make misrepresentations to, Judge Anderson. “159. Kline was not familiar with the content of the Status and Disposition Report. Pie was not even aware that Judge Anderson had requested an accounting for the location of the files. There is no indication that Maxwell advised Kline of the existence or content of the Status and Disposition Report. “160. Maxwell was unaware that Kline had instructed Rucker on the morning of January 8, 2007, after the Status and Disposition Report had been submitted to Judge Anderson, to have the WHCS records copied and brought to Johnson County. “161. Rucker took no steps to cany out the transfer of WHCS records to Johnson County before January 8, 2007. “162. Rucker testified he always operated under the assumption that the records were transferred to the Johnson County District Attorney with the blessing of Attorney General Kline and Judge Anderson. “163. Rucker is not aware of whether Maxwell knew of the idea of taking the WHCS records to Johnson County. “164. Rucker does not recall ever telling Maxwell that the WHCS records were taken to Johnson County. “165. Maxwell testified that at some time after January 8, 2007[,] he recalls talking to Kline about discussing the WHCS records with Judge Anderson. Maxwell does not recall that Kline specifically said that he told Judge Anderson that he took the WHCS records to Johnson County. “166. Maxwell explains the failure of the Status and Disposition Report to disclose the transfer of WHCS records to Johnson County by stating that he did not know at the time he wrote the Report that the WHCS records were being taken to the Johnson County District Attorney’s office. Subsequently, when he learned of such transfer he didn’t advise Judge Anderson because he thought since Kline had been in almost daily contact with Judge Anderson the Judge must be aware that Kline had the WHCS records in Johnson County. Also, Maxwell excuses his failure to correct or supplement the Report by stating that the Report was part of the inquisition and the inquisition was the Attorney General’s and he wasn’t with the Attorney General’s office any longer. “167. In his explanation Maxwell makes a number of assumptions about who knew what. What he did come to know as a fact was that he had authored a Report that was filed with the Court that was inaccurate. He had signed the Report. The Report contained his representation to the court of the disposition of the records and it was inaccurate. Once he learned that the report was inaccurate he did not take steps to correct it.” On May 2,2008, we issued orders unsealing this action, with the exception of redactions made by this court. We expressly included the following language in the order in this case: “The parties shall be responsible for making necessary redactions in any subsequent documents to protect pending prosecutions as well as the privacy of CHPP and WHCS patients. If redaction to accomplish these goals is not possible, the party shall file the entire document under seal. The redactions made by this Court in the previous documents and the [record of proceedings before Judge King] shall guide the parties in their decisions on redaction or sealing of subsequent documents. Information that must be redacted includes not only names of patients but also any other information about patients that could reasonably lead to their identities.” Similar language was contained in an order issued the same day in State ex rel. Six v. Anderson, the pending mandamus action concerning the Attorney General’s access to inquisition materials. In the May 2 order in this case, we also twice required Kline to file a copy of the written record of access to patient records that he had been ordered to maintain from October 5, 2007, forward; and we set a final briefing and argument schedule. The order’s final sentence was: “Given Petitioner’s prayer for an order to show cause why Respondent Kline should not be held in civil contempt, Kline is ordered to appear for oral argument in person.” After the parties submitted their final briefs but before oral argument, CHPP filed a motion to strike Kline’s brief or, in the alternative, certain pages of it, and its attachments. Kline had included in his factual recitation an allegation that CHPP falsified certain documents. In support, Kline had attached certain redacted pages from confidential records of KDHE, which included gesta tional age, asserting that these records demonstrated the falsification. Kline’s brief made no effort to explain any relationship of this allegation or its purported attached proof to the issues now before us. When his counsel was provided an opportunity to elaborate at oral argument, he also did not tie the allegation or attachments directly to the issues in this case. He insisted only that they provided necessary “context” for this court’s consideration, apparently because of Kline’s theory that CHPP is trying through this action to hamstring Kline’s prosecution of it in Johnson County. Also at oral argument, Kline took the offered chance to address this court personally, and he responded to the court’s questions. He nevertheless repeatedly expressed a lack of preparation, asserting he had read the language in the court’s May 2 order only to require him to be physically present in the courtroom rather than to be prepared to speak knowledgeably about his or his subordinates’ conduct. He also described himself, at one point, as too busy discharging his obligations as the Johnson County District Attorney to address this matter. He expressed ignorance of the content of the record and said he had not reviewed his two sets of sworn written responses to this court’s 17 questions. He stated he had never seen the written record of access to the patient records that this court had ordered him to maintain and then to file on two occasions. Kline also spontaneously defended the decision to attach the redacted KDHE records to his brief, not because they were necessary to provide this court with “context,” as asserted by his counsel, but because he believed that they did not qualify as private medical records, that they were not subject to the safeguards delineated in our Alpha decision, and that similar information had previously been released by this court. He also attempted to argue the necessity of a subpoena he had sent to Judge Anderson, attempting to compel the judge to appear and produce records for use in the Johnson County prosecution. Since oral argument, Kline filed a written response to CHPP’s motion to strike. In it, he and counsel again make a context argument and again argue that the information discussed in his brief was contained in the public file of State ex rel. Six v. Anderson and that the attachments had been properly redacted to conceal any nonpublic information. “Simply put,” the response says, “Respondent deemed it necessary to present the information so that this court would be fully able to appreciate the extraordinary nature of the relief [CHPP] has asked it to grant.” The response also challenges CHPP’s assertion that Kline’s brief violated K.S.A. 65-445(c), which restricts lawful access to confidential KDHE documents. Kline asserts: “The information . . . and the exhibit did not reveal any information that was not already in the public realm, including the identity of [CHPP], which was publicly revealed by [CHPP] itself when it brought this mandamus action to have the records in question taken from [Kline], Moreover, pursuant to the statute, the use of the information and exhibit was for the purpose of the pending criminal proceeding against [CHPP]. The criminal proceeding goes hand-in-glove with the mandamus action. For this court to reach a ruling on the mandamus action, it must understand the full context of the mandamus action in relation to the criminal prosecution. It simply cannot go overlooked that, as [CHPP] has been well aware all along, the records at issue in the mandamus proceeding are the vital evidence in the criminal proceeding and without which the criminal prosecution may end.” Analysis Based on our review of the entire record and the parties’ most recent filings and oral argument, we first observe that CHPP’s goals are substantially unchanged from those set out in its original June 2006 petition for writ of mandamus. In its May 29, 2007, brief, it urges this court to compel Kline to return all of the copies of the patient records to the Attorney General; to punish Kline for violating the mandate of Alpha-, and to award it attorney fees and any other appropriate relief. CHPP has broadened its argument in support of the second goal, however, by urging that, in addition to or instead of finding Kline in contempt of Alpha, this court should find that he acted in “bad faith” meriting “sanction.” Kline counters that (1) the mandamus action is nonjusticiable and must be dismissed because (a) the clinic lacks standing, (b) its privacy argument is moot, and (c) mandamus is not an appropriate avenue for relief; and (2) petitioner is not entitled to the relief it seeks because (a) the order requested violates separation of pow ers, (b) Alpha is inapplicable to Kline, and (c) Kline is not and cannot be held in contempt of Alpha. The Attorney General, now Six, characterizes the situation as one in which state property was unlawfully taken on Kline’s exit from the office of the Attorney General. Before filing his most recent brief, the Attorney General had not attempted to use this case as a vehicle to obtain return of items other than patient medical records. He now seeks “each and every copy of those records that [Kline] has made and any and all other evidence Kline developed and obtained while he was acting as Attorney General that he took with him to Johnson County.” These items include, as asserted at oral argument, any summaries Kline or his subordinates have created of WHCS patient records. We note that the Attorney General had earlier made an argument that, to the extent Kline performed or ordered conduct undertaken under the auspices of the Attorney General’s office while Kline was Johnson County District Attorney, Kline violated the doctrine of incompatibility of offices. In essence, this argument is that Kline’s one head cannot simultaneously accommodate two hats. Availability of Relief in District Court Kline has argued that the relief CHPP and the Attorney General seek in this action is inappropriate because the petition fails to state why relief is unavailable in the district court. Kline apparently misreads Kansas Supreme Court Rule 9.01(a) (2007 Kan. Ct. R. Annot. 70), which states: “Original jurisdiction of an appellate court will not ordinarily be exercised if adequate relief appears to be available in a district court. If relief is available in the district court, the petition shall state, in addition to all other necessary allegations, the reasons why the action is brought in the appellate court instead of in the district court. In the event the appellate court finds that adequate relief is available in the district court, it may dismiss the action or order it transferred to the appropriate district court.” The rule plainly requires the petition to state why original jurisdiction has been invoked only if relief is available in the district court. The record demonstrates that this is not the case here. On May 14, 2007, CHPP filed a motion requesting that Judge Ander son issue an order to show cause why Kline should not be held in contempt; an order directing Kline to surrender all copies of all patient records obtained through the inquisition; and an order directing Kline to appear and give an accounting under oath of disposition of the records. Judge Anderson denied the motion. Moreover, Rule 9.01(a)’s permissive approach to exercise of this court’s jurisdiction also is clear. Even if the record were not as explicit as it is on Judge Anderson’s decision not to provide CHPP the relief it seeks, this court has discretion to exercise its original jurisdiction even if relief also is available in the district court. Standing Another of Kline’s threshold legal arguments is that CHPP lacks standing to assert the constitutional privacy rights of its patients. In his view, the privacy of CHPP’s patients was fully considered— and as protected as it can or should be — by our decision in Alpha, which directed CHPP and WHCS to redact patient-identifying information from the records before their production, even to Judge Anderson. We agree that, insofar as the content of the records themselves is concerned, the clinics and their lawyers correctly bear the burden of their choices on which data they redacted from the records and which they did not. Our decision in Alpha did not restrict drose choices, and neither CHPP nor the Attorney General has argued in this action that Judge Anderson or his appointed attorney or the physicians with whom the attorney consulted did so. That being said, Kline’s standing argument misses the mark. This action does not deal with the content of the records. We are now focused on Kline’s handling of the records since Alpha. This handling includes, among other things, Kline’s and his subordinates’ comparison of the records to other materials to obtain adult patient names — a goal Rucker specifically denied when questioned during the oral argument in Alpha. And it includes the last-minute removal of the records from the Attorney General’s office and the high, long lob through various automobiles and Reed’s dining room that Kline and his subordinates used to ensure that the records would not arrive in the Johnson County District Attorney’s office before Kline and certain of his subordinates arrived. It also includes Kline’s dissemination as Attorney General and Johnson County District Attorney of the records to various experts, and his inconsistent assertions of control and lack of control over the later dissemination of patient information by one of those experts. It includes Kline’s and his subordinates’ failure to correct the Status and Disposition Report and their creation and use of summaries of WHCS records that Judge Anderson ordered returned. As in Alpha, CHPP has standing to attempt to neutralize the harms to its patients’ constitutional privacy rights that Kline’s behavior threatens. See Alpha, 280 Kan. at 921 (abortion providers can assert third-party standing to champion patients’ rights to informational privacy) (citing Singleton v. Wulff, 428 U.S. 106, 117, 49 L. Ed. 2d 826, 96 S. Ct. 2868 [1976]; Northwestern Memorial Hosp. v. Ashcroft, 362 F.3d 923, 928 [7th Cir. 2004]; Aid for Women v. Foulston, 441 F.3d 1101 [10th Cir. 2006]). In order to invoke such standing, CHPP must allege “injury in fact,” that is, “a sufficiently concrete interest in the outcome of their suit to make it a case or controversy” subject to this court’s jurisdiction. Singleton, 428 U.S. at 112. It also must be the proper proponent of the particular legal rights on which it bases its suit. 428 U.S. at 112. CHPP meets these criteria. Although the records have been redacted, they still contain information recognizable by certain persons other than the patients themselves and amenable to comparisons with other information sources that enable identification of patients by name. Despite Rucker’s representation to the contrary, there was ample substantial competent evidence presented at the hearing before Judge King that Kline and his subordinates had used the records in exactly the latter endeavor and that they had disseminated the information capable of leading to such identifications to at least one expert witness who has since spoken publicly on patient information. These behaviors and other conduct of Kline and his subordinates demonstrate the existence of CHPP’s standing to assert the privacy rights of its patients. In addition, we observe that, although CHPP may no longer have a possessory interest in copies of patient records that may constitute evidence of its crimes, the Attorney General does. As Judge Anderson recognized months ago, the inquisition that placed the records in the hands of law enforcement and prosecutors “belonged” to the Attorney General’s office. The fruits of the inquisition were obtained through expenditure of personnel and other resources of that office’s budget. Kline does not challenge the standing of the Attorney General in this action. Ripeness and Mootness At various points in this case, Kline has argued that CHPP’s claims were unripe and that they were moot. Following his logic as much as we are able, his idea of the appropriate point in time for vindication of a constitutional privacy right appears to be the instant it is invaded, not a nanosecond before or after. In other words, until actual invasion, any claim to protect the right is unripe; as soon as the invasion occurs, any claim to protect the right is moot. We cannot agree with Kline’s position. Although it is our function to determine real rather than speculative or abstract controversies, see Smith v. Martens, 279 Kan. 242, 244-45, 106 P.3d 28 (2005); Blank v. Chawla, 234 Kan. 975, 978, 678 P.2d 162 (1984) (citing Anderson v. Carder, 159 Kan. 1, 4, 150 P.2d 754 [1944]), the issue of whether Kline’s and his subordinates’ handling of the patient records threatens or invaded patients’ privacy rights presents us with a real controversy. We must decide whether that handling constituted unlawful performance of a public duty or unlawful exercise of public office and whether Kline has engaged in contemptuous or otherwise sanctionable conduct. Separation of Powers Kline also has argued that this action violates the doctrine of separation of powers. Evidently recognizing that the purpose of mandamus is court prevention and correction of unlawful performance of official duties or unlawful exercise of a public office, his separation of powers attack has now shifted to tire relief sought by CHPP and the Attorney General. Kline avers that any relief this court could order in this case would inevitably run afoul of the doctrine of separation of powers because of his executive respon sibility for prosecution of crimes and, specifically, the fact that he launched such a prosecution against CHPP in Johnson County several months after this action was commenced. We recognize that a county attorney or district attorney is the representative of the State in criminal prosecutions; and he or she has broad discretion in controlling those prosecutions. The scope of this discretion extends to the power to investigate and to determine who shall be prosecuted and what crimes shall be charged. State v. Williamson, 253 Kan. 163, 165, 853 P.2d 56 (1993) (citing State v. Dedman, 230 Kan. 793, 798, 640 P.2d 1266 [1982]; State v. Blount, 13 Kan. App. 2d 347, 351, 770 P.2d 852, rev. denied 245 Kan. 786 [1989]). It includes the power to dismiss charges; a court cannot refuse to allow a dismissal or restrain a prosecution. See Williamson, 253 Kan. at 166; State ex rel. Miller v. Rohleder, 208 Kan. 193, 195, 490 P.2d 374 (1971); Foley v. Ham, 102 Kan. 66, 67-72, 169 P. 183 (1917). Nevertheless, a prosecutor s discretion is not hmitless; and the doctrine of separation of powers does not prevent court intervention in appropriate circumstances. See Alpha, 280 Kan. at 918; State ex rel. Cranford v. Bishop, 230 Kan. 799, 800-01, 640 P.2d 1271 (1982). Kline conceded in Alpha and has conceded again here that courts must react when a prosecutor abuses the judicial process. And his counsel conceded at oral argument that courts routinely suppress evidence, dismiss charges, and reverse convictions when warranted by law enforcement or prosecutor actions. In this case, Kline nevertheless insists that CHPP is merely trying to stymie his criminal case against it in Johnson County, improperly attempting to “pick its prosecutor” by forcing Kline to surrender the patient records to the Attorney General, who has exhibited no interest in filing charges. Kline is correct that, before Six took office, Morrison had issued a “no prosecution” letter to CHPP. As of this writing, Six has chosen to pursue a Morrison-generated, multiple-misdemeanor case against WHCS in Sedgwick County but has not begun any prosecution of CHPP. Despite Kline’s protestations, we are not persuaded that we are powerless to order relief if CHPP and the Attorney General prevail on the merits of their claim that Kline’s and his subordinates’ han dling of patient records constitutes unlawful performance of a public duty or unlawful exercise of public office because it invaded the privacy of individuals or was an unauthorized taking of state property. Among other things, it is significant that CHPP’s filing of this original action predated Kline’s Johnson County criminal case against CHPP by several months. In fact, although the evidence purportedly supporting the charges had been in Kline’s possession for nearly a year, he did not file that criminal case until shortly after his and his subordinates’ unorthodox movement of the patient records from the Attorney General’s office to the Johnson County District Attorney’s office came to the attention of this court byway of Morrison’s filing of Reed’s immunized sworn statement as an attachment to a pleading. At that point, Kline had an incentive to dissipate any light and heat directed at his conduct by this mandamus action. Under these circumstances, we are unpersuaded by Kline’s separation of powers argument. If his or his subordinates’ behavior qualified as an unlawful performance of public duties or an unlawful exercise of one or both of his offices, this court may order relief to correct for it. The fact that such relief may have an impact on a different action, a criminal prosecution pending in a district court, simply is not logically or legally equivalent to the type of judicial branch interference in the performance of the executive prosecutorial function that we have previously disapproved. See Rohleder, 208 Kan. at 195. The doctrine of separation of powers does not pose an insurmountable obstacle to the pursuit of this action or to the relief sought by CHPP and the Attorney General. The Merits and The Primary Relief Sought Having disposed of all of the threshold issues raised by Kline, we now turn to the merits of the mandamus petition and Kline’s continuing insistence that we dismiss it. The Kansas Constitution provides this court with original jurisdiction for proceedings in mandamus. Kan. Const. Art. 3, § 3. In addition, K.S.A. 60-801 provides: “Mandamus is a proceeding to compel some . . . person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.” Relief in the nature of a writ of mandamus is discretionary. The burden of showing a right to the relief sought is on the petitioner. Unless the respondent’s legal duty is clear, the writ should not issue. State ex rel. Fatzer v. Salome, 169 Kan. 585, 595, 220 P.2d 192 (1950); see Alpha, 280 Kan. at 918; S. Ct. Rule 9.01(a). Here, CHPP and the Attorney General claim that Kline’s and his subordinates’ handling of the patient records produced pursuant to Alpha, was unlawful, i.e., in violation of a legal duty. If they have proved that Kline’s behavior or that of those for whom he was responsible constituted unlawful performance of a public duty or unlawful exercise of a public office, we may grant them relief. At this point, it is important to note what is not in dispute. CHPP and the Attorney General do not contend that an Attorney General lacks lawful authority to give information arising out of an investigation to others in a position to prosecute a lawbreaker. They also do not contend that a district attorney lacks authority to receive and act upon such information. The nature of this dispute also renders irrelevant Kline’s intermittent reliance on his interpretation of events to insist Judge Anderson had granted permission to “refer” the patient records from the Attorney General’s office to the Johnson County District Attorney’s office. Again, CHPP and the Attorney General realize, as they must, that referrals of information gathered in criminal investigations are neither uncommon nor inappropriate. They also know that such referrals do not generally require law enforcement or prosecutors to obtain permission from a member of the judiciary. The record demonstrates that Judge Anderson also appreciated this concept. CHPP and the Attorney General do argue that there was no “other” to whom Kline as Attorney General gave the patient records at issue here, and that there was no “other” from whom Kline as Johnson County District Attorney received the records. This is true, in their view, no matter which of three possible factual scenarios occurred: (1) Kline’s transformation from Attorney General to Johnson County District Attorney happened in an unimaginably brief instant, i.e., there was no temporal gap and no temporal over lap between the time he left the first office and the time he took the second; (2) there was a gap between Kline’s tenure as Attorney General and his tenure as District Attorney or between the employment of his subordinates by one office and the other; in this scenario, the records were unlawfully possessed and stored during that gap; or (3) there was an overlap between Kline’s occupation of his statewide office and his district office or of his subordinates’ employment by the first and then the second; in this scenario, the doctrine of incompatibility of offices controls and renders the possession and storage of the records during that overlap unlawful. We are unpersuaded by the Attorney General’s “no other” argument. It is obviously true that Kline is only one person. But he has held two different public offices, the first via a statewide election not challenged here and the second through a Republican precinct committee selection process not challenged here. As mentioned above with regard to the sufficiency of Kline’s sworn responses to this court’s 17 factual questions, he is not involved in this action nor is his conduct under our scrutiny because of who he is as a person, but because of the offices he occupied at the time of the subject events. The rub here is that, as Judge King recognized, Kline’s movement and storage of the patient records from the Attorney General’s office to the Johnson County District Attorney’s office was far from typical in timing and method. It also was far from typical because of the unique exchange of prosecutorial offices by Kline and Morrison and the intense political acrimony that surrounded it. Certain other aspects of Kline’s handling of these sensitive patient records also were well short of responsible. For example, he should have independently seen to it that a written log of access to the records was consistendy and completely maintained, particularly in light of this court’s emphasis on their privacy implications in Alpha. To the extent comparison of information from various sources could reveal patient identities, he should have ensured that those to whom the records were to be shown or their contents to be revealed or described were committed in writing beforehand to appropriate confidentiality. The extended time the records spent in Reed’s unsecured dining room was nothing short of grossly in competent. Kline’s and his lawyer subordinates’ statements to the public, press, Judge Anderson, and this court may yet subject them to disciplinary sanction. But our task at this moment is to determine whether mandamus is the appropriate avenue to relief in this action and, if so, the specific relief it supports. Judge King did not make an explicit finding of fact on which of the three possible factual scenarios regarding Kline’s transition existed — whether he simultaneously exited the Attorney General’s office and entered the Johnson County District Attorney’s office, whether there was a gap between Kline’s tenures, or whether there was an overlap. Our detailed review of the record does not establish the precise timing of Morrison’s swearing-in as Attorney General or Kline’s swearing-in as Johnson County District Attorney. In Kline’s own testimony before Judge King, he asserted that there was approximately an hour of overlap in his two offices — from his swearing-in as Johnson County District Attorney until Morrison’s swearing-in as Attorney General. Neither CHPP nor the Attorney General appear to take serious issue with that assertion. We thus address the third possible factual scenario and the doctrine of incompatibility of offices. The first Kansas case to discuss the common-law doctrine of incompatibility of office was Abry v. Gray, 58 Kan. 148, 48 Pac. 577 (1897). It recognized that incompatibility of function underlay the common-law doctrine. Abry, 58 Kan. at 149 (quoting People, ex rel. Ryan v. Green, 58 N.Y. 295, 304 [1874]); see also Congdon v. Knapp, 106 Kan. 206, 207, 187 Pac. 660 (1920) (holding offices of assistant chief food and drug inspector and hotel commissioner not incompatible). In Dyche v. Davis, 92 Kan. 971, 978-79, 142 Pac. 264 (1914), this court extended the incompatibility doctrine to holding position of public office and job as state employee. And, recently, in U.S.D. No. 501 v. Baker, 269 Kan. 239, 247-53, 6 P.3d 848 (2000), this court applied the doctrine to hold that a teacher’s acceptance of a position on the local board of education resulted in an ipso facto forfeiture of her position as a teacher. Kansas has not dealt with facts similar to those raised in this case. We have found only one other appellate court has examined an issue involving its state Attorney General. See State ex rel. Tho mas v. Wysong, 125 W. Va. 369, 373, 24 S.E.2d 463 (1943) (no incompatibility between office of Attorney General of West Virginia and commissioned officer in United States Army; duties not inconsistent and so divergent there is no incompatibility; “[I]ncompatibility [of offices] rests not upon physical inability to perform the duties of both offices, but arises from the inconsistent nature of the offices and their relation to each other, rendering it improper, from considerations of public policy for one person to perform the duties of both”). The statutes governing the duties of the position of the Kansas Attorney General are contained in K.S.A. 75-701 et seq., and the provisions governing the duties of the position of county and district attorneys are contained in K.S.A. 22a-101 through 22a-109. See also KRPC 3.6 (2007 Kan. Ct. R. Annot. 570) (trial publicity); KRPC 3.8 (2007 Kan. Ct. R. Annot. 525) (special responsibilities of a prosecutor as advocate). The only apparent potential for conflict we discern is the Attorney General’s statutory duty to provide “aid to county attorneys,” i.e., to “consult with and advise county attorneys, when requested by them, in all matters pertaining to their official duties.” K.S.A. 75-704. Such a conflict did not materialize in this case. If anything, Kline’s movements of the patient records and other inquisition materials from one office to another appear to constitute aid, consultation, or advice to the Johnson County District Attorney rather than their opposites. As the Attorney General points out, however, it is undisputed that the second factual scenario, a gap between employments or occupation of official position, existed for investigators Williams and Reed. Their employment with the Attorney General’s office ended no later than the time of Morrison’s swearing-in on the morning of January 8, 2007, and their employment with the Johnson County District Attorney’s office began no earlier than the following morning. Thus, to the extent they were engaged in movement or storage of the patient records during the intervening time period, which both they and Kline admit, they were engaged as private citizens with no public authority whatsoever. The Attorney General argues that this engagement was unlawful. We disagree. CHPP and the Attorney General admit, as Judge King found, that there are no binding standards for exactly how to effect an exchange of investigation information between prosecutors. There may be generally accepted professional patterns, and certainly attorney ethics rules establish a floor below which prosecutor behavior may not sink without risk of discipline. Kline’s long lob, enabling himself and his subordinates to play both sides of the net, was, at a minimum, unorthodox. At a maximum, it was cynically calculated not only to facilitate Kline’s ability to continue his pursuit of CHPP and WHCS despite his rejection by the statewide electorate but also to defeat or delay any review of the legal justification of that pursuit by a political nemesis whom the same electorate had selected as Kline’s successor. But the long lob was not illegal. And, there is no law preventing prosecutors from allowing private citizens to have a role in the transport and storage of inquisition documents. Moreover, CHPP is incorrect when it asserts that our Alpha decision required the patient records not to leave the Attorney General’s office. Our direction that the records, after redaction by the clinics and Judge Anderson’s appointed lawyer and consultant doctors, be “turned over to the Attorney General,” 280 Kan. at 925, simply had nothing to do with what happened to the records after that point. Alpha was not intended to instruct and did not instruct on whom Kline should or should not involve in any other aspect of his investigation; whether referrals should be made to other prosecutors; if so, which prosecutors would be acceptable; whether confidentiality agreements should be required of potential witnesses with whom the records’ contents were shared; how the records were to be stored; or how access to them was to be documented. In short, any inherent prosecutorial power to transmit information to other prosecutors that Kline possessed the day before Alpha was filed he still possessed the day after. See State v. Williamson, 253 Kan. 163, 165, 853 P.2d 56 (1993). And no law prescribed exactly how he was to go about it. The Attorney General’s argument that Kline unlawfully removed personal property of the Attorney General’s office also is not persuasive. The Attorney General relies on three cases — Huffman v. Mills, 39 Kan. 577, 18 Pac. 516 (1888); State v. Lawrence, 76 Kan. 940, 92 Pac. 1131 (1907); State ex rel. Terrell v. Thompson, 135 Kan. 193, 9 P.2d 628 (1932) — for the proposition that mandamus is appropriate to compel a former public officer to return property belonging to the office. But these cases are fatally distinct. In Huffman, the petitioner was a successor sheriff who named his predecessor as respondent. The respondent retained property belonging to the office, arguing the petitioner was not qualified to be sheriff because of a failure to canvass election returns. This court held that petitioner took office upon filing of his oath and bond and agreed that an action in mandamus or quo warranto was appropriate to compel respondent to deliver the property of the office to his successor. See 39 Kan. at 578-79. In Lawrence, the district court had issued a judgment on a dispute over the legal holder of the office of county treasurer. The execution of the judgment had not been stayed. We held that mandamus was appropriate to compel the delivery of the money, books, and records of the office to the person adjudged to be elected. See 76 Kan. at 944. The Thompson case also involved a treasurer s retention of money, books, and records. In that action, this court approved mandamus to force return of these items to the new treasurer of the township. See 135 Kan. at 194-95. None of these cases controls here because none involves a situation in which the former public officeholder is also a current officeholder with authority to possess the materials at issue. In Huffman, Lawrence, and Thompson, the continued possession by the former officeholder was entirely without legal support. In sum, the person who holds the position of Johnson County District Attorney may lawfully possess the results of a criminal investigation begun by the Attorney General. An Attorney General or a district attorney may use a private citizen to ferry results of a criminal investigation, e.g., Williams and Reed during the period between employment by the Attorney General’s office and employment by tire District Attorney’s office. To the extent Kline eventually seeks to admit in any criminal prosecution any of the records he and his subordinates and/or private citizens moved from one office to the other, his choices may have exposed that evidence to challenge; but that is an argument for another day in another case. The above analysis leads us to the conclusion that CHPP and the Attorney General are not entitled to the primary relief they seek. We will not force Kline to disgorge “each and every copy” of the patient records Kline and his subordinates have made “and any and all other evidence Kline developed and obtained while he was acting as Attorney General that he took with him to Johnson County.” However, as discussed below, this matter does not end there. Other Appropriate Relief The record before us demonstrates that Kline and his subordinates did not merely take copies of patient records and some or all of the work product they generated in the inquisition while Kline held the position of Attorney General. They took all copies of the patient records and certain other materials as well. Even if the unique circumstances of this case compel us to conclude that Kline was not prevented by law from moving the patient records to the Johnson County District Attorney’s office, that does not mean he was entitled to ensure that no coherent copies of these records or of other investigation materials were left behind. Indeed, we cannot condone his effort to stand in the way of his successor doing his job. As referenced briefly above, the patient records at the heart of this case and any and all other inquisition materials gathered or generated by Kline and/or his subordinates during the time he was Attorney General were gathered or generated through expenditure of state taxpayer dollars that flowed into the Attorney General’s budget for salaries and expenses. The state’s taxpayers, in the person of the current Attorney General, are entitled to a full, complete, and understandable set of those materials. We therefore hereby order the following relief: Kline shall produce and hand deliver to the Attorney General’s office no later than 5 p.m. on December 12,2008, a full, complete, and understandable set of the patient records and any and all other materials gathered or generated by Kline and/or his subordinates in their abortion-related inquisition while Kline was Attorney General. Neither Kline nor any of his subordinates or lawyers may make any exceptions whatsoever for an reason or on any rationale to the foregoing order. “Full, complete, and understandable” means exactly what it says. This set of materials shall be organized and labeled exactly as organized and labeled in the files or repositories maintained by and/or for Kline and his subordinates in the discharge of their duties on behalf of the Johnson County District Attorney s office. The cost of the production and delivery of the set of materials described in this paragraph shall be borne by the Johnson County District Attorney s office. Civil Contempt under Alpha CHPP has also asserted that this court should hold Kline in contempt because his behavior violated the mandate of Alpha by failing to ensure “a specific written protective order was ... in place,” which led to copying and dissemination without chain of custody or accountability, unrestricted access, and misuse. CHPP also asserts that Kline’s handling of the records failed to comply with privacy protections mandated by United States and Kansas Constitutions. We interpret CHPP’s prayer for relief in this action to refer to civil rather than criminal contempt. Civil contempt is the failure to do something ordered by the court for the benefit or advantage of another party to the proceeding. State v. Davis, 266 Kan. 638, Syl. ¶ 2, 972 P.2d 1099 (1999); Edmiston v. First Nat’l Bank of Holcomb, 242 Kan. 13, 15, 744 P.2d 829 (1987). A proceeding in civil contempt is remedial in nature, designed to advance the private right of a litigant won by court order. Alpha, 280 Kan. at 927; Davis, 266 Kan. 638, Syl. ¶ 2; Campbell v. Campbell, 198 Kan. 192, 193, 422 P.2d 941 (1967). Any penalty inflicted for civil contempt is intended to be coercive, and relief can be achieved only by compliance with the order. 198 Kan. at 193-94; Hendrix v. Consolidated Van Lines, Inc., 176 Kan. 101, 109, 269 P.2d 435 (1954); see also State v. Jenkins, 263 Kan. 351, 358, 950 P.2d 1338 (1997); Krogen v. Collins, 21 Kan. App. 2d 723, 726, 907 P.2d 909 (1995). In other words, a sentence imposed for civil contempt must permit the contemnor to “unlock the door of the . . . jail and discharge herself by doing what she has previously failed to do.” In re Conservatorship of McRoy, 19 Kan. App. 2d 31, 34, 861 P.2d 1378 (1993). We have already stated above that Alpha did not deal with the handling of the records once they reached the Attorney General’s office. It dealt with safeguards for patients’ constitutional privacy interests and the balance between those interests and the pursuit of Kline’s criminal investigations. It dealt with the steps Judge Anderson was required to follow to manage the production of the records in response to inquisition subpoenas; it did not deal with the use of the records by prosecutors after that point. It is true, as CHPP has emphasized, that our Alpha opinion also urged all sides to be sensitive to the confidential nature of the information in the records and the imperative of secrecy in investigations and to therefore limit their public statements. In its penultimate paragraph, we stated: “We caution all parties to resist any impulse to further publicize their respective legal positions, which may imperil the privacy of the patients and the law enforcement objectives at the heart of this proceeding.” 280 Kan. at 930. Despite Kline’s repeated invocations of the importance of patient privacy, his conduct evidences litde or no respect for it. His decision to appear on “The O’Reilly Factor” and his facilitation of McHugh’s interview are merely the most obvious examples of his pattern of willful disregard for the spirit that animated this court’s careful balance of patients’ constitutional privacy rights and the compelling state interest in criminal investigation articulated in Alpha. And these and other instances of his conduct raise troubling questions about Kline’s and any other involved lawyer’s compliance with the Kansas Rules of Professional Conduct — particularly KRPC 3.8, which specifically governs prosecutors and with which Kline expressed complete unfamiliarity at oral argument before this court. That much being said, we do not at this time deem it advisable to institute a proceeding against Kline for indirect civil contempt under K.S.A. 20-1204a. He has not persuaded us that such an action will never be appropriate, particularly if additional or amplifying information should come to light about his behavior since October 24, 2006, when the patient records came into his possession as Attorney General. Our reluctance to pursue an indirect civil contempt proceeding today is in part a reflection of our decision not to grant the primary relief sought on the merits, as well as a recognition that the letter of Alpha was directed at Judge Anderson rather than Kline. This reluctance should in no way be interpreted as approval of Kline’s attitude or behavior to this point. Indeed, we note that, during Judge Anderson’s testimony before Judge King, Kline’s counsel inquired whether it would be “fair to say” that “Kline has not been contemptuous of any of your orders.” Judge Anderson’s response was that he had not found Kline in contempt. This was artfully put. Judge Anderson did not accede to counsel’s effort to obtain his endorsement of Kline’s attitude and behavior. Neither do we. Attorney Fees and Sanctions We now address attorneys fees and sanctions. Because the primary relief sought by CHPP and the Attorney General has been denied, we also hold that they are not entitled to recovery of attorneys fees. Turning to sanctions, CHPP calls for this court to impose sanctions on Kline for bad faith conduct. Again, it focuses on Kline’s movement of the records from the Attorney General’s office to the Johnson County District Attorney’s office and on what it views as his responsibility for inadequate controls by Judge Anderson on access and dissemination of the records and their content once they were in Kline’s hands. For all of the reasons already discussed, we are unwilling to impose sanctions on Kline for the conduct on which CHPP focuses. However, we agree that other behavior by Kline and by subordinates, for whom even he admitted at oral argument he must bear responsibility, merits sanction by this court. We have inherent power to sanction behavior, not denominated contempt and absent particular statutory authorization, because sanction is “reasonably necessary for the administration of justice, provided these powers in no way contravene or are inconsistent with substantive statutory law.” Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 421, 625 P.2d 1117 (1981); see Alpha, 280 Kan. at 926; compare K.S.A. 60-237 (sanctions permitted for civil discovery violations); K.S.A. 60-211(b), (c) (civil pleadings, motions, other papers meriting sanction); K.S.A. 22-3212(g) (sanctions available for discovery violation in criminal cases). Several of our sister jurisdictions have recognized inherent power or discretion to sanction. See Ferguson v. Keays, 4 Cal. 3d 649, 94 Cal. Rptr. 398, 484 P.2d 70 (1971) (the Supreme Court and courts of appeal possess the inherent power, discretion to impose appropriate sanctions); see also State ex rel. Richard v. Cuyahoga Cty. Commrs., 100 Ohio App. 3d 592, 597, 654 N.E.2d 443 (1995); Pruett and Pruett, 185 Or. App. 669, 677, 60 P.3d 1094, rev. denied 335 Or. 443 (2003); In re Moore, 235 S.W.3d 210 (Tex. 2007). The record before us discloses numerous instances in which Kline and/or his subordinates seriously interfered with the performance of his successors as Attorney General and seriously interfered with this court’s effort to determine the facts underlying this action and the legal merit of the parties’ positions. Kline was demonstrably ignorant, evasive, and incomplete in his sworn written responses submitted to Judge King, this court’s appointed agent in the fact-finding process. Kline’s responses were far from full and forthright; they showed consistent disregard for Kline’s role as a leader in state law enforcement; and they delayed and disrupted this court’s inquiry. Among other things, he failed to consult with subordinates as appropriate to give responses, treating questions posed to him as a public servant whose conduct was under scrutiny in a mandamus action as though they were questions posed to him as an uncooperative and too-clever-by-half private litigant. He was thorough only when digressing from the point. Kline’s approach persisted during his examination as a sworn witness in the hearing before Judge King. It was not fully corrected in Kline’s supplemental written responses submitted on order of Judge King; and he returned to it in his appearance before this court at oral argument. Furthermore, when Kline’s behavior has been questioned, he has hustled to deflect responsibility and any attendant blame. Kline denied knowledge of the content of Williams’ affidavit before it was filed in support of the December 2006 charges in Sedgwick County. He attempted to sidestep accountability for the uncorrected Status and Disposition Report. He denied ever looking at the written record of access to the patient records this court directed him to maintain and file even though that would have been vital to his ability to sign his sworn supplemental responses to this court’s 17 fact questions. Regrettably, we note Kline’s example appears to have influenced his subordinates. The record demonstrates that Rucker attempted to minimize his familiarity with Alpha, although he appeared before this court to argue it. Maxwell also attempted to avoid his responsibility to correct the Status and Disposition Report he had drafted and given to Judge Anderson by saying he was no longer involved in Kline’s abortion-related investigation once it moved to Johnson County. With regard to Kline’s responses to this court’s 17 fact questions, we also note that, when we asked for legal authority for his behavior, Kline said only that one subordinate, Maxwell, had obtained permission to obtain a copy of certain information from another subordinate, Rucker. Yet Kline admitted at oral argument before us that it would not be appropriate for him simply to invoke Rucker as legal authority in a brief or oral argument to this court in a criminal case prosecuted by his office. Kline apparently felt free to treat this original action in the Kansas Supreme Court less conscientiously. We are also deeply disappointed by Kline’s casual treatment of the WHCS patient records. First, he moved them to the Johnson County District Attorney’s office, despite the clinic’s location in Sedgwick County. Second, he and Maxwell failed to correct the Status and Disposition Report given to Judge Anderson on this point. Even accepting, as we do, Judge King’s factual finding that no initial deception or misrepresentation was intended, the same cannot be said about Maxwell’s, and thus Kline’s, subsequent failure to set the record straight. Once Judge Anderson discovered that Kline had possession of the WHCS records, he demanded that the records be returned and questioned whether copies had been kept. He was told no. Yet Kline’s sworn responses to the 17 fact questions reveal that Kline and his subordinates failed to disclose to Anderson that certain summaries of the WHCS records had been created and maintained. By the time Kline appeared before this court for oral argument, he again expressed uncertainty as to whether the summaries existed or were in the possession or use of his office. Kline has demonstrated similarly disingenuous and possibly orchestrated confusion on his status vis a vis McHugh. After Kline was defeated in the Attorney General’s race but before he decamped to Johnson County, he embraced McHugh long enough to ensure that McHugh obtained redacted copies of patient records and other items that could enable patient identification. Kline later disavowed any ability to control McHugh’s behavior when McHugh discussed the contents of the records in an interview sponsored by an anti-abortion advocacy group. Kline’s behavior told a different story. He met with McHugh shortly before McHugh’s interview and listened to the interview as it was being conducted, both ostensibly because he was concerned about patient privacy. Still later, Kline personally typed an overinclusive affidavit for McHugh at the request of Judge Anderson. Although Kline did not, as Judge King found, personally pass that affidavit on to a legislative committee, he contributed without reason to the detail ultimately revealed by McHugh and others. An obvious and sorry pattern emerges from the foregoing examples and from Kline’s performance at oral argument before us. Kline exhibits little, if any, respect for the authority of this court or for his responsibility to it and to the rule of law it husbands. His attitude and behavior are inexcusable, particularly for someone who purports to be a professional prosecutor. It is plain that he is interested in the pursuit of justice only as he chooses to define it. As already noted in Alpha, he has consistently disregarded the clear import of this court’s directions, instead doing what he chose because “he knew best how he should behave, regardless of what this court had ordered, and [believed] that his priorities should trump whatever priorities this court had set.” Alpha, 280 Kan. at 929. We note that Kline has persisted in his attitude and behavior despite the fact that Alpha made clear that he had already narrowly escaped a contempt citation. He has repeatedly maximized jeopardy to Alpha’s delicate balance between abortion patients’ constitutional privacy rights and law enforcement interests. We therefore conclude that sanction is necessary to remediate the substantial actual costs the Attorney General’s office and this court have incurred as a result, to discourage Kline from continuing as he has, and to deter his subordinates and successors from following his example. In light of all of the foregoing and because Kline and his subordinates have, during their time in Johnson County, capitalized on what they learned while Kline was Attorney General, we hereby order the following sanction: Kline shall produce and hand deliver to the Attorney General’s office no later than 5 p.m. on December 12, 2008, a full and complete and understandable set of any and all materials gathered or generated by Kline and/or his subordinates in their abortion-related investigation and/or prosecution since Kline was sworn in as Johnson County District Attorney. Neither Kline nor any of his subordinates or lawyers may make any exceptions whatsoever for any reason or on any rationale to the foregoing order. “Full, complete, and understandable” means exactly what it says. This set of materials shall be organized and labeled exactly as organized and labeled in the files or repositories maintained by and/or for Kline and his subordinates in the discharge of their duties on behalf of the Johnson County District Attorney’s office. The cost of the production and delivery of the set of materials described in this paragraph shall be borne by the Johnson County District Attorney’s office. We also hereby order as an additional sanction that Kline, Rucker, Maxwell, Williams, Reed and any other employee of the Johnson County District Attorney’s office requested by the Attorney General shall meet with the Attorney General and/or his designee(s) on whatever date(s) and at whatever time(s) designated by the Attorney General up to and including noon on January 10, 2009, and at whatever place(s) designated by the Attorney General for the purpose of explaining all of the materials turned over by 5 p.m. on December 12, 2008, pursuant to the relief and sanction orders contained in this decision by this court. Motion to Strike Kline and his counsel’s principal explanation for why Kline’s final brief in this mandamus action discussed his allegations in the Johnson County criminal case against CHPP and why he decided to attach redacted copies of confidential KDHE records is unfortunately reminiscent of Kline’s initial troubling response to the contempt allegation in Alpha. Essentially, to Kline, the ends justify the means. The explanation is also entirely unconvincing. In our view, neither Kline nor his counsel can seriously believe that without the disputed portion of their brief or the attachments, we would have been unaware of the chronology or context of events underlying this case or of the potential of any relief we grant to affect the Johnson County criminal case. Litigation among these parties has been ongoing for years. Accordingly, we must conclude that this explanation is yet another post hoc rationalization for conduct designed to poison the well of public and judicial opinion about CHPP. Kline’s adoption of this tactic is not new but it is transparent. Again, Kline attempts to invoke his (irrelevant) opinion about the strength of his criminal case to defeat any criticisms of his choices in how to pursue it. We also agree with CHPP that Kline’s and his counsel’s attachment of the KDHE records may have run afoul of K.S.A. 65-445(c). As with certain other issues, we leave resolution of that issue to another case on another day. Finally, we also reject assertions by Kline and his counsel that the previous statements or actions of this court justified the content of or attachments to the brief. This court engaged in an enormously costly and careful redaction of the public files in this action and in State ex rel. Six v. Anderson. We were explicit in announcing that the parties should be guided by our redactions. As in Alpha, Kline simply believed he knew better than this court and the legislature what he should and should not include. In view of the above, we grant CHPP’s motion to strike as to the attachments to Kline’s brief. This court has disregarded the portion of the brief to which CHPP objects. Because Kline’s actions also seriously interfered with this court’s efforts to determine the facts and arrive at resolution, we also regard reimbursement of this court for the costs of this action in the amount of $50,000 — i.e., the minimum personnel expense associated with filings, hearings, and conferences that could have been avoided if Kline’s conduct had been otherwise — to be an appropriate additional sanction. However, were we to impose this sanction, it would be borne by Johnson County rather than Kline personally. We are unwilling to make those taxpayers foot any further bill for the conduct of a district attorney they did not elect in the first place and have now shown the door. Conclusion We believe the limited relief granted and the sanctions imposed above strike a moderate and reasonable balance among the interests of the parties to this action, as well as those of the patients whose privacy rights are at stake, and the citizens of this state who have a right to expect lawful, ethical, and professional behavior from their elected and appointed public servants. We appreciate the delicacy of the intersection between this action and others now pending or to be brought in the future. We are saddened but satisfied that the combination of relief and sanctions selected will ameliorate the most grievous harms still amenable to such treatment and remove all incentive for further inappropriate behavior that this court is capable of removing. We also note, as referenced above, that further instances of Kline’s improper conduct or the improper conduct of subordinates for whom he bears responsibility may yet come to light. Such actions, standing alone or when considered alongside Kline’s or others’ conduct in Alpha and/or in this case may merit civil or criminal contempt, discipline up to and including disbarment, or other sanctions. Furthermore, the known pattern of obstructive behavior prompting sanctions, standing alone, may be or become the subject of disciplinary or other actions; a copy of this opinion will be forwarded to the disciplinary administrator. We rule today only on the appropriateness of sanctions in this case because of the currently known components of obstructive behavior regarding this matter. We do not address other issues or potential issues in other actions. Petition for writ of mandamus is granted in part and denied in part, and sanctions are imposed as more fully set out in the foregoing opinion. It Is So Ordered.
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Per Curiam: This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against Respondent, Joe E. Lee, of Eureka, Kansas, an attorney licensed to practice law in Kansas since September 1986. In October 2002, 2004, 2005, and 2006, Respondent’s license to practice law in Kansas was suspended for failure to comply with the annual attorney registration requirements. On June 4, 2008, a hearing on the formal complaint was held before a hearing panel of the Kansas Board for Discipline of Attorneys. There were no objections to the notice of the hearing, to the date, time, or place of the hearing, to the composition of the hearing panel, or to the jurisdiction of the hearing panel. After hearing the evidence presented, the panel concluded that Respondent violated five rules of professional conduct: KRPC 1.3 (2007 Kan. Ct. R. Annot. 398) (diligence and promptness); KRPC 1.4(a) (2007 Kan. Ct. R. Annot. 413) (communication); KRPC 5.5(a) (2007 Kan. Ct. R. Annot. 539) (unauthorized practice of law); KRPC 8.1(b) (2007 Kan. Ct. R. Annot. 553) (bar admission and disciplinaiy matters); and KRPC 8.4(g) (2007 Kan. Ct. R. Annot. 559) (conduct adversely reflecting on lawyer’s fitness to practice law). In addition, the hearing panel found that Respondent violated: Kansas Supreme Court Rule 207(b) (2007 Kan. Ct. R. Annot. 288) (failure to cooperate in the disciplinary investigation); Kansas Supreme Court Rule 211(b) (2007 Kan. Ct. R. Annot. 304) (failure to respond to the formal complaint); and Kansas Supreme Court Rule 218(a) (2007 Kan. Ct. R. Annot. 337) (disbarred or suspended attorneys). The panel unanimously recommended that Respondent be disciplined by published censure. Respondent did not file exceptions to the final hearing report. The panel’s findings of fact, conclusions of law, and recommendations for discipline are reproduced in part as follows: “FINDINGS OF FACT “The Hearing Panel finds the following facts, by clear and convincing evidence: “2. On June 30th of each year, the annual attorney registration requirements for the subsequent registration period are due. The Respondent failed to comply with the annual registration requirements by June 30, in 2002, 2004, 2005, and 2006. “3. Also, in each of those years, the Clerk of the Appellate Courts forwarded notices to the Respondent that his license would be suspended if he failed to comply with the annual registration requirements. The Respondent failed to open many of the envelopes that contained the notices and he failed to comply with the annual registration requirements after the notices were received. “4. In October, of each of those years, the Kansas Supreme Court suspended the Respondent from the practice of law for failure to comply with the annual registration requirements. The Clerk of the Appellate Courts forwarded a copy of the each of the Orders of Suspension to the Respondent. However, the Respondent failed to open many of the envelopes that contained the Orders of Suspension. “5. The Respondent’s license to practice law was suspended during the following periods of time: October 7, 2002 — October 21, 2002 14 days October 6, 2004 — October 22, 2004 16 days October 13, 2005 — November 1, 2005 19 days October 11, 2006 — November 2, 2006 22 days During each of these periods of suspension, the Respondent practiced law. Also, upon suspension, tire Respondent did not notify his clients, opposing counsel, or the courts that his license had been suspended. “6. At the time his license was suspended in 2006, the Respondent was employed by the Southeast Kansas Public Defender. The Honorable Timothy Rrazil informed David A. Clark, Chief Attorney for the Southeast Kansas Public Defenderos office,] of the Respondent’s suspension. “7. Mr. Clark informed the Respondent that his license to practice law had been suspended and Mr. Clark provided the Respondent with the opportunity to resign his position rather than be terminated. The Respondent resigned his position with the Southeast Kansas Public Defender’s office, complied with the annual registration requirements, and obtained the reinstatement of his license. “8. After the Respondent resigned, Mr. Clark learned that the Respondent failed to respond or answer over 200 telephone messages and failed to file notices of appeal in two cases, State v. Bunyard and State v. Warren. At the hearing on this matter, Mr. Clark testified that he filed the notices of appeal and the clients did not suffer any loss. “9. On November 2, 2006, Mr. Clark filed a complaint with the Disciplinary Administrator’s office. On November 8, 2006, the Disciplinary Administrator sent the Respondent a letter, enclosed a copy of the complaint, and directed the Respondent to provide a written response to the complaint within 20 days. The Respondent failed to provided a written response to the complaint as directed. “10. On December 20, 2006, Patrick T. Forbes, the attorney assigned to investigate the complaint sent the Respondent a letter and directed the Respondent to provide a written response by January 2, 2007. The Respondent failed to provide a written response to the complaint as directed by Mr. Forbes. On January 4, 2007, the Respondent spoke with Mr. Forbes by telephone. That same day, Mr. Forbes sent the Respondent a letter with enclosures and directed the Respondent to review the enclosures and call Mr. Forbes. The Respondent failed to call Mr. Forbes after reviewing the enclosures. “11. On June 30, 2007, the Respondent’s annual registration fee and continuing legal education fee for the 2007-2008 registration period were due. The Respondent did not have sufficient financial resources to comply with the annual registration requirements. As such, the Respondent did not comply with the annual registration requirements. “12. From the time of his resignation from his employment with the Southeast Public Defender’s office until August, 2007, the Respondent remain[ed] unemployed. In August, 2007, the Respondent went to work as an Assistant Librarian. “13. In 2007, just as in the previous years, the Clerk of the Appellate Courts forwarded notices to the Respondent that his license would be suspended if he failed to comply with the annual registration requirements. “14. On October 9, 2007, the Kansas Supreme Court suspended the Respondent from the practice of law in the State of Kansas for failure to pay his annual registration fee and his continuing legal education registration fee. The Clerk of the Appellate Courts forwarded a copy of the Order of Suspension to the Respondent. “15. In January, 2008, the County Attorney’s position in Greenwood County became vacant. A number of individuals approached the Respondent and asked him to put his name in for the job. After being approached about the County Attorney’s job, the Respondent complied with the annual registration requirements. On January 24, 2008, the Kansas Supreme Court reinstated the Respondent to the active practice of law. After his license was reinstated, the Respondent agreed to submit his name for consideration of the Greenwood County Attorney’s position. “16. In February, 2008, the Respondent was appointed as the Greenwood County Attorney. The Respondent remains in that position. “17. On March 18, 2008, the Disciplinary Administrator sent the Respondent the Formal Complaint, Notice of Hearing, and a copy of the Disciplinary Administrator’s Exhibits via certified mail. On March 24,2008, the Respondent received the package. The Respondent failed to file an Answer to the Formal Complaint. “18. For many years, the Respondent has suffered from severe depression. The Respondent’s depression has inhibited his ability to perform some simple tasks. Through therapy and medication, the Respondent has made significant improvements. “CONCLUSIONS OF LAW “1. The Respondent stipulated that he violated KRPC 1.3, KRPC 1.4, KRPC 5.5, KRPC 8.1(b), KRPC 8.4(g), Kan. Sup. Ct. R. 207(b), Kan. Sup. Ct. R. 211(b), and Kan. Sup. Ct. R. 218(a). Accordingly, based upon the Respondent’s stipulation and the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.3, KRPC 1.4, KRPC 5.5, KRPC 8.1(b), KRPC 8.4(g), Kan. Sup. Ct. R. 207(b), Kan. Sup. Ct. R. 211(b), and Kan. Sup. Ct. R. 218(a), as detailed below: “2. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.3 and KRPC 1.4(a) when he failed to return many telephone calls while working at the Southeast Kansas Public Defender’s office. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.3 and KRPC 1.4(a). “3. KRPC 5.5(a) prohibits the unauthorized practice of law. In 2002, 2004, 2005, and 2006, after the Kansas Supreme Court suspended the Respondent’s license to practice law, the Respondent continued to practice. Because the Respondent continued to practice law when his license to do so had been suspended, the Hearing Panel concludes that the Respondent violated KRPC 5.5(a). “4. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). The Respondent continued to practice law after his license to do so had been suspended. Practicing on a suspended license, adversely reflects on the Respondent’s fitness to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g). “5. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. ‘A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority, ____’ KRPC 8.1(b). ‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’ Kan. Sup. Ct. R. 207(b). The Respondent knew or should have known that he was required to forward a written response to the initial complaint — he had been instructed to do so in writing by the Disciplinary Administrator and by the attorney investigator. Because the Respondent failed to provide a written response to the initial complaint as requested by the Disciplinary Administrator and the attorney investigator, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b). “6. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provide[s] the requirements: ‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’ Kan. Sup. Ct. R. 211(b). In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by fading to file a written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b). “7. Kan. Sup. Ct. R. 218(a) provides: ‘In the event any attorney licensed to practice law in Kansas shall hereafter be . . . suspended from the practice of law pursuant to these Rules, . . . such attorney shall forthwith notify in writing each client or person represented by him or her in pending matters, of his or her inability to undertake further representation of such client after the effective date of such order, and shall also notify in writing such client to obtain other counsel in each such matter. As to clients involved in pending litigation or administrative proceedings, such attorney shall also notify in writing the appropriate court or administrative body, along with opposing counsel, of such inability to further proceed, and shall file an appropriate motion to withdraw as counsel of record.’ Following his suspension in 2002, 2004, 2005, and 2006, the Respondent violated Kan. Sup. Ct. R. 218(a) when he failed to notify his clients, opposing counsel, and the courts of his suspension. Thus, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 218(a). “AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS “In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “Duty Violated. The Respondent violated his duty to his clients to provide diligent representation and adequate communication. The Respondent violated his duty to the legal profession to comply with the annual registration requirements and to cooperate in disciplinary investigation. “Mental State. The Respondent negligendy violated his duties. “Injury. As a result of the Respondent’s misconduct, the Respondent caused potential injury to his clients and the legal profession. “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: “Prior Disciplinary Offenses. While the Respondent has not previously been disciplined, he has previously participated in the Attorney Diversion Program. In the previous matter, the Respondent violated KRPC 1.3, KRPC 3.2, and KRPC 8.4(d). “A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct by failing to comply with the annual registration requirements in 2002,2004,2005, and 2006 and by practicing law during the subsequent periods of suspension. “Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 5.5, KRPC 8.1(b), KRPC 8.4(g), Kan. Sup. Ct. R. 207(b), Kan. Sup. Ct. R. 211(b), and Kan. Sup. Ct. R. 218(a). As such, the Respondent committed multiple offenses. “Bad Faith Obstruction of the Disciplinary Proceeding by Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent failed to provide a written response to the complaint and the Respondent failed to file an Answer to the Formal Complaint. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1986. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 16 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct. “Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommen dation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present: “Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case. “Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. The Respondent has suffered from depression for many years. As a result of the misconduct, the Respondent has struggled with attending to many seemingly routine business matters, paying bills, completing registration forms, etc. The Respondent’s depression direcdy contributed to his misconduct. “The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. At the outset of the hearing, the Respondent stipulated to the factual allegations and rule violations alleged in the Formal Complaint. As such, the Hearing Panel concludes that the Respondent cooperated in the disciplinary hearing by his complete acknowledgment of the misconduct. “Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney, The Respondent is an active and productive member of the bar in Eureka, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by the testimony of Mr. Clark and Mr. Forbes. “Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse. “Any Statement by the Complainant Expressing Satisfaction with Restitution and Requesting No Discipline. At the hearing on the Formal Complaint, Mr. Clark testified that he did not know that any discipline is appropriate in this case. “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.’ Standard 4.43. ‘Reprimand is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding.’ Standard 6.23. ‘Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.3. “RECOMMENDATION “The Deputy Disciplinary Administrator recommended that the Respondent be censured and that the censure be published in the Kansas Reports. The Re spondent requested that he be allowed to continue to practice law and generally joined the Deputy Disciplinary Administrator in the recommendation for published censure. “While the Hearing Panel is cognizant of the seriousness of the Respondent’s misconduct, the Hearing Panel also notes the significance of the mitigating factors present in this case. The Respondent’s depression pre-dated the beginning of the misconduct, and continues to date. However, while the Respondent continues to suffer from depression, he has made significant improvement in his recovery from this debilitating condition. The Hearing Panel believes that, with his current support system, the Respondent can competently handle the demands of the position of Greenwood County Attorney. The position is not a full-time position and when the Respondent accepted this position, he understood that he could additionally develop a private practice. However, the Respondent has appropriately acknowledged that he is not currently equipped to handle -the stress that would come with juggling a private practice in addition to his responsibilities as the Greenwood County Attorney.” Respondent did not file any exceptions to the panel’s final hearing report and, thus, the findings of fact in the panel’s report are deemed to be admitted. Supreme Court Rule 212(d) (2007 Kan. Ct. R. Annot. 317). Based upon the findings of fact, conclusions of law, and the standards listed above, the hearing panel unanimously recommended that Respondent be censured by this court. The hearing panel further recommended that the censure be published in the Kansas Reports. The hearing panel made the recommendation of published censure, subject to the following conditions: “1. The Respondent shall continue to participate in psychological treatment. The Respondent and his treatment professionals shall provide quarterly reports to the Disciplinary Administrator, beginning October 1, 2008, and continuing for two years. “2. The Respondent shall timely comply with the annual registration requirements. On or before June 30, 2009, and June 30, 2010, the Respondent shall provide proof to the Disciplinary Administrator that he has fully complied with all of the annual registration requirements, including paying the annual registration fee, paying the annual continuing legal education fee, and complying with the annual continuing legal education requirements. The Hearing Panel recommends that if the Respondent fails to timely comply with the annual registration requirements in 2009 and 2010, the Disciplinary Administrator file a motion to show cause before the Kansas Supreme Court and request that the Respondent’s license to be suspended for one year.” We adopt the hearing panel’s findings of fact and conclusions of law. The court adopts the recommendation of the panel to impose the sanction of published censure, including the conditions outlined above. It Is Therefore Ordered that Respondent, Joe E. Lee, be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2007 Kan. Ct. R. Annot. 261) for violations of KRPC 1.3, 1.4(a), 5.5(a), 8.1(b), and 8.4(g). It Is Futher Ordered that this opinion be published in the official Kansas Reports and that the costs of these proceedings be assessed against Respondent.
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The opinion of the court was delivered by Johnson, J.: Eric Jones appeals his jury trial conviction for premeditated first-degree murder. He raises three issues: (1) Whether the district court erred in admitting the deceased victim’s hearsay statement as a dying declaration; (2) whether the prosecutor committed prosecutorial misconduct in closing argument; and (3) whether the district court committed clear error in failing to instruct the jury on certain lesser included offenses. Finding no reversible error, we affirm Jones’ conviction. FACTUAL OVERVIEW The sequence of events leading to the fatal shooting of the victim, Brannon Wright, began with a social gathering at the Kansas City, Missouri, home of Maleka Henson, Jones’ girlfriend with whom he had been living while recuperating from ankle surgery. Initial party guests included Xavier Miller and his girlfriend, August Peeler. Later arrivals included Dionte Harris, his girlfriend, Keona Redmond, and the victim, Wright. Henson retired to bed early. Harris, Redmond, and the victim, Wright, subsequently left the party. Miller and Peeler stayed the night at the Henson residence. The following morning, Henson discovered approximately $300 to $400 missing from her purse and advised Jones of her discovery. After Miller and Peeler denied having any knowledge about the missing money, Jones, accompanied by Henson and Miller, traveled to a Kansas City, Kansas, residence to question Harris. En route, they picked up another friend, Terrae Johnson. Henson’s door knocking awakened Harris, who denied any knowledge of the missing money and then checked the pockets of the sleeping Redmond. When Harris and Henson went outside, Harris observed a car containing Jones, Miller, and Johnson park behind Harris’ vehicle. Jones exited the car and inquired as to Wright’s whereabouts. After advising Jones that Wright was asleep in his vehicle, Harris awakened Wright, told him to exit the vehicle, and advised him of the missing money. Wright denied any knowledge of the missing money and sat on the vehicle’s trunk. According to Harris, he observed that Jones had a firearm and exhorted Jones to “hold on” while Harris awakened his girlfriend. However, Jones retorted that Harris should not worry because it was going down in 3 seconds, whereupon Jones drew the weapon and commenced firing at Wright. Harris made a hasty retreat toward the backyard and over a brick wall, eventually circling around to enter the residence by the back door and awaken his girlfriend. Nevertheless, Harris said that he saw Wright kick his foot in front of the gun barrel; that he heard Wright screaming that he did not take any money; that Wright tried to get away and move to the front of the vehicle, but Jones continued to fire; that Wright attempted to grab the gun; and that he heard several shots, perhaps five, with some pauses between shots. At trial, Harris identified the weapon. Henson, Miller, Jones, and Johnson fled the scene and returned to Henson’s home, where Peeler observed that the group was behaving as if something had happened. Miller and Johnson left Henson’s house by vehicle, only to be detained by law enforcement a short distance away who discovered Johnson in possession of the weapon used in the shooting. Jones changed clothes and placed his blood splattered clothing in a plastic bag which was subsequently retrieved from under a back porch. A button was missing from the discarded shirt, which matched a button found at the shooting scene. The bag contained only one shoe, with the matching shoe found in a bedroom in Henson’s house. Meanwhile, Brian Taylor, a firefighter paramedic, and Brett McCoy, an ambulance paramedic were responding to the shooting scene. Taylor found Wright lying in the street, critically injured. He rode with McCoy in the ambulance en route to the hospital. McCoy observed a number of gunshot wounds and determined that Wright was paralyzed in all four limbs. Wright was conscious and able to communicate, at one point asking McCoy whether he was going to die, to which McCoy did not directly respond. McCoy spoke with Wright in order to keep him awake and to confirm that his airway was open. McCoy asked if Wright knew who had shot him, eliciting the response, “53rd and Brooklyn.” When asked if that was his address, Wright said, “no.” McCoy then asked if that was the address of the shooter, to which Wright answered, “yes.” When asked again who shot him, Wright responded, “E,” which was subsequently revealed as a nickname for the defendant, Jones. Ultimately, Wright died of complications of the paralysis caused by the gunshot wounds. Jones was charged, tried, and convicted of premeditated first-degree murder. After a denial of Jones’ new trial motion, the district court sentenced him to a hard 25 life sentence. Jones timely appealed his conviction. ADMISSIBILITY OF VICTIM’S STATEMENTS Jones states that his first issue is whether the district court erred in admitting, as a dying declaration, the victim’s hearsay statements to the paramedics, suggesting an evidentiary challenge based upon our hearsay statutes. However, his arguments concentrate on the Confrontation Clause of the Sixth Amendment to the United States Constitution as interpreted in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). More specifically, Jones principally argues against applying the exception to his confrontation right referred to as forfeiture by wrongdoing, which was discussed in Crawford and adopted by this court in State v. Meeks, 277 Kan. 609, 88 P.3d 789 (2004). The appellant’s imprecision in defining his arguments follows an amalgamated ruling by the district court. Although the parties had only argued the applicability of a hearsay exception under our state statutes, the district court opined that the victim’s statements were admissible under Crawford and Meeks, which were cases addressing the Confrontation Clause constitutional question. The district court mentioned that these cases approved the doctrine of forfeiture by wrongdoing. The court also found that the declarant believed that he was dying and that he was excited at the time, suggesting the applicability of the hearsay exceptions in K.S.A. 2007 Supp. 60-460(e) and (d)(2). Further, the court found that the statements were reliable. The State’s brief begins by reciting that the standard of review for the admission of a statement under the Kansas hearsay statutes is abuse of discretion. However, it then embarks on a constitutional analysis of whether the victim’s statements were testimonial in nature, so as to implicate the Confrontation Clause. The State summarily concludes that the statements were not testimonial, thus disposing of the constitutional question and proceeding to the remaining question of the applicability of a hearsay exception under K.S.A. 2007 Supp. 60-460. However, after arguing that the district court did not abuse its discretion in admitting the statements under the dying declaration hearsay exception of K.S.A. 2007 Supp. 60-460(e), the State returns to the constitutional right of confrontation issue to discuss the forfeiture by wrongdoing exception. Accordingly, we take the liberty of arranging the various questions in our own order. First, we will discuss the State evidentiary question and then the federal constitutional implications. Hearsay Exception Neither party disputes that the victim’s statements, offered through the paramedics, constituted hearsay evidence which would be inadmissible unless an exception listed in K.S.A. 2007 Supp. 60- 460 is applicable. As noted, the district court intimated that both the dying declaration exception of K.S.A. 2007 Supp. 60-460(e) and the excited utterance exception of K.S.A. 2007 Supp. 60-460(d)(2) applied to the facts of this case. On appeal, neither party even mentions the excited utterance exception, and we will not analyze that provision. See State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007) (issue not briefed deemed waived or abandoned). K.S.A. 2007 Supp. 60-460(e) specifically provides that a dying declaration is an exception to the hearsay rule if the court finds that the statement of the deceased was made “(1) voluntarily and in good faith and (2) while the declarant was conscious of the declarant’s impending death and believed that there was no hope of recovery.” With respect to the second element of the exception, the district court found that Wright certainly had reason to believe that he was dying at the time of the statements. The evidence supports that finding. Wright had sustained multiple gunshots wounds which left him paralyzed in all four limbs. Pointedly, Wright asked one of the two paramedics who were working on him in the ambulance whether he was going to die, manifesting an awareness that he was on the brink of death. Just as pointedly, the paramedic did not give Wright assurance that he would live, but rather responded that the paramedics would do everything they could to keep him from dying. With respect to the first element, the district court did not specifically say that the statements were made voluntarily and in good faith. However, the circumstances under which the statements were obtained do not suggest that they were involuntarily made. Moreover, the district court specifically found that the statements were rehable which would by necessity encompass the good-faith element. Therefore, we find that the victim’s statements to the paramedics fell within the dying declaration exception to the statutory hearsay. Confrontation Clause In Crawford, the United States Supreme Court abrogated its holding from Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), which permitted the admission of an una vailable witness’ statement if the statement bore an adequate indicia of reliability. Crawford held that the Confrontation Clause of the Sixth Amendment barred “testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” 541 U.S. at 53-54. Here, there is no dispute about Wright being unavailable to testify or about Jones not having an opportunity to cross-examine Wright. Rather, the State contends that the victim’s statements to the paramedics were not testimonial in nature, and, therefore, the Confrontation Clause does not apply. The Crawford Court did not provide a comprehensive definition for “testimonial” but stated that, at a minimum, it applied to prior testimony at a preliminary hearing, before a grand jury, or at a former trial and to police interrogations. 541 U.S. at 68. Subsequently, this court discussed the question in depth and explained: “Factors to be considered in determining whether a hearsay statement is testimonial include: (1) Would an objective witness reasonably believe such a statement would later be available for use in the prosecution of a crime? (2) Was the statement made to a law enforcement officer or to another government official? (3) Was proof of facts potentially relevant to a later prosecution of a crime the primary purpose of the interview when viewed from an objective totality of the circumstances, including circumstances of whether (a) the declarant was speaking about events as they were actually happening, instead of describing past events; (b) the statement was made while the declarant was in immediate danger, t.e., during an ongoing emergency; (c) the statement was made in order to resolve an emergency or simply to learn what had happened in the past; and (d) the interview was part of a governmental investigation?; and (4) Was the level of formality of the statement sufficient to make it inherently testimonial; e.g., was the statement made in response to questions, was the statement recorded, was the declarant removed from third parties, or was the interview conducted in a formal setting such as in a governmental building?” State v. Brown, 285 Kan. 261, Syl. ¶ 15, 173 P.3d 612 (2007). The first persons to attend to Wright after the shooting were the paramedics who accompanied him in the ambulance. Wright was paralyzed and obviously aware that he had been seriously wounded; there was apparently no opportunity for him to be interrogated by an investigating law enforcement officer at the scene. Although Wright was in the midst of a medical emergency, the paramedics’ questions at issue here were not designed to deal with the imme diate danger. Rather, the questions about the identity of the shooter related to past events and sought information above and beyond what was necessary to administer medical care. Accordingly, Wright would have reasonably believed that his answers would be passed along to law enforcement officers and would later be available for use in prosecuting the shooter. Granted, the paramedics testified that the questioning of a patient fulfills a medical purpose by assuring the paramedic that the patient’s airway remains open and by assisting in maintaining the patient’s consciousness. However, that purpose does not explain the content of the questions which were asked. The fire department paramedic acknowledged that the information obtained through their questioning often helps the police where the patient has been transported from the scene quickly, before any police investigation could occur. Here, the specific questions asked were obviously designed to obtain such helpful information for law enforcement. In that light, the interview formed a part of a governmental investigation into past events. In short, Wright’s statements to the paramedics were testimonial in nature and their introduction into evidence would violate Jones’ confrontation right, unless an exception applies. Crawford left open the possibility of two exceptions to a person’s constitutional right to confront witnesses, dying declarations and forfeiture by wrongdoing. In a footnote, the Crawford opinion noted that the existence of the dying declaration exception to the general rule of exclusion in criminal hearsay law cannot be disputed. The Court did not need to decide whether the Sixth Amendment incorporated this exception in order to make the Crawford decision. “Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. [Citations omitted.] We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.” 541 U.S. at 56 n.6. Crawford also continued to accept the rule of forfeiture by wrongdoing because it extinguished confrontation claims on equitable grounds; it did not purport to be an alternative means of determining reliability. 541 U.S. at 62. The rule provides that when a witness is absent by the criminal defendant’s procurement, the defendant cannot assert a violation of his or her constitutional right to confrontation. Reynolds v. United States, 98 U.S. 145, 158, 25 L. Ed. 244 (1878). Subsequently, in Meeks, this court considered and applied the forfeiture doctrine in light of Crawford. There, Meeks was charged with murdering a man who died from a gunshot wound. However, when the first police officer arrived on the scene, the victim was still alive. The officer asked the victim who had shot him, and the victim replied, “ ‘Meeks shot me.’ ” 277 Kan. at 611. On appeal from his conviction of premeditated first-degree murder, Meeks challenged the trial court’s admission of the victim’s statement as violating his Sixth Amendment right to confront the witnesses against him. Meeks found that a preponderance of the evidence established that the declarant could not testify at trial because the defendant had murdered the declarant. Accordingly, Meeks held that the defendant had “forfeited his right of confrontation and waived any hearsay objections,” and, accordingly, the deceased victim’s statements were properly admitted at trial. 277 Kan. at 616. Jones acknowledges the Meeks decision, but argues that the forfeiture by wrongdoing doctrine should not be applied in all cases. Citing to the post -Crawford decision in Gonzalez v. State, 195 S.W.3d 114 (Tex. Crim. 2006), Jones suggests that the defendant’s motive for killing the declarant should be considered in determining whether the rule should be applied. In contrast, the State summarily asserts that under Meeks the rule of forfeiture by wrongdoing extinguishes any confrontation claim. During the pendency of this appeal, the Supreme Court granted certiorari in a case that dealt with admitting the murder victim’s unconfronted testimony at the trial of the accused killer under a doctrine of forfeiture by wrongdoing. We perceived that a decision in that case could impact the continued viability of our holding in Meeks. That decision has now been rendered. Giles v. California, 554 U.S. 353, 171 L. Ed. 2d 488, 128 S. Ct. 2678 (2008). Giles clarified that it is insufficient to merely show that the defendant wrongfully caused the absence of a witness in order to admit the witness’ unconfronted testimony under the forfeiture rule. The State must show that the defendant intended to prevent the witness from testifying. 554 U.S. at 359-61. Applying the Giles holding to the case before us, the State was required to show that Jones killed the victim with the intent to prevent the victim from testifying against Jones in order to establish the admissibility of the victim’s statement under the forfeiture doctrine. Presumably because Meeks had not delineated an intent requirement to invoke forfeiture, the State did not argue nor did the district court find that Jones’ killing of the victim was effected with an intent to prevent the victim’s later testimony. Perhaps one could infer that Jones’ actions in pursuing the victim around the vehicle and into the street, while discharging numerous rounds from his handgun, manifested an intent to make certain that the victim would not be alive to testify. On die other hand, given the presence of a number of other witnesses at the shooting scene, the killing would not have assured that the killer’s identity would go undetected. Therefore, we are unwilling to declare as a matter of law that a preponderance of the evidence which was presented below showed that Jones killed the victim with the intent to prevent his subsequent testimony at the ensuing murder trial. Nevertheless, given our ruling below on the dying declaration exception, we need not remand for further proceedings. As in Crawford, the issue presented in Giles did not require that the Supreme Court definitively decide whether the common-law hearsay exception for a dying declaration was incorporated into the Sixth Amendment’s Confrontation Clause, i.e., whether a dying declaration is an exception to the constitutional preclusion of unconfronted testimony. However, the Supreme Court again “acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted,” and proceeded to describe that “[t]he first of these were declarations made by a speaker who was both on the brink of death and aware that he was dying.” Giles, 554 U.S. at 358. Subsequently, in discussing the historical application of the forfeiture doctrine, Giles observed: “The manner in which the rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying — as in the typical murder case involving accusatorial statements by the victim — the testimony was excluded unless it was confronted or fell within the dying-declaration exception. Prosecutors do not appear to have even argued that the judge could admit the unconfronted statements because the defendant committed the murder for which he was on trial.” (Emphasis added.) 554 U.S. at 361-62. Accordingly, we are confident that, when given the opportunity to do so, the Supreme Court would confirm that a dying declaration may be admitted into evidence, even when it is testimonial in nature and is unconfronted. Here, the evidence was sufficient to establish that, when the murder victim made the declarations, he “was both on the brink of death and aware that he was dying.” 554 U.S. at 358. Therefore, we find that the statements were admissible. PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT Next, Jones contends that the prosecutor improperly argued matters which were not in evidence. Specifically, he points to the statements that (1) a button was tom off Jones’ shirt by the victim as he lunged at Jones; (2) Jones did not want the victim to survive; (3) Jones wore one shoe; (4) Jones followed the victim into the street to shoot him; (5) Jones concluded that he must kill; and (6) a person does not bring a loaded gun without having the intent to use it. Jones also complains that the prosecutor said Jones procured the absence of Terrae Johnson and misstated the law of premeditation. He characterizes the prosecutor’s comments as “surmise and conclusory,” and contends that the misconduct during closing argument likely changed the result of the trial. We disagree. 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, the appellate court decides whether those comments constitute plain error; that is whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007). In the second step of the two-step analysis, the appellate court considers three factors: “(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, [22,] 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) [(conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial)], have been met. [Citations omitted.]” Albright, 283 Kan. at 428. The State reminds us that, although it is improper for an attorney to state facts which are not in evidence, a prosecutor is allowed considerable latitude in discussing the evidence and may draw reasonable inferences from the evidence which is in the record. State v. Carter, 278 Kan. 74, 80, 91 P.3d 1162 (2004). Moreover, misstatements of fact which are insignificant to the State’s theory of the case are not considered to be an error so gross and flagrant as to have violated the defendant’s right to a fair trial. State v. Baker, 281 Kan. 997, 1012-13, 135 P.3d 1098 (2006). The prosecutor made the following comments that are relevant to Jones’ argument: “The premeditation. You heard Dionte testify as to the gunshots. It wasn’t— it’s a semiautomatic, but you have — to my understanding of guns, you have to load it. But what does he do? Pop, pop, pop. Then there is a pause. He had to follow him into the middle of the street to the point he can’t get up any more because then he’s paralyzed. So he has — he’s aiming. He takes his time. Because he’s going to make sure — because Brannon [victim] doesn’t go down with the first shot. He’s coming after him. He gets ahold of the shirt. The button is tom off. He’s really got to finish the job now.” A review of the record discloses that the evidence of which Jones complains was admitted. A photograph of the shirt which Jones admitted wearing and which reflected a missing button was introduced into evidence, along with evidence that a similar button was found at the scene. There was testimony about Jones’ broken foot and the fact that his shoes were found in two different locations. The shooting incident commenced at a parked vehicle, but the victim was felled in the street near the opposite curb after sustaining numerous gunshot wounds. The prosecutor argued the reasonable inferences to be drawn from the facts. Further, the prosecutor s closing argument did not suggest that Jones procured the absence of Terrae Johnson, but rather the prosecutor simply pointed out that it was convenient for the defendant to blame another person who was not present for the trial. Finally, Jones failed to cite us to the portion of the prosecutor’s argument where he believes the law of premeditation was misstated, and we are unable to locate such a misstatement of the law. In short, we find that the prosecutor did not state any facts that were not in evidence; that the prosecutor argued inferences which could be reasonably drawn from the admitted evidence; that the prosecutor’s arguments fell within the latitude afforded to prosecutors to discuss the evidence; and that the prosecutor did not misstate the law applicable to premeditation. Nevertheless, even if we were to find isolated portions of the argument to have exceeded the permissible bounds, viewing the entire argument convinces us that any such error would fall far short of being reversibly gross and flagrant. ADDITIONAL LESSER INCLUDED OFFENSE INSTRUCTIONS The district court instructed the juiy on premeditated first-degree murder and the lesser included offense of intentional murder in the second degree. On appeal, Jones now contends that the jury should also have been instructed on unintentional second-degree murder, voluntary manslaughter, and involuntary manslaughter as lesser included crimes of first-degree murder. See State v. Engelhardt, 280 Kan. 113, 135, 119 P.3d 1148 (2005) (voluntary manslaughter and involuntary manslaughter, like second-degree murder, are lesser included offenses of first-degree murder). Because Jones did not request the additional lesser included offense instructions, we apply a clearly erroneous standard of review. See State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). “ Instructions are clearly erroneous only if the reviewing court is firmly convinced that diere is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]’ State v. Saenz, 271 Kan. 339, 346, 22 P.3d 151 (2001).” State v. Trotter, 280 Kan. 800, 805, 127 P.3d 972 (2006). If the evidence would not have permitted a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offenses, instructions on those additional offenses need not be given. Engelhardt, 280 Kan. at 134; State v. Deavers, 252 Kan. 149, 151, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993). Unintentional second-degree or'“depraved heart” murder is a killing committed unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life. K.S.A. 21-3402(b). Involuntary manslaughter is a killing committed unintentionally but recklessly. K.S.A. 21-3404(a). In State v. Robinson, 261 Kan. 865, 876-78, 934 P.2d 38 (1997), we discussed the requirements for unintentional second-degree murder. “Both depraved heart murder and recldess involuntary manslaughter require recklessness — that the killing be done under circumstances showing a realization of the imminence of danger and a conscious disregard of that danger. Depraved heart murder requires the additional element that (he reckless killing occur under circumstances manifesting extreme indifference to the value of human life. “We hold that depraved heart second-degree murder requires a conscious disregard of the risk, sufficient under the circumstances, to manifest extreme indifference to the value of human life. Recklessness that can be assimilated to purpose or knowledge is treated as depraved heart second-degree murder, and less extreme recklessness is punished as manslaughter. Conviction of depraved heart second-degree murder requires proof that the defendant acted recklessly under circumstances manifesting extreme indifference to the value of human life. This language describes a kind of culpability that differs in degree but not in kind from the ordinary recklessness required for manslaughter.” Voluntary manslaughter is a killing committed intentionally upon a sudden quarrel or in the heat of passion. K.S.A. 21-3403(a). A killing must have resulted from severe provocation in order to constitute voluntary manslaughter. State v. Drennan, 278 Kan. 704, 713, 101 P.3d 1218 (2004). “The test for whether severe provocation exists is objective, and the provocation must be sufficient to cause an ordinary person to lose control of his or her actions or reason.” State v. Bell, 266 Kan. 896, 918, 975 P.2d 239, cert. denied 528 U.S. 905 (1999). Inexplicably, Jones argues that instructions on all three crimes would have been consistent with his theory of defense. However, as the State notes, Jones’ theory of defense was that Terrae Johnson was the shooter, not Jones. None of the lesser offenses comports with the defense theory. Moreover, there was absolutely no evidence that the shooting was the product of recklessness or that the attack was a reaction to a contemporaneous provocation. Accordingly, a rational jury could not have found sufficient evidence to convict Jones of the lesser included offenses which he proffers on appeal, and it was certainly not clearly erroneous to refrain from instructing on those crimes. Affirmed.
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Per Curiam: This is an uncontested, original proceeding in discipline filed by the office of the Disciplinary Administrator against Respondent Frederick B. Campbell, a Garnett attorney licensed to practice in this state since 1998. The Disciplinary Administrator filed a formal complaint against Respondent for his conduct in connection with his performance as county attorney for Anderson County, Kansas, alleging violations of Kansas Rules of Professional Conduct (KRPC) 4.4(a) (2008 Kan. Ct. R. Annot. 558) (embarrassment, delay, burden to third person); KRPC 8.4(d) (2008 Kan. Ct. R. Annot. 586) (conduct prejudicial to administration of justice); and KRPC 8.4(g) (conduct adversely reflecting on fitness to practice law). Hearing Panel’s Findings of Fact and Conclusions of Law The facts as found by Respondent’s disciplinary hearing panel included the following: In early May 2007, certain minors attended a Greeley-area party at which beer was consumed. One minor girl, C.H., who had drunk approximately six beers, was photographed by other partygoers while she had sexual intercourse with a foreign exchange student, M.V. The amateur photographers also recorded certain minors drinking beer at the party. Within a few days, C.H. informed her school counselor that M.V. had sexually assaulted her at the party. Law enforcement was notified. During this same time period, the Anderson County Sheriff s office was also investigating a similar report about M.V. from a second female high school student. Law enforcement officers obtained some of the photographs taken at the May party and forwarded them to Respondent. Respondent altered the photographs to obscure faces and certain body parts but not others. He concluded that he would not pursue prosecution of M.V. because Respondent believed the sexual conduct depicted in the photographs to have been consensual. The Anderson County Review newspaper ran an article in early July 2007 in which it discussed Respondent’s view of the incident. The newspaper further reported that Respondent planned to show the photographs from the May party to the parents of minors who had attended. Upon reading the article, C.H.’s mother contacted Respondent to tell him that he did not have her permission to show die photographs of her minor daughter to others. The Respondent challenged the mother, saying he did not need her permission. Thereafter, Respondent proceeded with his plan to show the photographs to several parents of minors who attended the party. The newspaper ran a follow-up article regarding the photographs as well as an editorial written by Sandy Barnett, Executive Director of the Kansas Coalition Against Sexual and Domestic Violence. After counsel for C.H. and her mother contacted Respondent about sealing the photographs from public view, Respondent wrote a return letter, stating: “As the photographs you refer to are evidence of criminal activity by several minors and as I cannot lawfully withhold evidence, I have allowed and will continue to allow the parents of potential respondents to view altered versions of them, in my office .... “. . . I further want to thank you for any future litigation that you pursue in this matter as it will inevitably generate a large amount of publicity for the issue of underage drinking, hosting of minors and the harmful effects of minors engaging in public sexual acts. I was beginning to fear that nothing would be done and that this issue would fade from the public eye.” C.H. was subjected to public ridicule as a result of these events, and she now suffers from depression. Based on the foregoing facts, the hearing panel concluded that Respondent violated KRPC 4.4 and KRPC 8.4(d) and (g), writing: “The Respondent allowed adults to view photographs of minors consuming alcoholic beverages, photographs of C.H. partially clothed, and photographs of sexual intercourse between C.H. and M.V. The Respondent explained that his purpose in doing so was to shock the parents as to what occurs at teenage parties. The Respondent further explained that his overall goal is to decrease underage drinking. At the hearing on this matter, the Respondent acknowledged that he could have achieved his goal without allowing others to view the photographs. Further, allowing parents of minors attending the party to view photographs of C.H. partially clothed and photographs of sexual intercourse between C.H. and M.V. bears no relation to decreasing underage drinking. Thus, when the Respondent showed the pictures to the parents of the minors attending the party, he had no valid substantial legal purpose, other than to embarrass, delay, or burden third persons. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 4.4. “. . . K.S.A. [2007 Supp.] 38-2310(c) provides [that information identifying victims and alleged victims of sex offenses shall not be disclosed or open to public inspection under any circumstances], . . . “. . . In this case, the Respondent engaged in 'conduct that is prejudicial to the administration of justice’ when he violated K.S.A. 38-2310(c) by allowing parents of minors who attended the May 11, 2007, party to view the photographs. Additionally, the Respondent prejudiced justice when he failed to recognize that justice required sensitivity to the privacy rights of members of the public. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d). “. . . . Reluctantly, the Respondent stipulated that his conduct in this case amounted to professional misconduct because he engaged in conduct that adversely reflects on his fitness to practice law. . . . Informing the newspaper publisher that he planned to allow parents to view the photographs and allowing the parents to view the photographs [] adversely reflects on the Respondent’s fitness to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).” Hearing Panel’s Recommendations Regarding Discipline The hearing panel considered factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions. Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual harm caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors, The panel set forth the following considerations: “Duty Violated. The Respondent violated his duty to the public to maintain his personal integrity. The Respondent also violated his duty to the legal profession and the legal system to comply with the rules. “Mental State. The Respondent knowingly violated his duties. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to C.H., the public in general, and the legal profession. “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: “A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct by sending letters to 12 parents inviting them to observe the photographs of minors consuming alcoholic beverages, photographs of C.H. partially clothed, and photographs of sexual intercourse between C.H. and M.V. Further, the Respondent engaged in a pattern of misconduct by allowing five parents to view the photographs. Accordingly, the Hearing Panel concludes that the Respondent engaged in a pattern of misconduct. “Refusal to Acknowledge Wrongful Nature of Conduct. In his pre-hearing responses, tire Respondent consistendy refused to acknowledge the wrongful nature of his conduct. At die hearing on this matter, the Respondent did admit his wrongdoing in response to his attorney’s prompting, although his admission was less than fulsome. Then, as the hearing progressed, die Respondent further qualified the admission diat he violated KRPC 8.4(g). “Vulnerability of Victim. C.H. and her mother were vulnerable to the Respondent’s misconduct. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1998. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of nine years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct. “Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present: “Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined. “Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case. “Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of the bar in Garnett, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by several letters received by the Hearing Panel.” The panel also considered Standard 5.22, which reads: “Suspension is generally appropriate when a lawyer in an official or governmental position knowingly fails to follow proper procedure or rules, and causes injury or potential injury to a party or to the integrity of the legal process.” Before the hearing panel, the Disciplinary Administrator recommended that Respondent be publicly censured. Respondent joined in that recommendation. Although it explicitly acknowledged the parties’ agreement on the appropriate sanction, the hearing panel recommended that Respondent receive a more severe 90-day suspension from the practice of law, because his conduct was intentional rather than negligent. Disposition Before this court, the Disciplinary Administrator changed his recommendation to a 90-day suspension, taking the position that Respondent had abused the power of his office and done actual harm to C.H. The Disciplinary Administrator also noted Respondent’s testimony that he had reviewed the KRPCs before showing the parents the photographs; although he thought his planned conduct would raise a close question under the rules, he proceeded. Counsel for Respondent argued to us that, although his client’s conduct was egregious, it arose out of a “right reason,” i.e,, a zeal to end underage drinking. Counsel also asserted that the record on appeal contained evidence that his client suffered from Asperger’s Syndrome, a malady that impairs his ability to empathize with others and that his client had apologized to C.H.’s mother after the disciplinary hearing concluded. When Respondent addressed this court, he echoed his counsel’s “right reason” argument, saying he had seen the damage underage drinking could do and thought he could “fix the world” by showing the photographs to the parents of teens depicted drinking at the party. Nevertheless, he demonstrated little understanding of how troubling his method was. Had he been one of those parents shown the photographs, he said, he would have been angry with himself for being a “bad parent.” He also denied that he had contacted the press about his plan to display the photographs but admitted the first story followed his mention of that plan to a reporter and another lawyer during a Rotary meeting. He stated explicitly that he did not understand why other women and girls who believed themselves to be victims of sex crimes might now be reluctant to report the crimes or assist with prosecutions. Also, despite his counsel’s assertion that he had several mentors who would guide the exercise of his prosecutorial discretion, he had not pursued any independent review of his decision not to prosecute in C.H.’s case. Regarding Asperger’s Syndrome, Respondent said he had been diagnosed with Attention Deficit Disorder (ADD) during his first year of law school and that there was a letter in the record on appeal about his condition. In addition, he took the position that his condition had worked to his advantage as a prosecutor because he could be dispassionate when evaluating cases. The letter in the record on appeal to which both Respondent and his counsel evidently referred was written by Respondent’s doctor. It confirms that Respondent has a diagnosis of ADD. Beyond that, it says only: “[Campbell] also presents with other personal characteristics that have become apparent during his years of treatment. The possible diagnosis of high functioning Autism - Asperger’s Disorder has been considered during his treatment. At this point, my professional medical opinion is he does not present with sufficient criteria for diagnosing those conditions, however, one does not need to meet the full level of intensity to malee a definitive subsymdromal diagnosis.” Counsel for Respondent, although he discussed Asperger’s Syndrome in his argument, explicitly did not invoke it as a defense to the conduct in which Respondent engaged. In attorney disciplinary proceedings, this court considers the evidence, the findings of the disciplinaiy panel, and the arguments of the parties, and determines whether violations exist. If they do, this court decides the discipline to be imposed. Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Comfort, 284 Kan. 183, 190, 159 P.3d 1011 (2007); In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003). This court views the findings of fact, conclusions of law, and recommendations made by a disciplinary panel as advisory only, but we give the panel’s final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Therefore, the panel’s findings of fact will be adopted when amply sustained by the evidence and not adopted when against the clear weight of the evidence. When the panel’s findings relate to matters about which there was conflicting testimony, this court recognizes that the panel, as the trier of fact, had the opportunity to observe the witnesses and evaluate their demeanor. This court does not reweigh the evidence or assess the credibility of witnesses. Comfort, 284 Kan. at 190. Moreover, it is not necessary to restate the entire record to show substantial competent evidence to support the panel’s findings. In re Kellogg, 269 Kan. 143, 153, 4 P.3d 594 (2000). There are no disputed facts in this case. And the facts, as established, amply support the conclusions about violations of KRPC 4.4 and KRPC 8.4(d) and (g) at which the disciplinary hearing panel arrived. We therefore adopt the findings of fact and conclusions of law of the panel. This court is empowered to impose any form of discipline or conditions separate from or connected to any type of discipline it deems appropriate, regardless of whether that form or type of discipline has been recommended by a hearing panel. Supreme Court Rule 203(a)(5) (2008 Kan. Ct. R. Annot. 266). In view of what we discern as Respondent’s continued inability or unwillingness to come to grips with the devastation his conduct has wrought in at least one life and the potential for it to chill reports from victims of future sex crimes and their cooperation with prosecutions of dangerous offenders, we believe a 90-day suspension to be an inadequate sanction. We instead order a 6-month suspension from the practice of law and shall require Respondent to follow the procedure outlined in Supreme Court Rule 219 (2008 Kan. Ct. R. Annot. 365) to be reinstated. A minority of the court would impose a longer period of suspension. In addition, because Respondent and his counsel raised substantial concerns at oral argument about the possibility that a medical or psychological condition may have contributed to the sanctioned conduct, the existence and/or effect of such a condition on Respondent’s future behavior should be among the issues addressed by the Rule 219 procedure. It Is Therefore Ordered that Frederick B. Campbell be suspended for 6 months from the practice of law and that he shall follow the procedure outlined in Rule 219 to be reinstated. It Is Further Ordered that the costs of the proceeding be assessed to Respondent. McFarland, C.J., not participating. Hill, J., assigned.
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Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Andrew E. Busch, of Bentonville, Arkansas, an attorney admitted to the practice of law in Kansas. The formal complaint filed against the respondent alleged a violation of Kansas Rule of Professional Conduct (KRPC) 8.4(b) (2007 Kan. Ct. R. Annot. 559) (commission of a criminal act). A hearing was held before a panel of the Kansas Board for Discipline of Attorneys, where the respondent was both personally present and represented by counsel. Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court: “FINDINGS OF FACT “The Hearing Panel finds the following facts, by clear and convincing evidence: “1. Andrew E. Busch (hereinafter ‘the Respondent’) is an attorney at law .... His last registration address with die Clerk of the Appellate Courts of Kansas is . . . Bentonville, Arkansas. . . . The Respondent was admitted to the practice of law in the State of Kansas on September 12, 1975. “2. From 1994 through 2001, the Respondent failed to file and pay federal and state income taxes. In 2003, a representative from the Internal Revenue Service (hereinafter TRS’) came to the Respondent’s office to investigate his failure to file and pay federal income taxes. The Respondent fully cooperated with the investigation by the IRS. During the investigation, the Respondent provided various financial documents to the IRS. “3. On October 3, 2007, the Respondent filed tax returns for 1994 through 2001. According to records from the IRS, the Respondent's] tax liability and the total amount owing for each of those years is as follows: Tax Year Tax Liability Taxes, Penalties & Interest 1994 $93,725.00 $320,222.10 1995 $52,735.00 $162,805.92 1996 $46,707.00 $136,193.76 1997 $32,745.00 $88,179.20 1998 $48,721.00 $116,034.50 1999 $53,313.00 $53,313.00 2000 $24,335.00 $24,335.00 2001 $30,917.00 $30,917.00 “4. Additionally, the Respondent continues to owe taxes for 2002 and 2006, as follows: Tax Year Tax Liability 2002 $2,986.00 2006 $10,000.00 “5. As a result, the Respondent owes past due federal taxes in the amount of $396,184.00 and past due federal taxes, penalties, and interest in the amount of $1,073,503.58. Further, as of January 11, 2008, the Respondent owes $52,729.62 to the State of Kansas in past due state income taxes, penalties, and interest. “6. On March 25, 2005, the United States Attorney charged the Respondent in a one count Information with knowingly and willfully fading to file a tax return in the year 2001 [in violation of] 26 U.S.C. § 7203. “7. On June 7, 2005, the Respondent entered a plea of gudty to the offense charged in the Information. Thereafter, on August 17, 2005, the Court sentenced the Respondent to three years probation. The Respondent remains on probation. “CONCLUSIONS OF LAW “1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4(b), as detaded below. “2. ‘It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b) [2007 Kan. Ct. R. Annot. 559], In this case, the Respondent admitted he committed criminal acts, specificafly he faded to file and pay his taxes for eight years. As a result of his criminal conduct, the Respondent was convicted of a misdemeanor crime, fading to file a tax return. Accordingly, the Hearing Panel concludes that the Respondent committed criminal acts and those criminal acts reflect directly on the Respondent’s fitness in other respects, in violation of KRPC 8.4(b). “AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS “In making this recommendation for discipline, the-Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, tire lawyer’s mental state, the potential or actual injuiy caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “Duty Violated. The Respondent violated his duty to the profession to maintain personal integrity. “Mental State. The Respondent intentionally violated his duty. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injuiy to the legal profession. “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 blearing Panel, in this case, found the following aggravating factors present: “Dishonest or Selfish Motive. The Respondent’s motive to engage in the misconduct was motivated by selfishness. While the Respondent testified that he did not have sufficient funds to pay his taxes, he certainly had sufficient funds at the time he made the income to set aside an appropriate amount to be used to pay his taxes. “A Pattern of Misconduct. The Respondent failed to file and pay federal taxes for eight tax years. Accordingly, tire Respondent engaged in a pattern of misconduct. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1975. The Respondent’s misconduct spanned a period of 8 years. At the time the Respondent’s misconduct commenced, he had been practicing law for a period of 19 years. Accordingly, the blearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct. “Indifference to Malang Restitution. To date, the Respondent has made no effort to malee restitution to the IRS for the outstanding tax liability, interest and penalties. “Illegal Conduct, Including that Involving the Use of Controlled Substances. The Respondent engaged in illegal conduct. For a period of eight years, he failed to file and pay taxes. In 2005, he was convicted of a misdemeanor charge of failing to file a federal tax return. “Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present: “Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined. “Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. The Respondent suffers from serious mental illnesses. Specifically, the Respondent has been diagnosed with depression and adult attention deficit disorder. As a result of the Respon dent’s mental health he was unable to maintain appropriate control over his family’s household budget. Since 2003, the Respondent has changed his personal situation, which significantly contributed to the violation. He has divorced, has remarried, and has moved from Wichita to Arkansas. His mental illness is under control, and his ability to practice law is not impaired. “The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fully cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct. “Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent has been an active and productive member of the bar in Wichita, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by several letters received by the Hearing Panel. “Imposition of Other Penalties or Sanctions. The IRS has added financial penalties to the tax liability. “Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse. “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system. Standard 7.2. ‘Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system. Standard 7.3.’ “RECOMMENDATION “The Disciplinary Administrator recommended that the Respondent be suspended from the practice of law for a period of six months. The Respondent recommended that he be censured by the Court. “Failing to file and pay taxes for eight years reflects adversely on the Respondent’s fitness to practice law. However, it does not rise to the level of seriously reflecting on his fitness to practice law. The Hearing Panel notes that the Respondent’s misconduct did not cause an adverse impact on any clients. “Recently, the Court has decided a number of cases wherein the Respondents failed to file and/or pay their taxes. In In re Brunton, [282 Kan. 423, 144 P.3d 606 (2006)], the Respondent was placed on probation after failing to file and pay taxes for a period of three years. In that case, Mr. Brunton also engaged in misconduct involving clients. Further, the Respondent had previously failed to file and pay taxes for three earlier years. In this case, the Respondent’s misconduct was limited to failing to file and pay his state and federal income taxes. While the Hearing Panel finds this misconduct to be serious, in light of the persuasive mitigating facts, it concludes that a suspension from the practice of law is not warranted. Thus, the Hearing Panel unanimously recommends that the Respondent be censured by the Kansas Supreme Court.” The respondent elected not to file any exceptions to the final hearing report of the panel. Thus, the respondent admits the allegations of the complaint. Supreme Court Rule 212(c) (2007 Kan. Ct. R. Annot. 317). This court also finds that the allegations in the disciplinary complaint against the respondent have been established by clear and convincing evidence, and the court adopts the findings of the hearing panel. The Disciplinary Administrator recommended to the panel that the respondent be suspended from the practice of law in Kansas for a period of 6 months. Although the panel recognized that the respondent’s conduct was serious, it also concluded on the basis of persuasive mitigating factors that published censure rather than suspension was the more appropriate sanction in the respondent’s case. We note that the recommendation of the hearing panel with regard to sanctions is not binding on this court. Rule 212(f); see In re Pittman, 285 Kan. 1133, 1141, 179 P.3d 404 (2008). The appropriate sanction in disciplinary cases is a matter left to the sound discretion of this court. See In re Dennis, 286 Kan. 708, 737-38, 188 P.3d 1 (2008). In making its recommendation, the panel cited our recent disciplinary case of In re Brunton, 282 Kan. 423, 144 P.3d 606 (2006), to support its recommendation that the respondent be sanctioned by published censure. Brunton involved the failure to file and pay federal and state income tax returns for a period of 3 years, as well as misconduct in the representation of a client in a bankruptcy proceeding. See 282 Kan. at 424-26. At the time of the final hearing in Brunton, the respondent had paid all of the sanctions resulting from the bankruptcy representation and owed approximately $80,000 in back taxes. 282 Kan. at 425-26. The panel recommended that the respondent in Brunton receive published censure and be required to meet several conditions, including paying his back taxes and securing professional help for his depression and illegal substance abuse; if the respondent did not meet these conditions, the panel recommended a discipline of indefinite suspension. 282 Kan. at 429. At the time of the hearing before this court in Brunton, the respondent in that case had taken substantial steps to comply with the conditions set forth by the panel. A majority of this court concluded that given the respondent’s efforts to comply with these conditions, it would suspend any additional discipline for a period of 2 years subject to the respondent’s continued compliance with the panel’s conditions. These conditions included (1) weekly sessions with a mental health professional; (2) the forwarding of quarterly written reports from the mental health professional regarding the respondent’s compliance and improvement; (3) written documentation that the respondent has paid the remaining balance of taxes, fees, and interest owed from the offending tax years; (4) periodic reports to the Disciplinary Administrator that the respondent continued to pay his taxes; and (5) submission to random urinalysis to confirm that the respondent had not resumed use of illegal substances. A minority of the court would have imposed a 6-month suspension immediately. 282 Kan. at 430-32. The panel in this case noted that Brunton involved other violations by the respondent involving representation of clients. The panel therefore distinguished Brunton from this case, concluding that the respondent’s conduct here did not affect his practice of law. For this reason and other mitigating factors, the panel concluded that published censure would be an appropriate discipline for the respondent. During argument, counsel for the respondent argued that Brunton is not the only case where this court has imposed published censure rather than suspensions for failure to file income taxes. See In re Materi, 224 Kan. 615, 584 P.2d 1254 (1978) (failure to file income taxes during 1 year; public censure imposed); In re Brunk, 197 Kan. 649, 418 P.2d 136 (1966) (failure to file income taxes during 1 year; published censure imposed); In re Mellor, 197 Kan. 639, 418 P.2d 141 (1966) (failure to file income taxes during 1 year; published censure imposed). The current disciplinary case is the fourth in the past several months that has come before this court involving the failure to file income taxes. In re Sheahon, 286 Kan. 274, 182 P.3d 1263 (2008) (violation of Rule 8.4[b] for failure to file federal and state income taxes for 7 years and for filing incomplete income tax returns in 4 additional years, leading to a tax liability of over $200,000; indefinite suspension imposed); In re Lovelace, 286 Kan. 266, 182 P.3d 1244 (2008) (violation of Rule 8.4[b] for failure to file and pay income taxes in 5 years and failure to pay income taxes in 2 additional years, leading to a tax liability of approximately $250,000; indefinite suspension imposed); In re Brooks, 285 Kan. 794, 175 P.3d 256 (2008) (violation of Rule 8.4 [b] for failure to file federal income taxes during 1 tax year, leading to a tax liability of $29,198; published censure imposed). These recent cases indicate that the court is less willing to impose published censure for cases where respondents have repeatedly failed to pay their taxes and/or owe a significant amount in tax liability. The sanctions imposed for violation of disciplinary rules regarding the practice of law in Kansas are imposed by this court based upon considerations of the clear and convincing evidence establishing the violations, the nature of the violations, the existing aggravating and mitigating factors as set forth in the final hearing report, exhibits submitted into evidence regarding mitigation and aggravation, oral argument before this court, and tire respondent’s statements, if any, to this court upon final hearing. Imposition of sanctions is within the discretion of this court and largely based upon the unique factors present in the case being considered. See Dennis, 286 Kan. at 737-38. Some effort is made by this court to be consistent with past cases involving similar violations. However, each case must be judged on its unique facts, including this court’s consideration of the good of the legal profession, the protection of the citizens of this state, and the good of the respondent, together with other matters set forth in mitigation and aggravation in the final hearing report. Thus, while prior cases may have some effect on the decision of this court with reference to sanctions imposed, the outcomes of prior decisions must give way to this court’s consideration of die unique circumstances presented in an individual case. Dennis, 286 Kan. at 737-38. We note that the respondent has presented mitigating circumstances both to the panel and to this court which we have considered, including the fact that the respondent has had no previous violations of the KRPC’s prior to his present violation. We also recognize that no evidence was presented that this case has had a material impact on the respondent’s clients during his practice of law. Yet the respondent’s misconduct extended over a period of 8 years — resulting in back taxes, fees, and interest of over $1,000,000 — and resulted in a criminal conviction. We further note that, contraiy to the panel’s findings, the respondent’s violation has caused actual harm to the legal profession in that his violation resulted from intentional disregard for the laws governing federal and state taxation. In this case, the Disciplinary Administrator recommended sanction of a 6-month suspension from the practice of law in Kansas. We find that the respondent’s intentional misconduct over a period of some 8 years, contrary to the recommendation of the hearing panel, seriously reflects on his fitness to practice law. In consideration of the entire record and the arguments before this court, a majority of this court concludes that suspension from the practice of law in Kansas for a period of 6 months is an appropriate sanction. A minority of this court would impose a greater sanction. It Is Therefore Ordered that the respondent, Andrew E. Busch, be and he is hereby suspended for 6 months from the practice of law in the state of Kansas, effective on the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2007 Kan. Ct. R. Annot. 261). It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to the respondent.
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On June 3, 2005, this court placed respondent, Marlin Johanning, on probation for a period of 18 months with specific conditions of supervision and reporting. In re Johanning, 279 Kan. 950, 111 P.3d 1061 (2005). The respondent filed a motion for a discharge from probation showing that he has fully complied with all the conditions imposed upon him by this court, and the Disciplinary Administrator has verified that the respondent has fully complied with all conditions imposed upon him by this court and recommends discharge from probation. This court, having reviewed the files and the recommendation of the office of Disciplinary Administrator, finds that respondent, Marlin E. Johanning, should be discharged from probation. It Is Therefore Ordered that Marlin E. Johanning is hereby discharged from probation and from any further obligation in this matter and that this proceeding is closed. It Is Further Ordered that this order shall be published in the Kansas Reports and the costs herein be assessed to the respondent.
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Per Curiam: This is a contested original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Joseph C. Minneman, a Peoria, Illinois, attorney admitted to the practice of law in Illinois and Kansas in 1971. The complaint against the respondent arises out of respondent’s federal conviction of conspiracy to commit income tax fraud and his resulting disbarment in Illinois. A hearing was held before a panel of the Kansas Board for Discipline of Attorneys as required by Kansas Supreme Court Rule 211 (2007 Kan. Ct. R. Annot. 304). The hearing panel concluded that the respondent violated Kansas Rules of Professional Conduct (KRPC) 8.4(b) (2007 Kan. Ct. R. Annot. 559) (criminal act that reflects adversely on lawyer’s honesty, trustworthiness, or fitness); KRPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); KRPC 8.3(a) (2007 Kan. Ct. R. Annot. 558) (duty to report professional misconduct); and Kansas Supreme Court Rule 207(c) (2007 Kan. Ct. R. Annot. 288) (duty to report professional misconduct). The hearing panel unanimously recommends that the respondent be disbarred from the practice of law in the state of Kansas. Respondent filed exceptions to the final hearing report pursuant to Supreme Court Rule 212 (2007 Kan. Ct. R. Annot. 317). SUMMARIZED FACTUAL FINDINGS In 1997, the respondent was convicted by a jury in federal district court in Illinois of conspiracy to commit income tax fraud. Highly summarized, the conviction was based on evidence that the respondent conspired with a client to hide over $700,000 of the client’s income from the IRS over a period of years. The client forwarded his business income to the respondent, who hid it in a trust account. The respondent regularly withdrew cash from the account and gave the money to the client as well as made purchases for the client. The 7th Circuit opinion provides extensive details as to the respondent’s deep involvement in the criminal activity. The final hearing report herein contains a lengthy cite from the opinion. United States v. Minneman, 143 F.3d 274, 277 (7th Cir. 1998). The respondent was sentenced to 30 months in prison and was ordered to pay restitution in the amount of $25,000. The respondent appealed his conviction, and the 7th Circuit affirmed his conviction in 1998. See United States v. Minneman, 143 F.3d 274. Thereafter, disciplinary proceedings were commenced in Illinois. After a hearing, the Illinois Attorney Registration and Disciplinary Commission hearing panel found the respondent: (1) committed a criminal act that reflected adversely on his honesty, trustworthiness, or fitness as a lawyer in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct; (2) engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4); and (3) engaged in conduct prejudicial to the administration of justice, or which tends to defeat the administration of justice, or to bring the courts or the legal profession into disrepute, in violation of Rule 8.4(a)(5). The Illinois hearing panel recommended the respondent be disbarred and, on March 22, 2001, the Illinois Supreme Court disbarred the respondent. The respondent did not report his conviction or disbarment to the disciplinary authorities in Kansas. However, in 1997, after his conviction, the respondent registered in Kansas as an inactive attorney. He continued to register as an inactive attorney each year thereafter, up to and including 2007-2008 registration period. The Kansas Disciplinary Administrator learned of the respondent’s federal conviction and Illinois disbarment in November 2006. The Disciplinary Administrator wrote to the respondent and in his response, the respondent admitted that he “probably” should have notified the Kansas Disciplinary Administrator of his conviction instead of taking inactive status. On August 2, 2007, the Disciplinary Administrator s office filed a formal complaint against the respondent. The complaint was brought, in part, as a reciprocal discipline case under Supreme Court Rule 202 (2007 Kan. Ct. R. Annot. 257) (final adjudication of misconduct in another jurisdiction conclusively establishes the misconduct for purposes of a disciplinary proceeding in this state). Additionally, the formal complaint alleged that by fading to notify Kansas disciplinary authorities of his conviction and disbarment, respondent violated KRPC 8.3(a) and Kansas Supreme Court Rule 207(c). The respondent filed a timely answer to the formal complaint. In his answer, the respondent admitted his conviction and that he had been disbarred in Illinois. A hearing was held before a panel of the Kansas Board for Discipline of Attorneys on November 15, 2007. The respondent appeared pro se. At the hearing, the Deputy Disciplinary Administrator offered for admission various documents, including a copy of the 7th Circuit’s reported opinion in United States v. Minneman, 143 F.3d 274 (7th Cir. 1998); a copy of the electronic criminal case docket for the United States District Court for the Central District of Illinois showing the judgment of conviction; the report of the Hearing Board of die Illinois Attorney Registration and Disciplinary Commission finding misconduct and recommending disbarment; the Illinois Supreme Court order disbarring respondent; and the 2002, 2003, 2005, 2006, and 2007 Kansas attorney registration forms completed and submitted by the respondent. These documents were admitted into evidence. At the hearing, the respondent again admitted his Illinois disbarment. The respondent testified that he went on inactive status in Kansas in 1997, after his conviction in January 1997. Prior to his conviction, he had been on active status in Kansas. The respondent admitted he reported neither his conviction nor his Illinois disbarment to the Kansas Disciplinary Administrator’s office, explaining that he assumed Kansas was aware of these actions. The respondent also admitted that he listed his Illinois bar admission in the box entitled “Member of the Bar in Other States” on the- Kansas attorney registration forms in 2005, 2006, and 2007. CONCLUSIONS OF LAW The panel concluded as follows: “1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4(b), KRPC 8.4(c), KRPC 8.3(a), and Kan. Sup. Ct. R. 207(c), as detailed below. “2. Kan. Sup. Ct. R. 202 provides that ‘[a] final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.’ Based upon the Respondent’s stipulation to the facts alleged in the Disciplinary Administrator’s Formal Complaint, the evidence presented at the hearing, and pursuant to Kan. Sup. Ct. R. 202, the Hearing Panel concludes that the Respondent engaged in misconduct and violated KRPC 8.3(a), KRPC 8.4(b), KRPC 8.4(c), and Kan. Sup. Ct. R. 207(c). “3. ‘It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b). In this case, the Respondent committed criminal acts which reflect on the Respondent’s honesty and trustworthiness. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.4(b). “4. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty when he assisted Mr. Punke in hiding his assets from the Internal Revenue Service. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c). “5. Lawyers are required to report misconduct. KRPC 8.3(a) and Kan. Sup. Ct. R. 207(c) provide the requirements in this regard. ‘A lawyer having knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules shall inform the appropriate professional authority.’ KRPC 8.3(a). ‘It shall be the further duty of each member of the bar of this state to report to the Disciplinary Administrator any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules.’ In this case, the Respondent was charged and convicted of criminal offenses and was disbarred by another state’s bar. Yet, the Respondent did not report the information to the Disciplinary Administrator’s office. The Respondent’s failure to report the misconduct amounts to a violation of KRPC 8.3(a) and Kan. Sup. Ct. R. 207(c).” RECOMMENDED DISCIPLINE In its final hearing report, the hearing panel unanimously recommended that the respondent be disbarred. The panel’s consid eration of the American Bar Association Standards for Imposing Lawyer Discipline and its recommendation are set out as follows: “In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “Duty Violated,. The Respondent violated his duty to the public to maintain his personal integrity. “Mental State. The Respondent intentionally violated his duty. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to the legal profession. “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, tire Hearing Panel, in this case, found the following aggravating factors present: “Dishonest or Selfish Motive. The Respondent’s misconduct was motivated by dishonesty. “Refusal to Acknowledge Wrongful Nature of Conduct. While the Respondent admitted that the allegations in the Formal Complaint were true, he denied engaging in criminal conduct. “Illegal Conduct, Including that Involving the Use of Controlled Substances. The Respondent engaged in illegal conduct. “Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present: “Absence of a Prior Disciplinary Record. Other than being disbarred in Illinois for the instant misconduct, the Respondent has not previously been disciplined. “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘Disbarment is generally appropriate when: (a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or (b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.’ Standard 5.11. “The Disciplinary Administrator recommended that the Respondent be disbarred. The Respondent asserted that the Disciplinary Administrator failed to establish evidence of misconduct. “The Respondent was convicted of a serious criminal offense. His convictions were upheld by the Seventh Circuit Court of Appeals. Furthermore, the Respondent was disbarred from the practice of law in die State of Illinois. As a result, the Hearing Panel unanimously recommends that the Respondent be disbarred from the practice of law in die State of Kansas.” ANALYSIS Respondent has filed herein what he designates as “Rule 212 Bill of Exceptions.” Supreme Court Rule 212(c) (2007 Kan. Ct. R. Annot. 317) provides in pertinent part: “Upon docketing of said case the Clerk of the Appellate Courts shall mail a copy of die report to the respondent and, if represented, to his or her attorney, and shall issue a citation directing die respondent to file with die Clerk either (1) a statement that respondent does not wish to file exceptions to the report, findings, and recommendation, or (2) respondent’s exceptions to the report. Any part of the hearing report not specifically excepted to shall be deemed admitted.” (Emphasis supplied.) The document filed by respondent purporting to be exceptions is out of compliance with, the rule as no part of the final hearing report was specifically excepted to. The issue before us as stated in respondent’s brief is: “Whether the administrator proved by clear and convincing evidence all of the allegations of her complaint as Administrator’s evidence was about the jurisdiction and laws of the State of Illinois and not the jurisdiction and laws of the State of Kansas.” Although very difficult to follow, respondent’s essential position in his exceptions and his brief appears to be that Kansas lacks jurisdiction to discipline him for misconduct occurring in Illinois. The panel concluded: “2. Kan. Sup. Ct. R. 202 provides that ‘[a] final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.’ Based upon the Respondent’s stipulation to the facts alleged in the Disciplinary Administrator’s Formal Complaint, the evidence presented at the hearing, and pursuant to Kan. Sup. Ct. R. 202, the Hearing Panel concludes that the Respondent engaged in misconduct and violated KRPC 8.3(a), KRPC 8.4(b), KRPC 8.4(c), and Kan. Sup. Ct. R. 207(c).” This is a correct statement and resolves any argument that the established Illinois misconduct cannot serve as a basis for finding misconduct in Kansas. As we stated in In re Trester, 285 Kan. 404, 411, 172 P.3d 31 (2007): “Supreme Court Rule 202 and Kansas precedent do not permit us to look behind Trester’s convictions. See State v. Russo, 230 Kan. 5, 8, 630 P.2d 711 (1981) (once conviction becomes final, it is conclusive upon this court; we will not look behind the conviction or attempt to weigh the evidence leading to the conviction). Further, ‘[a] final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.’ Supreme Court Rule 202.” It should be noted that respondent does not take exception to any of the panel’s factual findings. The applicable standard of review in disciplinary cases is well settled: “In a disciplinary proceeding, this court considers the evidence, the findings of the hearing panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Comfort, 284 Kan. 183, 190, 159 P.3d 1011(2007); In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003); Supreme Court Rule 211(f) (2006 Kan. Ct. R. Annot. 284).” Trester, 285 Kan. at 408. We conclude the panel’s findings of fact and conclusions of law are supported by substantial, clear, convincing, and satisfactory evidence, and we adopt the same. APPROPRIATE DISCIPLINE On the subject of the appropriate discipline, the respondent testified in his own behalf concerning mitigation. The respondent testified that he has never had any other disciplinary complaints, he did not profit from his client’s illegal actions, of which he had no knowledge, he has no emotional problems or substance abuse issues, and he has been making restitution payments (although he claimed the IRS has inexplicably sent some of his payments back to him). The respondent testified to the panel: “I think I was played and used. I didn’t particularly want to go to jail for something my client did, and it was primarily his doings, it was his money and his tax returns, and which I had — the evidence showed I had nothing to do with, so they were— the only thing I did was handled his money in a business arrangement, which I think if you look — which I pointed out in the proceedings here as to what actually happened in one of the exhibits.” By this statement, respondent is seeking to go behind his disbarment by the Illinois Supreme Court and his criminal conviction and challenge the findings of misconduct. This he is not permitted to do. See Trester, 285 Kan. at 411. The Disciplinary Administrator and the panel recommend disbarment. Respondent’s misconduct was egregious. Respondent was federally indicted, convicted by a jury, sentenced to 30 months’ imprisonment, and fined $25,000 for conspiracy to commit income tax fraud arising from his practice of law. The conviction was upheld by the United States Court of Appeals for the 7th Circuit. Respondent served his sentence. As a result of the conviction, respondent was disbarred in Illinois upon the finding of the Illinois Supreme Court that respondent had committed misconduct. We conclude that disbarment is the appropriate discipline to be imposed herein. It Is Therefore Ordered that the respondent, Joseph C. Minneman, be and he is hereby disbarred from the practice of law in the state of Kansas in accordance with Supreme Court Rule 203(a)(1) (2007 Kan. Ct. R. Annot. 261) for his violations of the Kansas Rules of Professional Conduct. It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Joseph C. Minneman from the roll of attorneys licensed to practice law in Kansas. It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to respondent.
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The opinion of the court was delivered by Luckert, J.: This appeal raises the issue of whether a 6-year delay between issuance and execution of a probation revocation warrant was unreasonable, constituting a denial of due process that deprived the district court of jurisdiction over a probation violator who was imprisoned on unrelated charges. To resolve this issue, we must determine two questions of first impression in Kansas: (1) Does the State waive a probation violation if it lodges a detainer but does not conduct a probation revocation hearing while the probationer is imprisoned on an unrelated felony conviction arising in another county and (2) if not, what standard applies for determining if an alleged probation violator s due process has been violated because of the delay? These issues arose when Eric Eugene Hall was served with a probation revocation warrant 6 years after the warrant was issued in a McPherson County case. The warrant was served immediately upon Hall’s release from prison on an unrelated felony conviction arising in Saline County. The Saline County conviction served as the basis for an allegation that Hall had failed to remain law abiding in violation of the terms of his McPherson County probation. The probation revocation warrant was issued within weeks of Hall’s conviction in Saline County. At that point he had served less than 1 year of his 3-year probation in the McPherson County case. The State made no effort to execute the warrant. Instead, it apparently lodged a detainer with prison officials who had custody of Hall under the authority of the Saline County sentence, which had been ordered to run consecutive to the McPherson County conviction. We use the word “apparently” because there is no direct evidence establishing this fact in the record on appeal. Perhaps in an attempt to remedy this omission, the State added an appendix to its brief, which included an affidavit establishing that the detainer had been lodged shortly after the warrant issued. We cannot consider the affidavit, however, because it is not included in the record on appeal. See Supreme Court Rule 6.02(f) (2007 Kan. Ct. R. Annot. 37) (allowing appendix to appellant’s brief to include “limited extracts from the record on appeal”; appendix is “not to be considered as a substitute for the record itself’); Supreme Court Rule 6.03(e) (2007 Kan. Ct. R. Annot. 40) (allowing appendix to appellee’s brief and incorporating requirements and restrictions of Rule 6.02[f]). Nevertheless, we accept that the detainer was lodged against Hall because the parties do not dispute its existence, and the record contains several indirect references to the detainer and its effect. Most significantly, the record contains copies of two letters from Hall to the district judge in which Hall referred to the detainer and requested resolution of the pending revocation motion. The first letter was dated February 10, 2002, and indicated that the unresolved detainer from McPherson County rendered Hall ineligible for reintegration and work release programs. Because he was ineligible for these programs, Hall requested the appointment of counsel and a hearing. Apparently Hall did not receive a response because he wrote again on July 6, 2004, seeking resolution of the pending detainer and probation revocation motion. Following the first letter, the State drafted an order to transport Hall to McPherson County. The order was executed by the district court and filed on March 27, 2002, but the record is silent regarding what became of this order. All we know is that there was no action until Hall was released from prison on July 18, 2005, after having served Ins sentence in die Saline County case. Hall was immediately taken into custody on the McPherson County warrant and transported to McPherson County. Counsel was appointed, and a hearing was prompdy conducted. At the hearing, Hall did not contest the fact that he had violated conditions of release. Nevertheless, relying on State v. Grimsley, 15 Kan. App. 2d 441, 808 P.2d 1387 (1991), he moved for dismissal on the basis that the district court lacked jurisdiction due to the State’s delay in prosecuting the motion; Hall argued the delay violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The district judge rejected Hall’s contention and stated: “[T]lie issue becomes one of whether or not the State is obligated to bring the defendant back while he is in prison to do the motion to revoke probation. I have not yet seen a case that speaks to that issue when it’s in court. However, I agree with the State that the issues normally raised on failure to grant a speedy trial, so forth, or a detainer claim filed by a defendant is not applicable because it doesn’t go to the issue of sentencing or speedy trial or any of those issues. They’ve already been sentenced. I’ve always proceeded under the assumption the State does not have that duty that they can simply wait until they’re discharged, although I think the better practice is to bring them back, but that’s not my call. Until the Supreme Court tells me they have to bring them back when they’re in prison I don’t feel it has application.” The district court revoked Hall’s probation and ordered him to serve the original prison sentence. On direct appeal, the Court of Appeals reversed the district court and remanded with instructions to discharge Hall. State v. Hall, 38 Kan. App. 2d 465, 167 P.3d 382 (2007). The panel held that the State failed to timely execute the bench warrant against Hall. Relying on State v. Haines, 30 Kan. App. 2d 110, 39 P.3d 95, rev. denied 273 Kan. 1038 (2002), the panel concluded the State waived the probation violation, meaning Hall need not prove actual prejudice caused by the delay. 38 Kan. App. 2d at 469. The panel recognized the unique issue in this case — i.e., the delay being explained by the defendant’s imprisonment — but concluded that was not a sufficient basis to deviate from the Haines waiver doctrine. In the panel’s view, six factors in the record on appeal supported its conclusion: (1) the State’s inability to explain the delay; (2) the fact that Hall could have been transported to McPherson County for revocation proceedings during his imprisonment on the Saline County convictions; (3) Hall’s unanswered correspondence requesting timely resolution of the revocation motion; (4) tire State’s failure to comply with the district court’s order to transport Hall back to McPherson County to resolve the revocation matter; (5) the unresolved detainer’s potential prejudice to Hall and its impact on program eligibility during his imprisonment; and (6) the emotional anxiety of waiting 6 years to learn of the outcome of the revocation motion. 38 Kan. App. 2d at 471. The State filed a petition for review, arguing the waiver doctrine should not apply and that Hall had failed to establish a due process violation. To support its arguments, the State cited additional authority, including a United States Supreme Court case that addressed whether due process requires execution of a parole or probation violation warrant when the defendant is imprisoned on an intervening sentence. We granted review. See K.S.A. 60-2101(b); K.S.A. 20-3018(b). The questions raised in this appeal are governed by the overarching concern of assuring compliance with the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Due Process Clause imposes procedural and substantive due process requirements whenever the State deprives someone of liberty, such as through the revocation of an individual’s probation. State v. Walker, 260 Kan. 803, 808-09, 926 P.2d 218 (1996). Among the demands of due process are the requirements that a court have jurisdiction before depriving someone of liberty and, when revoking probation, that the court comply with the minimum procedural safeguards outlined in Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973), and Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). Walker 260 Kan. at 809. An appellate court considering whether a district court complied with these due process requirements applies an unlimited standard of review. This conclusion results from the overlay of several considerations that are a part of our analysis. First, the question of whether a court has jurisdiction is a question of law. State v. Johnson, 283 Kan. 649, 652, 156 P.3d 596 (2007); State v. Rocha, 30 Kan. App. 2d 817, 819, 48 P.3d 683 (2002). Second, the question of whether there has been a violation of constitutional due process rights also raises a question of law. State v. Holt, 285 Kan. 760, 774, 175 P.3d 239 (2008). Finally, a court’s subject matter jurisdiction is defined by statute, and the interpretation of a statute is a question of law subject to unlimited review. State v. Woolverton, 284 Kan. 59, 67, 159 P.3d 985 (2007). In reviewing an allegation that due process was violated because the district court did not have jurisdiction, the first concern is whether a district court has subject matter jurisdiction. Jurisdiction to revoke probation is governed by K.S.A. 22-3716(a), which provides that “[a]t any time during probation, . . . the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of release or assignment.” As the Court of Appeals stated in Rocha, a “reasonable construction” of K.S.A. 22-3716(a) is that “revocation of probation may properly occur after the term of probation has expired if a warrant, petition, or show cause order has been filed prior to expiration of the probation term.” 30 Kan. App. 2d at 820. Hall does not dispute that the warrant was issued during the term of his probation. Subsection (b) of the same statute provides that “upon an arrest by warrant . . . the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charged.” Again, Hall does not dispute compliance with this provision; once he was arrested on the probation violation warrant he was immediately transported to McPherson County and a hearing was promptly held. Nevertheless, even if the State has complied with K.S.A. 22-3716, a district court may be deprived of jurisdiction if an alleged probation violator is denied due process. See 30 Kan. App. 2d at 820. Due process demands that “the proceedings were instituted during the term of the probation and die revocation occurs within a reasonable time thereafter. [Citation omitted.]” Haines, 30 Kan. App. 2d at 112; see also State v. Myers, 39 Kan. App. 2d 250, 178 P.3d 74 (2008). In other words, the issuance of an arrest warrant does not extend a court’s jurisdiction over a probationer indefinitely, and due process demands that the State act without unreasonable delay in the issuance and execution of an arrest warrant. 30 Kan. App. 2d at 112. These decisions of our Court of Appeals are consistent with the general rule followed by other courts. See, e.g., United States v. Berry, 814 F.2d 1406, 1410 (9th Cir. 1987); United States v. Hill, 719 F.2d 1402, 1405 (9th Cir. 1983); United States v. Strada, 503 F.2d 1081, 1084 (8th Cir. 1974). The general rule derives from the United States Supreme Court’s decisions in Morrissey, 408 U.S. 471, and Gagnon, 411 U.S. 778. In the first of those decisions, the Court defined the due process standards that apply in a parole revocation hearing and held that a “revocation hearing must be tendered within a reasonable time after the parolee is taken into custody.” 408 U.S. at 488. Then, in Gagnon, 411 U.S. at 782, the Court held that the Morrissey v. Brewer due process requirements applied to probation revocation hearings as well. Although the Court acknowledged “minor differences” between probation and parole, it held there is no “difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation.” 411 U.S. at 782. Thus, because of the loss of liberty entañed, a person whose probation is subject to revocation — like the parolee whose parole is subject to revocation- — is protected by due process rights and is entitled to a prompt revocation hearing after being arrested. Although these decisions did not address whether due process required the timely execution of a warrant, “a long line of cases” has extended the reasoning of the decisions to mean that a delay between issuance and execution of an arrest warrant may be unreasonable, constituting a denial of due process that may deprive a court of jurisdiction over a probation violator. 2 Cohen, The Law of Probation and Parole § 24:24, p. 24-37 (2d ed. 1999); see, e.g., United States v. Gernie, 228 F. Supp. 329, 338-39 (S.D.N.Y. 1964) (delay of over 11 years in service of warrant for violation of probation was unreasonable where probationer could have readily been located and apprehended at any time by exercise of reasonable diligence); Barker v. State, 479 N.W.2d 275 (Iowa 1991) (recognizing long delay might constitute due process violation). In this action, neither party disputes these underlying principles. Rather, the State focuses upon the Court of Appeals analysis that the delay was unreasonable, causing a due process violation. Past Kansas cases, including the Court of Appeals decision in this case,measured the reasonableness of the delay by determining whether “prejudice to the defendant is shown by the delay, or there is an indication that the violation has been waived by the government.” State v. Wonders, 27 Kan. App. 2d 588, Syl. ¶ 5, 8 P.3d 8, rev. denied 269 Kan. 940 (2000). If the State waived the violation, the probationer does not have to establish prejudice. Haines, 30 Kan. App. 2d at 113; Wonders, 27 Kan. App. 2d at 592. The determination of whether inaction constitutes an “unnecessary delay depends upon the circumstances of each case.” Toman v. State, 213 Kan. 857, 860, 518 P.2d 501 (1974) (discussing delay between arrest and hearing). Waiver In holding that the State had waived the probation violation by delaying execution of the warrant, the Court of Appeals relied upon Haines, in which it was held that the State waived the prosecution of the probation violation when a hearing was not conducted until 16 years after a warrant was issued for a probation violation, a delay the panel considered unreasonable. In Haines, the probationer was not incarcerated; rather, he was working as a truck driver in Ohio. The only attempt the State made to find Haines was to send letters, one to his ex-wife and another to his mother. The letter to his mother was returned because of an insufficient address. The panel concluded the State’s effort was insufficient and, as a result, the district court lacked jurisdiction because “an unreasonable delay by the State in the issuance and execution of a warrant for the arrest of a probationer whose whereabouts are either known or ascertainable with reasonable diligence may result in the State’s waiver of the violation.” 30 Kan. App. 2d at 112-13. Similarly in other Kansas cases, the doctrine has been applied when the probationer was not incarcerated and the State had information that would have allowed execution of the warrant if reasonable diligence had been exercised. E.g., State v. Myers, 39 Kan. App. 2d 250 (nearly complete absence of evidence as to efforts actually made by State to attempt service on probationer or to investigate his whereabouts); State v. Bennett, 36 Kan. App. 2d 381, 138 P.3d 1284, rev. denied 282 Kan. 792 (2006) (police had three possible addresses but made no attempt to serve for 2 years). The State argues there is no comparison between these circumstances and the present case. Here, the State knew of Hall’s location and there was nothing to investigate. Furthermore, the State took action by lodging a detainer with prison officials. Under those circumstances, according to the State, the waiver doctrine does not apply because it acted with the level of diligence required when a defendant is imprisoned on a consecutive sentence arising from unrelated charges. Defendant’s Imprisonment In support of its argument, the State cites State v. Nicholson, 243 Kan. 747, 763 P.2d 616 (1988), a case which the Court of Appeals found distinguishable. In Nicholson, the defendant sought dismissal of criminal charges, claiming the statute of limitations barred the prosecution because there was an unreasonable delay in executing the warrant that had not been served for over 2 years. During that 2-year period, Nicholson was in the custody of the Kansas State Industrial Reformatory (KSIR). Within 3 months of issuing the warrant, the State notified KSIR of the existence of a warrant and requested that a detainer be placed on Nicholson. Shortly after KSIR received the detainer request, it notified Nicholson of the detainer. During Nicholson’s term of imprisonment at KSIR, he made no attempt to assert his right to dispose of the detainer pursuant to the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq. 243 Kan. at 748-49. The Nicholson court described the narrow issue on appeal as “whether, under the facts of this case, the failure to execute the arrest warrant while appellee was incarcerated at the KSIR constitutes unreasonable delay.” 243 Kan. at 748. Noting that the statutory definition for arrest is “the taking of a person into custody,” the Nicholson court held the State was not expected to execute the criminal arrest warrant by arresting the defendant when he was already in custody. 243 Kan. at 749-50; see K.S.A. 22-2202(4) (defining “arrest”); see also State v. Clark, 222 Kan. 65, 67, 563 P.2d 1028 (1977) (“A detainer is a hold order or informal demand by one exercising public authority for the possession of a person already in lawful custody.”). The Nicholson court further emphasized the generally recognized principle that “a person already in custody cannot be arrested on an outstanding warrant from another county or jurisdiction.” 243 Kan. at 750 (citing Hayes v. United States, 367 F.2d 216, 221 [10th Cir. 1966]; State v. Bowman, 106 Kan. 430, 435-36, 188 P. 242 [1920]; 6A C.J.S., Arrest § 5). For these reasons, the court held there was no unreasonable delay in executing the warrant. 243 Kan. at 750-51. The court stated: ■ “In this case, the delay in complying with the statutory requirements for execution of an arrest warrant was not unreasonable’ because it was impractical, if not impossible, to arrest the defendant as long as he was already in custody. While it may have been possible for the Barton County Sheriff to secure the release of the appellee from the custody of the secretary of corrections for purposes of executing the warrant and taking appellee before the magistrate in Barton County, he was under no obligation to do so.” 243 Kan. at 750. Here, the Court of Appeals panel noted several distinctions between Nicholson and this case. First, the panel stated that “[determining whether delay in executing an arrest warrant should toll the applicable statute of limitations requires a different analysis from determining whether there has been a due process deprivation in the case of prosecution delay in revoking probation.” 38 Kan. App. 2d at 470. Next, the panel observed that Nicholson had the right to dispose of his detainer through the Uniform Mandatoiy Disposition of Detainers Act but made no attempt to do so; whereas, according to the Court of Appeals, the “Act has no application” to this case. 38 Kan. App. 2d at 470; see, e.g., State v. Julian, 244 Kan. 101, 105, 765 P.2d 1104 (1988) (one who has been released from custody by parole, probation, or otherwise may not rely upon speedy trial provisions of Uniform Mandatory Disposition of Detainers Act); Robison v. State, 278 N.W.2d 463 (S.D. 1979) (the Interstate Agreement on Detainers Act [S.D. Codified Laws Ann. § 23-24A] not applicable to detainers lodged for parole violations). Another distinguishing factor found by the Court of Appeals panel was that Nicholson involved the construction of statutes having no application or relevance to this case. Also, although it is impossible to arrest a person already in “custody,” the panel stated that “it is quite possible to transport someone in custody to another county to answer charges there.” 38 Kan. App. 2d at 470. The final distinguishing factor found by the Court of Appeals was that “the State has offered no explanation or excuse whatsoever for the noncompliance with the district court’s order to transport Hall to McPherson County.” 38 Kan. App. 2d at 470. Rejecting Nicholson, the Court of Appeals examined cases from other jurisdictions. It noted federal authorities were split, but two out-of-state cases, which had been cited in Haines, supported the view that the State waived a violation if it did not serve a revocation warrant even if the probationer was in prison on other charges. The panel decided to “embrace the rationale of those cases that formed the conceptual underpinning” for the Haines decision. 38 Kan. App. 2d at 470-71. The two decisions cited in Haines are People v. Diamond, 59 Mich. App. 581, 229 N.W.2d 857 (1975), and State v. Murray, 81 N.M. 445, 468 P.2d 416 (1970). In the earliest of these two cases, Murray, the court did not explain the rationale of its decision in depth, but did state that the waiver rule was based upon due process. 81 N.M. at 449. In the later of the cases, Diamond, the court looked to several federal cases discussing due process considerations in probation revocation proceedings. The Michigan court observed there were several questions those authorities did not answer. Regarding the question of whether due process required the prompt execution of the warrant, the court noted the holdings in Morrissey, 408 U.S. 471, and Gagnon, 411 U.S. 778, but concluded: “These cases however, do not address whether a warrant issued for a probation violation must be executed within a reasonable time before the defendant is imprisoned.” 59 Mich. App. 2d at 587 n.4. Following other courts, die Michigan court determined it would require reasonable diligence in the execution of the warrant. Then, the court addressed the specific issue in this case, the impact of a probationer’s incarceration on the waiver rule. In doing so, the court noted: “We are cognizant of the split of authority as to whether authorities must execute a warrant while the defendant is incarcerated or whether they may wait until defendant is released, and then execute the warrant. Fitzgerald v. Sigler, 372 F. Supp. 889 (D.D.C. 1974); Cook v. United States Attorney General, 488 F.2d 667 (CA5, 1974).” 59 Mich. App. 2d at 585 n.2. The Michigan court held the warrant must be executed even though the defendant was in prison. Moody One year later, in Moody v. Daggett, 429 U.S. 78, 50 L. Ed. 2d 236, 97 S. Ct. 274 (1976), the Supreme Court also considered the split in decisions regarding whether authorities must execute a revocation warrant while the defendant is incarcerated or whether they may wait until the defendant is released. 429 U.S. at 79 n.1. In our case, the State did not cite Moody in its brief before the Court of Appeals, but the district court discussed and relied upon the decision in making its ruling. In Moody, a federal prisoner was released on parole with almost 6 years remaining to be served on his conviction for a federal rape offense. While on parole, Moody was arrested, convicted, and sentenced for two federal homicide offenses. Soon after his incarceration for the homicides, federal parole authorities issued but did not execute a parole violator warrant relating to the pending rape sentence. The warrant was filed as a detainer at the federal prison. Moody, citing Morrissey, relied upon the requirement that parole revocation hearings be held promptly after arrest to argue that detainers must be executed and revocation hearings convened without substantial delay. Moody’s request for a prompt hearing was denied, and the parole authorities indicated they would not provide a hearing until the warrant was executed at the completion of the homicide sentences. Approximately 4 years later, while still in custody for the homicides and with the parole violator warrant/ detainer still unexecuted, Moody sought habeas relief in federal court. He claimed that the State’s delay violated his due process rights and that the State deprived him of a protected liberty interest because the delay potentially increased the length of his incarceration in that he lost the opportunity to serve concurrent sentences. The Supreme Court rejected his argument because Moody was not in custody on the warrant. The Court explained “the loss of liberty as a parole violator does not occur until the parolee is taken into custody under the warrant.” (Emphasis added.) 429 U.S. at 87. Moody’s loss of liberty before the execution of the warrant, according to the Court, was not due to the alleged violation of parole, but from his conviction for additional crimes while on parole. The Supreme Court held Moody “has been deprived of no constitutionally protected rights simply by issuance of a parole violator warrant. [There is] no constitutional duty to provide ... an adversary parole hearing until [Moody] is taken into custody as a parole violator by execution of the warrant.” 429 U.S. at 89; see State v. Duke, 10 Kan. App. 2d 392, 393, 699 P.2d 576 (1985) (K.S.A. 1984 Supp. 22-3716, requiring defendant to be brought before court without unnecessary delay after being arrested on warrant issued for probation violation, complied with constitutional requirements). Some courts have viewed the holding in Moody as meaning there cannot be a constitutional violation if a parole or probation revocation warrant remains unexecuted while the alleged violator is in prison. See, e.g., State ex rel. v. Parole Auth., 66 Ohio St. 3d 121, 609 N.E.2d 546 (1993) (no due process liberty interest attaches until parolee is taken into custody via detainer; if loss of liberty is due to detention for new crimes, parole authority has no constitutional duty to hold prompt revocation hearing, even if requested by defendant); Bush v. Canary, 286 N.W.2d 536, 538 (S.D. 1979) (failure to give parolee a revocation hearing immediately after issuance of warrant of detainer did not violate due process since unexecuted warrant had no bearing on loss of liberty; incarceration was brought about solely because of another conviction). Most courts, however, have concluded such a sweeping holding is not justified because Moody did not foreclose the possibility that a defendant could establish a liberty interest in a prompt hearing. For example, the Court carefully noted that Moody had not proven a loss of evidence because of the delay. 429 U.S. at 88 n.9. The narrow ruling seemed to leave open the possibility that had Moody established prejudice he would have succeeded on his due process claim. See, e.g., Harris v. Day, 649 F.2d 755, 761-62 (10th Cir. 1981) (explaining in a habeas proceeding, “[t]his court has required a showing of prejudice where there has been a delay in holding a parolee’s parole revocation hearing after execution of a parole warrant”). As one commentator noted, “[I]f the alleged violator is incarcerated as the result of a new charge, in most cases Moody permits the warrant to be executed upon release from that custody. But an earlier resolution may be necessary if the alleged violator can show an infringement of a liberty interest.” 2 Cohen, § 24:11, p. 24-18. We agree with this reading of Moody in large part because the Supreme Court did not end its analysis with the conclusion that Moody had not been arrested on the revocation warrant. Instead, the Court considered various potential liberty interests raised by Moody and concluded he was not able to meet the burden of estabhshing a constitutionally recognized interest. First, the Court rejected Moody’s suggestion that he was being deprived of the opportunity to serve his sentences concurrently. The Court concluded Moody did not have a right to a concurrent sentence but merely a hope. In fact, it was uncertain whether Moody would even be incarcerated if a revocation eventually occurred. Therefore, the eventual possibility that he would receive a concurrent sentence was too uncertain to constitute a liberty interest. 429 U.S. at 87-88. Second, the Court concluded a liberty interest did not arise because of possible adverse impact on a prisoner’s classification or eligibility for various rehabilitation programs. The Court reasoned that prison officials have full discretion to control conditions of confinement and Moody had “no legitimate statutory or constitutional entitlement sufficient to invoke due process.” 429 U.S. at 88 n.9; see Meachum v. Fano, 427 U.S. 215, 49 L. Ed. 2d 451, 96 S. Ct. 2532, reh. denied 429 U.S. 873 (1976). Third, the Court rejected the adverse impact upon a possible early release/parole date as a liberty interest. The Court concluded that a later hearing would provide Moody with the “same full opportunity to persuade the Commission that he should be released from federal custody as would an immediate hearing on the parole violator warrant.” 429 U.S. at 88. In addition, the Court listed several practical considerations supporting its reasoning that a hearing need not be conducted until the parole violator is taken into custody. Principally, the Court pointed out that information regarding a defendant’s behavior while imprisoned will be highly relevant to a determination of whether to revoke parole. Additionally, the Court suggested a defendant may actually benefit from the delay because authorities would be inclined to require consecutive sentences if the decision were made immediately after a new conviction. Yet, if one sentence had been served before the decision was made, authorities might be inclined to determine that the defendant had been adequately punished for all of the misconduct. 429 U.S. at 84, 89. Reasonable Diligence Post-Moody Although the Court in Moody noted the split of authority regarding whether it was reasonable to delay execution of a revocation warrant when the probationer or parolee was incarcerated on an intervening conviction, it did not resolve the split in explicit terms. Yet, its holding- — i.e., that due process does not require that violation warrants be executed while the alleged violator is incarcerated on other charges- — is consistent with the line of previous cases which had held that “while a revocation warrant must be executed within a reasonable time [citation omitted], incarceration in a state institution has been held to be a good reason for delay in execution of the warrant.” Small v. Britton, 500 F.2d 299, 301 (10th Cir. 1974); see, e.g., Taylor v. Simpson, 292, F.2d 698 (10th Cir. 1961); Thomas v. United States Board of Parole, 354 F. Supp. 273 (D. Kan. 1973); Rossello v. United States Board of Parole, 261 F. Supp. 308 (M.D. Pa. 1966); 2 Cohen, § 24:24, p. 24-38. Moody had been sentenced to prison for 10 years for the crimes committed while on parole. Thus, the Court approved a possible delay in executing the warrant that was longer than the 6-year delay involved in this case. On the other hand, the holding in Moody is inconsistent with the line of cases followed in Diamond, Murray, and the Court of Appeals decision in this case, which held that the State violated due process by not serving the warrant while the alleged violator was incarcerated. Consequently, consistent with Moody, we hold that if an alleged probation violator is incarcerated as the result of a new felony conviction arising in another county, the State does not waive a probation violation if it lodges a detainer but does not execute a probation violation warrant while the alleged violator is imprisoned on a consecutive sentence. See Nicholson, 243 Kan. at 749 (it is impractical, if not impossible, to arrest a defendant who is already in custody; no obligation to seek temporary release from custody for purpose of executing warrant). Hall’s Asserted Liberty Interests Yet, as we have discussed, even though due process does not demand that a probation violation warrant be executed before an alleged violator is released from custody after having served the sentence for an unrelated felony conviction, an earlier resolution may be necessary if the alleged violator can show an infringement of a liberty interest. This raises the question of the possible remaining constitutional limits. In this context, post-Moody, courts have adopted various approaches to determine if a delay in executing a violation warrant violates due process. See 2 Cohen, §§ 24:22 to 24:24. One approach is the one traditionally used in Kansas — a showing that prejudice has resulted from the delay. See 2 Cohen, § 24:23; see also State v. Wonders, 27 Kan. App. 2d 588, Syl. ¶ 5, 8 P.3d 8, rev. denied 269 Kan. 940 (2000) (no “due process violation unless prejudice to the defendant is shown by the delay, or there is an indication that the violation has been waived by the government”). While the other approaches include other factors, prejudice caused by the delay is always an important factor. 2 Cohen, §§ 22:22 to 24:24. We see no persuasive reason to create a different test for this circumstance than the prejudice test Kansas courts have utilized in other contexts. Therefore, we examine whether Hall was prejudiced by the delay. In this regard, Hall and the Court of Appeals raised several considerations. Hall raised an argument of potential prejudice in his letters to the district court when he complained the detainer prevented him from participating in rehabilitation programs in prison. The Supreme Court rejected this basis in Moody, 429 U.S. at 88-89 n.9, and Hall has not established why a different result should be reached under Kansas law. As with the federal procedure, Kansas corrections officials have discretion in determining what programs will be available and who will qualify for those programs. As such, a liberty interest does not arise. See Schuyler v. Roberts, 285 Kan. 677, 175 P.3d 259 (2008). The Court of Appeals found potential prejudice because of the “emotional anxiety” attached to waiting to learn of the outcome of the revocation motion. We disagree with the Court of Appeals’ conclusion that this created a right to due process. “A defendant incarcerated for a reason other than the delay in the hearings can not properly attribute his anxiety at being incarcerated — or the prejudice it implies — to the hearing delays.” State v. Benjamin, 929 A.2d 1276, 1283 (Vt. 2007). Moreover, under the circumstances of this case, Hall knew he had violated his probation because he was convicted of crimes committed while he was on probation, and he knew the Saline County sentence was consecutive to the McPherson County sentence. Also, there has been a suggestion that Hall might receive a concurrent sentence and the delay would eliminate the possibility. This suggestion has no merit because it was not possible for Hall to receive a concurrent sentence. First, the sentence in Saline County was ordered by that judge to run consecutively. The judge hearing the McPherson County revocation motion did not have jurisdiction to modify that sentence. Furthermore, because Hall committed the Saline County crimes while on probation in McPherson County, a consecutive sentence is mandatory: “Any person who is convicted and sentenced for a crime committed while on probation, assigned to a community correctional services program, on parole, on conditional release or on postrelease supervision for a felony shall serve the sentence consecutively to the term or terms under which the person was on probation, assigned to a community correctional services program or on parole or conditional release.” (Emphasis added.) K.S.A. 21-4608(c). Thus, it was well established that Hall could not serve concurrent sentences. A final consideration is one raised in Moody, i.e., the possibility the delay would impair the ability to present evidence. Even though Hall admits his violation, the prejudice may arise if there is an actual loss of evidence regarding mitigating circumstances that would be presented to influence the court regarding disposition. See United States v. Williams, 558 F.2d 224, 227 (5th Cir. 1977) (“[I]n revocation cases, even if the prisoner admits the violation, he may be prejudiced if delay has impaired his ability to present evidence of mitigating circumstances that might affect the decision to incarcerate him and die conditions of incarceration.”); Parham v. Warden, 172 Conn. 126, 134, 374 A.2d 137 (1976) (“To establish that a delay has produced a denial of due process, the person arrested must show that actual significant prejudice to him has re- suited.”). Again, Hall failed to show or even argue that he has suffered actual prejudice in his ability to offer a defense. See, e.g., Harris v. Day, 649 F.2d 755, 761-62 (10th Cir. 1981) (holding that, absent showing of prejudice, delay in holding revocation hearing on parole revocation warrant does not violate parolee’s due process rights). Therefore, this approach to due process affords Hall no relief. Hall offers no other potential liberty interest. Therefore, under the circumstances of this case, Hall has failed to establish prejudice or otherwise establish that a liberty interest was infringed. Consequently, the district court correctly determined that the State did not have to execute the warrant and immediately conduct a hearing on the motion to revoke probation. The district court had jurisdiction to revoke Hall’s probation. The decision of the Court of Appeals is reversed, and the district court’s revocation of Hall’s probation is affirmed.
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The opinion of the court was delivered by Beier, J.: Defendant Gregory A. Moore appeals from his convictions on one count of capital murder, four counts of attempted capital murder, one count of aggravated kidnapping, and one count of criminal possession of a firearm. We address three issues: (1) whether the district judge should have instructed Moore’s jury on voluntary manslaughter based on imperfect self-defense; (2) whether the district judge should have instructed the jury on voluntary intoxication; (3) whether the district judge should have admitted testimony from a defense toxicology expert. The second and third issues are intertwined. Factual and Procedural Background Shortly after midnight on April 9, 2005, Newton police were dispatched to Moore’s residence on a domestic disturbance call. Officers met outside with H.A., the 14-year-old daughter of Alveda Sparks, who lived at the residence with Moore. H.A. told officers that Moore was holding her mother inside and was beating her. H.A. had run outside and called 911 on her cell phone. H.A. warned officers that Moore had a handgun tucked into the waistband of his pants. Officers knew Moore as a serious substance abuser; he was known to have recently used methamphetamine and was under surveillance by officers for suspicion of manufacturing methamphetamine. Moore was also known to be combative and violent toward law enforcement. The officers at the scene called in an emergency response team (ERT). Detective Townsend Walton, who was outside the residence, attempted to reach Moore on his cell phone without success. About 3 a.m., Sparks called 911 and spoke to Harvey County Undersheriff Steve Bayless at dispatch. Sparks told Bayless that H.A. had overreacted, that nothing bad was going on, that Moore did not have a gun, and that she and Moore wanted H.A. to come back home. Walton called Moore shortly thereafter and talked with him from outside the residence. Moore assured Walton that, although he had a crossbow, he did not have any firearms. At Walton’s behest, Moore agreed to speak with Walton and Bayless through the front door. The officers asked Moore to show Sparks to them so that they could verify her safety. Moore obliged by turning on a light. Sparks was sitting on the couch, putting on her shoes. Walton asked Moore to allow Sparks to leave the residence, and Walton heard Sparks tell Moore that she was leaving. When Moore turned around to argue with Sparks, Walton saw a magazine clip in Moore’s waistband before Moore slammed the door. Officers heard a dull thud, consistent with someone being struck, and they heard Sparks screaming. Walton then broke glass in or near the door, reached into the house, and unlocked and opened the door. Sparks warned officers that Moore had a gun; and the officers waved in ERT members. As the officers, their weapons drawn, entered the residence, Sparks ran out and Moore began firing. Moore’s shots struck Harvey County Deputy Sheriff Kurt A. Ford in the head and Hesston Police Detective Christopher D. Eilert in a calf, a shoulder, and both hands. Moore also fired at Walton and Harvey County Sheriff Investigator B.J. Tyner. The officers had not fired; except for Tyner, who returned fire after Ford and Eilert fell. Walton and Newton Police Officer Tony Hawpe pulled Ford and Eilert from the residence, and the ERT members withdrew. Ford died of his wounds. Moore called Walton and told him he was “reloaded and ready for more blood.” When Moore learned from a friend that he had shot two officers, he called Walton again. Walton remained in contact with Moore by phone for more than 4 hours before Moore finally surrendered to law enforcement about 8 a.m. During the 4 hours, Moore learned that one of the officers was dead, and he said that he was convinced he would be shot if he emerged from his home. Moore also told Walton that he had been defending himself and that, if any officers tried to come into his home, he would shoot them. Moore was charged with one count of capital murder in violation of K.S.A. 21-3439(a)(5), two counts of attempted capital murder under the same subsection and K.S.A. 21-3301 for his shooting of Eilert and Tyner; one count of aggravated kidnapping under K.S.A. 21-3421; and one count of criminal possession of a firearm contrary to K.S.A. 21-4204. In an amended complaint, the State added two more counts of attempted capital murder for the shots fired at Walton and Bayless. Moore’s counsel filed a motion to determine his client’s competency, and the district court ordered Moore committed for eval uation. Moore was determined to be competent to stand trial. His original Kansas Death Penalty Unit lawyer was allowed to withdraw because of a conflict. Moore then was represented by a lawyer from the Northeast Kansas Conflict Office. The defense filed many other pretrial motions, most of which are not pertinent to the issues on this appeal. Two, however, have potential to affect resolution of the three issues before us. First, Moore desired to introduce evidence of his paranoia about police and evidence of injuries he sustained when he surrendered. He acknowledged that this strategy could open the door for the State to argue that he resisted arrest, but he sought through a motion in hmine to exclude his two prior convictions for battery on law enforcement officers. The district judge sustained the motion in limine but cautioned Moore that the prior convictions would come into evidence if Moore opened the door by introducing evidence of his history of violence against law enforcement. Moore provided the State with the report of his toxicology expert, Dr. Terry Martinez. At a Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), hearing regarding Martinez’ proposed expert testimony, the State acknowledged that Moore’s urine screen, done at the hospital after his arrest, suggested the presence of methamphetamine. The.State argued, however, that its expert would testify that Martinez’ method of extrapolating backward from urine screen values to suggest that Moore had ingested near-lethal doses of methamphetamine before the crimes was scientifically unreliable, and that even literature relied upon by Martinez stated as much. The State maintained that such extrapolations could only be made reliably from blood tests, and no blood samples were taken from Moore. The defense argued that Martinez’ testimony would be pure opinion and that its introduction in the guilt phase of trial would support an instruction on voluntary intoxication. The district judge informed the parties that Martinez could not testify unless he could support his scientific method through the professional literature. During opening statement, the prosecution introduced its theory of the case: that Moore had beaten Sparks and held her against her will and that, when police were called, he decided to go down in a blaze of glory, planning to “blast” as many police officers as he could even though it might cost him his life. Moore, on the other hand, suggested that the crimes arose from a perfect storm, a coincidence of events that he did not want or intend. Under this interpretation of the facts, Moore believed that he was going to die that night — that he would be shot to death by police if they entered his home or he left it. Laboring under this belief, when Moore saw the ERT members come inside in full gear and with weapons drawn, he panicked and did what he honestly believed he had to do to defend himself. Consistent with this theory, Moore’s counsel pointed out that, after Moore fired and saw officers fall, Moore did not shoot at the comrades who dragged them away. Instead, he immediately called police and eventually surrendered. The State called H.A., who testified about the events leading up to the stand-off. She testified that Moore and her mother had begun arguing; that he had pulled a bedroom door off its hinges and had broken a broomstick over his knee and held it to Sparks’ throat. He also had punched H.A.’s dog. H.A. testified that Moore had a gun and would not let her mother leave when she wanted to do so. Eventually, Sparks told H.A. to go outside and call the police, which she did. The audio recording of H.A.’s 911 call was admitted into evidence and then played for the jury. On cross-examination, H.A. testified that generally Moore was nice and she liked him. When he drank, she said, he became mean, violent, and paranoid. She testified that she did not think Moore had been drinking the day or evening before the crimes, but she did not know. Bayless also testified about the events of the evening; and Sparks’ 911 call, during which Bayless spoke with Moore, was admitted into evidence and then played for the juiy. Scott Powell and Marc Smith of the Newton Police Department, who were present at Moore’s residence at the time of the crimes, gave testimony substantially similar to Bayless’. Brian Rousseau, an ERT member, testified about ERT training, strategy, and the events of the evening. Walton also testified at some length. Sparks testified that she and Moore had been arguing off and on all night April 8, continuing into April 9. Her account of events was similar to H.A.’s. At one point, she said, Moore lunged at her. Her testimony was inconsistent on whether Moore hit her, but she agreed that she eventually directed H.A. to go outside and call police. At that point, Moore was armed with at least one gun. Once Moore became aware that police were coming, Sparks testified, he “started freaking out,” grabbing another pistol and a shotgun, and made Sparks get into a closet with him. He told her that he was not going to go to jail, that the police were going to try to shoot him, that there would be a “shootout” and “bloodbath,” and that she would die with him. He also said that the confrontation would be her fault. Sparks testified that she told Moore she needed to use the bathroom. Moore forced her to get into the shower with him, and they stayed in the shower until the hot water ran out. Sparks said she did not want to be naked when the police came in, and she began putting her clothes back on. This angered Moore, and he hit her in the shin with the gun and threatened to shoot her heel off. When he put two guns to her ribs, the phone rang. The police were outside and trying to reach them. Sparks eventually called 911, and she and Moore both talked with police. Although she testified at trial that she was afraid of Moore, on the phone she told police that Moore did not have a gun; and she heard Moore tell police the same thing. She testified that Moore agreed to talk with police at the front door, and he put the guns under the mattress in the bedroom. While Moore was talking with the officers, Sparks came into the front room with a bag she had packed and began putting on her shoes. Moore saw her and said that he thought she had said she would not leave. He then slammed the door and punched her in the hip, and she screamed. Sparks testified that, when Moore then headed back to the bedroom, she believed he was going for the guns. She was afraid for her life and ran out the door where the officers were gathered. On cross-examination, Sparks testified that Moore had a drinking problem, that he used prescription painkillers for a back injury, and that he had begun using illegal drugs, including methamphetamine. When he was using these substances, she said, he became mean, violent, and angry, all of which he was at the time of the crimes. When asked if she had seen Moore consume any alcohol or methamphetamine on April 8 or 9, she said that she had not. Ed Bartkoski of the Kansas Bureau of Investigation (KBI) testified that, when he processed the crime scene, he discovered two firearms in defendant’s residence — one in the kitchen, one in the bedroom. Each weapon was fully loaded, one with hollow point ammunition. Bartkoski testified that multiple shell casings were recovered from the scene consistent with the loaded weapons. In addition, the KBI recovered seven rifles and four shotguns from the residence, along with accompanying ammunition; a bulletproof vest; drug paraphernalia consistent with narcotic use; and prescription pain medication. Two casings found at the scene were consistent with a weapon issued to law enforcement. Tyner’s testimony covered the weapons, gear, and armor used by the ERT. Tyner had been carrying a .40 caliber pistol and a shotgun; Ford had been carrying a rifle; and Eilert had a submachine gun. Tyner testified that the team entered out of its usual formation. Although Tyner was supposed to enter first with a ballistic shield, he was knocked out of the “stack” when Sparks ran out of the home. Thus, Ford entered first, followed by Eilert and then Tyner. When Moore fired, Ford and Eilert fell, and Tyner fired his pistol. Rousseau and Officers Maurice Montano and Brian Hall entered from the back of the home. Tyner also testified that the ERT initially planned to enter the home to rescue Sparks. When she ran out, they were already committed to entry; so their goal changed from hostage rescue to effecting Moore’s arrest. Eilert provided substantially similar testimony concerning the events, and he discussed his injuries. Thomas Curt Taylor, a long-time friend of Moore, testified that he woke up on April 9 with a feeling “something was wrong with [Moore].” Taylor called Moore, who told him that “all hell broke loose.” Moore said he had just “shot a cop,” that he had “blasted the cops.” Moore also told Taylor that he was not going to jail; rather, he was going out in a “blaze of glory,” an exit that Moore had often mentioned. Taylor said he encouraged Moore to surrender, but Moore was “not wanting to surrender at all.” Taylor also said Moore talked about his experience in the military police, and he related an anecdote in which Moore had refused to relinquish his firearm because, he said, he was a soldier and that was how he was trained. Taylor also testified that Moore struggled with alcoholism and had begun using illicit drugs. Taylor said Moore could be mean and paranoid when drinking. Taylor did not specifically testify about his impression of Moore’s sobriety during their phone conversation, but he said that it seemed Moore was “in a zone.” Amy Coody, a KBI firearm and toolmark examiner, testified that Moore’s two pistols discharged multiple rounds, including the bullet recovered from Ford’s head, and that the only officer’s weapon that had been fired was the .40 caliber pistol, presumably Tyner’s. Dr. Lariy Czarnecki, the Sedgwick County medical examiner who performed Ford’s autopsy, testified that Ford’s head wound was fatal. He also testified that the shot was not fired from close or point-blank range but, rather, from a distance between a few feet and multiple yards away. On behalf of the defense, Raymond E. Riniker, an investigator for the Kansas Death Penalty Unit, testified that he discovered large quantities of full, partially full, and empty beer and liquor bottles at Moore’s residence. Moore requested an instruction on voluntaiy manslaughter based on imperfect self-defense and on voluntary intoxication, the second conditional on the district judge’s evaluation of Martinez’ testimony. Out of the presence of the jury, Martinez took the stand. He referred to several scientific texts in addition to his own experience, including Baselt, Disposition of Toxic Drugs and Chemicals in Man (7th ed. 2004), and Levine, Principles of Forensic Toxicology (2d rev. ed. 2006), and testified about his evaluation of the results of Moore’s urine screening. Martinez said that — at 8:35 the morning of his arrest — Moore’s urine contained more than 7,500 nanograms per milliliter of methamphetamine and 2,709 nanograms per milliliter of amphetamine; and it had a pH of 6. Martinez said am phetamine is the major metabolite of methamphetamine, and it is generally accepted in the scientific community that the expected ratio of methamphetamine to amphetamine is 10 to 1 over a wide range of pH values. In his view, given the amphetamine level in Moore’s urine, one might extrapolate that his methamphetamine level was 27,000 nanograms per milliliter, a borderline lethal level, according to Disposition of Toxic Drugs and Chemicals in Man. Martinez also testified that there is faster excretion of methamphetamine and amphetamine in acid urine. Defendant’s urine, with a pH of 6, was more acidic than urine with a neutral pH of 7. Martinez then discussed the effects of methamphetamine on the human body, particularly on the nervous system. He opined that methamphetamine in the level shown by Moore’s urine would cause delusions, hallucinations, and bizarre, violent behavior. On cross-examination, Martinez was asked to read passages from his reference authorities. One stated that “it is difficult if not impossible to answer questions regarding dosage, mode of intake, degree of impairment, or the frequency of use [from urinary excretion of a drug].” Another of the authorities indicated that there was “no direct relationship” between “impairment and the urine concentration of a drug”; that “identification of a drug in urine, therefore, only indicates that the suspect has been exposed to that drug”; and “that there is no well-established correlation between blood concentration and performance impairment for any drug other than alcohol.” The district judge concluded that Martinez’ methodology comported with the Frye standard; however, the testimony was inadmissible because there was no evidence that Moore had been using drugs on the night of the crimes. On the contrary, Sparks testified she did not think he had been, and police testified that their conversations with Moore both before and after the shootings were coherent. The district judge said, “I’ll find as a matter of law that I do not have sufficient evidence to give a voluntary intoxication instruction.” The district court also declined to give a voluntary manslaughter instruction based on imperfect self-defense, i.e., that a person who harbors an honest but unreasonable belief in the necessity of ex erting deadly force in self-defense is guilty of voluntary manslaughter rather than capital murder. The judge said: “I don’t have any testimony that he had an honest belief. I have testimony that, after the incident, he did tell Detective Walton that he was acting in self-defense. But I find you can’t have an honest belief under these circumstances that you’re acting in self-defense. He knew — he knew why they were there, he knew what was going to happen, and he’s not entitled to that instruction. There was no honest belief of self-defense.” The jury found Moore guilty as charged. When, after a separate sentencing proceeding, the jury was unable to reach a unanimous verdict on imposition of the death penalty, the judge sentenced Moore to life imprisonment without parole, plus 1,094 months. Instruction on Voluntary Manslaughter Based on Imperfect Self-Defense Moore argues that the district judge’s refusal to give the lesser included offense of voluntaiy manslaughter instruction based on imperfect self-defense is reversible. This error, he asserts, prevented the jury from accepting his theory of the case, i.e., that he had an honest but unreasonable belief that he would be shot to death by police if they entered his home or he emerged from it. A criminal defendant is constitutionally entitled to present his or her theoiy of defense. See State v. Baker, 281 Kan. 997, Syl. ¶¶ 2, 4, 7, 135 P.3d 1098 (2006). And a district judge has a duty to instruct the jury on any lesser included offense established by tbe evidence, regardless if that evidence is weak or inconclusive. There is, however, no duty to instruct on a lesser included offense if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented. See State v. White, 284 Kan. 333, 347, 161 P.3d 208 (2007) (quoting State v. Boyd, 281 Kan. 70, 93, 127 P.3d 998 [2006]; State v. Drennan, 278 Kan. 704, 712-13, 101 P.3d 1218 [2004]); State v. Hunter, 241 Kan. 629, 646, 740 P.2d 559 (1987). When reviewing a district judge’s refusal to give a requested instruction, this court must view the evidence in the light most favorable to the requesting party. State v. Saleem, 267 Kan. 100, 113, 977 P.2d 921 (1999). Defendant was charged with capital murder and attempted capital murder under K.S.A. 21-3439(a)(5), which prohibits the “intentional and premeditated killing of a law enforcement officer, as defined in K.S.A. 21-3110 and amendments thereto.” The parties stipulated to the victims’ status as law enforcement officers. K.S.A. 21-3403 defines voluntary manslaughter as “the intentional killing of a human being committed: . . . (b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211 . . . .” In turn, K.S.A. 21-3211 provides: “A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other’s imminent use of unlawful force.” See White, 284 Kan. at 347-48; compare K.S.A. 21-3211 (Furse 1995). Thus voluntary manslaughter based on imperfect self-defense is not a defense to criminal liability; it is a lesser degree of homicide. State v. Carter, 284 Kan. 312, 326, 160 P.3d 457 (2007). Moore did not testify, but he asserts that adequate evidence of his honest belief in the necessity of exerting deadly force came in through the testimony of Walton, who admitted Moore told him repeatedly that he was “defending himself,” and through Taylor, who testified Moore believed he was going to be shot by police. Sparks also testified that Moore stated he believed he would die. We are not persuaded by Moore’s argument. In order for him to be convicted of voluntary manslaughter based on imperfect self-defense, the jury would have had to conclude the circumstances could warrant an honest belief that the uniformed officers who entered Moore’s home were aggressors threatening imminent use of “unlawful” force. See White, 284 Kan. at 347-48; K.S.A. 21-3211 (Furse 1995). Moore’s jury could not reasonably do so on the record before us. Two analogous decisions on the necessity of ordinary self-defense instructions are instructive. In the first, State v. Tyler, 251 Kan. 616, 840 P.2d 413 (1992), defendant St. John Tyler requested a self-defense instruction; Tyler was prosecuted for shooting a uniformed police detective who assisted in a warrant-supported raid on Tyler’s alleged crack house. The district judge ruled that “a law enforcement officer executing a validly issued search warrant” could not, as a matter of law, “be an ‘aggressor within the meaning of K.S.A. 21-3211.” 251 Kan. at 626; see K.S.A. 21-3211 (Furse 1995). On appeal, this court upheld the outcome in the district court but held that its legal ruling was overbroad. We held that a self-defense instruction could be appropriate when an unidentifiable law enforcement officer used force to execute a warrant, if a reasonable person believed the force was justified to repel an unlawful aggressor. Tyler, 251 Kan. at 626. However, Tyler s circumstances fell outside this rule. Although the detective involved had raised his gun, there was no indication that he was about to use “unlawful” force. Rather, the detective was dressed in clothing identifying him as deputy sheriff and several occupants of the house heard the officers involved in the raid identify themselves as they entered. Tyler had not attempted to ascertain the detective’s identity, and Tyler admitted that he knew his drug operation might be raided and that officers might enter quickly in such an event. With this evidence before the jury, Tyler’s testimony that he did not know the detective was a police officer and certain occupants’ testimonies that they had not heard the officers identify themselves did not justify a self-defense instruction. 251 Kan. at 626-27. In State v. Lutter, 27 Kan. App. 2d 858, 860, 10 P.3d 16, rev. denied 270 Kan. 902 (2000), a panel of our Court of Appeals applied Tyler to hold that the district judge did not err by refusing to give a self-defense instruction. In Lutter, the only evidence arguably supporting the instruction was the defendant’s testimony that he thought the officer, Butler County Sheriff s Deputy Jeremy Train, was going to kill him. The defendant, Michael Lutter, had run away after officers responded to a report of a stranded vehicle in a cemetery. The Court of Appeals panel wrote: “Although Train had his gun out, no evidence was presented that indicates that he was about to use unlawful force. Lutter knew that Train was a uniformed sheriff s deputy. He was running away when Train gave chase and told him that he was under arrest. Though Lutter claims he feared for his life and shot first to defend himself against perceived imminent, unlawful aggression, his testimony discloses otherwise. Lutter admits he shot to scare the deputy so that he could escape. In addition, under these circumstances, no reasonable person in Lutter’s circumstances would believe it necessary to shoot Deputy Train to defend himself from imminent use of unlawful force.” Lutter, 27 Kan. App. 2d at 861. As in Tyler and Lutter, the evidence in this case did not merit the giving of any kind of self-defense instruction. There is no question that Moore appreciated that the persons at his door were law enforcement officers, that he appreciated the reasons they had gathered outside his home and desired to enter it, and that Sparks was a hostage until virtually the same moment that the police came through the door. Moore fired at the officers in spite of his undeniable knowledge of their identity and purpose. Under these circumstances, Moore simply could not have harbored an honest but unreasonable belief that the deadly force was necessary; and we have no hesitation in upholding the district judge’s decision to deny a voluntary manslaughter instruction based on imperfect self-defense. This decision eliminates any need to address an alternative argument made by the State, i.e., that the “skip rule” should apply to excuse any error in refusing the voluntary manslaughter instruction. See State v. Horn, 278 Kan. 24, 43, 91 P.3d 517 (2004). Instruction on Voluntary Intoxication 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.” The capital murder and attempted capital murders with which Moore was charged include intent and premeditation as elements. See K.S.A. 21-3439(a)(5). As with Moore’s first issue on the voluntary manslaughter instruction, we must address the adequacy of the evidence to support his request to the district judge for a voluntary intoxication instruction. See Saleem, 267 Kan. at 113. The defense argues that Moore’s residence was littered with empty and full beer cans and liquor bottles; that Moore had a histoiy of alcohol and drug abuse and his behavior became mean, violent, and paranoid when he was under the influence; and that Moore unquestionably behaved in a mean, violent, and paranoid manner on the night of the crimes. This is circumstantial evidence that he was under the influence on April 8 and 9. The State points out that neither H.A. nor Sparks, who were in Moore’s presence at the time, were aware of him drinking or using drugs. And neither Bayless nor Walton, with whom Moore spoke for several hours, observed any sign of impairment from alcohol or drugs. In fact, Moore clearly understood what was going on and communicated coherently. Even without the testimony of Moore’s toxicology expert, Martinez, or admission of the urine screening report on which it relied, which we discuss below, we hold that Moore was entitled to a voluntary intoxication instruction. It is clear from the record before us that the district judge weighed the evidence supporting and undercutting the instruction rather than simply determining whether the minimum evidence necessary to require the instruction was present. See Baker, 281 Kan. 997, Syl. ¶¶ 2, 4. The circumstantial evidence of Moore’s voluntary intoxication at the time of the crimes may not have been strong, but it was adequate to support an instruction. However, given the enormous weight of the evidence against Moore, we hold that the judge’s error in refusing to give a voluntary intoxication instruction error was harmless. This is true regardless of whether we view the error as one of constitutional magnitude, infringing on Moore’s right to present his theory of defense, or as nonconstitutional trial error. Compare State v. Atkinson, 276 Kan. 920, 925, 80 P.3d 1143 (2003) (constitutional error harmless if appellate court “willing to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial”), and K.S.A. 60-261 (reversal not required unless refusal to grant it “inconsistent with substantial justice,” error affected party’s “substantial rights”); see State v. Jones, 277 Kan. 413, 423, 85 P.3d 1226 (2004). Moore made repeated and cogent, though tragically misguided, statements about his expectations for the evening, about a “bloodbath,” and about his demise in a “blaze of glory.” Those expectations were, at least in part, realized. Admission of Toxicology Expert’s Testimony Moore also argues that the district judge erred in excluding Martinez’ proffered testimony. Moore asserts that this claim of error should be reviewed de novo. The State maintains that the appropriate standard by which to review the admission or exclusion of such evidence is abuse of discretion. Traditionally, this court has stated that “ ‘[t]he admission of expert testimony lies within the sound discretion of the trial court. Its decision will not be overturned absent an abuse of such discretion. One who asserts an abuse of discretion bears the burden of showing such abuse.’ ” State v. Brice, 276 Kan. 758, 775, 80 P.3d 1113 (2003) (quoting Irvin v. Smith, 272 Kan. 112, 125, 31 P.3d 934 [2001]). However, little turns on whether the court “ ‘label[s] review of this particular question abuse of discretion or de novo, for an abuse-of-discretion standard does not mean a mistake of law is beyond appellate correction. A district court by definition abuses its discretion when it makes an error of law. . . . The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.’ ” State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) (quoting Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 [1996]). This court has recently modified the standard of review on such questions to reflect the actual analysis it applies: “ ‘ “[Ejvidentiaiy rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question.” ’ ” State v. Morton, 283 Kan. 464, 473, 153 P.3d 532 (2007) (quoting State v. Oliver, 280 Kan. 681, 693, 124 P.3d 493 [2005]). Here, the appropriate standard for review should be tied to the basis for the district judge’s decision; but this is problematic, because the judge never explicitly ruled that the testimony could not be admitted. In fact, the district judge ruled in favor of the defense on the Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), issue, i.e., the necessary scientific recognition and reliability of Martinez’ methodology. Compare Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 456, 14 P.3d 1170 (2000) (district judge failed to apply Frye standard correctly). Any further decision the judge may have made on whether an appropriate foundation had been laid for the opinion and whether the opinion itself was relevant and helpful to the jury were short-circuited by ruling that no voluntary intoxication instruction would be given and abandonment of the defense attempt to use Martinez to support Moore’s theory of the case. The unusual order of events before the district judge is critical to our understanding. The district judge first heard the proffer of Martinez’ testimony outside the presence of the jury. Apparently considering that proffer, among other evidence, he then ruled against the defense on its requests for instructions on voluntary manslaughter and voluntary intoxication. We regard the first decision on the voluntary manslaughter instruction as correct; the second decision on the voluntary intoxication instruction was incorrect. The court then reconvened in the presence of the jury, and the defense rested. At this stage, we can only attempt to reconstruct the reasoning behind this choice. But, without a voluntary intoxication instruction, there was nothing that Martinez could say that would be helpful to tire jury or exculpatory for Moore. In circumstances other than those before us, we might find this order of events and the interrelationship between Moore’s appellate arguments on tire voluntary intoxication instruction and on Martinez’ testimony troubling. Here, we do not. Our careful examination of Martinez’ proffer convinces us that there was nothing he could have contributed to the jury’s understanding of the case, even if the jury had been given a voluntary intoxication instruction. To begin with, the report of the urine screening performed shortly after Moore was arrested was not admitted into evidence. No foundation for it was laid, and no hearsay exception was established. This report was the sole basis for Martinez’ expert opinion, and Kansas law requires an expert’s opinion to be supported by admitted evidence. See State v. Gonzalez, 282 Kan. 73, 80-88, 145 P.3d 18 (2006). Second, even if a voluntary intoxication instruction had been given, Martinez admitted that he needed more information to opine on Moore’s actual impairment at the time of the crimes. Although his report stated that “habitual use” of the “massive levels of methamphetamine” that would produce the values in Moore’s screening report “are known to result in toxic psychosis characterized by paranoia, delusion, hallucinations, bizarre and violent behavior,” he was unable to testify about the timing of Moore’s ingestion of drugs or the effect the drugs actually had on him in particular. We also see some similarity between this case and State v. Lawrence, 281 Kan. 1081, 1087-89, 135 P.3d 1211 (2006), in which we ruled that a treating physician could not testify about the effect that the risk of being injured or killed in a shooting may have on African-American men. We ruled that such general testimony could not be employed in that case to support an argument that a particular African-American man, defendant Kelly Jay Lawrence, possessed an honest belief in certain circumstances that he must use deadly force in self-defense. See Lawrence, 281 Kan. at 1088-89. As we recognized in Lawrence, vague or speculative testimony about what may be true about certain members of a group on various occasions is not the same as testimony about what was true about a particular member of that group on a specified occasion. Finally, we observe that Moore did not object to the order of the proceedings before, or the order of the decisions made by, the district judge. And his arguments on appeal rest on the presumption that all necessary evidence had been considered by the judge when he made his rulings on this and other issues. Under what we are certain will be the unusual circumstances of this case, we are confident there was no error in the district judge’s treatment of Martinez’ testimony, regardless of whether we apply the de novo standard of review urged by the defense or the abuse of discretion standard advocated by the State. Conclusion In summary, there was no error in the district judge’s refusal to instruct on voluntary manslaughter based on imperfect self-defense. Although the district judge’s refusal to instruct on voluntary intoxication was error, that error was harmless. There was no error in the district judge’s treatment of Moore’s toxicology expert’s testimony. The judgment of the district court is therefore affirmed.
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Per Curiam: This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Michael L. Jones, a Wichita attorney admitted to the practice of law in Kansas in 1968. The hearing panel found that the respondent violated Kansas Rules of Professional Conduct (KRPC) 1.3 (2007 Kan. Ct. R. An-not. 398) (diligence); KRPC 1.15(b) (2007 Kan. Ct. R. Annot. 473) (duty to promptly deliver funds or property of a client or third party); KRPC 8.1(b) (2007 Kan. Ct. R. Annot. 553) (bar admission and disciplinary matters); KRPC 8.4(d) (2007 Kan. Ct. R. Annot. 559) (engaging in conduct prejudicial to administration of justice); KRPC 8.4(g) (engaging in conduct adversely reflecting on fitness to practice law); and Kansas Supreme Court Rule 207(b) (2007 Kan. Ct. R. Annot. 288) (duties of the bar and judiciary). The hearing panel unanimously recommends that the respondent be suspended from the practice of law for 30 days. This case arises out of the respondent’s conduct as the attorney for a probate estate. It is a companion case to In re Jones, 286 Kan. 544, 186 P.3d 746 (2008), in which the respondent’s brother, attorney Stephen J. Jones, was indefinitely suspended as a result of his conduct as the administrator for the same probate estate. The estate was opened in 1998, and by early 2000, all of the property of the estate had been liquidated and all of the debts had been paid. Although the estate could have been closed and the proceeds distributed to the heirs at that time, neither the respondent nor his brother took action to close the estate and distribute the proceeds until December 2006, after an investigation into a disciplinary complaint filed by one of the heirs was underway. At the commencement of the hearing before a panel of the Kansas Board for Discipline of Attorneys, the respondent stipulated that the factual allegations contained in the formal complaint were true and resulted in the disciplinary rules violations set forth therein. Respondent then testified in mitigation of his conduct. The Deputy Disciplinary Administrator recommended a 6-month suspension from the practice of law. Respondent sought censure. The panel recommended a 30-day suspension. Respondent filed no exceptions to the final hearing report. The panel made the following findings of fact and conclusions of law: “FINDINGS OF FACT “The Hearing Panel finds the following facts, by clear and convincing evidence: “2. On June 23, 1998, John E. Regan, a resident of Wichita, Kansas, died intestate. Mr. Regan worked at Cessna, owned a liquor store in Wichita, and owned a home in Wichita. Mr. Regan never married and had no children. Mr. Regan’s parents were deceased and his only heirs were his uncles, aunts, and cousins. None of his heirs lived in Kansas. “3. Mr. Regan’s cousin, Peter Regan, lived in Anchorage, Alaska. Peter Regan traveled from Alaska to Wichita, Kansas, to arrange for his cousin’s burial and to initiate his estate. “4. While in Wichita, Peter Regan met with the Respondent regarding John E. Regan’s estate. The Respondent and Stephen Jones are brothers. Stephen Jones is an attorney. He and the Respondent maintain separate law offices. The Respondent recommended that the Stephen Jones serve as Administrator of John E. Regan’s estate. “5. Peter Regan retained the Respondent to probate his cousin’s estate and paid $500 in attorneys fees. “6. On July 1, 1998, the Respondent filed a Petition for Appointment of Administrator and Special Administrator. The Court approved the Petition and Stephen Jones was appointed to serve as the Administrator of John E. Regan’s Estate. “7. At the time of his death, Mr. Regan had a pending workers’ compensation case against Cessna. In that case, Stephen Jones represented Mr. Regan. Shortly after Mr. Regan’s death, Stephen Jones received a settlement check from Cessna in the amount of $32,469.60 in full settlement of Mr. Regan’s workers’ compensation case. After attorneys fees, Mr. Regan’s Estate received $22,708.45. “8. Thereafter, the Respondent filed an Amended Petition in the probate proceeding. According to the Amended Petition, John E. Regan had 16 heirs. “9. After the probate case was filed, Peter Regan inventoried John E. Regan’s real property, personal property, and stock at the liquor store. Stephen Jones paid creditors of the estate approximately $16,000.00 and liquidated the liquor store inventory. “10. On October 29, 1999, the Court approved the sale of John E. Regan’s home. On December 23, 1999, Stephen Jones completed the sale of the house and paid himself $4,045.56 as Administrator. “11. After Stephen Jones liquidated tíre assets, paid the creditors, and paid himself, the probate estate consisted of $27,301.00. Stephen Jones placed the net proceeds in a non-interest bearing checking account in his name as Administrator of the estate of John E. Regan. “12. Thereafter, Stephen Jones took no action to distribute the net proceeds of the Estate and the Respondent took no action to close the Estate. “13. Finally, on February 25, 2006, Dorothy Brown, one of the heirs, filed a complaint with the Disciplinary Administrator’s office against Stephen Jones for his conduct as Administrator of the Estate. On March 7, 2006, the Disciplinary Administrator forwarded a copy of Ms. Brown’s letter to the Respondent and requested that the Respondent provide a written response to the complaint within fifteen days. The Respondent failed to respond to the request for a written response. “14. On May 24,2006, the Disciplinary Administrator again requested in writing that the Respondent provide a written response to the complaint. On June 6, 2006, the Respondent sent a letter, via facsimile, requesting additional time to respond. The Disciplinary Administrator agreed to extend the Respondent’s time to provide a written response to the complaint to June 23, 2006. The Respondent failed to provide a written response by June 23, 2006. “15. On June 25, 2006, the Respondent requested an additional extension of time to provide a written response to the initial complaint. The Respondent agreed to provide a response before the end of the week. The Respondent failed to provide a written response by the end of that week. “16. The Disciplinary Administrator directed the Respondent to provide a written response to the initial complaint by August 4, 2006. On August 4, 2006, the Respondent sent a response to the Disciplinary Administrator. “17. On December 8, 2006, John Seeber, the attorney appointed to conduct an investigation of the complaint, took the Respondent’s deposition, pursuant to a subpoena. “18. On December 15, 2006, the Respondent filed a Petition for Final Settlement of the Estate. On December 22, 2006; Stephen Jones finally made a distribution of the assets to the heirs. “19. Between December, 1999, and December, 2006, Peter Regan and other heirs contacted the Respondent and Stephen Jones on a number of occasions seeking information regarding the distribution of the Estate’s net assets. “20. Three of the heirs slated to inherit from John E. Regan’s Estate died after the Estate should have been distributed but before it was actually distributed. The three heirs lost the opportunity to benefit from their inheritance. “CONCLUSIONS OF LAW “1. Based upon the findings of fact and the Respondent’s stipulation at the hearing, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.3, KRPC 1.15(b), KRPC 8.1(b), KRPC 8.4(d), KRPC 8.4(g), and Kan. Sup. Ct. R. 207(b), as detailed below. “2. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to the Estate of John Regan when he failed to take any action to cause the Administrator to promptly distribute the proceeds of the Estate. Because the Respondent failed to act with reasonable diligence and promptness in representing the Estate of John Regan, the Hearing Panel concludes that the Respondent violated KRPC 1.3. “3. Lawyers must deal properly with their client’s property. KRPC 1.15(b) provides: ‘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 or 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.’ The Hearing Panel concludes that the Respondent violated KRPC 1.15(b) by failing to see that the Administrator promptly distributed the proceeds of the Estate. “4. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). Justice required the Respondent to see that the Administrator distributed the net proceeds of John E. Regan’s Estate in late 1999 or early 2000. His failure to do so for a period of seven years resulted in significant prejudice to the administration of justice. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d). “5. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). The Respondent owed a duty to the Estate of John E. Regan to see that the Administrator distribute the net proceeds of the Estate in a diligent fashion. The Respondent failed to do so. The Respondent’s failure in this regard reflects on his fitness to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g). “6. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority, . . . .’KRPC 8.1(c). ‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’ Kan. Sup. Ct. R. 207(b). The Respondent failed to provide a timely response to the initial complaint. Because the Respondent knowingly failed to provide a timely written response to the initial complaint filed by Ms. Brown as requested by the Disciplinary Administrator, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).” RECOMMENDED DISCIPLINE In considering the appropriate discipline, the hearing panel addressed the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions, specifically, the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors: “Duty Violated. The Respondent violated his duty to [the] JohnE. Regan Estate to see that the Estate is diligently administered. Additionally, the Respondent violated his duty to the legal profession to cooperate in the disciplinary investigation. “Mental State. The Respondent knowingly violated his duties. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury. Three of the heirs died before they realized their inheritance. The Respondent’s misconduct cannot be remedied. “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: “A Pattern of Misconduct. The Respondent failed to ensure that the Administrator distribute the net proceeds of the Estate for a period of seven years. Accordingly, the Respondent engaged in a pattern of misconduct. “Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.15(b), KRPC 8.1(b), KRPC 8.4(d), KRPC 8.4(g), and Kan. Sup. Ct. R. 207(b). As such, the Respondent committed multiple offenses. “Vulnerability of Victim. The heirs of the Estate of John E. Regan were vulnerable to the Respondent’s misconduct because none of tire heirs lived in this area. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1968. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of more than 30 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct. “Indifference to Making Restitution. To date, the Respondent has made no effort to pay interest to the heirs of the Estate of John E. Regan. “Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present: “Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case. “The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. Despite his failure to cooperate prior to the hearing, at the hearing, the Respondent fully admitted the misconduct. “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standard: ‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injuiy or potential injuiy to a client, the public, or the legal system.’ Standard 7.2.” The panel then stated: “The Hearing Panel has given consideration to the fact that the Administrator was the Respondent’s twin brother and that the Respondent’s brother was providing financial and other assistance to the Respondent necessary because of an investment made by die Respondent which failed. These circumstances made it more difficult for the Respondent to address with the Administrator the Administrator’s failings. Nevertheless, in the Hearing Panel’s view, the Respondent should have either taken action to see that the Estate was being administered appropriately or promptly withdrawn. Otherwise the Respondent allowed his own interests to conflict with the interests of his client. KRPC 1.7(b). “Based upon the above considerations, the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law for 30 days.” DISCUSSION In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003); see also Supreme Court Rule 211(f) (2007 Kan. Ct. R. Annot. 304) (misconduct to be established by clear and convincing evidence). Here, respondent stipulated to the factual allegations contained in the formal complaint and the disciplinary rules violations charged therein. Additionally, he filed no exceptions, the results of which render the final hearing report to be deemed admitted. Supreme Court Rule 212(c) (2007 Kan. Ct. R. Annot. 317). We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law, and we adopt the panel’s findings and conclusions. By virtue of respondent’s stipulation before the panel to the facts and disciplinary rule violations, the only matter at issue before the panel was the appropriate discipline to be recommended. As a result thereof, the only testimony was that of respondent as to what he believed were mitigating factors. At respondent’s request, he gave his testimony in narrative form with a few questions by the Deputy Disciplinary Administrator and the panel. The respondent testified that for the first couple of years, he believed there was a problem with the liquor store that Stephen was working on that was causing a delay in closing the estate. He testified that even though he had been receiving calls from Peter Regan, he pretty much ignored the estate. He testified that he asked his brother what was going on with the estate after receiving a letter from a woman about the estate. However, he did not get any information from his brother. The respondent testified that his brother could not address the matter because he was under a lot of stress. The respondent said he, too, was under a lot of stress, so he just let the matter “slide.” The respondent testified that he did not press Stephen about getting the estate closed because his brother was helping him out of financial trouble he had gotten into with a bad investment. The respondent testified that he had put a lot of money into a company that had an idea for a flossing device. The device, however, did not sell and, when the respondent ran out of money, his brother Ste phen stepped in to help him out financially and with the company. As the respondent explained: “But . . . when it came down to getting this thing [the estate] closed, as I told [the disciplinary investigator], I said I probably felt a little compromised. My brother had been kind of my savior and he had the keys to the financial — my financial destiny and he was being wonderful about it. And he was working his tail off on this thing [the floss device] too and trying to make sense of it and get all of us out of the pit of this thing. He was under considerable stress and I was. And I just did not jump him, I think is the word we’re all using, to get this finished.” The respondent also testified that he did not respond to the Disciplinary Administrator initially because he believed his brother would provide the information he needed to respond. He tried to find out what was going on from Stephen, but Stephen “froze” after receiving the complaint and would not respond to his questions asking him what they were going to do. The respondent testified that he felt he could not press his brother on the matter: “And, you know, I didn’t feel like — you know, if I attack him he’s going to cut off the help from me and then I’ll go completely under. Besides that, I’ll make him so mad I’ll lose my relationship with him and the family . . . .” The respondent also testified that he had been treated for depression in the past, but that he was not currently depressed other than with his financial situation. Respondent testified extensively as to his financial problems during the years that passed while he continued to ignore this estate and inquiries from the heirs. Before the panel and this court, little concern was expressed at the harm his inaction caused the heirs, three of whom died in the interim. The main thrust of respondent’s argument related to suspension and the resulting harm it would cause him and his law practice. He seeks censure. As respondent stated in his concluding remarks to the panel, he believes he has “suffered enough over this to begin with.” Shortly thereafter, he stated: “And I just ask the panel to, you know, if anything, slap my hand and say, you know, carry on, but don’t do this again.” At the hearing before this court, respondent again concentrated on his situation and need for his brother’s good will and financial support as justification for his years of inaction. It is difficult to understand how the panel found that selfishness was not a factor in the misconduct. As the panel concluded, respondent’s conduct was intentional. It was undisputed from respondent’s own testimony that he acted intentionally. Respondent repeatedly stated he intentionally left the estate open out of concern his brother would shut off the personal financial support flowing to him if he pushed his brother about the estate. Respondent was not negligent in letting the estate stay open; rather, it stayed open by intention for respondent’s personal gain. That clearly demonstrates selfishness was a factor in the misconduct. We acknowledge that contrary to his brother Stephen’s record, this is respondent’s first disciplinary proceeding. We are also aware that the Disciplinary Administrator now acquiesces in the panel’s recommended 30-day suspension. As tire panel notes, respondent should have done his duty to the estate or withdrawn from the representation. Respondent had a conflict of interest which he resolved by sacrificing the estate in favor of his own financial gain. We conclude that a 6-month suspension is the appropriate discipline to be imposed herein. It Is Therefore Ordered that Michael L. Jones be and he is hereby suspended for 6 months from the practice of law in Kansas, effective upon the filing of this opinion. It Is Further Ordered that Michael L. Jones shall comply with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337). It Is Further Ordered that this opinion be published in the official Kansas Reports and that respondent pay the costs of these proceedings.
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The opinion of the court was delivered by Thiele, J.: This was a proceding under the workmen’s compensation act. At the hearing before the compensation commissioner, by reason of stipulations made, the only questions in issue were whether claimant suffered an accidental injury, and if so whether it arose out of and in the course of his employment, the nature and extent of his disability, if any, and the amount of compensation due, if any. On the evidence ■ adduced, an award of compensation was denied the claimant, who appealed to the district court. The district court found that claimant sustained an accidental injury on June 21, 1944, which arose out of and in the course of his employment, and became and was totally disabled from performing normal and physical labor and that the period of time he would be disabled in the future was indefinite and problematical, and judgment for an award was rendered accordingly. The respondent has appealed to this court. After appellant’s abstract was filed; appellee filed his motion that the appeal be dismissed for the asserted reason the specification of errors presented no question for appellate review. Consideration of that motion was postponed until the hearing on the merits. Without going into any details of fact, or statement of reasons, the motion to dismiss is denied. In its brief appellant makes it clear that it does not rest its appeal on any proposition of preponderance of the evidence, or greater weight of the evidence, or on controverted or disputed evidence, but solely on the proposition there was no substantial competent evidence to support the trial court’s judgment and that appellee’s claim is based on guess, speculation and conjecture. No other question is presented for our consideration. Our attention is directed to certain of our cases holding there must be substantial competent evidence to support an award and to cases from other jurisdictions holding that when evidence tends equally to sustain either of two inconsistent propositions neither position can be said to have been established by legitimate proof. In our reports may be found many decisions to the effect that in an appeal under the workmen’s compensation act, we are concerned only with evidence which tends to support the findings, award and judgment, and not with evidence to the contrary. See, e. g., Stanley v. United Iron Works, 160 Kan. 243, 245, 160 P. 2d 708; Scott v. Kansas Western Pipe Line Co., 158 Kan. 160, 163, 146 P. 2d 366; Thompson v. Swenson Construction Co., 158 Kan. 49, 56, 145 P. 2d 166; Walker v. Finney County Water Users Assn., 150 Kan. 254, 257, 92 P. 2d 11; Leamos v. Wilson & Co., 136 Kan. 613, 616, 16 P. 2d 490; and cases cited in the above. Our summary of the facts shown by the evidence is made in. view of that rule. Claimant was a miner who prior to June 21, 1944, was in good health, never having had any fever, cough or pulmonary difficulties. On that day he was operating a drilling machine used in the mine when a part gave way and the drill fell, throwing a heavy weight on his arms and twisting him around so that his back, chest and lungs were injured. He had a helper who assisted him and during the remainder of the day he did no heavy work. He worked the next day under the same conditions. On the second day after the accident he was sent to a Doctor Connell at Picher, Okla., for professional treatment and after five days that physician released him as able to work and he then worked for two weeks. During that time he did no heavy work. During that period he was short winded, his lungs hurt and he felt like he was burning. He was sent back to the same doctor who told him there was nothing wrong with him. Later, at the contested hearing before a War Labor Board, he was given release from his employment and he then consulted Doctor Spearing at Columbus, Kan., and he was also examined by Doctor Newman, of Pittsburg, Kan. The contention that the evidence is speculative and conjectural and that it does not constitute substantial, competent evidence, grows out of the following: Doctor Spearing, whose qualifications were admitted, testified that he had made an X-ray examination of claimant’s chest on June 28, 1944, and that he made a later examination on October 20, 1944, and made a written report which was admitted in evidence. Reference to that report is made later. Pie further testified with reference to the history of the case that he found mucous rales, temperature of 99°, and assuming witness’s statements to be true and considering the X-ray pictures and the physical examination, that he thought it likely the accident precipitated the pains in claimant’s chest and the symptoms from which he suffered, and that claimant was unable to work, and that his injury »of June 21, 1944, was the probable cause of his condition. On cross-examination he testified claimant did not have active tuberculosis; that he did have beginning silicosis. After other questions and answers, the doctor was asked, “And this is all your guess based on the history, is that right?” and answered, “That’s right.” It is this question and answer around which the appellant’s contention swings. The following must also be noted: As has been said, Doctor Spearing’s written report was received in evidence. It was stipulated that Doctor Newman would testify as set forth in that report. No purpose would be served by setting out the report in full. In that report a review is made of the X-ray pictures and that other than normal lung conditions appear; that a diagnosis of silicosis was made; that patient complained of cough and had fever; that in view of the findings and history of the accident, “it is highly probable that such injury precipitated the pains in this man’s chest and the symptoms from which he is suffering, such a strain apparently caused an aggravation of his pulmonary condition, silicosis. In my opinion, at this time this man is physically unable to perform man ual labor, and will be so disabled for an indefinite time.” Under the stipulation that was the testimony of Doctor Newman. Doctor Connell, although not in agreement with Doctor Spearing and Doctor Newman as to cause of claimant’s condition, testified that if claimant’s history as given on October 17, 1944, was true, and that he had pain if he attempted light work, was soon out of breath, had pain in his chest and lungs, had elevation of temperature and weakness and nervousness so severe he was unable to walk at timés, then claimant was unable to work. Appellant directs our attention to Pashea v. Terminal Railroad Ass’n of St. Louis, 350 Mo. 132, 165 S. W. 2d 691, 696, where it was held that plaintiff’s evidence must be considered as a whole and if so viewed one part destroys the other, then it amounts to nothing, is not substantial evidence and will not sustain a verdict. Even if that were the rule here it would not avail appellant. Appellant seeks to magnify out of all proportion the use of its attorneys’ language, “this is your guess,” and the doctor’s response, “that’s right.” Not only did Doctor Spearing testify more positively than mere guess, but Doctor Newman, whose testimony was not qualified in any manner, testified positively, as more fully stated before. In our opinion causal connection between the accident sustained by claimant and claimant’s condition at the time of the hearing before the workmen’s compensation commissioner was established by substantial, competent evidence, and that being the case, the judgment of the trial court awarding compensation should be and it is affirmed.
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The opinion of-the court was delivered by Thiele, J.: The appeals here considered represent two phases of one action in the trial court. Owing to the nature of the questions presented the following statement is made: Plaintiff brought an action against defendant Cummings to recover damages for the wrongful death of her husband. A trial was had, a judgment rendered, a new trial granted, and an appeal taken by the defendant Cummings to this court, where the rulings and judgment of the trial court were affirmed. See Lechleitner v. Cummings, 159 Kan. 171, 152 P. 2d 843. Thereafter a second trial was had resulting in a judgment for plaintiff on January 5, 1945, in the sum of $5,629.17. From this judgment Cummings has appealed to this court. The abstract of the record discloses the notice of appeal was dated January 12, 1945, but neither the abstract nor the certificate of the clerk of the trial court to this court, filed here on January 26, 1945, discloses when the notice of appeal was filed in the office of the clerk of the district court. The abstract of the record further discloses that an execution was issued on the judgment on January 17, 1945, and returned unsatisfied on January 23, 1945. No supersedeas bond was ever given. The abstract of the record further discloses that an affidavit in garnishment, verified under date of March 6, 1945, was filed in the trial court but the date of its filing is not shown. The garnishee named was Farmers Automobile Inter-Insurance Exchange, hereafter referred to as the Exchange. It had issued a policy to Cummings insuring him in the sum of $5,000 against liability for damages to any one person. Trial was had on issues joined and a judgment rendered against the Exchange on May 19, 1945. From this judgment the Exchange has appealed to this court. The notice of appeal was dated May 25, 1945, and the certificate of the clerk of the trial court to this court was filed May 31, 1945, but neither the abstract of the record nor the clerk’s certificate shows when the appeal was perfected. As will appear later, it is of some importance when the first appeal was • perfected. Counsel could materially assist this court by having the abstract of the record show when pleadings are filed and appeals perfected. Taking up the appeal in No. 36,364, we note that the specifications of error are that the trial court erred in overruling defendant’s (1) demurrer to the evidence, (2) motion for judgment at the close of the evidence, (3) motion for a new trial, and (4) his motion to set aside special finding No. 4, which will be considered in the order stated. In the first appeal in this case (159 Kan. 171, 152 P. 2d 843) this court considered a demurrer charging that the evidence failed to show the defendant’s negligence, and that there was no causal relation between the accident and the death, and held that the demurrer was properly overruled. In that opinion may be found an extended statement of what that evidence consisted. In that opinion notice was also taken of a contention that the evidence showed plaintiff to be guilty of contributory negligence, a contention not considered for reasons stated, but where it was said that if the contention had been made it probably would not have been sustained (1. c. 174). The demurrer lodged at the second trial and now under consideration includes the original charges and the charge of contributory negligence. The only difference in the evidence at the first and second trials to which our attention is directed is this: Walter E. Johnson, a police officer of Coffeyville, investigated the accident and talked with Mr. Leehleitner shortly after the accident. At the first trial he reported a conversation with Mr. Leehleitner in the presence of Cummings in which Leehleitner said he was driving about twenty miles an hour, noticed a Ford car parked ahead of him on the highway, he started to slow down because there was a car approaching and he slowed down to about ten miles an hour, when a car (of defendant) rammed into the back of his car. In the second trial Johnson stated that he had forgotten just what Mr. Leehleitner did say, that the accident happened two years ago, that Mr. Lechleitner said he was driving west, there was a car on the pavement ahead, he had been driving about twenty miles an hour and “he slowed down to about ten and started around this car and saw an other car coming from the west and slowed down until this other car could get by before going around and about that time he was hit from the rear.” Appellant stresses the language italicized and argues that it convicts Mr. Lechleitner of contributory negligence. At another place in his testimony Johnson said that Mr. Lechleitner said he had slowed down “with the intention of going around when he saw this other car coming from the west.” (Emphasis supplied.) We need not mention other testimony which was reviewed in the first appeal. Appellant argues that our conclusion in the first appeal as to the sufficiency of the demurrer was rested in.’great part on the fact that any defects in plaintiff’s evidence were supplied by that of the defendant. The contention is too broad. It must suffice here to say that in determining whether the proof showed defendant’s negligence or that Mr. Lechleitner was guilty of contributory negligence, we have considered only the testimony offered by the plaintiff. We think it may not be said that, as a matter of law, plaintiff’s evidence failed to show defendant’s negligence or did show Mr. Lechleitner was guilty of contributory negligence. Whether either was guilty of negligence was a fair question for the jury. As to the other grounds of the demurrer, it is clear the same questions were presented and decided on the first appeal. Under well-established rules, this court, refuses to reopen and reconsider what was decided in an earlier appeal in the same case. See, e. g., Estes v. Zinc Co., 97 Kan. 774, 156 Pac. 758; Ingalls v. Smith, 101 Kan. 301, 167 Pac. 1040; State, ex rel., v. Lyons, 106 Kan. 860, 189 Pac. 976; Shelley v. Sentinel Life Ins. Co., 146 Kan. 227, 69 P. 2d 737; Fleming v. Campbell, 148 Kan. 516, 83 P. 2d 708. Substantially the same questions were raised by the motion for judgment as were raised by the demurrer and need no further consideration. There was no error in ruling on the motion for a new trial unless there was error in refusing to strike out the answer to special question 4, as not supported by the evidence. That question and answer were as follows: “4. Q. If you find from the evidence that the defendant was negligent then state in what manner you find him to have been negligent. A. Failing to see that highway was not clear on the left side before trying to pass the Lechleitner car.” Appellant directs our attention to authorities that where the jury finds a particular act of negligence, it exonerates the defendant of other acts charged. The rule is correctly stated. It is not argued however that the particular act found was not charged, but' that the answer made is not supported by the evidence. While it is true that Cummings testified point-blank that he had no intention of passing the Lechleitner car and that it stopped abruptly ahead of him, the jury did not have to credit his testimony. There was ample evidence the roadway was level and traffic could be seen. Cummings, although stating Lechleitner stopped suddenly, said that he saw the Lechleitner car; that the car did not cross to the left of the center line; that he saw the car slacken speed and that he applied his brakes, started around, saw the car coming from the west, started to miss him and didn’t have time to get back. There was other evidence of skid marks made by the Cummings car showing that it was over on the left-hand side of the road and then went forward, to the right and into the rear of the Lechleitner car. It cannot be said the finding lacks support in the evidence. The judgment of the trial court in No. 36,364 is affirmed. We now take up the appeal in No. 36,451. From the statement of facts heretofore made it appears that an appeal was perfected no later than January 26, 1945, from the judgment rendered against the defendant Cummings on January 5, 1945, and that the affidavit in garnishment was filed not earlier than March 6, 1945. We need not review fully the affidavit for garnishment, the answer of the garnishee Exchange, nor the intervening petition of the defendant Cummings, nor the ruling of the trial court refusing to strike the intervening petition, nor the judgment of the trial court that the garnishee, the Exchange, pay plaintiff the sum of $5,000 and all accrued costs including an attorney’s fee of $25, within ten days or file a bond with good and sufficient surety that it would pay “any final judgment and costs rendered against the defendant.” We do note an allegation of costs rendered against defendant Cummings in the first trial in the sum of $55.98, and that this amount was mentioned in the findings of fact of the trial court in the garnishment proceedings, but no judgment was rendered on account thereof and this item will not be mentioned further. In view of our conclusions, we shall devote no time to appellant’s specification of error that the trial court erred in denying its motion to strike the intervening petition of the defendant Cummings. The other specifications of error raise the question whether, under the facts of this case, the plaintiff may maintain proceedings in garnishment against the Exchange on account of her judgment against Cummings by reason of the policy of insurance issued to Cummings by the Exchange. There is no dispute that the proceedings in garnishment were instituted after the appeal from the, judgment was perfected to this court. Neither is there any dispute concerning issuance of the policy by the Exchange to Cummings or the clause therein determining the liability of the Exchange to the defendant Cummings. That clause reads, in part: ' “No action shall lie against the Exchange unless, as a condition precedent thereto, . . ■ . until the amount of the insured’s obligations to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the Exchange.” There is no contention that under the policy there is any direct liability of the Exchange to the plaintiff as claimant. It seems to be conceded' the policy is an indemnity and not a liability policy. In the briefs of appellant and appellee it is stated that neither has found any decision of this court as to the right to maintain garnishment proceedings under the facts existing and that the question is one of first impression in Kansas. Our research has disclosed none of our decisions that is at all decisive. Although the decisions from other jurisdictions are not in harmony, the lack thereof depends in some instances on variances in types of policies or policy provisions, on difference of states of facts, on different procedural requirements, and in others the results are simply not in agreement. Although the question now under consideration was not involved, we note that in Lewis v. Barnett, 139 Kan. 821, 33 P. 2d 331, 93 A. L. R. 1082, it was held: “A claim for damages in. tort for the negligence of another does not become a debt under the garnishment statute of this state until it is merged into a judgment. “A claim for damages in tort for the negligence of another is not a contingent liability, as included and mentioned in the garnishment statute of this state.” (Syl. Ml 1, 2.) In Pacific Gas & Elec. Co. v. Nakano, 12 Cal. 2d 711, 87 P. 2d 700, 121 A. L. R. 417, the question was the validity of a garnishment levied upon a judgment in a tort action pending appeal from the judgment. In that opinion it is stated the weight of authority supports the rule that pending an appeal from a judgment rendered in a tort action, the debt represented by the judgment is not subject to garnishment. In support are cited the following authorities, which we shall not review: Arp v. Blake, 63 Cal. App. 362, 218 Pac. 773; Grocer Co. v. T. & P. Ry. Co., 95 Tex. 486, 68 S. W. 265, 59 L.R.A. 353; Miller v. Newell, 20 S. C. 123, 47 Am. Rep. 833; 4 Am. Jur., p. 685, § 206. The trial court had upheld the garnishment, but on appeal the supreme court reversed holding in accordance with the rule stated. In an annotation to the above case in 121 A. L. R. 420, on a judgment in a tort action as being subject to assignment, attachment or garnishment pending appeal, it is stated that the general rule appears to be that pending appeal a judgment rendered in a tort action is not subject to garnishment since the appeal “operated to keep alive the case as one of tort as it existed before the judgment was rendered.” Appellee recognizes the division of authority and directs our attention to three cases specifically: Edwards v. Fidelity & Casualty Co. of N. Y., 11 La. App. 176, 123 So. 162; Materazzi v. Commercial Casualty Ins. Co., 157 Misc. 365, 283 N. Y. S. 942; and Gooschin v. Mercer Casualty Co., 178 Wash. 114, 34 P. 2d 435, and generally to other cases noted in the following annotations: 85 A. L. R. 50 et seq., and 106 A. L. R. 525 et seq. Without analysis of each case, it may be said generally they adhere to the view that when a claim in tort has been reduced to judgment, and an execution has been returned unsatisfied, the judgment is final and subject to garnishment within the meaning of an insurance policy provision, notwithstanding the pendency of an appeal. Appellant directs our attention to Ancateau v. Commercial Cas. Ins. Co., 318 Ill. App. 553, 48 N. E. 2d 440, where the policy provision under consideration was identical with the provision presently involved. There pending an appeal, garnishment proceedings were1 instituted. In the course of its opinion the court distinguished some of the cases where garnishment proceedings were upheld and cited many others holding generally that garnishment is premature during the pendency of an appeal in the original action. The court stated that the insurer’s obligation under the policy is that of insurer and extends no further than that relation and that it is ele mentary that in a garnishment proceeding the plaintiff cannot recover against the garnishee unless the judgment debtor could do so. The court concluded the garnishment proceedings were premature. Turning now to the instant case, it is clear that Cummings, having appealed from the plaintiff’s judgment against him, did not recognize or acknowledge that the judgment was final. With the cause in that status he had no matured claim or cause of action' against the Exchange, and at that stage of the litigation the Exchange owed him nothing. Under the reasoning of the Ancateau case, supra, Cummings not being entitled to recover from the Exchange, the plaintiff could not recover against it through proceedings in garnishment. As applied to the facts now before us, we are of the opinion that when the garnishment proceedings were instituted, and when the judgment therein was rendered the amount of the Exchange’s obligation to pay had not been finally determined; that Cummings could not have successfully maintained any action on the policy against the Exchange, and the plaintiff was in no better position; that the proceedings in garnishment were premature and that the court erred in rendering judgment thereon. In view of our conclusion, it is not necessary that we discuss the question argued in the briefs as to the liability of the Exchange for the excess of the judgment over the amount of the policy. The judgment in No. 36,451 is reversed and set aside. Upon consideration, the court orders that the costs in this court on both appeals be equally divided between the appellee plaintiff and the appellant Exchange.
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The opinion of the court was delivered by Harman, C.: This postconviction proceeding involves legality of the sentences imposed on appellant. When the case was here upon direct appeal (State v. Aeby, 191 Kan. 333, 381 P. 2d 356) the particular questions now at issue were not presented or raised. Upon jury trial appellant was convicted on two counts (counts one and three) of burglary in the third degree and on one count (count two) of petty larceny. For these offenses, he was on February 14, 1962, given four separate sentences, as follows: (1) On count one confinement in the state penitentiary for not less than one year nor more than five years; (2) on count two confinement for one year in the Ellis county jail, the sentence to run concurrently with that imposed on count one; (3) on count three confinement in the penitentiary for not less than one year nor more than five years, this sentence to run consecutively to the sentence imposed on count one; and (4) confinement in the penitentiary “for a period of not less than fifteen (15) years nor more than twenty-five (25) years under and by virtue of the Habitual Criminal Act, being G. S. 1949, 21-107a, said sentence to run consecutive with the sentence imposed under Count One and Count Three of the Information. ...” On November 12, 1964, appellant, through his then counsel, filed in the trial court his motion stating he “respectfully requests the court for a Nunc Pro Tunc Order correcting the sentence heretofore imposed upon the defendant.” Attached to this motion was a written brief assailing the “tacking on” of the fourth sentence under the habitual criminal act as a double and void sentence. On January 11, 1965, the defendant-appellant not being present either in person or by attorney, the trial court acted on the foregoing motion, entering that which is entitled “order nunc pro tunc.” This order recited the conviction and previous sentencing as heretofore set forth and then stated: “The court further finds, that Nunc Pro Tunc order is necessary; that on February 14, 1962, in connection with the defendant’s conviction under Count 3 of the Information; being burglary in the third degree in violation of G. S. 21-521, the court imposed sentence under Section 21-107a, commonly known as the Habitual Criminal Act of not more than 25 years and not less than 15 years to run consecutive to the sentences imposed for convictions under Counts 1 and 2 of the Information. The court further finds, with reference to the conviction under Count No. 3, that the court incorrectly included an additional sentence of not more than 5 years nor less than 1 year under G. S. 21-523, also to run consecutive to the sentences imposed under Counts 1 and 2 of the Information. The court finds that the incorrect addition to the sentence under G. S. 21-523 for conviction under Count 3 of the Information should be deleted by Nunc Pro Tunc Order. “The court finds that the proper sentence is as follows, and so orders by Nunc Pro Tunc order the correction of the sentence heretofore entered on the 5th day of February, 1962: “ ‘Thebefobe, it is by the coubt considered, obdebed, adjudged, and decreed, that the defendant, Benny Aeby, be taken hence to the County Jail, Ellis County, Kansas, and thence to the Kansas State Penitentiary at Lansing, Kansas, where he shall be confined for a period of not less than one (1) year nor more than five (5) years on Count One of the Information, said penalty being imposed under G. S. 1949, 21-521 and 21-523, for the offense of burglary-in the third degree; for a period of one (1) year in the Ellis County Jail on Count Two of the Information, said sentence being imposed under G. S., 1949, 21-535, being petty larceny, said sentence to run concurrently with the sentence imposed under Count One of the Information; on Count Three of the Information, for a period of not less than fifteen (15) years nor more than twenty-five (25) years under and by virtue of the Habitual Criminal Act, being G. S. 1949, 21-107a, said sentence to run consecutive with the sentence imposed under Count One and Count Two of the Information and further that defendant pay the costs herein, all sentences for conviction under Counts One, Two and Three of the Information being entered as provided by law.’ ” On July 19, 1965, appellant filed the following: “Motion to Vacate Judgment and Sentence “Comes now the defendant, Benny Aeby, by and through his attorney, Anthony R. Russo, and respectfully requests the court to vacate and set aside or correct the sentence heretofore imposed upon the defendant on January 11, 1965, pursuant to Section 60-1507 of the General Statutes of Kansas.” On October 18,1965, this motion was overruled. Appeal has been duly perfected from this action, with present counsel appointed to represent appellant. Appellant makes these contentions: The original judgment of February 14, 1962, consisted of three valid sentences — the one to five year sentences on the two burglary counts and the one year sentence for petty larceny — and a void sentence, the fourth one purportedly imposed for the offense of being an habitual criminal; the trial court had no power through the guise of acting nunc pro tunc to alter or change the valid sentences nor particularly to increase the initial sentence on count three to the fifteen to twenty-five year sentence; that the court’s power was limited to eliminating the initial void fourth sentence of fifteen to twenty-five years and letting stand the other three sentences, the only sentences under which appellant can now be held. We agree with appellant’s contention that the fourth sentence in the original judgment — the fifteen to twenty-five year sentence for being an habitual criminal — was void. Our habitual criminal act (now K. S. A. 21-107a) does not create a new or separate offense based on the commission of more than one felony. It merely provides for imposition of an increased sentence for every person convicted a second and third time of any felony (State v. Ricks, 173 Kan. 660, 250 P. 2d 773; State v. Messmore, 175 Kan. 354, 264 P. 2d 911; State v. Duree, 186 Kan. 783, 352 P. 2d 957). The increased punishment for a second and third conviction of a felony, provided by the habitual criminal law, is imposed as a disciplinary measure for those whom previous conviction and punishment have failed to reform (State v. Ricks, supra). We do not agree with appellant’s contention that the other two sentences in the original judgment were valid. When a defendant is convicted of a felony and it is shown to the court he has been previously convicted of one or more felonies, application of the habitual criminal act is mandatory (State v. Tague, 188 Kan. 462, 363 P. 2d 454; State v. Ricks, supra; Johnson v. Crouse, 224 F. Supp. 864, affirmed 332 F. 2d 417, cert. den. 379 U. S. 866, 13 L. Ed. 2d 69, 85 S. Ct. 135). Hence the court erred in not applying the habitual criminal act in sentencing upon each of the burglary counts, and the sentences imposed were invalid. We come now to the purported correction of January 11, 1965, via nunc pro tunc. The record does not reveal, nor does the state contend, that appellant was actually sentenced on February 14, 1962, in accordance with that which is reflected in the proceeding of January 11, 1965. In other words, the initial journal entry of judgment of the proceedings on February 14,1962, accurately reflected the judgment and sentence rendered by the court at that time. The correction of an erroneous or invalid sentence is to be distinguished from the correction of merely formal or clerical errors, omissions or mistakes in entries concerning matters of procedure which are generally correctable by nunc pro tunc orders (Richardson v. Hand, 182 Kan. 326, 320 P. 2d 837). The function of an order nunc pro tunc is to correct the record of a judgment by entering now for then an order previously made and not to make an order now for then (Hinshaw v. Hinshaw, 166 Kan. 481, 203 P. 2d 201). Its function is not to alter a judgment actually rendered but merely to correct the record of a judgment improperly recorded (Bush v. Bush, 158 Kan. 760, 150 P. 2d 168). Hence the judgment of January 11, 1965, was not properly a nunc pro tunc proceeding correcting the record of old sentences wherein appellant’s personal presence was not required, but was in reality pronouncement of new sentences. Under such circumstances appellant should have been personally present. Since he was not, the sentences are void. In Roberts v. State, 197 Kan. 687, 421 P. 2d 48, involving a similar factual situation, this court construed K. S. A. 62-1507 relating to personal presence of a defendant and said: “In a criminal prosecution where an erroneous original sentence of imprisonment has been vacated and set aside, a new sentence of imprisonment imposed in the defendant’s absence is void, for, under such circumstances, it is mandatory that the defendant be personally present in court at the time of resentencing.” (Syl. f 3.) Return of appellant for further resentencing is the proper procedure. In this state a void sentence may be corrected by the substitution of a new and valid sentence, and to accomplish such purpose, a prisoner shall be remanded to the district court for further proceedings (Roberts v. State, supra; Bridges v. State, 197 Kan. 704, 421 P. 2d 45). In recording the new sentences the following proviso contained in the second paragraph of K. S. A. 62-1516 should be complied with: “If the sentence is increased because defendant previously has been convicted of crime the record shall contain a statement of each of such previous! convictions, showing the date, in what court, of what offense and whether the same was a felony or a misdemeanor; also, a brief statement of the evidence relied upon by the court in finding such previous convictions and the facts pertaining thereto. Defendant shall not be required to furnish such evidence.” New sentences imposed should run from the date of appellant’s original commitment under the invalid sentences so that he is credited with the time already served (State v. Cox, 194 Kan. 120, 397 P. 2d 406; State v. Felton, 194 Kan. 501, 399 P. 2d 817). The judgment is reversed and the district court is directed to recall the appellant for resentencing in accordance with the views expressed in this opinion. APPROVED BY THE COURT.
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The opinion of the court was delivered by Hatcher, C.: This is an appeal from a summary judgment rendered in an action on a foreign judgment. A petition was filed in the District Court of Allen County, Kansas, on July 14, 1965, alleging that a judgment was obtained upon a promissory note in the State of Colorado, in favor of Darrell Thomas, trustee in bankruptcy, against Harold Erbert for the sum of $5,-338.38, plus costs and interest. The petition further alleges that the plaintiff, Richard Raker, who is the appellee herein, received an assignment of the judgment from the trustee. After some proceedings which are not important to the decision of this controversy the appellant filed an amended answer. The amended answer was attacked by a motion for summary judgment which was sustained. The defendant has appealed. We must look to the answer for the facts and issues upon which this controversy must be determined. The amended answer admitted the entry of the judgment in the State of Colorado and alleged as a defense thereto: “3. That the service of summons upon the defendant in the case of Darrell D. Thomas, trustee vs. Harold Erbert, civil action No. 43169 in the District Court, in and for the County of El Paso, State of Colorado, is invalid and void for the reason that when the defendant Harold Erbert who was a citizen and resident of the State of Kansas, and a nonresident of the State of Colorado, was served with said summons he was at that time attending the United States District Court for Colorado, sitting at Colorado Springs, Colorado, as a witness in a hearing in the bankruptcy case of the Falcon Oil Company, a bankrupt corporation, and was in the said state and county for no other reason. “5. That on the 25th day of March, 1963, the said Darrell D. Thomas who was the plaintiff in the action upon which this judgment is based agreed with and promised the defendant’s attorneys, Kenneth H. Foust of Iola, Kansas, and the firm' of Foard, Foard, and Cartney of Colorado Springs, Colorado, attorneys for the defendant Harold Erbert that they would not take judgment in said action against the defendant Harold Erbert until they had filed suits and had attempted to collect the said amount due from the said persons above named, and that if they could not collect said sums from said persons they agreed to notify the defendant’s attorney Kenneth H. Foust and permit him to defend said action, and that by reason of false and fraudulent promises did induce the said defendant Harold Erbert to waive his defense set out in paragraph three hereof by not filing any answer or other pleading in said action setting up said defense and not withstanding said promise whereby said defendant was induced to forego his defense, the said plaintiffs did without giving said notice to the said defendant or either of his attorneys, as they had agreed to do, take said judgment without attempting to collect the same from the above named persons.” The trial court in passing on the motion for summary judgment concluded in part: “The defendant makes no claim that jurisdiction was procured of his person by the Colorado Court by fraud. He does not say that he was induced by promises or fraudulent representations or trickery to waive his1 objections to jurisdiction. He says that he was induced to waive his defenses on the merits.” We are inclined to agree with the trial court. The appellant contends in paragraph 3 of his answer that the service of summons upon him was “invalid and void” because when served he was a resident of Kansas attending the United States District Court in Colorado as a witness in a bankruptcy hearing. The allegation contains an erroneous conclusion of law. Witnesses are encouraged to come forward and voluntarily give testimony by granting them immunity from service of civil process while attending trial in a state other than that of their residence. However, the service on one entitled to immunity is not void, but merely voidable and tire immunity may be lost by acts of omission. The rule is stated in 72 C. J. S., Process, § 88 a, p. 1124, as follows: “Since the immunity is personal in its nature, service of civil process on one who is entitled to immunity from such service is not void, but merely voidable; and the immunity may be waived or lost by acts or omissions of a person otherwise entitled thereto. “The privilege may be waived not only by failure to assert it at all, but also by failure to assert it promptly, or by failure to assert it in the proper manner; and in case of failure to assert the privilege promptly, it is immaterial whether or not the delay was an intentional act of bad faith, since its effect would be the same. . . .” The above rule is followed in Colorado (Norquist v. Norquist, 89 Colo. 486, 4 P. 2d 306) and also in Kansas (Phoenix Joint Stock Land Bank v. Eells, 158 Kan. 530, 148 P. 2d 732). We find a statement in 42 Am. Jur., Process, § 156, p. 135, covering facts quite similar to those now before us: “. . . An objection by the defendant that he is privileged from the service of process in the action is not available after one has confessed judgment in a case, or where he permits judgment to go by default after being served. The service of process on one who is privileged or exempt from service is not void but voidable. To secure his right to claim privilege or immunity from service of process, one upon whom such process has been served must appear and move to quash the summons or proceed otherwise as required by rules of practice in his jurisdiction; . . .” (Emphasis supplied.) In the present case the petition, from which the controversial judgment stemmed, was filed and service obtained on October 1, 1962. Summary judgment was taken on June 25, 1964. Even the alleged agreement to delay prosecution of the action was not alleged to have been made until March 25, 1963, some six months after service was obtained. We are forced to conclude that any immunity from service which the appellant may have had was waived or lost by his failure to take timely action. Appellant next contends that an issue of fact was raised by the answer based on the allegation that the Colorado judgment was based on fraud and trickery. The allegation as contained in paragraph 5 of the answer was to the effect that the plaintiff agreed with and promised defendant’s attorneys that he would not take judgment until they had attempted to collect the amount in suit from other parties and if he could not do so he would notify defendant’s attorneys so that they could defend. Plaintiff took judgment in violation of his promise and by reason of the false and fraudulent promise defendant was induced to waive his right to challenge jurisdiction and was induced to forego his defense. We have disposed of the question of waiver of service affecting jurisdiction. There remains only the question of fraud inducing defendant to forego his defense as a basis for challenging the Colorado judgment when action was brought thereon in Kansas. We must look to the Colorado law for the answer to this question. In an action on a foreign judgment its validity and finality are to be tested by the law of the jurisdiction where such judgment was rendered. In 55 A. L. R. 2d, beginning at page 678, we find the following statement: “The full faith and credit clause does not preclude the defense, in an action on the judgment of a sister state, that the judgment was obtained by fraud, where the same defense, under the facts upon which it is predicated, is available in an action upon a domestic judgment brought in the state in which the judgment was rendered. . . . “Contrariwise, the full faith and credit clause requires that in an action upon the judgment of a sister state the defense of fraud is available only when the same fraud would have been a defense in an action brought upon the judgment in the state in which it was rendered. The only exception to this rule is a defense based on fraud depriving the court of its jurisdiction over the person of the defendant. In such a situation the full faith and credit clause does not apply. . . .” Cited as authority for the last statement above is Anderson-Prichard Oil Corp. v. Unknown Successors, etc., Okla. Royalty Corp., 167 Kan. 432, 443, 207 P. 2d 417, where we stated: “Plaintiff argues that to hold this answer good would be to deny in Kansas full faith and credit to a judgment of the state of New York in violation of section 1, article IV of the Constitution of the United States. The section does require that a judgment of a court of one state be given full faith and credit in another state, but no better than it was in the state in which it was rendered. The authorities cited and relied on by plaintiff are to that effect. What we are holding here is that the two New York judgments are subject to the same defenses in Kansas to which they would have been subject in New York. Such a holding is in harmony with the decisions of the Supreme Court of the United States, where the subject has been passed on.” (See, also Fischer v. Kipp, 177 Kan. 196, 199, 277 P. 2d 598.) The law of Colorado permits a judgment obtained by fraud to be set aside only in a direct proceeding. In A., T. & S. F. Ry. Co. v. Com'rs, 95 Colo. 435, 440, 37 P. 2d 761, 763, the Supreme Court of Colorado stated: “A judgment rendered without jurisdiction is void and may be attacked either directly or collaterally. But where a judgment rendered by a court having jurisdiction over the subject matter and the parties and jurisdiction to render the particular judgment is obtained by fraud or collusion, it is voidable only, not void, and it is binding upon parties and their privies unless and until it is set aside in a direct proceeding brought for that purpose. It cannot be attacked by them in a collateral proceeding such as this is.” The defendant made no attempt to seek relief from the judgment in the court where it was rendered. We are forced to conclude that the allegations of the answer, with particular reference to paragraph 5, were not sufficient to present a genuine issue of fact on the question of fraud vitiating the original judgment when it was used as the basis for an action in Kansas. The judgment is affirmed. APPROVED BY THE COURT.
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The opinion of the court was delivered by Burch, J.; This is a real estate commission case in which different agents are claiming the commission. A jury was waived and the issues were submitted to the court. The plaintiffs contend that they were the procuring cause of the sale but the court found that another agent, Harold S. Bradley, was the effective and procuring cause of the sale. Finding of fact No. 6 reads as follows: “At the time of the sale of said real estate by said Bank to the said George W. Gagel, the said Harold S. Bradley was the effective and procuring cause of said sale, as the exclusive agent for the sale of said property by said Bank.” The court’s conclusion of law No. 3 reads as follows: “The Defendant Bank, under all of the evidence given in the trial of this case, had the lawful right to pay to said agent, Harold S. Bradley, who was the procuring cause of the consummation of the sale of said real estate, the commission for his said services.” Examination of the record discloses that there was sharp conflict in the testimony as to which agent or agents may have been the procuring cause of the sale. Of course, this court cannot set aside findings of fact if they are based upon conflicting evidence but the plaintiffs contend that the evidence relied upon consists of admissions, depositions and exhibits and that therefore this court is in the same position as the district court and will determine the effect which should be given to such evidence. They cite in support thereof the following cases: DePee v. National Life & Accident Ins. Co., 144 Kan. 751, 753, 62 P. 2d 923; Protheroe v. Davies, 149 Kan. 720, 729, 89 P. 2d 890; and Swisher v. McMain, 153 Kan. 401, 413, 110 P. 2d 765, 772. Difficulty arises in applying the rule to the present case because only a part of the evidence which must be considered in order to reverse the trial court’s conclusion consists of admissions, depositions and exhibits. The evidence relied upon by the plaintiffs as showing bad faith on the part of the bank in paying Mr. Bradley the commission requires consideration of testimony given in the trial of the case by a Miss Elizabeth Schlecht,, who was an assistant secretary of the defendant bank. Her deposition had been taken also and it was used as a basis of cross-examination but her direct testimony was given in the regular way in the course of the trial. • A short statement as to the controversial facts should be given. The bank, while acting as trustee for an estate, had listed a certain property with various real estate agents. Before any sale resulted, the trust officer of the bank, a Mr. Meyer, decided to give the agent, Harold S. Bradley, an exclusive listing. In furtherance thereof Miss Schlecht, who was secretary to the trust officer, wrote letters to all of the agents with whom the property had been listed and the form letter which she sent to one of the plaintiffs, Mr. Bolin, named, among others, the ultimate purchaser, a Mr. Gagel, as one of Mr. Bolin’s prospective purchasers. Such letters, in substance, allowed the agents to whom the letters were addressed, a period of fifteen days in which to consummate a sale of the property to any person to whom the agents might have exhibited the property. Within the fifteen-day interval provided in the letter, some friends of Miss Schlecht called' her on Sunday and stated, in substance, that a friend of theirs, a Mr. Gagel, might be interested in buying the property. As a result of the call Miss Schlecht met Mr. Gagel at the premises and he inspected the same. During the conversation which occurred between them, Miss Schlecht inquired if any agent had shown Mr. Gagel the property and he replied in the negative. She told him that, therefore, in case he was interested in buying it he should consult with Mr. Bradley or with the bank. A day or two later Mr. Gagel called Miss Schlecht and asked her about bus service to and from the premises. She informed him she would get the information for him and in a subsequent telephone conversation Mr. Gagel advised Miss Schlecht that he might be interested in purchasing the property for $21,000 or $22,000. The bank had not fixed a purchase price for the property in connection with the listing thereof. In reply to Mr. Gagel’s statement Miss Schlecht said that the bank had received previous offers for larger amounts and that she was sure the bank wouldn’t consider such an offer. The plaintiffs contend that the bank, acting through Miss Schlecht, was guilty of bad faith under such circumstances in not advising either of the plaintiffs anything about her having shown the property to Mr. Gagel or about his offer to purchase. They contend vigorously that the evidence shows on its face that Miss Schlecht was guilty of bad faith and in support thereof call attention to the fact that she was the same party who had written the letter to Mr. Bradley in which Mr. Gagel had been named as Mr. Bolin’s prospective purchaser. They further contend that because Miss Schlecht advised Mr. Meyer, the trust officer of the defendant bank, as to her having shown the property to Mr. Gagel, that both she and Mr. Meyer knew that negotiations 'were pending involving the possible purchase of the property by Mr. Bolin’s prospect and that there had been no abandonment of such negotiations at the time the fifteen-day period expired. This contention is supported by a letter which Mr. Gagel wrote to Mr. Bradley shortly after the expiration of the fifteen-day period, in which letter Mr. Gagel referred to his previous offer of $22,500, which apparently was the same offer made to Miss Schlecht in the telephone conversation between her and Mr. Gagel. It is true that the evidence failed to show that Miss Schlecht ever advised either of the plaintiffs in regard to the offer but it should be noted that the evidence also fails to show that she ever advised Mr. Bradley about Mr. Gagel having seen and having offered to purchase the property. The evidence also failed to develop that either of the plaintiffs had contacted the bank during the fifteen-day period provided in the letter for consummation of a sale. In the case of Henschel v. Sutton, 120 Kan. 260, 242 Pac. 1024, the third paragraph of the syllabus reads as follows: “Where the contention of the broker is that he had earned his commission, and that the owner terminated his agency and took the property out of the market, when a purchaser had been procured, and made the sale of the property through another broker to the prospective purchaser with whom the plaintiff broker had been negotiating, the question of the good faith of the owner was a prominent issue in the case which required full instructions to the jury on the subject.” See, also, 43 A. L. R. 1116 note and 88 A. L. R. 720 note. Such a rule is applicable to the present case but obviously in order to reverse the judgment of the trial court we must be able to find, as a matter of law, that the defendant bank, .acting through Miss Schlecht and Mr. Meyer, was guilty of bad faith. Miss Schlecht’s explanation of why she did not notify the plaintiffs is, in substance, as follows: At the time when she wrote the letter to Mr. Bolin she also wrote similar letters to numerous real estate agents. When she showed the property to Mr. Gagel he informed her that no one had shown it to him before, and at the time she had forgotten that the particular form letter which she had written to Mr. Bolin contained the name of a Mr. Gagel. She testified that she did not have any memory or recollection about Mr. Bolin having named Mr. Gagel as one of Mr. Bolin’s prospective purchasers. The letter written to Mr. Bolin was dated March 29, 1943, and the inspection of the house by Mr. Gagel with Miss Schlecht occurred on April 11, 1943. There was nothing in the subsequent conversations between Mr. Gagel and Miss Schlecht which called her attention to the fact that possibly Mr. Gagel had been produced as a prospective purchaser by Mr. Bolin. There is nothing in the record to show that she or Mr. Meyer had such fact called to their attention in any manner at any time prior to the ultimate sale of the property. On the contrary, there is evidence establishing the fact that the plaintiff, Mr. McLaughlin, at the time of the consummation of such sale, acted as the agent of Mr. Gagel. All of Mr. McLaughlin’s efforts in connection with the actual consummation were wholly in furtherance of the interests of the purchaser and he did not inform anyone acting in behalf of the bank at such time that he was expecting to participate in the commission which the bank would owe to him and the co-plaintiff, Mr. Bolin, although Mr. McLaughlin did tell Mr. Gagel in effect that the seller always paid the commission and that Mr. Gagel would have no expense other than the actual purchase price. Miss Schlecht was asked whether in showing the property to Mr. Gagel she was trying to interfere with the sale of the property or accelerate the sale and she replied: “I was trying to sell it.” Mr. Meyer,'the trust officer of the bank, testified that he never received any offer to purchase the property at any price or on any terms from either of the plaintiffs in the case and that when Mr. McLaughlin called him after he had accepted the offer of Mr. Gagel made through Mr. Bradley that Mr. McLaughlin said he was representing Mr. Gagel in closing the details of the sale. The district court observed the demeanor of the witnesses, their apparent candor and good faith or the absence of it. We are unable to conclude, as a matter of law, that the defendant bank was acting in bad faith. For us to disregard entirely the question of bad faith and hold, as a matter of law, that the plaintiffs’ efforts procured the sale, would require us also to disregard wholly the deposition of one witness and accept as true the testimony given in the depositions of other witnesses. Under such circumstances unless the trial court’s findings of fact, even though based solely on depositions and exhibits, is illogical, improbable and unwarranted, we are inclined to follow the ordinary rule giving credence where the trial court gave credence. In this case such evidence would warrant either of two directly contrary findings of fact. Even though we might be inclined to disagree with the trial court, nevertheless, it cannot be said, as a matter of law, that the trial court was not justified in making its finding of fact. There was adequate evidence to support it. The plaintiffs do not contend that the notice terminating the agency was in itself unreasonable and consequently we would not be justified in ignoring its legal consequence. The judgment is affirmed.
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The opinion of the court was delivered by Harvey, C. J.; This was an action by the county to foreclose delinquent tax liens on mineral interests in real estate. The petition, filed December 18,1942, described tax liens upon approximately 200 mineral interests which had been separately taxed. We are con-’ cerned here with but five of them, being five separate mineral interests separately taxed and approximating 15/32 of the mineral interests in one quarter section of land — the northeast quarter of section 33, in township 9, range 26, west. In the petition the item No. 137, described an undivided ,3/16 interest in the oil, gas and other minerals in, under, or that may be produced from the 160 acres of land described, and named as the owner, or supposed owner, J. L. Conroe, and as persons having, or claiming to have, some interest therein, The Republic Natural Gas Company, a corporation, F. A. Sansome, Dora N. Houston, Dewey E. Waggoner, Homer H. Heath, S. J. Houston, and O. R. Phelps. Tract No. 138 was an undivided 1/32 interest in such minerals in the same land and named as the owner, or supposed owner, Dewey E. Waggoner; tract No. 139 was on a 1/16 interest in the minerals in the same land and named as owner, or supposed owner, F. A. Sansome; tract No. 140 upon a 1/8 interest in the minerals in the same land and named as the owner, or supposed owner, S. J. Houston; and tract No. 141 was for a 1/16 interest in the minerals under the same land and named as the owner, or supposed owner, Dora N. Houston; and in each of the tracts 138, 139, 140 and 141, all the persons not named as the owners, or supposed owners, who were named as the owner, or sup posed owner and as having or claiming to have some interest in tract 137, were named as persons who had or claimed to have some interest in each of the respective tracts. A large number of persons and corporations were named as defendants in the action. Service of summons was made on each of them personally, where that could be done, otherwise by publication. Among the defendants named in the petition was The Federal Farm Mortgage corporation, which corporation was not only served personally, but filed a written entry of appearance in the action, reserving only the right to plead by February 5, 1943. The prayer of the petition was that each of the defendants be required to appear and establish his claim of any estate, right or title in or to any of the real estate described in the petition; that the court determine the amount of the taxes, interest and charges against each piece of land; determine the name of the owners, or party or parties having an interest therein, and for a decree that the amount so found due be 'a first and prior lien upon the real estate, and that the same be advertised and sold as provided by law. In the judgment and decree of the court, rendered September 16, 1943, the court found J. L. Conroe, Dora N. Houston, Homer H. Heath, S. J. Houston, O. R. Phelps, Republic Service Gas Company, a corporation, F. A. Sansome, and Dewey E. Waggoner (among others) were duly and regularly notified, of the pendency of this suit by publication notice of summons, as provided by law, and further found that The Federal Farm Mortgage Corporation (among others) had been duly and legally served personally with summons, as provided by law; and the court particularly found “generally for the plaintiff herein and against the above named defendants and each of them, . . . and the name or names of the ascertained owners, defendants herein, are as follows,” listing as owner of tract No. 137, J. L. Conroe; tract No. 138, Dewey E. Waggoner; tract No. 139, F. A. Sansome; tract No. 140, S. J. Houston, and tract No. 141, Dora N. Houston. Judgment of foreclosure for the amount of the taxes found was duly rendered; and it was further ordered that if the taxes on the interest in minerals, set out and described, be not redeemed by the payment of the liens thereon within ten days, an execution or order of sale be issued by the clerk, directed to the sheriff, commanding him to cause the property to be advertised and sold according to law, and providing how the proceeds of the sale should be disbursed, and continued: “It is further ordered that from and after the confirmation of the said sale, and the execution and delivery of deeds by the sheriff to the purchasers, that all defendants and all persons claiming, or hereafter to claim by, through, from, or under them, or any of them, shall be forever barred, cut out, and foreclosed of and from ever asserting any right, title, claim, interest, lien, or equity of redemption in or to the said property, or any part thereof, and the grantee in such sheriff’s deeds shall have all necessary writs of assistance or other processes to put him or them in possession of the property.” The tracts in question were not redeemed prior to the day of sale. The order of sale was duly issued and named the owners of the tracts in question the same as they were named in the decree. The sale was duly advertised and held on October 7, 1943, at which sale the five mineral interests' above mentioned were sold to one Ad Smith for sums aggregating $155. The sale was duly confirmed and the court directed the sheriff to issue a sheriff’s deed to the purchasers for the tracts or units of minerals purchased by them at the sale. The sheriff’s deed was duly issued to Ad Smith on November 14, 1943, for the tracts in question, which deed was filed for record in the office of the register of deeds on February 3, 1944. On December 7, 1944, the Federal Farm Mortgage Corporation, with leave of court, filed its intervening petition in which it alleged the general nature of the action, the duties of officers under the statute relating thereto, which will be later noted, and that on November 2, 1942, in an action in the same court, entitled “Federal Farm Mortgage Corporation, a corporation, plaintiff, v. O. R. Phelps, et al.,” all the property described in the tax foreclosure suit (items 137, 138, 139, 140, 141), including all mineral interests in connection therewith, was sold by the sheriff pursuant to a judgment in the mortgage foreclosure action to the Federal Farm Mortgage Corporation, and that a certificate of purchase was issued to it on November 14,1942; that the petitioner was the owner of record of the equitable interest in and to all the property described in the items referred to in the tax foreclosure action on the date the petition in that action was filed; that through inadvertence, design or mistake the plaintiff in the tax foreclosure action failed to name the Federal Farm Mortgage Corporation as one of the defendants owning or claiming to have some interest in the mineral interests described; that the judgment of the court, and the order of sale issued, failed to name the petitioner as an owner or as having an interest in the property; that by reason of these failures the court was without jurisdiction to adjudicate and determine the rights of the petitioner in and to the va rious mineral interests upon which plaintiff attempted to foreclose its tax lien, and that all the proceedings therein, including the judgment, order and sale, and confirmation thereof, are void and of no effect insofar as the rights of the petitioner are concerned. It was further alleged that the petitioner, as equitable owner, had the right at any time prior to the sale to pay the taxes, interest, costs and charges assessed against the various'mineral interests upon which plaintiff attempted to foreclose its lien, and would have done so had it been notified according to law that plaintiff was attempting to foreclose its tax liens; that the petitioner had no actual notice of the pendency of the action as to such mineral interests, and had not had its day in court, and still has the right to pay such taxes, interest and costs as are chargeable against such mineral interests, and hereby tenders and offers to pay into court all such sums properly assessed thereon. The prayer was for an order of the court vacating, setting aside and holding for naught the judgment, order of sale, sale and confirmation in connection with the mineral interests described, insofar as the rights of the petitioner thereto are concerned, and that it be authorized to pay the taxes, interest, charges and proportionate costs and effect a redemption thereof on its behalf; and further prayed for a judgment barring all rights, title and interest of the plaintiff herein, and all defendants, in and to the mineral interests after the redemption thereof, and for such other relief as the petitioner may be entitled to. To the above intervening petition the plaintiff, on December 13, 1944, filed its motion to dismiss the intervening petition and answer thereto in which it alleged that the action was filed on December 18, 1942; that the Federal Farm Mortgage, Corporation was one of the defendants named in the action and that personal service was had personally within the state of Kansas upon that corporation on January 2,1943, and that in addition to the summons and return showing such personal service the general counsel for and on behalf of the corporation filed an entry of appearance for it, which reserved to, the corporation the right to plead to the petition on or before February 5, 1943, the same being the answer date set in the summons; that no demurrer, answer, or other pleading was filed in the action by or on behalf of the corporation, and that on September 16, 1943, judgment was rendered against the corporation and other defendants against the mineral interests, which was referred to and is the same as previously set out; that at the time of the rendition of the judg ment the corporation was wholly in default for want of pleading; that the petition in the action stated one cause of action against the corporation and othér defendants as being interested either jointly or otherwise in all of the separate tracts of land, or interest in minerals set out in the petition and schedule attached thereto, and that the judgment rendered thereon was valid and binding upon the corporation as well as upon other defendants; that in pursuance of the judgment an order of sale was issued, a sheriff’s sale had, the mineral interests listed as Nos. 137, 138, 139, 140 and 141 were sold to Ad Smith of Hoxie, Kan.; that the sale was confirmed by an order of the court on November 14, 1943, and a sheriff’s deed issued covering the items above mentioned, which deed was duly recorded February 3, 1944; that notwithstanding the fact that the corporation was served personally with summons and filed entry of appearance in the case, the corporation failed to file any pleading therein until its motion to intervene was filed on September 30, 1944, and that more than a year elapsed after the confirmation of the sale before the filing of the present petition to intervene; that the irregularities complained of by the Federal Farm Mortgage Corporation or existing in such proceeding are not such as would make the judgment, order of sale and sale wholly void and subject to attack at this late date; that the court no longer has jurisdiction and is precluded from opening, vacating, modifying or setting aside its previous judgment rendered on September 16, 1943,- or any subsequent proceedings in the case, by the provisions of G. S. 1943 Supp. 79-2804b, which provides in part that every legal or equitable action, including those brought on the grounds prescribed by the court of civil procedure, to open, vacate, or modify the judgment, order of sale, or sale, in-such an action as this, must be commenced within six months after the date of the sale of the real estate as confirmed by the court. The plaintiff moved the court for an order dismissing the intervening petition of the Federal Farm Mortgage Corporation, denying the prayer for relief prayed for by it, and requiring it to pay all costs in connection therewith. On March 9, 1945, the matter came' on for hearing before the court, whereupon the court considered the intervening petition of the Federal Farm Mortgage Corporation and plaintiff’s answer thereto and motion to dismiss the same, recited some of the facts previously stated, and held that in failing to name the corporation as a defendant owner, supposed owner, or party having or claiming to have an interest in the subject matter described in the causes of action (Nos. 137, 138, 139, 140, 141), and in failing to have its interest therein adjudicated and determined, the plaintiff failed and neglected to follow the mandatory provisions of the statute (G. S. 1943 Supp. 79-2801 to 79-2809), and that by reason thereof such corporation’s interest in the subject matter of the various causes of action has not been adjudicated, and as to such interest this proceeding, including the judgment, order of sale, sale and confirmation, is a nullity, and therefore overruled plaintiff’s motion to dismiss the intervening petition of the Federal Farm Mortgage Corporation. From this judgment the plaintiff perfected its appeal in due time. In its intervening petition the appellee here predicated its right to have the judgment of the court in the tax foreclosure case and the order of sale and the decree of confirmation set aside upon the ground that the court, in the. tax foreclosure case, had no jurisdiction to render the judgment which was rendered, and hence was void as it applied to the appellee. Jurisdiction of a court to render a particular decision depends upon three things: (1) The statutory authority of a court to entertain and decide questions which arise in the kind of action which was brought, and in this case means statutory authority of the court to hear and decide an action by a board of county commissioners in a suit to foreclose tax liens upon reaj property. There is no contention in this case that the court lacked such authority. The statute specifically grants it. (G. S. 1943 Supp. 79-2801.) (2) Jurisdiction of the person of the defendant. This depends upon whether he is properly named as a party defendant, and served with summons in a manner provided by law, or enters his voluntary appearance in the case. Here appellee was duly served with summons and entered its appearance. (3) In order to render a particular judgment the pleadings should present the question to be decided as an issue to be determined in the case. In this case the petition did allege a named person as being the owner, or supposed owner, of the mineral interests sought to be foreclosed, and in addition thereto named six individuals and one corporation as parties having or claiming to have some interest in the property. The court was asked in the petition to determine the owner, or-supposed owner, of the property and the persons claiming to have some interest therein. In its decree the court did determine the owner, or supposed owner, and the persons claiming to have an interest in the property, hence it cannot be said that the pleadings did not allege facts to enable the court to determine who was the owner, or supposed owner, of the property and the names of parties having or claiming to have some interest in the property. Hence, all elements of jurisdiction were present in this case. The contention of'appellee that the court had no jurisdiction to determine the question of the ownership of the property is not well taken, and the judgment of the court based on that contention is inaccurate. Appellee, in its intervening petition and here, contends that in its mortgage foreclosure proceeding it had succeeded to the interests of all the persons named in the tax foreclosure proceeding as being the owner, or supposed owner, or as having some interest in the mineral deeds. Assuming for a moment that is true, there is no reason why appellee could not have set up that fact in an answer in the tax foreclosure proceeding. The petition asked that all of the parties named defendants in the action and served with process should be required to set up any right, title or claim they or any of them had to the matters alleged in the petition. The Federal Farm Mortgage Corporation was a party to the action. It had a right to answer the petition and say that it had succeeded to the title or interest of the persons named as the owners, or supposed owners, of the several tracts, and of those who were named as having an interest in the property in the petition. It not only had the right to do so, but it was its legal duty to do it unless it was willing to let the tax foreclosure action go to judgment without calling the court’s attention to its claim of succession to the interests of the parties named. It did not do so, but permitted the judgment to be entered by default, as far as it was concerned, upon any such contention it now makes. Analyzing the intervening petition, it is difficult to see that the contention made by appellee that it had succeeded to all the rights of the persons named as the owners and as having an interest in the tracts of land is correct. It is clear from the intervening petition that the taxes on the mineral interests involved in the tax foreclosure action had not been paid in the mortgage foreclosure action, for appellee is now requesting permission to pay such taxes. The general statute with respect to mortgage foreclosures provides that all back taxes on the property sought to be foreclosed shall be paid from the proceeds of the sale of the mortgaged property. There is no contention of appellee that this was done. Indeed, the interven ing petition makes it clear that it was not done. Appellee argues that when it became the holder of the certificate of purchase in the foreclosure action it was the equitable owner of the real estate involved in the' mortgage foreclosure case. At best that was only tentatively true. There might have been a redemption by some one of the defendants from the sale, which would have had the effect of setting aside the certificate of purchase. It became the owner only after the period of redemption had expired and a sheriff’s deed had been issued to it, which was not until May 11, 1944. Even up to that date the appellee here had not paid the taxes on the mineral interests involved in the tax foreclosure suit and which it claims to have acquired at the time of the foreclosure decree in the mortgage foreclosure action. In its intervening petition the appellee here alleges that it had a right to pay the taxes on the mineral interests at any time prior to the time of,the sheriff’s sale of the property in the tax foreclosure suit. Perhaps so. But as mortgagee of the property it perhaps had the right to pay such taxes even before it brought its mortgage foreclosure- action. (G. S. 1935, 79-2901.) Appellee’s argument to the effect that it was misled to its prejudice by the omission of its name as an owner of the mineral interests here and thus deprived of its right to pay the taxes on the mineral interests prior to the sheriff’s sale in the tax foreclosure suit lacks force as an equitable plea. It had the right to pay those taxes in the mortgage foreclosure suit, and should have done so if, as it contends, that by the decree in the mortgage foreclosure suit it had effectively succeeded to the rights of all the parties named in the tax foreclosure suit as being the owners and as having an interest in the property. Appellee stresses the language in the statute (G. S. 1943 Supp. 79-2801), where it is stated that the contents of the petition in a tax foreclosure action should give “the name of the owner, supposed owner, and party having or claiming to have any interest therein or thereto,” and argues that it was mandatory upon plaintiff to list its name as the owner, or supposed owner, of the property. We have no desire to lessen in any degree the duty of a county attorney to list the names of the owners, or supposed owners, of the property and the parties having an interest therein. The very language of the statute, however, indicates that the legislature recognized the fact that in some instances there would be difficulty in determining with accuracy the name of everyone who might claim to be the owner or have some interest in the property. (See, also, G. S. 1943 Supp. 79- 2315, which recognizes the same thought.) Such a claim was made in Sherman County Comm’rs v. Demaree, 157 Kan. 478, 142 P. 2d 722, where it was alleged that the county attorney could have found out from the tenant on the property, or from the ACA office in the county seat, the name of the true owner of the property and his address. That question was not specifically determined in the case because the decision turned upon other questions. We cite it only as illustrative of one of the many types of claims with respect to the ownership of property which might be made, and not as a controlling decision here. The legislature, by using the term “supposed owner,” in the statute, realized the difficulties which might arise in ascertaining who was the owner of the property. G. S. 1943 Supp. 79-2315, recognizes the same situation. The statute provides an appropriate method of having corrected any error that might be made with respect to the owner, or supposed owner, of the property by providing that any person named as a defendant could answer and set up whatever claim he had. This appellee had opportunity to do so in this case, and failed to avail itself of it. That is not a question that goes to the jurisdiction of the court. The legislature also provided (G. S. 1943 Supp. 79-2804b), that legal or actionable proceedings may be brought to open, vacate, modify or set aside any judgment in a tax foreclosure action, or any sheriff’s sale in such an action. So, the legislature, recognizing the difficulty the county attorney might have to ascertain the owner, or supposed owner, or the names of all persons having or claiming an interest'in the property, provided that any party to the action might file an answer which would present his claim to such ownership or interest, and then gave an additional time of six months for the bringing of an action to open, vacate, or modify the judgment. The appellee here took no advantage of any of the provisions of the statute above mentioned for its benefit in that regard. Perhaps this limitation of time to bring proceedings applies to a judgment that is absolutely void, as distinct from one that is simply irregular, but we do not find it necessary to pass upon whether it applies to a judgment absolutely void. It may be conceded that it would have been appropriate to have named the Federal Farm Mortgage Corporation as a party having some claim to an interest in the property, but the fact that it was, not so named, in view of the fact that it was named as a party defendant, served personally, filed an entry of appearance which gave it time to plead; the fact that it did not plead with re spect to its interest in the properties in question; the fact that parties were named as the owners, or supposed owners, and as having an interest in the property; and the fact that the court actually found who was the owner, or supposed owner, and who_ were the parties having an interest in the property makes the omission of the name of appellee as such party no more than an irregularity and makes the limitation of the time in which a proceeding to open, vacate, modify, or set aside the judgment applicable. In a tax foreclosure action the Federal Farm Mortgage Company was named as the party who was the owner, or supposed owner, or who had an interest in several of the other tracts included in the tax foreclosure action. Appellee contends that fact misled it as to the tract here involved. We think this is nothing more than an argument. Its duty under the law and under the pleadings was to' answer as to any tract it had an interest in, and in any event, the statute gave it six months after the decree or sheriff’s sale in the tax foreclosure action to come in and ask to have the decree modified or set aside. This it did not do. In Mitchell County Comm’rs v. Allen, 156 Kan. 701, 137 P. 2d 143, the attack on the judgment was timely made. Here it was not. The result is that the judgment of the trial court from which the appeal was taken is erroneous and must be set aside with directions to enter judgment for appellant. It is so ordered.
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The opinion of the court was delivered by Smith, J.: This is an original action in quo warranto brought in the name of the state on the relation of the attorney general to de termine the validity of chapter 175 of the Laws of 1945. There is no dispute about the facts. The matter is presented on the pleadings. Prior to the 1945 session of the legislature the business of conducting elections in areas outside the limits of certain incorporated cities was under the supervision of officials designated by the county clerks of the various counties. The statutes provided for election commissioners in certain cities to be appointed by the governor of the state. Chapter 175 of the Laws of 1945 was senate bill 182. Its general purpose when introduced was to provide for the appointment of a commissioner of elections by the governor in Wyandotte, Sedgwick and Shawnee counties who would have all the power and jurisdiction over elections in their respective counties theretofore exercised by county clerks, city election commissioners and township officers. Section 1 of the chapter provided in part as follows: “That in counties of this state having a population in excess of eighty thousand inhabitants, there is hereby created the office of commissioner of elections, which shall be in charge of a county election commissioner who shall be appointed by the governor.” As thus drawn, the bill passed the senate. Had it1 finally been enacted with the above provisions it would have applied to Wyandotte, Sedgwick and Shawnee counties, where Kansas City, Wichita and Topeka are located. When th'e bill reached the house the foregoing section was amended so as to read: “That in counties of this state having a population in excess of one hundred thousand inhabitants and having an assessed valuation of less than. 1150,000,000, there is hereby created . . .” The effect of this amendment was to restrict application of this bill to Wyandotte county. About the time for the bill to become effective it appeared that there was a question as to its validity. Unless the bill was invalid it became the duty of the governor to appoint a county election commissioner on July 1, 1945. Since there was a question, the attorney general brought a quo warranto action in which he set out the general provisions of the bill, alleged that the governor was about to make an appointment pursuant to it and pleaded several particulars in which the bill violated the state constitution. The prayer was that this court decide whether the bill violated the constitution and if we should hold that it did that we oust the governor from acting pursuant to it. The governor answered admitting that he was about to act pursuant to the provisions of the bill and joined with the plaintiff in praying for a decision as to its constitutionality. Up to this stage of the case there had been no dearth of lawyers in the action. It was brought by the attorney general in the name of the state. The petition was filed by the attorney general himself and one of his assistants. The answer was filed by a member of the bar of Kansas City, Kansas, and an assistant attorney general. No issue of fact was raised by the pleadings. Briefs were filed and the cause was submitted without argument. A few days before the cause was submitted the county attorney of Wyandotte county asked for and was granted permission to be made a party plaintiff and to file a supplemental petition and a brief. He did file a petition in which he referred to the petition filed by the attorney general and in which he made allegations substantiating and elaborating on those in that petition. He also filed a brief in which he argued the points raised in his petition. The petition pleaded several particulars in which the bill violated the state constitution. In view of the conclusion we have reached it will be necesary for us to consider one only. Both petitions pleaded that the bill violated article 2, section 17 of the constitution. That article provides as follows: “All laws of a general nature shall have a uniform operation throughout the state; and in all eases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.” We have seen that this act applies to Wyandotte county only. Shawnee county is taken out by the provision as to population, and Sedgwick by the provision as to assessed valuation. In view of this, does the act violate section 17 of article 2? Is it what is commonly known as special legislation? If it is special legislation, is the situation such that this is a case where a general law cannot be made applicable? That a valid statute may be passed which does not operate upon all the citizens alike is conceded. A familiar example of that is the statutes that are made to apply to cities of different classifications, that is, the first, second and third class cities. However, where there is a classification as to the application of a statute it must operate uniformly upon all members of the class and the classification must not be arbitrary or capricious. See Barker v. Kansas City, 149 Kan. 696, 88 P. 2d 1071, and State v. Butler County, 77 Kan. 527, 94 Pac. 1004. In other words, the classification must be germane to the subject matter of the statute and must be based upon a real and substantial distinction. See State, ex rel., v. Allen County Comm’rs, 156 Kan. 248, 133 P. 2d 165, also.Berentz v. Comm’rs of Coffeyville, 159 Kan. 58, 152 P. 2d 53. The subject matter of the statute in question is the regulation of elections in rural territory adjacent to or located in the same county as large cities. We are familiar with the fact that the three counties in the state which contain its larger cities, that is, Wyandotte, Sedgwick and Shawnee, are confronted with problems which do not confront the other one hundred and two counties of the state. Adjacent to the cities located in these three counties, large thickly populated rural communities have grown up which require a more strict supervision of elections than is ordinarily had in the rural communities of the state. The trouble is, however, it is hard for us to see any real basis for a distinction between Wyandotte county on one hand and Shawnee county and Sedgwick county on the other. Had the statute been enacted so that it .would apply to all three of the most thickly populated counties we would have a somewhat different question. However, the chapter as finally enacted by the legislature was the result of the determination of Shawnee county and Sedgwick county not to come within its terms. We can see no relationship between the assessed valuation in a county and the control of rural voting. Neither do we see any relationship between the difference in population 'of 80,000 and 100,000 and a control of rural voting. We are forced to the conclusion that the classification in this case which makes the statute apply to Wyandotte, and Wyandotte county only, is an arbitrary one and- that it cannot be sustained under the provisions of article 2, section 17 of the constitution of the state. Therefore, there must be judgment for the plaintiff. It is so ordered.
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The opinion of the court was delivered by Hoch, J.: This was an action to recover on a promissory note. The trial court sustained defendant’s demurrer to the plaintiff’s evidence, and the plaintiff appeals. The principal question here is whether the burden was upon the plaintiff to show that material alterations appearing upon the face of the note were made before delivery or was upon the defendant to show that they were made after delivery and without the consent of the maker. J. A. Henley, as payee named in the note, filed his claim on the note in the probate court of Greenwood county on November 7, 1944, in the estate of E. J. Carrington, deceased, maker of the note. The note, which was for $836 with interest at eight percent was written with a lead pencil and bore date of May 11, 1941, with a due date of six months thereafter. The administrator, Elston J. Carrington, pleaded that the note had been materially altered by the payee by changing the date of maturity and that if the date had not been so changed the recovery would have been barred under the statute of limitations. The probate court allowed the claim on the note in the sum of $1,070.08, and the administrator took an appeal to the district court. In the district court the payee, Henley, replied to the administrator’s answer as to the alterations, alleging: “That the above note referred to and all writing thereon is in the hand writing of the said maker and signor of said note, and' all alterations were made by the said maker thereof in the presence of the said claimant with his consent and approval, as it was renewed from time to time the said maker thereof erased the lead pencil dates and in that manner in the presence of this claimant to extend the time of payment, to which the said claimant made no objections, and was returned to him as a renewed note.” In the reply, Henley further alleged that the note was given for “grain, rent of farm land furnished by said claimant,” and recovery was asked in the amount of $1,070.08 with interest at the rate of eight percent from March 3, 1945. Appellee states that the note was marked by the reporter, but that it was not offered in evidence. The record does not disclose that any point was made as to this in the trial court. Apparently the case was tried on the theory that the note was in evidence and we shall so treat it here. Invoking the provisions of G. S. 1935, 60-2804, the .defendant objected to any testimony on the part of the plaintiff as to transactions had with the maker of the note, since deceased, with reference to the execution, delivery or alterations made in the note. The court took the objection under advisement and examination and cross-examination of the plaintiff proceeded. Later the court ruled out as inádmissible under the statute all evidence as to transactions in the matter had by the plaintiff with the maker of the note, since deceased, and sustained the defendant’s demurrer. This appeal followed. While we have not been furnished with the note or a photostatic copy, it is agreed that alterations were apparent on the note itself. It is also agreed that if any endorsement of payments of interest or principal were made on the'note they have become obliterated. Appellant admits that the dates on the note were changed several times, and no contention is made that if the present maturity date shown on the note was not made prior to delivery, or to redelivery, that recovery is not barred by the statute of limitations. It is elementary that any material changes made in a negotiable instrument without the assent of all parties voids the instrument, except in the hands of a holder in due course not a party to such alteration. (G. S. 1935, 52-906.) Likewise, it is clear that the change in the maturity date constituted material alteration (G. S. 1935, 52-907). Such parts of appellant’s proffered testimony as related to transactions with the maker of the note were clearly inadmissible under the statute. Appellant contends that by cross-examining the plaintiff concerning the circumstances connected with the various changes made between 1931 and 1941 in the maturity date of the note as to which he had testified upon direct examination the defendant opened the door to all testimony concerning the alleged transactions with the deceased. The contention is not good. The record discloses .that the defendant objected from the start to testimony by the plaintiff as to such transactions and that the trial court reserved its ruling on the objection, and subsequently ruled out all such testimony adduced both upon direct and cross-examination. Under such a situation the defendant did not waive his objection by cross-examining the plaintiff. Appellant testified that he had carried the note with him in his billfold; that he did not make the changes which appeared on the note; that the date had been changed several times; that endorsements on the back of the note had been rubbed off from carrying the note in his billfold; that he didn’t know why “it wasn’t rubbed off the front”; that it was all “made in lead pencil.”. Appellee did not contend that the signature on the note is not the signature of the purported maker, E. J. Carrington. Averments as to some other testimony are made in the briefs but evidence not shown in the abstract or counter abstract or which opposing counsel do not admit was received cannot be considered. This action being by the original payee against the estate of the maker we need give no consideration to questions relating to rights of holders in due course. (G. S. 1935, 52-502.) Material alterations being apparent — and being admitted — upon the face of the note the question is whether the burden of proof as to when and under what circumstances they were made was upon the plaintiff, as held, in effect, by the trial court. On the question of where the burden of proof lies when material alteration appears on the instrument itself the authorities are in great conflict, lack of harmony existing even in cases from the same jurisdiction. (3 C. J. S. 991 et seq., and particularly pp. 995-999; 2 Am. Jur. ¶ 106-109, pp. 668-671; 44 A. L. E. pp. 1253-1255.) One line of decisions holds that an alteration will be presumed to have been made before or at the time the instrument was executed, especially in the absence of “suspicious appearance” or of “suspicious ’ circumstances” developed by extrinsic evidence. This view is based, primarily, upon the general doctrine that the law does not presume fraud, but, on the contrary, presumes innocence. It is said in 3 C. J. S., footnote, page 997, that the federal courts generally follow this rule. What constitutes, under this line of decisions a “suspicious appearance” or “suspicious circumstances” is not made clear and no definite rule can be deduced (3 C. J. S. [b] p. 999 and cases cited). A second line of cases holds that the presumption is that the alteration was made after the instrument was executed and delivered. The text writer on alteration of instruments in American Jurisprudence condemns such a general rule as “harsh” and “unsound on principle” and asserts that it “is but little followed.” (2 Am. Jur., p. 670.) However, the cases there cited in support of the rule as well as many others hardly justify the broad statement that the rule “is but little followed.” Many courts refuse to follow either rule heretofore stated and hold that no presumption arises in favor of either party, leaving the jury to determine in the light of all the evidence, intrinsic and extrinsic, when the alteration was made (see numerous cases cited in 2 Am. Jur., p. 671, footnote 16). In a statement of a general rule to be followed our own cases are inconclusive — at least insofar as those which our research has developed are concerned. The early case of Neil Adm’x, Case & Co. 25 Kan. 510 tends to support the proposition that in the absence of either intrinsic or extrinsic evidence to the contrary, the presumption, if any, is that the alteration was made before or at the time the in strument was executed. In that case, as in the instant one, the payee sought to recover from the estate of the alleged maker, later deceased, and it appeared when the instrument was presented in evidence that the rate of interest had been changed from seven to ten or from ten to seven percent. Upon objection by the administratrix to receiving the note in evidence the trial court overruled the objection on the ground that the-burden was upon the defendant to show that the alteration was made after the execution of the instrument. Although the case was decided upon another point — that the note was admitted without sufficient proof of its execution — the court did discuss the question of burden of proof relating to alterations and expressed the view as above indicated. However, the court did say: “Perhaps there might be cases when the alteration is attended with such manifest circumstances of suspicion that the court might re~fuse to allow the instrument to go before the jury until some explanation; but this case is not of that character.” (p. 516.) It is true that the Neil case was decided (1881) long before the enactment of our negotiable instruments law (1905), but what is there said is nonetheless pertinent at least to the present issue. In Threshing Machine Co. v. Peterson, 51 Kan. 713, 33 Pac. 470, the court permitted the defendant under a verified general denial, to introduce evidence that the note upon which recovery was sought had been altered after its execution. Apparently the note bore no evidence of alterations “nor anything that would raise a suspicion that it had been changed since its execution.” Under such circumstances the court said that the production of the note with the defendants’ signatures would be prima facie evidence of its genuineness. But the court added that “alterations may be so obvious and suspicious in some cases as to bring discredit upon the instrument and require the party offering the same to account for the apparent changes.” Scott v. Thrall, 77 Kan. 688, 95 Pac. 563 involved an alleged alteration in a will and is perhaps therefore not very helpful here. However, the general subject of burden of proof with reference to alterations of instruments was discussed somewhat, the Neil and Threshing Machine cases, supra, being cited. The case apparently leans toward the doctrine that no general rule as to presumption can be laid down, but that the indications of subsequent alterations or. the circumstances may be such in a particular case as to require proof of genuineness. In Wagler v. Tobin, 104 Kan. 211, 178 Pac. 751, the defendants alleged fraudulent alteration in the note subsequent to delivery, and complained of the court’s instruction that the burden was upon them to establish that fact. They based their contentions largely upon the fact that in his petition the plaintiff had set out some of the preliminary negotiations and that one set of notes prepared for signature had been substituted for another and that certain changes were made in the notes before delivery to make them conform to the final agreement. However, the notes were fair on their faces and it was held that in the absence of evidence to prove alteration the court and jury were bound to accept them as they were produced. The burden in such a case was upon those alleging fraudulent alteration. Wallace v. Wallace, 101 Kan. 32, 165 Pac. 838, dealt with- an allegedly fraudulent endorsement of payment on the back of-a note. The action was by the administratrix of the estate of the payee and was against the payee’s son, maker of the note. The issue, as far as at all pertinent here, related to the correctness of the instructions, and did not arise upon demurrer to evidence. There had been conflicting testimony as to whether an endorsement of payment had been changed from $200 to $2,000. This court upheld an instruction that the burden was upon the plaintiff, suing upon the note to prove by a preponderance of the evidence that the defendant had erased the smaller amount and substituted the larger amount-in the endorsement of payment, but that if the jury believed from preponderance of the evidence that such substitution had been made by the defendant, maker of the note, the burden would then be upon him to show by a prepondenance of the evidence that the substituted figure was the true amount for which he was entitled to credit. No purpose would be served by reference to many other Kansas cases examined which deal with the general subject of alterations of written instruments. We find none which deals directly with a situation like the one before us. There is no necessity of attempting upon this record to lay down a general rule as to the burden of proof for application to all cases where material alteration appears on the face of an instrument. That may well await a more complete record and a more thorough briefing of the question than here presented. However, on the facts here admitted, we find no difficulty in affirming the order sustaining the demurrer. Appellant admits that the note, written in pencil, was first executed in 1931; that the dates — including the maturity dates — have been changed several times. He says that all endorsement of payments written on the back had been worn off by being carried in his billfold, but no explanation was offered as to why the pertinent dates, appearing on the face of the note, had not likewise been worn off. The note, as alleged by appellant, bore a maturity date of November 11, 1941. Appellant seeks recovery of the full amount of the principal together with interest from the date of the note, and it is not contended that any action was brought to recover either principal or interest until three years after the maturity date, when claim was filed a few days before the nine months’ period expired within which claims could be filed against the estate of the deceased maker. In addition to these facts and circumstances we cannot disregard the fact that no action was brought until after the death of the maker. We are not here saying that in no such case would the holder of a note showing alteration upon its face be relieved of the burden of showing that the alteration was made before delivery, but certainly such a presumption in the holder’s favor, where the maker is dead, should be indulged with the greatest of caution. Otherwise the door would be opened wide to nullification of the statute relating to testimony as to transactions had with persons since deceased. The trial court did not err when it held, in effect, by sustaining defendant’s demurrer to the evidence, that appellant had not met a burden which rested upon him under the circumstances shown. The judgment is affirmed.
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The opinion of the court was delivered by Parker, J.: Defendant was convicted by a jury of simple assault and subsequently adjudged to pay a fine of $100 and costs. He brings his case here by appeal. Questions presented for review are sufficiency of (1) the information, (2) the evidence, and (3) the instructions. The information charged that on May 5, 1945, in a public place in Comanche county the defendant, Albert Hazen, did then and there “unlawfully and willfully assault one Otto Schumacher and Joe Schumacher by cursing and threatening to do bodily harm to Otto Schumacher and Joe Schumacher and causing said Otto Schumacher and Joe Schumacher to have just cause to fear and that they do fear the commission of an assault with intent to do bodily injury or harm.” Sufficiency of the quoted allegations was challenged by defendant during the course of the proceedings leading up to the rendition of judgment by a motion to quash, an objection to the introduction of testimony, and a motion in arrest of judgment, each challenge being based upon the specific premise the facts as stated in such information did not constitute a public offense. It appears from the record, although it is of little, if any, importance in determination of the'appeal, that for some time ill feel ing had existed between the defendant and Joe and Otto Schumacher as a result of the Schumachers’ attempt to fence some land, completely surrounded by land owned by defendant, and recently purchased by Otto, which tract prior to its sale had been rented by the defendant. This ill feeling culminated in a series of events which transpired in the city of Protection and eventually brought about the filing of the present criminal action. The first of these, which took-place at the railroad depot and involved the defendant and Joe Schumacher, requires little attention since on motion the state elected not to rely on what occurred there as establishing the commission of the offense charged. It suffices to say as to it that the defendant came into the depot, commenced an altercation with Joe Schumacher, made some threats, shook his fist in Joe’s face, and walked out after the depot agent -remarked that if there was any arguing to do it would have to be done outside the depot. The second event of the series to which we have heretofore referred is the one of vital concern on this appeal. The state elected to rely on the evidence pertaining to it for conviction and contends such evidence establishes the offense charged in, the information. It followed the altercation at the depot and took place at a blacksmith shop. With respect to it the testimony of the prosecution shows that later in the day when Joe had joined his father, Otto, and while they were there attending to some business, the defendant came to the blacksmith shop and engaged them in a conversation relating to the rights of the respective parties to the land of which prior mention has been made. Shortly the conversation became heated and then ensued the action and conduct by defendant on which the prosecution relies to uphold his conviction. Since the parties are not in accord as to the import to be given such acts and conduct we detail certain phases of the happenings in- form as described by some of the witnesses. Otto Schumacher testifying for the prosecution, on direct examination, was asked questions to which he made answer as follows: “Q. Did Mr. Hazen come there to the blacksmith shop? A. He did. “Q. Where were you when he came to the blacksmith shop. A. I was right by the door. “Q. Was Joe with you? A. Yes, he was. “Q. What did Mr. Hazen do? A. Drove up on the road and run over to where I was and asked if I put up the fence and I said I did. “Q. Did he say he was going to hit you and stomp you in the ground? A. Sure he did. If I made one move, he would have done it. “Q. What did you do? A. I just stood there and looked into his eyes. “Q. Did you offer to defend yourself in any way? A. No. “Q. What did he threaten to do to you at the blacksmith shop? A. Stomp me in the ground. “Q. Right there? A. Right there. “Q. At the time he threatened you, he had his fist in front of your nose and the other fist clinched, is that right? A. Yes. “Q. Do you fear him now? A. Yes, sure I do. “Q. Do you know of him having any other altercations or fights in your community? “A. Isaac Baird. “Q. Did he cripple Baird up? A. He couldn’t see for a week. “Q. You know that to be the truth? A. I know that to be the truth. “Q. You knew that at the time Mr. Hazen was threatening you at the blacksmith shop? A. I did.” Cross-examination of this same witness discloses the following questions and answers: “Q. He didn’t say: T am going to knock the hell out of you here’? Yes or no? Can you answer? A. I say, yes. If I had made one move, he would have done it. “Q. How did he say it? A. ‘I don’t like you God damn Dutchmen. God damn you, I will just tromp you in the ground if you make a move.’ “Q. If you make a move? A. If I moved. “Q. He was going to strike you. A. That is just right. “Q. He didn’t strike you, did he? A. No, but I told you if . . . “Q. There wasn’t anybody holding his arms? A. No, I didn’t see anybody holding his arms. “Q. He could have struck you if he had intentions of striking you? A. He would have if I had moved.” Certain questions propounded to and answers made by Kenneth Wymer, a witness for the state, the owner of the blacksmith shop, read: “Q. Who came to your shop first, Otto Schumacher or Mr. Hazen? A. Otto. “Q. Did Joe Schumacher come to the shop before Mr. Hazen? A. Yes. “Q. What happened when Mr. Hazen came? A. Well, he came over to Otto and went to arguing with him about this fence. “Q. And what, if anything, did he do? A. He stood close to him and shook his fist at him and threatened to hit him if he didn’t stay out of his way. “Q. Did he tell him what he was going to do to him, in the shop? A. He said, ‘I will stomp you in the ground.’ “Q. You heard him say he was going to stomp him in the ground? A. Yes. “Q. Did you hear him say anything that he was going to do to Joe? A. All I heard him say to Joe was to keep his mouth shut and keep out of the way. “Q. From what you saw, do you think Otto Schumacher was in danger of being hurt? A. Yes, I do.” On cross-examination these questions and answers appear as part of Wymer’s testimony: “Q. I asked you if Hazen told Schumacher that he was going to hit him there? A. Sure he told him. “Q. What? A. ‘I will hit you and stomp you in the ground.’ ” Another witness stated in effect that while the defendant did not hit Otto he could have hit him so that he would not have known what happened to him. No useful purpose would be served in setting out the testimony of the defendant at length. It can be summarized thus: He admitted he came to the blacksmith shop and engaged the Schumachers in conversation, and that while there talking to Otto he had his fists doubled up; he inferentially conceded, if in fact he did not actually admit, he shook his fist in Otto’s face; he stated in language which would do no credit to this opinion that if Otto did not stay off the land in controversy he would kick his posterior portions; and finally he denied he ever had any intention of hitting Otto or that he threatened to either strike or stomp him into the ground while the latter was at the blacksmith shop. The only other witness who testified on defendant’s behalf corroborated his version of the affair. In giving consideration to the information as challenged by appellant we must keep in mind the requirement of the common law, it is essential to the validity of an information that it conform strictly to established formality and charge an offense with technical accuracy and nicety of language, is no longer in force and effect in this jurisdiction. By legislative fiat that has been dispensed with and in lieu thereof has been substituted a far more simple rule (State v. White, 14 Kan. 538). For the moment, and before resort to our decisions, we turn to the statute for such guidance as is there to be found. Appellant stands charged by information with the offense of simple assault as set forth in G. S. 1935, 21-436., which reads: “Any person who shall assault, or beat or wound another under such circumstances as not to constitute any other offense herein defined, shall upon conviction thereof be fined in a sum not exceeding five hundred dollars, or by imprisonment not exceeding one year.” The form of such information is controlled by other statutory provisions dealing with informations generally. With respect to their content G. S. 1935, 62-1004, provides: “The indictment or information must contain, . . . second, a statement of the facts constituting the offense, in plain and concise language, without repetition.” As to their sufficiency G. S. 1935, 62-1010, states: “The indictment or information is sufficient if it appear therefrom. “Fourth. That the offense charged is clearly set forth in plain and concise language, without repetition. And, “Fifth. That the offense charged is stated with such a degree of certainty that the court may pronounce judgment upon conviction, according to the right of the case.” Regarding defects G. S. 1935, 62-1011, reads: “No indictment or information may be quashed or set aside for any of the following defects: “Sixth. For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged. Nor, “Seventh. For any other defects or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” Since the enactment of the sections of the statute just quoted this court has definitely committed itself to the general doctrine that in charging statutory offenses, except in those cases in which the statute simply designates and does not describe or name the constituent elements of the offense, informations are sufficient if they charge an offense in the language of the statute. Even the statutory words need not be strictly pursued but others conveying' the same meaning may be used. The extent to which the rule has been announced and applied is evidenced by the following decisions involving the criminal offense mentioned after the citation of each such decision: State v. White, 14 Kan. 538, assault with intent to kill; State v. Foster, 30 Kan. 365, 2 Pac. 628, the passing, uttering and publishing of a forged draft; State v. McGaffin, 36 Kan. 315, 13 Pac. 560, murder; State v. Craddock, 44 Kan. 489, 24 Pac. 949, and State v. Brower, 75 Kan. 823, 88 Pac. 884, disturbing the peace; State v. Seely, 65 Kan. 185, 69 Pac. 163, robbery; State, v. Tinkler, 72 Kan. 262, 264, 83 Pac. 830, statutory rape; State v. Custer, 85 Kan. 445, 116 Pac. 507, and State v. Curtis, 108 Kan. 537, 196 Pac. 445, rape; State v. Buis, 83 Kan. 273, 111 Pac. 189, unlawful practice of medicine; State v. Weldy, 113 Kan. 734, 215 Pac. 1005, labor on Sunday; State v. Clark, 121 Kan. 817, 250 Pac. 300, jail breaking; State v. Oliver, 129 Kan. 719, 284 Pac. 357, persistent violator of the. prohibitory liquor law; State v. Goodrich, 136 Kan. 277, 15 P. 2d 434, issuing and delivering a worthless check; State v. Richardson, 137 Kan. 38, 19 P. 2d 735, violation of the building and loan laws; State v. Hillis, 145 Kan. 456, 457, 65 P. 2d 251, larceny. With specific reference to the crime of assault the rule is equally applicable (see State v. Finley, 6 Kan. 366; State v. Beverlin, 30 Kan. 611, 2 Pac. 630, and State v. Custer 85 Kan. 445, 116 Pac. 507). When the information in the case at bar is carefully examined, and then tested by both rule and statutory provisions to which we have referred, we experience no difficulty in determining that it states a public offense, namely, simple assault as described in G. S. 1935, 21-436. The charge was made substantially in the words of the statute, which, as we have seen, is usually sufficient. No defect or imperfection appears in its,averments which tended to prejudice the substantial rights of the accused upon a trial on the merits. The defendant was fairly informed of the offense charged against him, and, had he admitted it, the trial court from an examination of the record alone, could have determined that an act forbidden by law had been committed and rendered judgment accox-ding to the rights of the case. Nothing more was required. It follows all attacks on the sufficiency of the information were properly overruled. We might well cease consideration of the information at this point but before doing so desire to comment upon certain arguments advanced by the appellant with respect thereto. Two of these have to do with the averments in the information pertaining to the means and manner of the assault. It is argued they were incomplete and therefore insufficient. Such details are matters of evidence and need not be pleaded (6 C. J. S. 960, Assault and, Battery, § 104) but the fact they are pleaded does not invalidate the information where it contains all the essential elements of the offense charged as defined by the statute (27 Am. Jur. 626, Indictments and In formation, §61). Besides, G. S. 1935, 62-1011 (sixth), expressly provides that superfluous allegations, when there is sufficient matter alleged to indicate the crime and person charged, do not constitute grounds for the sustaining of a motion to quash. Another is that the information is defective in that it contains no affirmative allegation the appellant intended or attempted to do Otto Schumacher bodily, physical, or corporal injury. The answer to this argument is to be found in what has already been said. An additional answer is that this court has held a specific intent to do bodily injury is not necessarily essential to the offense of simple assault (State v. Triplett, 52 Kan. 678, 35 Pac. 815; State v. Child, 42 Kan. 611, 22 Pac. 721). Appellant’s next contention is that the trial court erred in overruling his demurrer to the evidence. It requires, first, determination of the meaning of the term “assault” as used in the statute and, second, examination of the record for the purpose of ascertaining whether there was evidence to sustain the finding that such offense was committed. Assault has been variously defined sometimes in language designed to cover the field generally and more often in terms intended to fit the circumstances of the specific case involved. Too frequently, definitions have been so limited in their scope because of the facts involved or so broadly stated as the result of an attempt to include all situations which might arise as to cause confusion and misunderstanding. That this is so is evidenced by reference to many well-recognized authorities including our own decisions. To illustrate, “assault” has been defined as: • . any intentional, unlawful offer of corporal injury to another by force, or force unlawfully directed toward the' person of another, under such circumstances as [to] create a well founded fear of imminent peril, coupled with the apparent present ability to effectuate the attempt if not prevented.” (6 C. J. S. 796, Assault and Battery, § 1.) . . an intentional attempt, by violence, to do an injury to the person of another, and as any attempt to commit a battery, or any threatening gesture showing in itself or by words accompanying it an immediate intention, coupled with a present ability, to commit a battery . . .” (4 Am. Jur. 124, Assault and Battery, § 2). . .an apparent attempt, by violence, to do corporal hurt to another. . . .” ■ (1 Wharton’s Criminal Law, 12th ed., 1094, Assaults, § 799.) “. . . an attempt, which, if consummated, would result in a battery.” (Anderson v. Crawford, 265 Fed. 504.) “. . . any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate physical injury to a human being; as, raising a cane to strike him; pointing, in a threatening manner, a loaded gun at him; and the' like.” (2 Bishop’s Criminal Law, 9th ed., 16.) “. . . . an unlawful setting upon one’s person. (1 Words & Ph. Jud. Def. p. 532).” (State v. Custer, 85 Kan. 445, 446, 116 Pac. 507.) “‘An attempt to commit a violent injury upon the person of another; “ ‘An attempt to offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a ^present ability to carry such intention into effect; “‘An offer or attempt to do a corporal injury to another,’ (3 Cyc. 1020, 1021; see, also, 1 Words & Phrases, 532-538).” (State v. Holman, 90 Kan. 105, 132 Pac. 1175 and State v. Linville, 150 Kan. 617, 619, 95 P 2d. 332.) There is, of course, repetition in language and reiteration of phrases in the foregoing quotations. That very fact tends to illustrate the point we seek to emphasize and prompts us to take action which it is to be hoped will do away with future possibilities of uncertainty and doubt in cases possessing characteristics and issues such as are here involved. However defined heretofore, we hold that an assault as that term is used in G. S. 1935,21-436, is an apparently violent attempt, or a willful offer with force or violence, to do corporal injury to another, without the actual doing of the injury threatened, as by lifting the fist or a cane in a threatening manner and that neither actual intent nor actual present ability to do the injury threatened is necessary if the circumstances are such that the person threatened reasonably believes the injury will be done. With assault defined what is to be said for appellant’s contention the evidence did not establish its commission in the instant case? It would serve no useful purpose to repeat the testimony. Enough has been heretofore related to disclose there was some evidence to the effect the appellant in a willful and violent manner approached Otto Schumacher, shook his fists in his face, threatened to then and there stomp him into the ground and that Otto had reason to and did believe he was about to be injured. That testimony, if believed by the triers of fact, was sufficient to establish the offense of assault as charged in the information and justified the rendition of the verdict returned by the jury. It makes no difference such testimony was denied by the appellant or that he claimed such threats as he did make at the blacksmith shop had to do with action which he would take against Otto at some time in the future in the event the latter continued in his attempts to fence the land which he had purchased. Neither was the offense less complete because of the fact that for' some reason the appellant failed to follow through and commit a battery. Nor is the result affected, as is suggested by appellant, because of the fact he thought he was entitled to the use of the premises and was attempting to establish his right to possession thereof. The law recognizes no such unlawful method of testing legal rights. (State v. Bradbury, 67 Kan. 808, 74 Pac. 231.) In passing we pause to state the conclusion just announced is no innovation of law in this jurisdiction. Years ago this court held that if one person shoot in the direction of another without any intention of injuring such other person, but only for the purpose of frightening or alarming him, intending thereby to create the impression he will injure him, he -is guilty of assault. (State v. Triplett, supra.) Later, in State v. Coyle, 103 Kan. 750, 175 Pac. 971, we said the fact that a person carried a gun and a whip and through fear compelled a boy to assist him in driving his father’s cows to such person’s corral was an invasion of the boy’s freedom and in itself an assault. See, also, State v. Archer, 8 Kan. App. 737, 54 Pac. 927 and State v. Taylor, 20 Kan. 643, which are to the same general effect. When carefully analyzed there is no sound basis for differentiation in the fundamental principles involved in the decisions just cited and those determinative of the case at bar, the sole distinction being in the means used to accomplish the result. Next, appellant complains that the trial court failed to give certain instructions as requested by him. Such requested instructions have been read and considered. Some of them might well have been refused because based upon an erroneous theory of the law applicable to the facts of the case. Those that were proper were incorporated in the instructions as submitted and the refusal to give them in the form requested was based upon that ground. Appellant suffered no prejudice as a result of such action. Finally, it is contended the instructions themselves were erroneous. They, too, have been carefully examined. We fail to find anything in them which was detrimental to the rights of the appellant. If anything, they were more favorable to him than the law required. In any event, irregularities complained of were not so important as to require a reversal of the judgment. Since we find no error in the record the judgment is affirmed. Harvey, C. J., not participating.
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The opinion of the court was delivered by Parker, J.: This case is here on another application for a writ of habeas corpus by C. C. Crebs, who is serving a sentence of life imprisonment in the Kansas State Penitentiary under a judgment of the district court of Seward county rendered on November 26, 1930, for the murder of Charles Doan, committed on November 18, 1930, in Liberal, Kan. In explanation of our statement to the effect this is another proceeding instituted by C. C. Crebs for the purpose of obtaining his release from the penitentiary by habeas corpus and to the end that it may be apparent how many opportunities have been accorded the petitioner by the federal and state courts to present the contentions relied on by him as grounds for relief, we deem it necessary to refer, in chronological sequence, to the numerous proceedings in habeas corpus he has instituted for the purpose of accomplishing that result: 1. Case No. 35,087 was an original proceeding in this court and is reported as Crebs v. Amrine, 153 Kan. 736, 113 P. 2d 1084. In such proceeding petitioner was granted every opportunity to present the grounds upon which he based his right to the issuance of a writ. On his own application he was brought from the penitentiary at Lansing for the hearing of the case on its merits and permitted not only to testify as a witness but to appear as an attorney in his own behalf. After a full and complete hearing the writ was denied for the reason that the grounds upon which the application was based were untenable and did not justify its issuance. 2'. Petitioner next filed a motion for leave to file an original proceeding in habeas corpus in the Supreme Court of the United States. That motion was denied on November 10, 1941. (See Crebs v. Amrine, 314 U. S. 581, 86 L. Ed. 470.) 3. Shortly he requested and was granted permission to file another proceeding in this court. The case was docketed as No. 35,495. His application for a writ was considered and denied by written order on December 11, 1941. 4. The next action was one filed by petitioner in the District Court of the United States for the district of Kansas, Crebs v. Amrine, Case No. 753-H. C. In that case petitioner was represented by counsel. After a full and complete hearing his application for a writ was denied by the Honorable Richard J. Hopkins, the then judge of such court, on June 29, 1942. 5. Later in 1942 he sought and this court granted him permission to institute another proceeding here. His application was filed and the case docketed as No. 35,803. On October 9, 1942, this application was formally considered and a writ denied. 6. Subsequently, and on January 11, 1943, a petition for writ of certiorari was denied by the Supreme Court of the United States. (Crebs v. Amrine, 317 U. S. 699, 87 L. Ed. 559.) 7. No. 35,875, of this court, is another action instituted by petitioner. In it his application for a writ was denied on February 1, 1943, for the reason the grounds set forth therein were substantially the same as those urged and determined in Crebs v. Amrine, 153 Kan. 736. 8. Another petition for writ of certiorari was denied in the Supreme Court of the United States on April 12,1943. (Crebs v. Amrine, 318 U. S. 788, 87 L. Ed. 1155.) 9. Still another case, No. 36,240, was filed by petitioner in this court. The petition was considered on April 5, 1944, and a writ denied for the reason it stated no grounds for habeas corpus except those determined and decided in 153 Kan. 736. 10. The petitioner’s next attempt was an action, Crebs v. Hudspeth, No. 903—H. C., in the District Court of the United States for the district of Kansas. 'There his petition for a writ was denied by the Honorable Walter A. Huxman, a judge of the United States Circuit Court of Appeals, 10th Circuit, who at the time was sitting as judge of such district court, and who at the time of the rendition of his decision made extensive findings of fact and conclusions of law to which future reference will be made. 11. The petitioner’s last effort to institute habeas corpus proceedings was commenced in April, 1945, when he mailed a petition to the clerk of this court to which was attached a written request asking that the court permit the filing of such petition. This request was duly presented and upon examination was denied for the reason that the application and other papers attached thereto were replete with scandalous, scurrilous and impertinent allegations pertaining to action on the part of this court and the Federal courts in connection with prior habeas corpus proceedings instituted and prosecuted by him. Thereafter, another petition, from which allegations of the character referred to had been deleted, was presented. When it was considered we directed that it be filed, thereby permitting the petitioner to once again present for determination his claim that he is illegally confined in the state penitentiary. In due time R. H. Hudspeth, warden of the Kansas State Penitentiary, the respondent herein, having been notified that he had been given thirty days to answer or otherwise plead to the petition filed a motion to dismiss the action for the reason that all matters, complaints and incidents therein mentioned had been fully and completely adjudicated by courts of competent jurisdiction. This motion was overruled. Thereafter, respondent filed an answer placing in issue all allegations of the petition charging that petitioner was and is unlawfully restrained of his liberty. In addition, and as a further defense, he alleged that all matters upon which the petitioner based his requests for a writ were res judicata. Following the filing of respondent’s answer the petitioner requested the appointment of counsel. Thereupon, Honorable Walter Biddle, an experienced and capable attorney of Leavenworth, was appointed to represent petitioner and upon notification of his appointment consented to serve in that capacity. Thereafter, in the presentation of evidence, the preparation of briefs and in oral argument when the cause was submitted, he faithfully and zealously advanced the cause of his client. No necessity exists for a detailed recital of the allegations to be found in the petition. That pleading was prepared by the peti-. tioner, is in his own handwriting, contains repetitious matter and is in such condition it is somewhat difficult to understand or state the exact points on which he relied. Under such circumstances, we do not strictly construe the pleading but give it the benefit of all inferences and innuendoes therein found. Broadly stated, the petition raises all issues passed upon by this court in Crebs v. Amrine, 153 Kan. 736, and all questions determined in case No. 903-H. C. in the district court of the United States for the district of Kansas. In addition it presents two or three other points to which we will later make more specific reference. Nor will it be necessary to relate at length the evidence offered in support of the position of the respective parties. Summarized, the petitioner adduced all evidence offered by him on the hearings of the two cases just mentioned. Apparently he had no new or additional evidence to offer or if he did have he made no attempt to produce it. It should, however, be here noted that after argument of the cause petitioner’s counsel was instructed to advise him that if he desired to offer any further or additional evidence the court would consider it in affidavit form. Also, that pursuant to the permission so granted, petitioner filed a lengthy statement which, when examined, proved to be merely cumulative in nature and clearly an effort on his part to reemphasize statements theretofore made by him and already considered as a part of his evidence in this proceeding. Respondent’s evidence consisted in the main of the testimony offered by the then respondent in Crebs v. Amrine, 153 Kan. 736, and can be found at length as set forth on pages 737 to 744 inclusive of the opinion in that case. However, that was not all. Evidence was adduced to the effect petitioner was sentenced on November 26, 1930, as stated in the journal entry of judgment and conviction and not on some other date as he contends. In addition Honorable G. L. Light, district judge at that time, testified in part as follows: “Your affiant states that the petitioner was at all of said times in full control of his faculties and was cognizant of the nature of the proceedings, and from your affiant’s observation, had a full understanding of all the proceedings had at the time he plead guilty and at the time he made and signed his confession, and at all other times during proceedings of which this affiant had occasion to observe; that in answering questions propounded to him the answers made by petitioner were sanely and lucidly stated and his conversations were likewise sane and lucid in all details, and in the opinion of this affiant the petitioner was of sound mind at the time he made his confession and entered his plea of guilty in my court.” More briefly stated, respondent’s testimony, if believed, completely refuted each and every point relied upon by petitioner as a ground for the issuance of a writ in habeas corpus. In our decision in Crebs v. Amrine, 153 Kan. 736, we held: “Applicant’s next point — that the record will show that he was denied counsel, the record shows nothing of the sort. “The third point — that a confession was signed by him ‘by duress, abuse', cruel and unusual punishment,’ and that ‘the confession was written by the abusers.’ The record does not show the existence of any such confession, and certainly no such confession was used against him at his trial on November 26, 1930, which is the only trial at which a confession would have been of any avail against him. If by confession petitioner means the twenty-eight page statement he gave to Judge Light on November 21, and which he admits he signed on November 22, it is perfectly clear that this statement was voluntarily given, and that, too, in an interview with Judge Light, which the judge granted at petitioner’s request. But even if that twenty-eight page statement of Crebs to Judge Light be regarded as a confession, it was not used at his trial on November 26, so its characterization as a confession is immaterial. “The next point urged is that petitioner was denied a lawful hearing in due course of law. This contention is wholly gratuitous, and absolutely nothing is offered in its support. “The next point is that sentence was pronounced without jurisdiction. This point is untenable. The district court of Seward county was the one and only tribunal which did have jurisdiction. “Appellant’s final point is that he never pleaded guilty to the' charge. The record, which is clear and unimpeached, is to the contrary. The evidence also is clear and convincing that the arraignment, plea, judgment, sentence, and commitment were regular in every respect.” (p. 745.) Findings of fact rendered-by the distinguished jurist who decided the case of Crebs v. Hudspeth, No. 903-H. C., in the district court of the United States; on February 21, 1945, read as follows: “1. That the petitioner, Cecil C. Crebs, was taken into custody by a posse on the 18th day of November, 1930 and delivered to L. E. Warden, then under-sheriff of Seward County, Kansas and placed in the county jail at Liberal, Kansas. “2. That on the afternoon of November 21, 1930, at his own request he was taken before G. L. Light, Judge of the District Court of the 39th Judicial District of the State of Kansas by L. E. Warden, deputy-sheriff, at which time the petitioner made a statement in answer to questions from Judge G. L. Light, which questions and answers were reduced to writing from short hand notes of the court reporter. “3. That when the notes of the court reporter were reduced to writing, the petitioner read the transcribed statement and signed and swore to same before said Judge' G. L. Light on the 22nd day of November, a. d. 1930. “4. That no threats, abuse, force or promises were made by the said Judge G. L. Light or anyone else in the presence of the said G. L. Light to cause the petitioner to sign said statement. “5. That the petitioner was served with a warrant on November 24, 1930, charging him with the murder of one Charlie Doan. “6. That on the 24th day of November, 1930, the' petitioner was taken before M. H. Hood, Justice of the Peace of Liberal City Township, at which time E. W. Davis was appointed as petitioner’s counsel. That at that time petitioner waived his preliminary hearing and was bound over to the District Court for trial on the charge of first degree murder. “7. That an information charging the petitioner with murder in the first degree of Charlie Doan was filed in the office of the Clerk of the District Court on November 26, 1930. “8. That on November 26, 1930, the petitioner was regularly arraigned on the information, inquiry made of him if he desired counsel which offer of counsel was refused by the petitioner and at which time he voluntarily entered a plea of guilty to the charge of murder in the first degree of Charlie Doan and was by the Court duly sentenced to confinement and hard labor at the Kansas State Penitentiary for life. “9. That a Journal Entry was duly prepared, signed by the District Judge, G. L. Light, and filed in the office of the Clerk of the District Court on the 26th day of November, 1930. “10. That a commitiment was duly and reqularly issued and signed by the Clerk of District Court, as per order of the District Judge, on the 29th day of November, A. D. 1930. “11. Pursuant to said judgment of the District Court and the commitiment issued pursuant thereto, the petitioner was transported from the county jail at Liberal, Seward County, Kansas, to the custody of the Warden of the Kansas State Penitentiary a short time thereafter, the exact date not being shown by the evidence. “12. That the petitioner has filed several prior petitions for writ of habeas corpus, based upon substantially the same facts, to-wit, that of abuse and beatings of his person to procure confession, lack of legal court procedure, failure to have counsel, all of which were tried on occasions before the District Court of Leavenworth County in August, 1940. The Supreme Court of Kansas in May, 1941 in the case of Crebs vs. Amrine No. 35,087 and which is reported in 153 Kan. 736. Also case of Cecil C. Crebs, alias C. C. Crebs, alias Chet Lawson, before the United States District Court on the 10th day of April, 1942, case No. 753-H. C. All such cases were based on the same set of facts and no new evidence is introduced in this case with' the exception of the error in the statement in the transcript of the court reporter as to when the proceedings in the District Court were had. “13. That the Journal Entry of Judgment rendered in the District Court of Seward County shows the date of proceedings to be the 26th day of November, 1930. The transcript of the proceedings made up by the court reporter, W. B. King, in the introduction, states that the proceedings were on the 22nd day of November, 1930. “14. From the affidavits of W. G. King, Court Reporter, and G. L. Light, former Judge of the District Court, and from examination of the files, the Court finds that the proceedings were had on the 26th day of November, 1930. “15. That the petitioner was in no way abused, third-degreed, beaten, tortured or promised any benefits which induced him to make the statement before G. L. Light on the 21st and 22d days of November, A. D. 1930, or to bis entering a plea of guilty before the Court to the charge of murder in the first degree on November 26, 1930.” At this point we pause to consider respondent’s contention that all questions determined in the two decisions from which we have just quoted are res judicata and no longer available as grounds for habeas corpus in the case at bar. We do not believe the rule permits the sustaining of that contention in the broad form in which respondent seeks its application. As we understand it the doctrine of res judicata does not apply in case of refusal to discharge a prisoner on habeas corpus. However, prior adjudications, where a subsequent application is based on the same facts relied on in former proceedings, may be taken into consideration to prevent abuse of the writ and given controlling effect if in the exercise of its discretion such conclusion appears to the court, to which the subsequent application is presented, to be justified after consideration of all facts and circumstances having a material bearing upon the subject. (39 C. J. S. 698, § 105; 25 Am. Jur. 250 § 156; Wong Doo v. United States, 265 U. S. 239, 68 L. Ed. 999; Salinger v. Loisel, 265 U. S. 224, 68 L. Ed. 989; Slaughter v. Wright, 135 F. 2d 613). So, in the instant case, we might in the exercise of judicial discretion decide that since the record presents no new facts and circumstances former decisions control and refuse to again pass upon contentions so often determined. And we might add, that in the event such action was required we would not hesitate to take it. However, we do not deem it necessary. There was presented for our consideration in this case evidence from which we can determine on its merits each and every fact passed upon and decided in Crebs v. Amrine, 153 Kan. 736, and Crebs v. Hudspeth, 903-H.C. in the district court of the United States^ We have examined the record. Based upon what it discloses we approve and affirm each and all of the findings, heretofore quoted, as made by this court and the federal court in those two cases and adopt them as our own. In addition, we hold that so far as the petitioner and his right to release on habeas corpus are concerned: (1) All proceedings in the justice court prior to and inclusive of his preliminary hearing were regular and in con formity with law; (2) he was not deprived of legal counsel or denied counsel either in justice court or district court; (3) he actually had counsel with whom he had advised prior to entering his plea of guilty; (4) the fact his counsel was not present in court at the time he entered such plea was because he had advised the trial court he did not desire that his attorney be present, and (5) his entire action in district court, both before and after sentence and including the entering of a plea of guilty, was voluntarily taken with full and complete understanding of the nature of the proceedings and the consequences which would follow as a result thereof. The conclusion just announced might well end this lawsuit. However, we have in mind several allegations of the present petition which were not specifically passed upon in prior cases and hence not heretofore referred to. One such allegation is that G. S. 1935, 62-1302, requires service of a copy of the information in capital cases at least forty-eight hours before arraignment. Assuming no copy of the information was served on petitioner the argument overlooks the last sentence of the section, which reads: “. . . If the defendant pleads and goes to trial without objecting for the want of such copy, the neglect of duty by the clerk will not be sufficient ground to set aside the verdict.” The record discloses petitioner waived service of the copy. Therefore, the portion of the section relied on by him did not apply to his situation. Another allegation is that petitioner did not waive his right to counsel by written instrument as required by G. S. 1943 Supp. 62-1304. Quite true, but that statute was enacted in 1941 and does not operate retroactively. The statute in force and effect on all dates here involved, G. S. 1935, 62-1304, contained no such requirement. It merely provided that if a person about to be arraigned on an information be without counsel to conduct his defense, and be unable to employ any, it should be the duty of the court to assign him counsel at his request. The trial court complied with its mandate. Moreover, petitioner had counsel and expressly stated he did not desire his presence at the time he entered his plea of guilty. Still another and final allegation is that petitioner was denied the right to subpoena witnesses in his previous applications for a writ of habeas corpus. No evidence was offered to that effect and we might add the record is to the contrary. Besides, it is not argued there was any deprivation of that privilege in this action. Petitioner directs our attention to the following recent decisions of the Supreme Court of the United States, which he insists require his release in a habeas corpus proceeding. (Williams v. Kaiser, 323 U. S. 471, 89 L. Ed. 398; Tomkins v. Missouri, 323 U. S. 485, 89 L. Ed. 407; House v. Mayo, 324 U. S. 42, 89 L. Ed. 739; Rice v. Olson, 324 U. S. 786, 89 L. Ed. 1367, and White v. Ragen, 324 U. S. 760, 89 L. Ed. 1348.) We do not agree. As we understand the import of such decisions they do not so much as intimate even by inference, that where, after a full and complete hearing of a habeas corpus case on the merits, a state court finds from all the evidence, contrary to a petitioner’s contention, that he understanding^ and intelligently waived counsel or, where as here, finds he had counsel but comprehendingly stated he did not desire his presence when he entered a plea of guilty, that the interpretation placed upon that evidence by the state court will be reviewed on appeal. No legal ground existing for its issuance the writ is denied.
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The opinion of the court was delivered by Hoch, J.: The primary question presented by this appeal is whether the corpus of a certain testamentary trust estate may be reached by the divorced wife of the beneficiary to satisfy a judgment for alimony. The trial court found against the claimant and she appeals. Questions involving the instant trust have twice been before us and we need not repeat the narrative contained in the former opinions. (See Watts v. Watts, 151 Kan. 125, 98 P. 2d 125; Watts v. Watts, 158 Kan. 59, 145 P. 2d 128.) The issues here can be presented by brief recital. The will of Mary D. Watts, a resident of Butler county, was admitted to probate on December 11, 1918. Part of her property was left to Gardner Y. Watts and part in trust for the benefit of his son, Corwin Grant Watts, who was then about seventeen years old. She had reared Gardner Watts from his infancy, but neither he nor Corwin Watts was in any way related to her. The pertinent portions of the will containing the testamentary gifts to Cor-win Watts were as follows: “I give and devise and bequeath to A. L. L. Hamilton and J. B. McKay of El Dorado, Kansas, in trust for said Corwin Grant Watts, thetundivided one-half interest in and to the following described real estate situated in Butler county, Kansas, towit: The south half of the southeast quarter of section thirteen, township twenty-six south, of range four east, including an undivided one-half interest in and to all óil and gas royalties, rents and other incomes accruing therefrom after my death, and I hereby give and grant said A. L. L. Hamilton and J. B. McKay, or the survivor of them, full power to hold, manage, control, sell, transfer and convey the same, to reinvest the principal and the income therefrom from time to time, and to do every act and thing necessary and proper to effectuate the trust herein created, and to carry out the directions of this will, and I hereby direct such trustees to pay said Corwin Grant Watts, at such times as to them may seem necessary, such sums of money as shall in their judgment be necessary for the proper maintenance, support and education of said Corwin Grant Watts. After said Corwin Grant Watts arrives'at the age of twenty-one years, such trustees are authorized and directed to turn over to said Corwin Grant Watts all of such property then remaining in their hands, when, in the judgment and discretion, said Corwin Gant Watts has attained sufficient business judgment, and, otherwise shows himself to be capable of handling such property, but-said trustees are directed to hold and invest such property as herein provided until they have determined said Corwin Grant Watts to be a suitable person to handle the same. . . . I give, devise and bequeath to said Gardner Y. Watts the equal one-half part of all the rest, residue and remainder of my property, real, personal and mixed, wherever situated, to have and to hold the same unto said Gardner Y. Watts, his heirs and assigns forever, and the remaining one-half part of such residue of my estate, wherever situated, I give, devise and bequeath to said A. L. L. Hamilton and J. B. McKay, or the survivor of them, in trust for said Corwin Grant Watts, to be held, controlled, managed and disposed of by them exactly as provided in paragraph Third hereof!’ (Italics supplied.) Following admission of the will to probate the district court of Butler county assumed jurisdiction of the trust, with Hamilton and McKay, therein named, as trustees, and has since exercised jurisdiction. Upon the death of Hamilton, McKay became the sole trustee and has since continued as such. No complaint is made as to administration of the trust. Corwin Watts and Nellie J. Watts, .the appellant, were married in 1924, and in 1926 a daughter, Imogene, was born to them. In 1931, in appropriate proceedings, an order was made by the district court directing the trustees to pay $60 a month to Nellie Watts for the support of herself and child, and $40 a month to Corwin Watts for his support. In May, 1933, the order was modified to provide $50 a month for Nellie Watts and the child and $50 for Corwin Watts for his support. The modified order has since been in effect. Sometime in 1943 Nellie Watts brought an action for divorce, alleging, inter alia, that since 1932 she and her husband had not lived together. On February 25, 1944, she was given judgment for divorce, and on July 14, 1944, a judgment for permanent alimony in the amount of $6,500 and for attorneys’ fees in the amount of $500. The decree further directed the trustee to pay to the daughter Imogene $50 a month “as long as she remains a minor and unmarried,” and that the plaintiff and her daughter should have the free use of the Wichita residence property belonging to the trust estate “as long as said child remains a minor, single, and resides with her mother in said residence.” No appeal was taken from the judgment. , In August, 1944, appellant filed in the district court, in the trust proceedings, an application for an order to the trustee to show cause why he should not pay the judgment for alimony and attorneys’ fees out of the trust estate. The matter was set for hearing. Corwin Grant Watts filed an answer asking that the application for such payment be granted. The trustee filed an answer, resisting payment out of the trust funds. It is not necessary to set out the answer in full. In it the trustee narrated the history of the trust in a general way and its administration; stated that the assets in his hands consisted of property valued at $23,380.20 — subject to fluctuations in the amount of cash on hand' — and an undivided half-interest in a half section of land, including a one-fourth interest in the one-eighth oil royalty being received under an oil lease. The trustee further averred that the surface interest in the land had no substantial value and that the trust receipts from the oil royalty were then about $90.07 a month but that the wells were deteriorating in 'productive capacity and that it was impossible to say how long production in paying quantity would continue. Further allegations of the trustee’s answer were as follows: “5. Said trustee denies that said trust property constitutes ‘an asset in the hands of said trustee’ belonging to said Corwin Grant Watts, and alleges the fact to be that said last will and testament of said Mary D. Watts created a discretionary trust, and that said sole trustee is charged with the duty and responsibility of paying said Corwin Grant Watts, at such times as appears to said trustee to, be necessary, such sums of money as shall in the judgment of said trustee, ‘be necessary for the proper maintenance, support and education of said Corwin Grant Watts,’ and said trustee has no authority or discretion to apply the trust property to any other use or purpose, and his discretion as such trustee is not subject to the control of any. court except to prevent or correct an abuse thereof. “6. Said trustee further alleges that Imogene Watts, the daughter of said Corwin Grant Watts and Nellie J. Watts, was married some time prior to July 14, 1944, and her husband is serving in the armed forces of the United States, and said Imogene Watts is receiving an allptment sufficient for her support. “7. Said trustee further alleges that in the exercise of his discretion, he has determined and is of the opinion that said Corwin Grant Watts will never ‘attain sufficient business judgment and otherwise show himself to be capable of handling such property,’ and that said Watts is and always will be a spendthrift and utterly incapable of handling said property or of supporting himself. and that it will be necessary to support said Watts out of said trust property for the remainder of his lifetime. That in order to carry out the purpose and intention of said Mary D. Watts, it is necessary to conserve and preservé the corpus of said trust estate so that the same mil be adequate to support said Watts for the remainder of his lifetime. Said Watts is now approximately 42 years of age, and has a life expectancy far greater than the time said oil wells can reasonably be expected to continue to produce, and in the judgment and opinion of this trustee, it will become necessary in the not far distant future to support said Watts entirely out of the cash and securities in the hands of said trustee, the income from which is not now adequate for such purpose. That if the property in the hands of said trustee should be depleted by the payment of said judgment of Nellie J. Watts, and said fees awarded to her attorneys, the property remaining in the hands of said trustee would be inadequate to support said Watts during the remainder of his life expectancy, and he would in all pobability become a public charge, thus doing the utmost violence to the purpose and intention of the testatrix, Mary D. Watts.. “8. Said trustee further alleges that said Corwin Grant Watts was not related to said Mary D. Watts in any degree, and was not one of her heirs at law. That said Corwin Grant Watts has no vested interest in the trust estate, and upon his death, said trustee will hold said trust property upon a resulting trust in favor of the heirs- of Mary D. Watts. That this court could not render in this action or proceeding any judgment or order directing said trustee to pay said judgment or attorney’s fees which would be of any protection to said trustee against the heirs of said Mary D. Watts, and there is therefore a fatal defect of parties, and this court is without power or jurisdiction to make or enter an order or decree of the character sought by said Nellie J. Watts. “9. Said trustee further alleges that said Nellie J. Watts procured said Corwin Grant Watts to file his answer to said Application for an Order to Show Cause, in which he requests this court to order said trustee ‘to pay said judgment from said trust estate,’ but that notwithstanding such answer so filed by him, said Corwin Grant Watts has both orally and in writing made demand on said trustee for the payment to said Watts of the sum of $100 per month by reason of the fact that said trustee discontinued payment of the sum of $50 per month to said Nellie J. Watts when said decree of divorce was entered. That the funds and property in the hands of said trustee are wholly insufficient to enable him to pay said judgment and attorney’s fees, and to pay said Watts the sum of $100 per month.” (Italics supplied). Upon application of the petitioner the unknown heirs of Mary D. Watts were made parties to the action and notice was served upon them by publication. At the hearing, the trustee testified as to the trust and its administration; stated that he had known Corwin Watts since about 1916 and had seen him frequently — on an average oftener than once a month during all those years; that “he is eccentric; has little if any business judgment, is completely unreliable and hasn’t the faintest conception of the value of money”; that “in my judgment and opinion, as trustee, he is a spendthrift, using the word in the technical sense, and I see no possibility that he will ever cease to be a spendthrift”; that “it is my judgment at this time that I will never, in the exercise of my discretion as trustee, turn the corpus of this estate, or any part thereof, over to Corwin-Grant Watts”; that he was well acquainted with Mary D. Watts, was her personal attorney and drew the will in question; that since Corwin Watts and Nellie Watts separated she had been allowed to occupy, rent free, the Wichita residence, in which she also operated a beauty shop and that the trust was paying the taxes and upkeep on the property; that in addition to the monthly payments of $50 Watts had been paid additional sums from time to time for various purposes, as shown by the accounts, and had 'frequently importuned both the trustee and the court for other allowances, which had been refused. Upon cross-examination he testified: “Q. What is the fact as to whether in pursuance of your administering of this trust you have, from time to time, had to go into the principal or corpus of this estate? A. It has been invaded seriously.” No other witness testified. The trial court found generally for the trustee, and that— . “(a) The trust created by the last will and testament of Mary D. Watts is a discretionary trust; “(b) Corwin G. Watts has no vested interest in the trust estate, and that upon the death- of said Corwin G. Watts, said trustee will hold the trust property then remaining in his hands upon a resulting trust in favor of the heirs of Mary D. Watts; “(c) The trustee has no duty, right or authority to pay the judgment rendered in favor of Applicant in the sum of $6,500 as permanent alimony, and the further sum of $500 for attorneys’ fee; “(d) In refusing to pay the judgment for permanent alimony and attorneys’ fees, the trustee has not abused his discretion.” The order to show cause was dissolved, motion for new trial was made and overruled and this appeal followed. Before considering the principal question we take note of appellee’s contention that the proceeding was not one in which the unknown heirs of Mary D. Watts could properly be made parties and that if he should be ordered to pay the judgment out of the trust estate he would have no protection against any subsequent claims they might make. The unknown heirs of Mary D. Watts were properly made parties. The application for an order directing the trustee to pay the judgment was properly filed in the trusteeship proceeding and required determination of the meaning and effect of the testamentary trust provisions. The possible interests of the heirs, if any, of Mary Watts, were involved. But we need not discuss the question further since the conclusion presently to be stated as to the nature of the trust cannot adversely affect their interests. It is pertinent to say, however, at this point, that the trial court’s finding that "upon the death of said Corwin G. Watts, said trustee will hold the trust property then remaining in his hands upon a resulting trust in favor of the heirs of Mary D. Watts” went beyond what was necessary in determining the question of whether the corpus of the trust estate in the hands of the trustee could be reached to satisfy the judgment. It may be argued that such a result would follow from the finding that Corwin Watts has no vested interest in the estate which can now be reached under the judgment. But no one can now say whether there will be any trust property remaining in the trustee’s hands upon the death of Corwin Watts. Adjudication of such issues as may possibly arise upon the death of Corwin Watts should await that eventuality. Whether such possible residue of the estate would revert to the estate of Mary D. Watts, would pass to the heirs of Corwin Watts, or would escheat to the state is a question to be met when and if it arises, and when all persons then entitled to be. heard may be made parties in a proper action. The finding on that question was premature and is for that reason set aside. Both parties agree that in the construction of wills the primary consideration is the intention of the testator, and that intention is to be determined from examination of the instrument as a whole. (In re Estate of Ellertson, 157 Kan. 492, 497, 142 P. 2d 724.) The instant instrument presents no difficulty in that regard. Legal title to the property in which Corwin Watts was given a beneficial interest was vested in the trustees. The trustees were given plenary power “to hold, manage, control, sell, transfer and convey the same, to reinvest the principal and the income therefrom from time, to time, and to do every act and thing necessary and proper to effectuate the trust.” Trust funds were to be used “for the proper maintenance, support, and education of said Corwin Grant Watts” and it was left to the judgment of the trustees to determine what payments to him were necessary for that purpose. After Corwin Watts reached the age of twenty-one any residue then in the trust estate was to be turned over to Corwin Watts if and when “in the judgment and discretion” of the trustees he had “attained sufficient business judgment, and otherwise shows himself to be capable of handling such property.” To give added force to that clear direction the testatrix added: “but said trustees are directed to hold and invest such property as herein provided until they have determined said Corwdn Grant Watts to be a suitable person to handle the same.” Appellant contends that the instant trust is a “spendthrift trust” and that the general rule which prevents creditors from reaching the beneficiary’s interest under such a trust is not applicable to a claim for alimony. (See 1 Scott on Trusts, ¶ 157 et seg.) The term “spendthrift trust” — which is frequently used rather loosely — is defined in Scott on Trusts (Vol. 1, p. 742) as one “in which the interest of a beneficiary cannot be assigned by him or reached by his creditors.” It is there said: “The term is not altogether felicitous, since it is quite immaterial whether or not the beneficiary is in fact a spendthrift. The term does, however, connote the general idea that the purpose of the settlor in creating such a trust is to protect the beneficiary against his own folly or inefficiency or misfortune.” We need not here pursue the broad question of restraints upon alienation. While “spendthrift trusts,” representing one class of such restraints, are not permitted in some jurisdictions they have been upheld in this state. (Sherman v. Havens, 94 Kan. 654, 146 Pac. 1030; Everitt v. Haskins, 102 Kan. 546, 171 Pac. 632; Bierer v. Bierer, 121 Kan. 57, 60, 245 Pac. 1039; Hinshaw v. Wright, 124 Kan. 792, 262 Pac. 601.) Although such a trust is ordinarily created by specific provision in the trust instrument against power of alienation it has frequently been held that such intention on the part of the settlor may be inferred from th’e general context. (Everitt v. Haskins, supra; 26 R. C. L. 1268.) There is a conflict of authority on the question of whether the interest of a beneficiary under such a trust may be reached to satisfy a judgment for alimony. (Griswold on Spendthrift Trusts, ¶ 339.)' But in any event and whatever the name given to the trust, the beneficiary’s interest must be a present and determinable one. 'We are here dealing only with the corpus of the estate. Clearly in that feature, at least, the instant trust falls within the general class of “discretionary trusts.” As to such trusts it is said in Restatement, Trusts, Sec. 155: “If by the terms of a trust it is provided that the trustee shall pay to or apply for a beneficiary only so much of the income and principal or either as the trustee in his uncontrolled discretion shall see fit to pay or apply, a transferee or creditor of the beneficiary cannot compel the trustee to pay any part of the income or principal. ... A trust containing such a provision as is stated in this section is a ‘discretionary trust’ and is to be distinguished from a spendthrift trust, and from a trust for support. In a discretionary trust it is the nature of the beneficiary’s interest rather than a provision forbidding alienation which prevents the transfer of the beneficiary’s interest. The rule stated in this Section is not dependent upon a prohibition of alienation by the settlor; but the transferee or creditor cannot compel the trastee to pay anything to him because the beneficiary could not compel payment to himself or application for his own benefit.” To the same effect, it is said in 1 Scott on Trusts, p. 774: “Where by the terms of the trust a beneficiary is entitled only to so much of the income or principal as the trustee in his uncontrolled discretion shall see fit to give him, he cannot compel the trustee to pay to him or to apply for his use any part of the trust property. In such a case, an assignee of the interest of the beneficiary cannot compel the trustee to pay any part of the trust property, nor can creditors of the beneficiary reach any part of the trust property. This is true even in jurisdictions where spendthrift trusts are not permitted. If the beneficiary himself cannot compel the trustee to pay over any part of the trust fund, his assignee and his creditors are in no better position. It is the character of the beneficiary’s interest, rather than the settlor’s intention to improve a restraint on its alienation, which prevents its being reached.” (Italics supplied). (Also, see 26 R. C. L. 1268; 65 C. J. 557.) Certainly the instant trust is purely discretionary as to the principal, since — in the absence of abuse of discretion — the trustee may withhold it altogether from the beneficiary if in his judgment the beneficiary is not capable of handling it. The trustee’s testimony as to lack of capacity wás not controverted and no showing made that the trustee had abused his discretion. The beneficiary has no right, as a matter of law, to require the trustee to turn over to him the principal of the estate or any part of it. It follows that the appellant — who married the beneficiary long after the trust had come into existence — cannot reach it. The Kansas decisions — including all that have been called to our attention by the parties — have been examined and we find none inconsistent with the conclusion here reached. It would unduly extend this opinion to review them. Appellant invokes the well-settled rule that the law favors the early vesting of estates and contends that under that rule the beneficiary’s interest in the corpus of the trust estate should be held to be vested. But in none of the cases cited was an instrument construed as creating a vested estate where a contrary intention clearly appeared from the instrument itself, as it does here, We conclude that Corwin G. Watts does not have such an interest in the corpus of the trust estate in the hands of the trustee as can be reached to satisfy the judgment for alimony and attorney’s fees, and that the trustee did not abuse his discretion in refusing to pay such judgment. The judgment dissolving the order to show cause and dismissing the application is affirmed.
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The opinion of the court was delivered by Wedell, J.: This is an appeal from a judgment of the district court in a will case. Appellant Roy Davis was also the appellant in the appeal from the probate court to the district court. The instrument claimed by appellant to be a will was executed by L. E. Douglass, deceased. Appellant claims all of the decedent’s property under' that instrument passed to the decedent’s son', Jimmy. Mildred F. Main, decedent’s former wife, appellee, claimed all of decedent’s property passed to their three children, including Jimmy, under a former joint and reciprocal will which she and decedent had executed. Appellant did not appear at the hearing for probate at which' time both instruments were presented. The minor son, Jimmy, appeared at that hearing by a guardian ad litem. The probate court upheld appellee’s contention. Appellant later appeared and attempted to contest the former will, to set aside the order of probate and to have the later instrument admitted to probate as the last will and testament of the decedent. The probate court sustained appellee’s objections to appellant’s right to be heard. Appellant appealed to the district court! Appellee objected to appellant’s right to be heard in that court. The parties' differ1 widely with respect to the issue or issues submitted to thfe ‘district‘court for determination. The record 'in the district cdurt'ife highly donfusing with respect to what issue or issues appellant 'and) appellee mteíi'Üed' to submit to that court for determinátion. Thfe only qúe'stíon upon which the district court made specific findings and rendered a judgment pertains to the construction of the instrument in question. Those findings and the judgment rendered are: “. . . the court finds from the evidence that said purported instrument is not an instrument capable of probate, is not documentary [testamentary] in character, and does not dispose of or attempt to dispose of any property, real, personal or mixed; does not name, designate or appoint an executor, and does not revoke any former will or wills of the said L. E. Douglass, and that said instrument is not the last will and testament of L. E. Douglass, and that therefore Roy C. Davis has no capacity and is not authorized to prosecute the appeal. “It is therefore ordered that by virtue of the foregoing the appeal of Roy C. Davis should be and is hereby dismissed at the cost of the appellant.” Some members of this court agree with the findings of the district court and agree that by reason of such findings appellant had no capacity and was not authorized to prosecute the appeal. Some other members of this court do not agree with such findings but believe that upon the basis of ’the record before us appellant disclosed no interest or capacity or such compliance with statutory requirements as entitled him t'o be heard in the probate or district court. They believe the appeal to the district court was properly dismissed 'for those reasons rather' than for the reason assigned by that court. In other words a majority of this court, although for different reasons, believes the appeal was properly dismissed and the judgment ’of the district court should be affirmed. It follows what has been said herein should not be interpreted as approving or disapproving the construction placed upon the instrument in question by the district court. The judgment is affirmed.
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The opinion of the court was delivered by Harvey, C. J.: This is an original proceeding in mandamus to require the district judge of Osage county to decide a case in that court and render a judgment thereon. The hearing here was upon defendant’s motion to quash the alternative writ. From the motion for the writ with exhibits attached, and the motion to quash with an exhibit attached — all of which exhibits are conceded to be correct copies of certain papers filed in, the district court — the material facts may be stated as follows: John Supple, a resident of Osage county, died leaving a will, which was duly ad mitted to probate and executors appointed. The executors administered the estate and made their final accounting, which they asked the court to approve. This was done, and no controversy appears to have been made over the correctness of that ruling. The will contained a clause, spoken of as the “fourth paragraph,” which attempted to dispose of the residue of the estate by creating a trust, the income of the property to be distributed to seventeen named persons, who perhaps were related in some way to the testator. At the time of the filing of the final settlement the executors asked the court to construe the will so that the property referred to in the fourth paragraph of the will would be distributed immediately to the persons named in that paragraph. John Michael Supple, the son of the testator and the only person who would have been his heir at law had he died intestate, filed an answer to the executors’ petition to construe the will and for immediate distribution of the property, also asking the court to construe the will and to hold the fourth paragraph to be void for reasons that need not now be stated, and to further hold that the testator died intestate as to the property referred to in that paragraph, and that the sáme should be assigned to him as his sole property. The probate court construed the will, held the fourth paragraph to be ^oid, denied the petition of the executors with respect to the manner in which the property should be distributed, and held that it passed to the son of the testator as intestate property. The executors and the parties named as beneficiaries in the fourth paragraph of the will appealed to the district court. There was a trial in the district court at which evidence was offered, and after due consideration the court made an entry in its trial docket as follows: “May 7, 1945 — Appeal Dismissed.” On the same day the court filed with the clerk of the district court a “memorandum opinion,” the reading of which indicates that the court decided every controverted question that had been presented to the court. In the motion for the writ in this court the entry in the court’s trial docket, was set up, but no reference was made to the memorandum opinion. This is the instrument that is attached to the motion to quash. Within due time counsel for the appellants in the district court filed a motion for a new trial upon the grounds: “(1) Because of erroneous rulings of the court. (2) That the report and decision of the court is contrary to the evidence.” They also filed a motion asking the court to clarify and modify its order by rendering a judgment upon the issues either' for or against the appellants. These motions came on for hearing before the court on June 1, 1945, were argued by counsel, considered by the court, and overruled. No appeal was taken from the decision of' the court of May 7, 1945, nor was any appeal taken from the orders of the court of June 1, 1945. On August 10, 1945, proceeding under G. S. 1935, 60-3011 and 60-3007, seventh clause, the appellants in the district court filed a petition in that court to vacate the court’s order of May 7, 1945, and also its order of June 1, 1945, overruling the motions. This is a lengthy document in which the relief sought is predicated upon the delay of opposing counsel to prepare a formal journal entry of the proceedings in court on May 7 and on June 1, 1945, alleging they had relied upon certain conversations and representations of opposing counsel, the most of which took place after the time for appeal had expired. Counsel for John Michael Supple filed- a demurrer to this petition to vacate, which demurrer was presented to and considered by the court and sustained on October 25, 1945, and there has been rio appeal from that ruling. The plaintiffs in this proceeding are the same parties who were appellants in the district court. In support of the motion to quash the alternative writ it is argued that the plaintiffs in this proceeding are attempting to use the original jurisdiction of this court as a substitute for its appellate jurisdiction. We think the point is well taken.- The original jurisdiction of this court is limited to “proceedings in quo warranto, mandamus and habeas corpus”; the appellate jurisdiction is limited to that which “may be provided by law.” (Const, art. 3, § 3.) Our applicable statute relating to appeals requires the appeal to be taken “within two months from the date of the judgment or order from which the appeal is taken.” (G. S. 1943 Supp. 60-3309.) The real question before us is whether the respective above-mentioned judgments or orders made by the district court May 7, June 1 and October 25, 1945, are, or any one of them is, an appealable judgment,or order. Plaintiffs argue that the order made by the trial court of May 7, 1945, as shown by its trial docket is void. In support of that they site G. S. 1935, 60-3105, which sets forth five circumstances in which an action may be dismissed “without prejudice,” and concludes, “In all other cases, upon the trial of the action the decision must be upon the merits.” The citation is not applica ble, for even in a trial “upon the merits” the court is not precluded from considering all questions presented, and upon such consideration dismissing the action with prejudice. Indeed, that is sometimes done in this court as well as in trial courts. Counsel cite definitions of the word “dismiss” and cases in which the word is distinguished from “judgment” or “adjudication.” The only basis for this argument is the notation of the trial court on its docket and the. fact that plaintiffs omitted from their motion for the writ the memorandum decision of the court, which clearly shows an adjudication of the controversy. The excuse for omitting this is that it is not an instrument required by law to be filed. The same excuse applies to the notation made by the court on its trial docket. (See Gates v. Gates, 160 Kan. 428, 431-433, 163 P. 2d 395, where the earlier cases were collected.) Indeed, what we ordinarily speak of as the court’s docket is not a record required by statute to be kept. Among the dockets the clerk is required to keep is a trial docket (G. S. 1935, 60-3801), and G. S. 1935, 60-2935, requires,that the clerk publish the same before each session of the court for the use of the bar. Such a docket is simply a list of cases for consideration, with such other data as the clerk may use. The entry made in what we speak of as the court’s trial docket might just as well be made in any other form. The notation the court malees in its trial docket may at times have a useful purpose. Perhaps it has been more frequently used in motions for nunc j>ro turtle orders for th'e court to refresh its recollection of what took place. An opinion of the court filed with the clerk is not required by law, but the practice of doing so has been encouraged, and frequently reference has been made to such opinions both in briefs of counsel and in opinions of this court. They tend to show not only the particular questions which were presented and the ruling the court made thereon, but the reasons that prompted the ruling. The action of the trial court would have been much better disclosed by including the opinion of the court in the motion for the writ. Neither the notation on the trial docket nor the opinion of the trial court constitutes the record ’required by law to be kept. That record should be made in the journal of the court. (G. S. 1935, 60-3803.) Rule 49 of this court (printed in G. S. 1935, 60-3827, for the convenience of the bar) for the preparation of a journal entry was designed to supplement the statute (G. S. 1935, 60-3803) in order that counsel for the parties may know and if possible agree upon the entry to be made in the journal. The fact, however, that a journal entry is not prepared by counsel, or that the entry of the court’s judgment is not entered in the journal of the court does not abrogate the court’s judgment nor prolong the time for an appeal. (See Gates v. Gates, supra, where earlier cases on that point are referred to.) Counsel for plaintiffs also cite the provision of our probate code (G. S. 1943 ■ Supp. 59-2408) as to the duties of the district court with respect to a case appealed to it from, the probate .court.. The court’s “memorandum opinion” indicates the case was handled in harmony with this statute. It is inaccurate to say the trial court did no more on May 7,1945, than to dismiss the appeal. Any argument predicated upon that view is without merit. An order of dismissal requires judicial action. An order of the district court dismissing a civil action, or an appeal from an inferior court, puts an end to the action or to the appellant’s appeal, unless modified or set aside by that court. It is a judgment as defined in G. S. 1935, 60-3101, and is such a final order that an appeal therefrom may be taken under G. S. 1935, 60-3302. See Houston v. Clark, 36 Kan. 412, 13 Pac. 739; Oberlander v. Confrey, 38 Kan. 462, 17 Pac. 88; Allen v. Dodson, Sheriff, 39 Kan. 220, 17 Pac. 667; Boot and Shoe Co. v. Derse, 41 Kan. 150, 21 Pac. 167; Hargis v. Robinson, 70 Kan. 589, 79 Pac. 119. In Railroad, Co. v. Shinn, 60 Kan. 111, 55 Pac. 346, it was held: “In dismissing an appeal from justice’s court, the district court acts judicially, and mandamus will not lie to revise judicial action.” See, also, State, ex rel., v. Norton, 20 Kan. 506; Johnson v. Schoch, 84 Kan. 884, 115 Pac. 638; Lynn v. McCue, 99 Kan. 400, 161 Pac. 613; Brockman v. Bayman, 135 Kan. 238, 10 P. 2d 31. So, if the trial court had done nothing more on May 7, 1945, than to dismiss the appeal its action was a judicial one, a final order, one from-which an appeal could have been taken; and that is the procedure outlined by our law for reviewing the-decision. It appears, however, it did more than simply dismiss the appeal — it heard the evidence and decided the controverted issues and wrote a memorandum opinion embodying its conclusions. Counsel on either side should have had no serious difficulty in preparing the form of an entry for the journal of the court embodying the court’s decision. More than that, it is clear that appellants in the district court recog nized the action of the court on that date as being an adjudication of the matters presented to the court. They filed a motion for a new trial predicated upon that view, and a further motion to modify the order made. When they filed their petition August 10, 1945, to set aside the previous orders of the court they frankly asserted that they had let the time for appeal go by and stated the reasons for doing so, which the trial court thought inadequate, and sustained a demurrer thereto. The arguments in this case have taken a somewhat wider range than the discussion heretofore made in this opinion. We have carefully considered all counsel have said and find that the other matters discussed in the brief have but little if any bearing upon the questions before us, and for that reason need not be discussed. It seems clear from the record as a whole that the plaintiffs in this proceeding had ample opportunity to appeal from any of the orders of the trial court of which they now complain, and simply let the time for appeal go by. We do not have before us the correctness of the ruling of the trial .court. That question has not been brought to us in the only way we would have jurisdiction to entertain it. Certainly neither the framers of our constitution nor the legislature intended that we should substitute the- original jurisdiction given us by the constitution for our appellate jurisdiction, which must be provided by law. The result is that defendant’s motion to quash the alternative writ should be sustained and this proceeding should be dismissed. It is so ordered.
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The opinion of the court was delivered by Parker, J.: Plaintiff brought this action to recover certain grain rent which he claimed was due him under the terms of an ordinary farm lease. The defendant, who is the tenant named in the lease, filed an answer and cross petition. In such answer he denied generally plaintiff’s claim. By his cross petition he claimed damages alleged to have been sustained by certain of his crops as a result of plaintiff’s refusal to permit him to use an irrigation plant located on land owned by plaintiff but not on the premises which defendant was farming. The cross petition was first attacked by a motion to make more definite and certain, its principal purpose being to require defendant to reveal the nature, date, consideration, and terms of the contract relied on by him as according him the right to use such irrigation facilities. Two paragraphs of the motion were sustained. Five others were successfully resisted. Defendant then filed an amended cross petition. Later he filed an amendment to his amended cross petition. Thereafter plaintiff demurred to the amended cross petition as amended for the reason it failed to state facts sufficient to constitute a cause of action. This demurrer was sustained and the appeal is from that ruling and judgment. Facts as relied on by the parties might be related at length, or for that matter summarized, but by omission of their formal parts pertinent portions of the pleadings are so brief and to the point as to permit their inclusion in this opinion without undue prolongation and at the same time give to its readers a clear and concise word view of the picture in the language of its creators. Since the recital of some of its allegations is in the interest of clarity, and admissions of the defendant with respect thereto are important, we first turn .to the petition. Paragraphs .two and three read: “2. That on or about the first day of March, 1943, the said defendant entered into the possession of the following described real property in Gray County, Kansas, to wit: The South Half (S %) of Section Eight (8), Township Twenty-seven (27), Range Thirty (30), as the farm tenant of one Otis McVaugh under the terms of a written lease, dated November 7, 1942, executed by said defendant and said Otis McVaugh, a copy of which is hereto attached, marked ‘Exhibit A’ and made a part hereof; that at the time of the execution of said lease and at the time said defendant entered into the possession of said premises as tenant aforesaid, said real estate was owned by one Violet McVaugh, wife of said Otis McVaugh, and that in making said lease, the said Otis McVaugh was the agent of said Violet McVaugh and was acting for her in making such lease. “3. That subsequent to the time said defendant entered into the possession of said real estate as tenant aforesaid, said plaintiff purchased said real estate from said Violet McVaugh and that on or about the . . . day of January, 1944, the said Violet McVaugh, together with the said Otis McVaugh, her husband, conveyed said real estate to said plaintiff by warranty deed and that said plaintiff has ever since been and now is the absolute owner thereof and entitled to the rents therefrom; that said defendant was advised and informed of such change of ownership and thereafter continued in the possession and occupancy of said real estate as the tenant of said plaintiff.” Exhibit “A” referred to in paragraph two is an ordinary farm lease, the terms of which leased the land therein described for a period of one year from March 1, 1943, to March 1, 1944, and provided for the payment of crop rentals on a share basis. Its provisions make no mention of irrigation rights of any character, and of a certainty, do not purport even by inference, or otherwise, to grant defendant those claimed by him in his respective pleadings. Other portions mf the petition merely recite the amount of rent claimed by plaintiff to be due and payable for crops planted and harvested during the year 1944 and are of no consequence here. It should, however, be noted — although all pleadings are silent on the subject — that defendant, since plaintiff’s claim involves only the landlord’s share of the 1944 wheat crop, must have held over after expiration of the term provided for by the written lease. We see no necessity for detailing the cross petition. Except for One paragraph, and another which under the issue raised by the demurrer is not material, its averments are the same as those which appear in the pleading filed by defendant after the original one was motioned. Only a few allegations were added to the first paragraph of the amended cross petition. Those additions for identification purposes will be italicized. Thus the quotation which follows will dis close not only the averments to be found in the first paragraph of the cross petition as originally drafted, but at the same time will reveal all allegations of the first paragraph of the cross petition as amended. Such paragraph reads: “For his cross petition the defendant alleges that he entered into possession of the land described in paragraph 2 of plaintiff’s petition as alleged in said paragraph 2; that the plaintiff was the owner of land adjoining said described land in said lease and that the plaintiff and the said Otis McVaugh and Violet McVaugh had installed on plaintiff’s land a pumping plant, and that said pumping plant was by oral agreement between said persons to be used jointly by said plaintiff and this defendant as tenant of McVaugh in the irrigation of the land described in the lease attached to plaintiff’s petition; that under the terms of the said arrangement regarding said irrigation 'plant, this defendant was entitled to use said plant for irrigation purposes on his land one-half of the time during the irrigation season. That the exact date of said arrangement or agreement regarding the use of said plant is unknown to this defendant, but said date is well known to the plaintiff and is peculiarly within his knowledge. That the consideration therefor, was payment by the said McVaughs of one-half the cost and expense of the installation of said plant, said consideration having been fully paid and said agreement having been fully performed as shown by the records in the office of the Register of Deeds of Gray County, Kansas." Inasmuch as defendant’s rights depend primarily upon the facts as alleged by him in the paragraph just quoted there is no occasion to here relate or hereinafter refer to other allegations of his amended cross petition except to state that the damages claimed by him for injuries to crops as a result of the refusal of irrigation privileges by the plaintiff are limited to such crops as were planted and had matured during the year 1943 while the written lease was in force and while the McVaughs were still the owners of the leased premises. Within a few days of. the filing of the amended cross petition the defendant of his own volition filed an amendment to his amended cross petition, which reads: “Comes now the defendant, Frank Kitch, and amends his amended cross petition by adding to the first paragraph thereof, and making a part thereof, the following: “Defendant does not know the exact terms of said agreement between Arensman and McVaugh, but said plaintiff and McVaugh both orally informed the defendant that he, as tenant of McVaugh was privileged to use said pumping plant one-half of the time for irrigating the land in question. That pursuant thereto this defendant did use said plant during the month of June, 1943. That this defendant does not positively know the date of said agreement but believes that said agreement was made prior to the date of the lease between this defendant- and the said McVaugh.” Appellant’s sole specification of error is that the trial court erred in sustaining appellee’s demurrer to his amended cross petition as amended. At the outset, this opinion will be simplified by stating that, notwithstanding the pleadings so show and the parties place some reliance thereon, the fact the appellee purchased the leased premises from the appellant’s landlord in January, 1944, has no bearing on a decision of the issue presented by the specification of error. As has been heretofore mentioned, appellee under allegations of his petition seeks recovery of a share of the wheat crop raised on the land by appellant as his tenant after the original term of the written lease had expired while the latter does not pretend to claim he had any right to water from any source while holding over under the terms of such instrument. All he contends is that he was damaged by appellee’s refusal to permit him to obtain water from other land then owned by appellee for the purpose of irrigating crops planted on the leased premises in 1943. We take judicial notice of the fact those crops had matured prior to the date appellee acquired title to the real estate described in the lease and that they required no water for irrigation purposes under any theory from such date until March 1, 1944. Thus, although a cursory glance at the pleadings might at first indicate to the contrary, a careful examination of all allegations there to be found leads to the inescapable conclusion that appellant’s right of recovery under the oral contract on which he relied, as in fact is fairly to be inferred from the averments of his cross petition, is to be determined not only by the time but also by the conditions and circumstances under which he occupied the leased premises as a tenant of the McVaughs. Whatever our decision is to be it must, of course, be reached after giving consideration to certain fundamental principles which are applicable in all cases involving the construction of pleadings. One of these is that the allegations of an answer which assumes to set up either a counterclaim or a set-off must state a cause of action with the same particularity, completeness and exactness as if the defendant were the plaintiff and that failure to do so makes such pleading subject to demurrer. This has long been true in this jurisdiction (Mallory v. Leiby, 1 Kan. 97 and Allen v. Douglass, 29 Kan. 412). See, also, Beeler & Campbell Supply Co. v. Warren, 149 Kan. 135, 86 P. 2d 482, where it was held: “A cross action by a defendant against the plaintiff for affirmative relief on a matter entirely unrelated to the cause of action contained in the petition is equivalent to a petition and must state its own cause of action. . . .” (syl. ¶ 3.) Another such rule is that where a motion to make definite' and certain is successfully resisted a pleading must thereafter, when tested by demurrer, be strictly construed against the pleader as to all matters covered by the motion (State Highway Comm. v. American Mut. Liability Ins. Co., 146 Kan. 187, 70 P. 2d 20; Lofland v. Croman, 152 Kan. 312, 103 P. 2d 772; Sanik v. Shryock Realty Co., 156 Kan. 641, 135 P. 2d 545 and Kinderknecht v. Hensley, 160 Kan. 637, 164 P. 2d 105). Its corollary, although not so frequently stated, is th^at when a motion to make more definite and certain has been sustained and a pleading amended, such pleading will be strictly construed and given the construction which is most unfavorable to the pleader. So, under the rule we pause to comment that when appellant filed his amendment to his amended cross petition his cause of action as pleaded by him then became subject to the construction that the oral contract on which he relied for recovery was one which had been entered into between the parties alleged to have made it prior to the date on which he entered into the lease contract with the McVaughs, which agreement under the admission of his answer was his authority for entering into possession of the real estate described therein as the McVaughs’ tenant. Briefly stated, on questions apropos to the trial court’s ruling in sustaining the demurrer, when considered together and carefully examined, appellant’s various pleadings — his cross petition — his amended cross petition — and his amendment to his amended cross petition — simply charge that through some undisclosed agreement he had with the McVaughs such individuals entered into an oral contract with appellee to participate in the installation of a pumping plant on land owned by the latter which was to be used jointly by the appellee in the irrigation of his own land and by the appellant as McVaughs’ tenant in the irrigation of their land; that such agreement was fully performed by the parties thereto (appellee and McVaughs); that thereafter appellant entered into a written agreement with McVaughs, in the form of an ordinary farm lease, which contained no provisions pertaining to irrigation rights or other reference to the oral contract, whereby he leased McVaughs’ land ■and agreed to farm it and pay crop rentals as required by its terms; that both appellee and the McVaughs (without stating any date) orally' informed him that as such tenant he was privileged to use the pumping plant during June, 1943; and that thereafter appellee refused to permit him to use it for irrigation purposes. From what has just been related it is apparent that whatever claim appellant had to water originating from appellee’s land is necessarily based upon- such rights as h.e acquired from the Mc-Vaughs as their tenant. The very most that can be said for him is that under the terms of the oral contract on which he relies he was a contingent beneficiary. Equally apparent is the fact he could not have compelled McVaughs to lease him their land, either with or without water rights. Neither was he obliged to rent it with water rights and pay the rent required under such circumstances nor for that matter to lease it at all. Before he could invoke the aid of the terms of the oral contract it was incumbent upon him to bring himself within its scope. Obviously, therefore, the question of whether he did so depends upon the terms of his lease agreement without which he could have acquired no claim against the appellee under any circumstances. Turning now to consideration of such agreement, as we have heretofore stated it was an ordinary lease contract which was entered into subsequent to the date of the execution of the oral contract and did not purport, even by inference, to grant water rights of any character to the appellant. No doctrine is better established or more frequently applied than the one that where parties have carried on negotiations, and have subsequently entered into an agreement in writing with respect to the subject matter covered by such negotiations, the written agreement constitutes the contract between them and determines their rights (Hudson v. Riley, 104 Kan. 534, 539, 180 Pac. 198; Hudson State Bank v. Haile, 130 Kan. 323, 286 Pac. 228; Grantham v. Hanenkratt Lead & Zinc Co., 131 Kan. 535, 542, 292 Pac. 757 and Continental Supply Co. v. Morgan, 133 Kan. 121, 123, 298 Pac. 790). With specific reference to lease contracts this court has recognized and applied the rule on at least two occasions in the not too remote past. McElroy v. Ball, 149 Kan. 284, 87 P. 2d 608, was a case where the district court had directed the jury to return a verdict for the plaintiff after striking out evidence offered by the defendant for the purpose of varying the terms of a lease. The issue there, and the decision of this court on appeal, is clearly set forth in the last three paragraphs of our opinion, where it was said: “Appellant contends, also, that the trial court erred in striking out certain evidence. The written lease is not set out in the abstract. Appellee testified it was dated February 15, 1935, the term commencing March 1, 1935. Appellant testified: T leased this property from Mrs. McElroy March 15, 1935,’ etc. “He further testified that a part of the land had not been farmed and that the landlady agreed he should have credit on the lease if he would keep the weeds down on that ground; also, that he was to have credit for doing some work on a roadway on the place which, it was necessary he do in order to move in, and that he was also to have credit for filling in around the buildings. On cross-examination it was developed that all of the claimed agreements were made on the same day the lease was executed and before it was delivered by appellee to appellant. The trial court ruled that such agreements, if made, should have been included in the lease, and struck out the testimony with respect thereto, holding in effect that appellant was attempting to vary the terms of a written instrument. “The ruling was correct. Appellant’s contentions cannot be sustained. The judgment of the trial court is affirmed.” (p. 286) To the same effect is Sanik v. Shryock Realty Co., 156 Kan. 641, 135 P. 2d 545, where, in affirming the ruling of a trial court in sustaining a demurrer to the petition, we said: “. . . Furthermore, even assuming the authority of Spaulding to lease the premises for the owner, the time when-he saw the household furniture set up in the rear part of the building and when she and her mother indicated their intention to use that part as living quarters was prior to the execution of the written lease. Under no view, therefore, could it be contended that the written lease was modified by any oral agreement.” (p. 644.) In view of the doctrine, and under the decisions to which we have just referred, we have no difficulty in concluding such rights as appellant may have had to use water from the land of one other than his lessor for irrigation purposes as the tenant of such lessor, were merged in the subsequently executed written agreement. Under the terms of such contract he could not have compelled his landlord to furnish him with irrigation facilities originating from appellee’s land, and, since his claim to water from such land depended on his rights as a tenant on the land owned by his landlord, he could not require the appellee to furnish him more than he was entitled to under the terms of the lease fixing his rights as a tenant. Having no cause of action against his landlord for failing to furnish him with water it follows 'he had none against the appellee and the rul ing of the trial court in sustaining the demurrer to his cross petition was proper. The fact that both appellee and landlord advised appellant' he was privileged to use water from the appellee’s land is of no consequence under the circumstances as pleaded. If that information was communicated to him prior to execution of his lease he failed to provide for such privilege when it was executed. If subsequent thereto, it was without consideration so far as appellee was concerned and unenforceable as a contract. (Coder v. Smith, 156 Kan. 512, 134 P. 2d 408; Threshing Machine Co. v. Francisco, 106 Kan. 704, 189 Pac. 981 and Farmers Equity Co-op Ass’n v. Tice, 122 Kan. 127, 251 Pac. 421.) Likewise inconsequential is the allegation to be found in the amendment to the amended cross petition to the effect that in June, 1943, appellee permitted appellant to use water from his land for irrigation purposes. Under our decisions water in the land is a part of the land itself and any enforceable claim to water from appellee’s real estate based upon circumstances and conditions arising subsequent to the date of the execution of appellant’s lease would have to be based upon a grant in writing (G. S. 1935, 33-106). In State, ex rel., v. Board of Agriculture, 158 Kan. 603, 149 P. 2d 604, we said: “Under the above authorities underground waters arc part of the real property in which they are situated. The owner of land may convey or grant the underground water, or the right to take it from the land, by an appropriate instrument in writing to the same extent that he might convey or grant any other portion of the real property; or a party, having the right of eminent domain, may appropriate underground water to his use by condemnation proceedings.’’ (p. 609.) See, also, Shamleffer v. Peerless Mill Company, 18 Kan. 24, 33; City of Emporia v. Soden, 25 Kan. 588; Jobling v. Tuttle, 75 Kan. 351, 360, 89 Pac. 699; Hollingsworth v. Berry, 107 Kan. 544, 545, 192 Pac. 763. The added allegation to which we have heretofore just referred amounts to no more than a statement that appellee had granted appellant a license to use water from his land. Such a license under conditions as pleaded could be revoked by appellee at any time without subjecting him to liability for damages. (Ross v. Cook, 71 Kan. 117, 80 Pac. 38.) See, also, Insurance Co. v. Haskett, 64 Kan. 93, 67 Pac. 446 and McCullagh v. Rains, 75 Kan. 458, 89 Pac. 1041. In conclusion it should be stated we are not unmindful of the fact the parties devote most of their briefs to an able discussion on the question of whether the oral contract between the McVaughs and appellee was within the statute of frauds and that the trial court’s ruling on the demurrer was based on that premise. In view of our decision we do not deem it necessary to decide that question and, of course, reasons given by the trial court for its decision become immaterial so long as its ruling is correct for any reason. (Waddell v. Woods, 160 Kan. 481, 484, 163 P. 2d 348 and Greep v. Bruns, 160 Kan. 48, 60, 159 P. 2d 803 and cases there cited.) The judgment is affirmed.
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The opinion of the court was delivered by Wedell, J.: This was an action in partition between heirs. Defendants prevailed and plaintiff appeals. It was agreed the parties were entitled to partition of the real estate, but the fractional interest of the parties "was in dispute. The interest of the parties in the land depended primarily upon the legal effect of two instruments in the form of warranty deeds executed by one of the heirs to certain other heirs. That issue was tried by the court without a jury and resolved against the plaintiff, who contended no interest was passed by the instruments. Both deeds were executed by the grantor, Elma Lowry Bacon, on the same date, January 25, 1930. The grantor died November 29, 1939. The grantee in one deed was Harry V. Lowry and the grantees in the other deed were James G. Lowry and Ida Lowry Powers. The pertinent clauses in the deeds were identical except that reference to the grantee and his heirs was in the singular in the first mentioned deed and in the plural in the section mentioned deed. The granting clause in the first mentioned deed reads: “Witnbsseth, That the said party of the first part, in consideration of the sum of One and no/100 DOLLARS by these presents does Grant and convey to the said party of the second part, his heirs and assigns the un-divided one-sixth interest in all the tract or parcel of land situated in the County of Anderson and State of Kansas and described as follows, to-wit: [Description of real estate.] . . . with the appurtenances, and all the estate, title and interest of the said party of the first part therein.” The warranty clause read: “And the said Elma Lowry Bacon does hereby covenant and agree that at the delivery hereof which is to be at her death she is the lawful owner of the premises above granted and seized of a good and indefeasible estate of inheritance therein, free and clear of all incumbrance . . . and that . . . will WARRANT AND DEFEND the same. . . .” (Our italics.) On the back of the same deed were the words: “This deed to be delivered to Harry V. Lowry or his heirs at the death of Elma Lowry Bacon." (Our italics.) On the back of the other deed were written the words: “This deed to be delivered to James G. Lowry for record at the death of Elma Lowry Bacon." (Our italics.) The italicized words in the warranty clause and the directions on the back of both deeds were written with pen and ink. The trial court found, under the evidence to be discussed presently, there was a delivery of the deeds approximately two weeks prior to the death of the grantor and that title to the fractional interest designated in the deeds had passed to the grantees named therein. Appellant contends (1) there was no delivery and (2) assuming there was a delivery, the deeds were testamentary in character and not being executed in accordance with the law of wills they passed no title. The grantor was a sister of the grantees. On November 14, 1939, approximately two weeks before the grantor’s death, Harry V. Lowry visited at the home of the grantor, who had been in poor health for some time. It appears appellant stood upon his rights to exclude any testimony of Harry V. Lowry concerning communications and transactions had with the deceased grantor on the occasion of that, visit. The record does, however, disclose that Harry without objection was, in substance, permitted to testify: He acquired possession of the deeds on the occasion of the visit with the grantor; he took his own deed to his home and on the same evening delivered the other deed to the grantees named therein; the grantees retained the deeds in their respective homes until November 30, the day after the grantor’s death; the brothers and sisters of the grantor were expected to arrive at the grantor’s home for the funéral; he believed they might desire to list the assets of Elma’s estate; on November 30 he, therefore, got the other deed from James and took both deeds to the grantor’s home in order that the brothers and sisters might have an opportunity to see the deeds and .know what disposition the grantor had made of the property therein described; the deeds contained revenue stamps which were dated “11-14-39,” that being the date Harry obtained the deeds; the stamps were initialed “E. L. B.” representing the name of the grantor; there was no evidence who placed the stamps upon the deeds or who initialed them. The deeds were not recorded until after the grantor’s death. On redirect examination of the defendant, (appellee) Harry V. Lowry, his counsel inquired and the witness answered: “Q. Harry, you heard the plaintiff testify on direct examination that he had a conversation with you in the summer of 1943 at the Topeka fair? A. Yes, sir. “Q. And that you told him that your sister gave you those deeds some two weeks before she passed away? A. Yes. “Q. Did you tell him when the deeds were delivered? A. I did. Her health was very poor and she had been struggling with a lot of old papers at that time and she says, T have my deeds made out to that farm,’ she says, T had made out a couple of years ago and I am not changing it.’ She says, ‘The way I feel now you better take these deeds and take them with you.’ ” (Our emphasis.) It is true that 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 that the burden of showing nondelivery is upon the party who questions the delivery. (Rohr v. Alexander, 57 Kan. 381, 46 Pac. 699; Hoard v. Jones, 119 Kan. 138, 237 Pac. 888.) But these deeds on their face were not without condition or restriction. (See Rohr v. Alexander, supra, syl. ¶ 2.) They contained their own provision with respect to the date of delivery and it was fixed at the death of the grantor. Whether posses sion of a deed containing such an express provision with respect to delivery, together with the grantor’s statement made at the time one of the grantees obtained custody or possession thereof that, “I am not changing it,” can be said to constitute .prima facie evidence of delivery with an intention of the grantor to divest herself of title, presents a more complicated question. On the subject of a grantor’s intention to divest himself of title by delivery, see Smith v. Dolman, 120 Kan. 283, 284-285, 243 Pac. 323. We might encounter some difficulty in saying that the grantor under the circumstances here presented had placed the deeds beyond her control and power of recall during her lifetime. But what was the nature and effect of the instruments which were in the custody or possession of the grantees? After all that is the fundamental question. We'prefer to go directly to that question. All parties agree the instruments were not executed in accordance with the law of wills but were in the form of deeds. Were the instruments testamentary in character? That depends upon whether the interest they conveyed to the grantees was intended to vest presently or only after the death of the grantor. If the former was intended the instruments were deeds. If, on the other hand, the latter was intended the instruments were wills. In Purcell v. Baskett, 121 Kan. 678, 249 Pac. 671, it was stated: “It is settled by statute and judicial precedent that a future interest in land may be created by deed (R. S. 67-205; Miller v. Miller, 91 Kan. 1, 136 Pac. 953; Brown v. Anderson County, 100 Kan. 319, 164 Pac. 288; Smith v. McHenry, 111 Kan. 666, 207 Pac. 1108), but when a future estate is thus created the grantee actually does acquire an interest in praesenti with mere postponement of possession or enjoyment.” (p. 680.) In Imthurn v. Martin, 150 Kan. 906, 96 P. 2d 860, a contract involved this identical question of law. We shall not restate the provisions of that contract here. Its terms are summarized in syllabus paragraph 1 of that opinion. In the course of the opinion we said: “Our attention is also directed to authorities bearing on whether the contract provided for disposition of property at the death of Bessie Wolcott, and if it be held to be testamentary, that it is invalid because not executed in the manner provided by statute for making a will. G. S. 1935, 22-201 et seq. Although we have many decisions dealing with situations arising under various circumstances, we shall not review them but shall call attention to two which state the basic rule. “In Reed, Ex’r., v. Hazelton, 37 Kan. 321, 325, 15 Pac. 180, it was said: “ ‘If an instrument of writing passes a present interest in real estate, although the right to its possession and enjoyment may not accrue until some future time, it is a deed or contract, but if the instrument does not pass an interest or right until the death' of the maker, it is a will, or testamentary paper.’ (p. 325.) “The test for determining was laid down in Powers v. Scharling, 64 Kan. 339, 343, 67 Pac. 820, in the following language: “ ‘In determining whether an instrument be a deed or will, the question is, Did the maker intend to convey any estate or interest whatever to vest before his death, and upon the execution of the paper? Or, on the other hand, did he intend that all the interest and estate should take effect only after his death? If the former, it is a deed; if the latter, a will.’ (p.,343.) “We think that the above contract, tested under the above rules, shows a situation where the right of Mr. Martin to receive any residue that might remain did not vest until the death of Bessie Wolcott. The instrument was testamentary in character, but was not sufficient as a will.” (p. 911.) We think the same conclusion must be reached in'the instant case. Where the expressed meaning (of a recital in a deed) is plain on the face of the instrument it will control. (Purcell v. Baskett, supra, p. 680.) So here it is clear the grantor warranted title to the property conveyed only on the date of delivery. She expressly wrote into the body of the deeds a provision which fixed the date she intended delivery to be effectual. That date was at her death. To make doubly sure to express that intention she also wrote the same provision on the back of each deed. We interpret the instruments which the grantees had in their possession to mean that the grantor intended title to the grantees should not pass until the death of the grantor. The instruments being testamentary in character but not having been executed in accordance with the law pertaining to wills cannot stand as such. The judgment of the district court is reversed with directions to enter judgment in accordance with the views herein expressed.
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The opinion of the court was delivered by Burch, J.: This appeal involves the validity of a certain rule, 84, passed by the members of the board of managers of the Kansas Soldiers’ Home on the 29th or 30th of June, 1944. Thereafter twenty members of the institution, who were affected by the rule, served notice of appeal upon the members of the board of managers. The consolidated notice of appeal stated that the members named therein appealed to the district court of Ford county, Kansas, from the order of the board adopting rule 84. The district court overruled a motion to dismiss the appeal, thereafter denied the appeal upon the merits and overruled a motion for a new trial. From such last two orders the involved members of the home appealed to this court. Rule 84, which caused the controversy, reads as follows: “(1) On and after September 1, 1944, any member having no dependents and having an income in excess of $20 per month and any member having one dependent and an income in excess of $35 per month shall pay monthly by the 5th of each month to the Kansas Soldiers’ Home (or to Mother Bicker-dyke Annex) from such excess in amount not to exceed his or her actual annual maintenance cost, as determined by the official audit and records of the Kansas Soldiers’ Home or Mother Bickerdyke Annex. “(2) Each member having more than one dependent may be permitted to retain from his income received $10.00 per month for each such dependent in addition to the amounts set forth in the preceding paragraph before he or she shall be required to pay to the Kansas Soldiers’ Home (or Mother Bicker-dyke Annex) any portion of the cost bf himself and/or his dependents. “(3) Provided further, that any income received by any member as remuneration for work done for the Kansas Soldiers’ Home (or for Mother Bickerdyke Annex) shall be exempt to such member from the payment of maintenance costs as provided herein.” In passing Rule 84 the board of managers was acting in an administrative capacity. Such being true, the members of the Kansas Soldiers’ Home had no right of appeal to the district court under the authority of the decision reached by this court in cases Nos. 36,353 to 36,358, inclusive, entitled Abel O. Anderson et al., Appellees, v. Bert Hedges, Geo. E. Gard and Brother Buis as members of the Board of Managers of the Kansas Soldiers’ Home, Appellants, ante, p. 665, 165 P. 2d 425, for the reasons set forth in such decision. In addition to the reasons set forth in Anderson v. Hedges, supra, it may be said that the legislature has indicated that the members of the institution do not have any right of appeal from orders of the board because of the passage of G. S. 1943 Supp., 76-1930, which reads as follows: “If any member shall seek an injunction or restraining order to restrain the board of managers or the officers of such institutions from enforcing such rules and regulations or to restrain disciplinary action, during the pendency of such legal proceeding, such member and his dependents, if any, shall not be entitled to draw subsistence or rations as provided for by such institutions.” It will be noted that nothing is provided in such statute which deprives members or their dependents of subsistence or rations during the pendency of appeals to the district court from orders of the board. If such a right existed, frequent appeals would be as disturbing and annoying as applications for injunctions which evidently the statute seeks to discourage. While the statute may seem somewhat drastic and severe in view of our decision, nevertheless the right to injunctive relief, or the right to resort to the courts for other extraordinary remedies, has not been denied by its passage. We do not have the privilege of passing upon the advisability of the statute and we are not considering its validity. Its. passage, however, and the failure to pass legislation permitting appeals strongly demonstrate that the legislature intended that the members had the right of injunctive relief and did not have available the right to appeal to the district court from any and all orders made by the board. Because of the failure of jurisdiction other questions raised by the appeal do not require consideration. As hereinbefore stated, the district court denied the appeal upon its merits. Such ruling is hereby set aside and the district court is directed to dismiss the appeal for want of jurisdiction.
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The opinion of the court was delivered by Burch, J.: This appeal involves the effect of an alleged defense of a discharge in bankruptcy in an action brought to recover upon a promissory note signed by the bankrupt and secured by a chattel mortgage upon personal property, which personal property the appellant contends had been willfully and maliciously converted and the proceeds therefrom retained by the appellee. The appellant contends further that the appellee’s discharge in bankruptcy was not properly pleaded or proved and also that it was without effect for the reason that the willful and malicious disposal of the property brought the alleged defense within the exception set forth in section 17 of the bankruptcy act (11 U. S. C. A., sec. 35 [2].) The appellee contends that the petition set forth a cause of action solely for recovery upon a promissory note and did not allege anything about the same having been secured in any manner. A jury was waived and the appellant offered evidence, over appellee’s objection, to the effect that the note had been secured by a chattel mortgage and that the appellee had disposed of the mortgaged property without the consent of the appellant. The appellee demurred to such evidence and the trial court took the demurrer under advisement. On January 6, 1941, the court filed a written decision in which it sustained the demurrer on the ground that the evidence failed to show that the conversion of the mortgaged property was malicious. A judgment was entered for the appellee on the same date, which judgment was based upon the ruling on the demurrer. On January 8, 1941, the appellant filed a motion for a new trial upon the following grounds: 1. Erroneous rulings and orders of the court. 2. The judgment and decision are wholly contrary to the evi- ■ dence. 3. For newly discovered evidence, material for the plaintiff which she could not with reasonable diligence have discovered and produced at the trial. 4. That the judgment and decision are wholly unsupported by the evidence of the plaintiff and defendant introduced no evidence in support of the same. 5. That the decision is contrary to law as relating to the facts in the case. The motion stated that affidavits, oral and documentary evidence would be produced on the hearing of the motion. On July 24, 1942, the motion for a new trial was argued, considered and overruled. The record does not show that any new evidence was offered at the hearing of the motion or that any erroneous rulings of the court were complained of except that as a matter of law it was erroneous for the court to have sustained the demurrer. Thus, it will be seen that no new facts or excluded evidence were brought to the attention of the trial court in connection with the argument on the motion for a new trial. Such being true, the motion for a new trial sought only a second ruling on the same evidence to which the court originally had sustained a demurrer and at the same time had entered judgment for the appellee. In this court all of the specifications of error pertained to rulings of the court made at the time the court sustained the demurrer to plaintiff’s evidence except the error specified in the overruling of the motion for a new trial. The notice of appeal was filed on September 23, 1942, within two months from the time the motion for a new trial was overruled, but over twenty months after the decision and judgment in the case had been entered. An order sustaining or overruling a demurrer to evidence is a separable, appealable order. (White v. Railway Co., 74 Kan. 778, 88 Pac. 54; Norman v. Railway Co., 101 Kan. 678, 168 Pac. 830; Greiner v. Greiner, 130 Kan. 333, 286 Pac. 219; Serena v. Rubin, 146 Kan. 603, 72 P. 2d 995; Painter v. Monumental Life Ins. Co., 158 Kan. 585, 149 P. 2d 626.) It is never necessary for the party against whom the ruling is made to file a motion for a new trial as a basis for appeal from an order sustaining or overruling the demurrer to the evidence. In cases where the ruling on the demurrer precedes a judgment and the appeal from the judgment is taken in time, this court will consider any possible error arising by reason of the ruling on the demurrer even if no separate appeal has been taken provided such possible erroneous ruling is one of the specifications of error. (Drenning v. City of Topeka, 148 Kan. 366, 81 P. 2d 720.) A different result occurs in cases wherein a motion for a new trial, filed after judgment, amounts only to a request for a second ruling upon the same question of law applicable to the same facts upon which the court entered judgment and the appeal is taken in time only from the order overruling the motion for a new trial. Under such circumstances, a motion for a new trial does not extend the time in which an appeal may be taken to this court from an order sustaining or overruling a demurrer. (Sheets v. Metropolitan Building Co., 144 Kan. 55, 58 P. 2d 93; Tarnstrom v. Olson, 150 Kan. 528, 95 P. 2d 352; Central Fibre Products Co. v. State Tax Comm., 150 Kan. 665, 95 P. 2d 353; Gas Service Co. v. Consolidated Gas Utili ties Corp., 150 Kan. 715, 96 P. 2d 608; Eikelberger v. Saline County Comm’rs, 151 Kan. 619, 100 P. 2d 651; Miller v. Sunflower Recreation Society, 151 Kan. 930, 101 P. 2d 891; Heniff v. Clausen, 154 Kan. 717, 121 P. 2d 196; Jackson County Comm’rs v. Commission of Revenue and Taxation, 156 Kan. 585, 134 P. 2d. 657; In re Estate of Badger, 156 Kan. 734, 137 P. 2d 198; Achenbach v. Baker, 157 Kan. 292, 139 P. 2d 407; and Palmer v. Helmer, 159 Kan. 647, 157 P. 2d 531.) The appeal is dismissed.
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The opinion of the court was delivered by Wedell, J.: This is an independent action but is related to the case of Geiman-Herthel Furniture Co. v. Geiman, No. 36,274, ante, p. 346, this day decided. It is between the same parties and was filed in the same district court as the previous case. It was a petition for a new trial in the above mentioned original case. It ivas filed over four months after final judgment was rendered in the original case and approximately four months after appellants had perfected an appeal from the judgment in the original action. The district court denied the petition and plaintiffs appeal. The petition for a new trial sought a reversal of the judgment in the former case and liquidation of the corporation. The petition was based on the provisions of G. S. 1935, 60-3005, which reads: “Where the grounds for a new trial could not with reasonable diligence have been discovered before but are discovered after the term at which the verdict, report of referee or decision was rendered or made, and more than three days after said verdict, report or decision was rendered or made, the application may be made by petition, filed as in other cases, not later than the second term after discovery; on which a summons shall issue, be returnable and served, or publication made, as prescribed in section 78 [60-2525]. The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation the case shall be heard and summarily decided at the ensuing term, and if in term, it shall be heard and decided after the expiration of twenty days from such service. The ease shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken as in other cases; but no such petition shall be filed more than one year after the final judgment was rendered.” Appellees filed a motion to strike the petition from the files on the grounds (1) the petition failed to state a cause of action; (2) the petition affirmatively disclosed all facts alleged therein occurred after the trial of the former case; (3) appellants had perfected an appeal to the supreme court in the former case and the district court was without jurisdiction in the premises; (4) the new action was not brought in good faith but for the purpose of harassing, annoying and libeling the defendants; and (5) the corporation had not authorized the new action and it was unlawfully brought insofar as the corporation was concerned. The trial court did not strike the petition but ruled that if all facts alleged therein were true they did not justify the granting of the relief sought. .' The petition affirmatively disclosed all facts alleged therein had occurred subsequent to the trial of the original case. In order to obtain a new trial under the provisions of G. S. 1935, 60-3005 it was necessary the newly discovered facts should have had an existence at the time of the decision in the original action. (Stanley v.. Peoples, 13 Ind. 232.) Appellants had appealed from the judgment in the original case and manifestly our review of that judgment could not be affected by subsequent facts which formed no part of the record in the original case. In the instant case we need not determine whether the trial court would have been justified in treating the petition for a new trial as an independent action and in appointing a receiver on the basis of the evidence adduced in the former action and to be adduced in support of the petition for a new trial. We have already directed the appointment of a receiver on the basis of evidence contained in the former case. The facts pleaded in the petition for a new trial having occurred after the judgment in the former case the petition was properly overruled. The judgment is affirmed.
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The opinion of the court was delivered by Hoch, J.: This is an appeal by the employer from an award under the workmen’s compensation act. The principal question presented is whether an award which has been made by the district court may be modified by that court within the twenty days thereafter provided by the statute for taking an appeal to this court on questions of law. Brief recital of the facts will suffice for presenting the issue. The claimant, William H. Gray, an employee of the Hercules Powder Company at De Soto, Kan., was injured on September 11, 1944, while attempting to lift a rocket to put it in a wooden case on a truck. He filed a claim under the workmen’s compensation act, hearing was duly held before the commissioner and an award made in his favor on March 31, 1945. The commissioner’s award was based upon a finding of temporary total disability for eleven weeks and of partial permanent disability of ten percent for an indefinite period subsequent to December 27, 1944, not to exceed 404 weeks. The commissioner also allowed $500 to cover medical and hospital expenses. Upon appeal by the respondent to the district court, that court made its award on July 31, 1945. It followed the terms of the commissioner’s award as to the 11 weeks of temporary total disability and as to the allowance for medical and hospital expenses, but disallowed the claim entirely as to partial permanent disability. Up to this point no question is raised as to the regularity of the proceedings. On August 5, 1945 — five days after the court’s award had been entered — the claimant filed a motion to modify the court’s findings and award. To this motion the respondent filed an objection on the ground that the court had no jurisdiction to modify the award. On August 14, 1945 — fourteen days after the award had been entered — the court sustained the claimant’s motion to modify, stating: “The court further finds that at the time it rendered its findings and award in the above entitled case on the 31st day of July, 1945, that it was in error in finding from the evidence that the claimant was not entitled to an award of permanent partial disability following his period of temporary total disability. The court finds that the findings and award of the workmen’s compensation commissioner made and entered in this case on the 31st day of March, 1945, should be adopted by this court and said findings and award so made by the workmen’s compensation commissioner on the 31st day of March, 1945, are hereby adopted and approved by this court and the award heretofore made by this court on the 31st day of July, 1945, are modified and changed so far as they differ and change the award and findings of the workmen’s compensation commissioner.” The court then formally entered a new award in conformity therewith. From such new award of August 14, 1945, this appeal by the respondent was taken. The claimant thereupon filed what he termed a “cross-appeal” from the court’s first award, made on July 31, 1945, stating in his notice of appeal: “This cross-appeal is taken as a precautionary measure in the event the supreme court of the state of Kansas should hold that the findings and award made by the district court of Johnson county, Kansas, on the 14th day of August, 1945, modifying the findings and award made by said court on the 31st day of July, 1945, was erroneous and without right, power, authority or jurisdiction.” We first take note of appellee’s contention that the modification and new award, made on August 14 was in fact merely the correction of an “error,”- and should be regarded as in the nature of a nunc pro tunc order. Whether it would strengthen, appellee’s position to treat it as such wd* need not discuss. The record does not support appellee’s interpretation. When announcing the award on July 31, 1945, the court stated that it did not believe the claimant had proved any permanent disability resulting from the injury. Clearly the award first made represented just what was intended at the time. The court simply came to a different conclusion after further consideration of the record. Soon after the original enactment of a workmen’s compensation law in this state in 1911 it was held that for injuries compensable under the act no recovery otherwise could be had. (Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193 [1914]; McRoberts v. Zinc Co., 93 Kan. 364, 144 Pac. 247 [1914].) This rule has since been consistently followed. And following the comprehensive enactment of 1927 (Laws 1927, ch. 232) it has been held in a long line of decisions that the act is not cumulative or supplementary in character, but that it is complete and exclusive not only as to relief for injuries. Within'its purview but as to procedures to be followed. In Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233—decided before the act was amended to permit appeals to this court on questions of law — an attempt was made to secure appellate review in this court under the general provisions of the code of civil procedure. Review was denied and in the opinion it was said: “In a comprehensive statute the legislature manifestly undertook to cover every phase of the right to compensation and of the procedure for obtaining it. It provided an administrative method in order to avoid the delay resulting from prolonged litigation and the uncertainty and expense attending it. Another feature is that when both parties unite in this plan to adjust compensation it tends to prevent friction and hostility between employers and employees that frequently arise in actions based on negligence of the parties. The substituted remedy being complete with a procedure of its own, it must be regarded as exclusive. It being substitutional and complete and exclusive, we must look to the procedure of the act for the methods of administration. We are not warranted in borrowing rules and methods from the civil code not included in the act itself, methods prescribed for ordinary civil actions which the legislature for obvious reasons was seeking to avoid, and for which it provided a substitute.” (p. 649.) In Walz v. Missouri Pac. Rld. Co., 130 Kan. 203, 285 Pac. 595, it was said that in the opinion in the Norman case, supra, “it was made as plain as clear and forceful English composition could make it that the legislature chose what procedure it would adopt, disregarded rules and methods of civil procedure, and substituted a system of its own, complete, explicit and exclusive.” (p. 204.) In Willis v. Shelly Oil Co., 135 Kan. 543, 11 P. 2d 980, it was held that the district court, on appeals in compensation cases, can only grant or refuse compensation or increase or diminish an award made by the commissioner and has no power (citing the Norman case, supra, and other cases) to remand the case to the commissioner for further proceedings. In Eagle-Picher M. & S. Co. v. Workmen’s Compensation Comm., 147 Kan. 456, 458, 76 P. 2d 808, we refused in a mandamus proceeding to compel the commissioner to include in the record for appeal to the district court certain affidavits filed after, the hearing before the commissioner had been closed. The decision was based upon the proposition that the statute prescribed what the record should contain and nothing in addition thereto can be included. In Souden v. Rine Drilling Co., 150 Kan. 239, 92 P. 2d 74, the district court rendered judgment on November 30,1938, setting aside, an award, made upon. review by the commissioner, on the ground that the application for review had not been filed in time. On Dé cember 3,1938, the claimant filed a motion for a “new trial” which motion was overruled on January 14, 1939. No appeal was taken from the judgment of November. 30, 1938, but the claimant attempted to appeal from the order of January 14, 1939, overruling the “motion for a new trial.” It was held that post-judgment motions are not provided for in compensation procedure and that such motions cannot extend the time within which appeals must be taken. In Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P. 2d 456, the question as to the scope of the act and procedure to be followed was again carefully examined. Again it was held that the act “establishes a procedure of its own, and that the procedure furnishes a remedy which is substantial, complete and exclusive in compensation cases.” (pp. 298, 299, and cases cited.) In Taylor v. Taylor, 156 Kan. 763, 137 P. 2d 147, it was held that an appeal to the district court could not be taken on limited issues, there being no provision in the compensation act for doing that. The district court must review the entire record as presented by the transcript of proceedings before the commissioner. The issue decided in Walz v. Missouri Pac. Rld. Co., supra, is directly in point. After approving a'nd filing an award the commissioner made an order setting it aside and directing a rehearing. The order was held to be void. In the opinion it was said: “What the commissioner has done — speaking in terms of civil procedure— was 'to review a judgment, set it aside, and grant a new trial. The legislature was perfectly familiar with that kind of procedure when it framed the compensation act. The civil code contains an entire article relating to new trials and proceedings to revise judgments, and when the compensation act was framed everything squinting in that direction was left out. The commissioner was given power to approve or disapprove the examiner’s'awards Beyond that the purpose manifestly was to avoid the confusion, uncertainty, delay and expense necessarily attending a practice looking to the reopening of closed cases.” (p. 204.) (See, also, Hearst v. Independent Construction Co., 136 Kan. 583, 16 P. 2d 540; Orendoc v. Kaw Steel Construction Co., 131 Kan. 366, 291 Pac. 952; Cruse v. Chicago, R. I. & P. Rly. Co., 138 Kan. 117, 23 P. 2d 471; Woods v. Jacob Dold Packing Co., 141 Kan. 363, 365, 41 P. 2d 748; Brower v. Sedgwick County Comm’rs, 142 Kan. 7, 45 P. 2d 864.) The construction, of the compensation act;- firmly established in this, unbroken Une.-of decisions, leaves :no ground, in the view of a majority of this court, upon which to support the district court's order vacating the award of July 31 and making a new award. The appeal statute (G. S. 1935, 44-556) simply provides that when the required notice of appeal has been filed with the clerk of the district court the clerk “shall docket said cause for hearing as in other cases on appeal" and that the court “shall have jurisdiction to grant or refuse compensation, or to increase or diminish any award of the commissioner as justice may require.” There is no provision in the act for motions for a new trial or for other post-trial motions. There is no provision for modification of an award once made by the district court except as found in section 44-528 which provides for review, under certain conditions, by the commissioner at any time before, but not after, final payment. When an award has been made by the district court the only recourse for aggrieved parties — aside from such relief as'may be afforded by 44-528 — is by appeal to this court upon issues of law only. To permit the district court, either upon motion of parties or upon its own motion, to reopen a case and vacate or modify an award which it has made would open the way to delays in compensation cases —one of the very results which the legislature sought to prevent. If appellee’s contention is good, then on the 19th day after it has made an award the district court could set it aside and'-make a new award and on the 19th day thereafter it could again vacate or modify the award — and so on in this manner indefinitely. The fact that such a course may be unlikely does not affect the legal aspect of the question. If the court has power once to vacate its award, it has power to continue to vacate or modify as it sees fit. And if such power is to be recognized, in the absence of any provision for it in the act, where is the line to be drawn? What limits would remain on the power of a district court to supplement, in other particulars, the prescribed procedure? The act does not put upon the district court any pressure of undue haste in considering these appeals. The court has ample time for full and careful.consideration of the record before making its decisions. The act merely provides that appeals in compensation cases shall have precedence over “other hearings except those of like character, and shall be heard not later than the first term of said court after the appeal has been perfected” (G. S. 1935, 44-556). A very practical coflsideration also supports the established rule that the act js.é,xclijsife and cannot be supplemented by borrowing from the code of civil procedure. If it be held that the district court has power to vacate or modify awards once formally made the parties and their counsel could not rely upon the action taken, but would be required to keep constantly on the alert until the expiration of the statutory appeal period of twenty days in order to be sure no modification of the award had been made. If the legislature had intended such a contingency it would have provided for it in the law. In view of the conclusion that the order of August 14, 1945, modifying the award was void it is not necessary to consider appellants’ contention that the finding of ten percent permanent disability was not supported by substantial evidence. There remains for brief comment the “cross-appeal” of the claimant from the award of July 31. The appeal is not in fact a “cross-appeal” at all, but rather an appeal. Obviously, the “awards” of July 31 and August 14 cannot both be valid. Appellants object to consideration of the “cross-appeal” for reasons .which need not be discussed. We think it can properly be treated simply as an appeal from the award of July 31. Treated as such, however, the claimant makes no suggestion as to what we can do about it on this record. The only part of the award of which he complains is the failure to make a finding of ten percent partial permanent disability. In the first place, our jurisdiction being limited to questions of law we are without power to direct what finding the district court should make on a disputed question of fact. In the second place, the record clearly discloses a conflict of testimony as to whether the claimant suffered any permanent disability which resulted from the accident. In its award of July 31 the district court found that the record did not justify the claimant’s contention in that regard. There being substantial testimony to support that finding we cannot disturb it. The judgment is reversed with directions to vacate the order and award of August 14, 1945, modifying the award of July 31, 1945.
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The opinion of the court was delivered by Smith, J.: This is an action for damages alleged to have been sustained when the defendants failed to carry out a contract they had entered into with plaintiffs for the sale of real estate. Judgment was for defendants sustaining their demurrer to plaintiffs’ petition. The plaintiffs have appealed. The plaintiffs as vendors entered into a contract in writing with defendants as vendees on June 26, 1944. By the terms of this contract defendants agreed to pay $6,000 for a house and lot. The terms were the assumption by defendants of a mortgage for $3,-243.47, the payment of $2,400 in cash on the date of the contract, and $50 on the first of every month thereafter until the remaining $356.53 was paid. Plaintiffs agreed to execute a warranty deed to the property and to furnish defendants with an abstract of title showing merchantable title in themselves. Defendants were to have possession on or before August 1, 1944. The contract then contained the following paragraphs: “Time is of the essence of this contract and if second parties shall fail to pay the aforesaid sums, or any of them, at the times when same shall become due and payable, then thereupon said contract shall forthwith terminate, and the sums-of money that shall theretofore be paid by second parties to first parties shall be deemed to be rental payments and liquidated damages, and first parties shall have the right to the possession of said premises thirty (30) days after notice to vacate.” The petition set out this contract and alleged: “Plaintiffs further allege and state that said defendants, and each of them, have failed, neglected and refused to make any of the payments called for by the terms of said contract and have failed, neglected and refused to perform same, and that plaintiffs have been damaged thereby in the sum of $1,750.” The prayer was for damages in the amount of $1,750. Defendants demurred to this petition on the ground that it did not state facts sufficient to constitute a cause of action. Plaintiffs argue here that the clause about time being of the essence of the contract was for their benefit and since nothing at all was paid by defendants pursuant to it, the clause never became effective and could be waived by them and an action maintained for general damages. Various authorities are cited wherein we have held that where the meaning of a contract is plain and unambiguous it must be enforced according to its terms. Defendants argue that under the provisions in the contract plaintiffs could retain the amount of payments made as provided for in the contract and no greater amount and since nothing was paid by the defendants pursuant to this paragraph nothing may be recovered by plaintiffs. The paragraph of the contract, which has been quoted herein, provides that if second parties should fail to make any payment at the times when they should become due the contract should forthwith terminate. The petition alleges just such a situation, that is, the defendants failed to pay the $2,400 when it was due. Both parties rely on what was said in Hazelton v. Chaffin, 109 Kan. 175, 197 Pac. 870, to the effect that where the meaning of a contract is plain and unambiguous it must be enforced according to its terms. That rule compels us to hold that the failure of the defendants to pay the $2,400, as alleged in the petition, terminated the contract. The books are full of cases where courts have interpreted contracts similar to this one and have passed on the matter whether the sum paid pursuant to it was liquidated damages or a penalty-so that the amount of recovery was the actual damages sustained. We would have such a case here if defendants had paid the $2,400 provided for and no more. In such cases courts examine the provisions of the particular contract in question in the light of all the surrounding facts and circumstances. We do not have such a case here, however. The contract states in clear and unmistakable terms that if defendants failed to pay any of the sums for the payment of which the contract provided the contract should terminate. The very next clause in the contract to the effect that payments theretofore made should be considered as rent is persuasive that the parties contemplated that in case of a failure of payment the contract for the sale of real estate should cease to exist — hence there could be no action for damages on account of the breach. The judgment is affirmed.
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The opinion of the court was delivered by Hoch, J.: This was an action to set aside a deed on the ground that it was given for the purpose of defrauding creditors. The plaintiffs prevailed and the defendants appeal. David P. Unruh, a resident of Marion county, died intestate on October 22, 1941, his heirs being his wife, Justina Unruh, and five children, F. H. Unruh, Bertha Unruh, Albert Unruh, Gus A. Unruh and Emma Unruh. Included in the property which he owned at the time of his death was some real estate in McPherson and Marion counties. On November 1, 1941, F. H. Unruh, one of the sons, and his wife executed a dead conveying his one-tenth interest in the real estate to his mother. This deed was recorded on December 18, 1941. On December 31, 1942, D. H. Gish secured a judgment in Sedgwick county for $4,337.60 against F. H. Unruh on a promissory note for $3,600, interest from June 8, 1940 being included in the judgment. On January 12, 1942, George W. Corfman also secured a judgment against F. H. Unruh on a promissory note, the judgment being for $540.75. Sometime thereafter — the record here not being clear as to dates — actions by the judgment holders were brought in McPherson and Marion counties to set aside the deed of F. H. Unruh to his mother on the ground that it was given to defraud creditors. The actions were consolidated in the court below. F. H. Unruh having been adjudged a bankrupt the trustee in bankruptcy was substituted for Gish as party plaintiff but thereafter Gish purchased the assets of the bankrupt estate and was again made plaintiff in the action. As to the pleadings it is sufficient to say that they clearly raised the issue as to the intent of F. H. Unruh when, soon after his father’s death, he deeded his interest in the land to his mother. At the trial there was admitted, under stipulation, the transcript of the evidence taken in Sedgwick county in a proceeding in aid of execution of the Corfman judgment, above noted. At the conclusion of plaintiffs’ evidence the defendants demurred to the evidence. After taking the case under advisement the court made a finding that the deed had been made in fraud of creditors, entered judgment setting it aside, and ordered the one-tenth interest in the real estate belonging to F. H. Unruh sold as upon execution to satisfy the Gish and Corfman judgments. This appeal followed. Appellants’ principal contention is that under the facts as shown the deed was good as against the grantor’s creditors. Before considering the case upon its merits, we note the motion of appellees to dismiss the appeal on the ground that no transcript of the evidence was filed. As heretofore noted, a transcript of the evidence taken in the proceedings in aid of execution was admitted in this action. Its accuracy is not questioned and in their briefs both sides refer to the evidence as abstracted from it. In view of the narrow issue presented by the appeal we find the transcript sufficient to justify consideration on the merits. In an action of this sort the question of whether there was fraudulent intent is generally a question of fact and a finding will not be disturbed if supported by competent, substantial evidence. (27 C. J. 503 et seq; 24 Am. Jur. 344 § 227; Bank of Inman v. Graves, 148 Kan. 468, 83 P. 2d 666; Houska v. Lake, 148 Kan. 229, 80 P. 2d 1102; Achorn v. Parker, 145 Kan. 854, 858, 67 P. 2d 561.) Another rule, here pertinent, is that on an issue of this sort conveyances between members of a family are properly subjected to strict scrutiny. (Stephenson v. Wilson, 147 Kan. 261, 265, 76 P. 2d 810 and cases there cited.) Appellants having elected to offer no evidence, but to stand upon their demurrer, we are only interested in determining whether there was substantial evidence to support the finding that the deed was given to defraud the grantor’s creditors. It is not our function to weigh the evidence and determine whether the trier of the facts might reasonably have reached a different conclusion. We note, accordingly, some of the facts which tend to support the finding. The deed was given by appellant a few days after his father’s death. It is not contended that it was supported by any money or other consideration moving from the grantee. It is admitted that at the time the deed was given the grantor was insolvent. Insolvency-at such a time is an important factor to be considered in determining intent. (Dodson v. Cooper, 50 Kan. 680, 32 Pac. 370.) Appellant contends that consideration for the deed was to be found in a mutual agreement entered into by him and his four brothers and sisters that they would all convey their interest in the real estate to their mother in order to carry out what — it is asserted —was the desire of their father. But appellant executed his deed on November 1, 1941, a few days after his father’s death, and the other children — who later signed a separate deed, prepared by F. H. Unruh, conveying their interests to their mother — did not sign their deed until after the proceedings in aid of execution, above referred to, which were had in March, 1942. There was testimony that some at least of the brothers and sisters, when they signed their deed, knew that their brother, F. H. Unruh, was in financial difficulty of some sort. It further appears that the deed signed by the four children was delivered to Albert, who had been named administrator of his father’s estate, but he did not deliver it to his mother, but testified that following advice of his lawyer he decided not to deliver it until after the probate proceedings were closed. In the final settlement of the father’s estate the court found that a one-half interest in the real estate was vested in the widow and a one-tenth interest in each of the five children. No appeal was taken from that determination. This was long after the deed in question was executed. The voluntary petition in bankruptcy later filed by appellant listed debts — largely on notes executed several years prior to the execution of the deed here in issue — aggregating about $65,000 and assets of $1,360 all but $90 of which was exempt. Other testimony might be set out, but this is sufficient. There is no need on this record to consider the question of presumptions as to intent in cases of this sort. We cannot say that there was no substantial evidence to support the finding and judgment of the trial court and the judgment must therefore be affirmed. It is so ordered.
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The opinion of the court was delivered by Smith, J.: This was a claim based on a promissory note against the estate of Edmund 0. Steinmetz. The probate court denied the claim. On appeal the district court affirmed the decision. The claimant has appealed. Edmund 0. Steinmetz died a resident of Dickinson county, Kansas, March 28,1943. On July 2, 1943, Verna Steinmetz, his mother, whose residence was Trumbull county, Ohio, filed a claim in the probate court for $8,316.92 against Edmund’s estate. This claim was set out as follows: “DATE ITEM AMOUNT 6/29-43 Principal and interest on promissory note dated December 18, 1916 88,316.92 “That interest is due and unpaid at six percent per annum from March 17, 1943. “Your petitioner further alleges that the Estate is entitled to the following offsets, and no others, viz: °lo none.” The prayer was for $8,316.92, with interest at six percent, from March 17, 1943. This claim was signed by Mrs. Verna Steinmetz, Claimant, and verified by LaVern Van Allen, as her agent. A copy of a promissory note was attached as follows: “2285.00 Cleveland, 0., Dec. 18, 1916. “Six months after date I promise to pay to the order of Mrs. Verna Steinmetz ................... Twenty Two Hundred and Eighty-five and 00/100 Dollars with interest at 6 percent payable at Medina, Ohio. “Value received. “Edmund O. Steinmet2.” Before anything was done about this claim LaVern Van Allen, as executrix of the will of Verna Steinmetz, filed an amended petition for allowance of this claim in the probate court of Dickinson county against the estate of Edmund 0. Steinmetz. She alleged that Verna had died subsequent to the filing of her claim; that her residence was Warren, Ohio; that she, as executrix, had a demand against the estate of Edmund represented by a promissory note dated December 18, 1916, in the principal sum of $2,285, with' interest at six percent per annum; that payments aggregating $430 had been made on the note, the last payment having been made on March 17, 1943; that there was due the estate of Verna Steinmetz $8,306.92, including principal and interest; that no payments had been made upon the note and there were no offsets against it other than those mentioned. The claim further alleged that the note was executed in Ohio and the laws of that state were applicable; that the limitation of action upon the note expired only after fifteen years from its due date, or the date of the last payment, or acknowledgment of it in writing; that under the Ohio statute an acknowledgment in writing tolled the statute; that on the 14th day of April, 1927, Steinmetz wrote a letter to Verna Steinmetz in which he acknowledged that he owed her the note in question and promised to pay her the amount due; that Steinmetz did not reside in Ohio for a total period of fifteen years after April 14, 1927; that during his absence from Ohio the statute was tolled. Claimant asked that her demand be allowed in the amount of $8,306.92. To this demand creditors of Steinmetz for an answer filed a general denial and alleged further that the note was barred by the five-year statute of limitations, and further if construed to be subject to the statute of Ohio it was barred by the fifteen-year statute of Ohio; that they had an interest in the litigation because they were creditors of the estate. This claim was heard by the probate court and was disallowed for the reason that there was no evidence offered that LaVern was the executor of Verna Steinmetz estate' and for the further reason that the claim was barred by the statute of limitations of Kansas. On appeal the district court heard the evidence without a jury and found against the allowance of the claim. Hence this appeal. On this trial the files of the probate proceedings in the estate of Verna Steinmetz were introduced. These showed that she died a resident of Kinsman, Trumbull county, Ohio, on September 2, 1943; that her will was admitted to probate on January 4, 1944; that LaVern Van Allen was appointed executrix and that after bequests of one dollar to each of four children, all the rest of her property was bequeathed to LaVern. Also offered in evidence were two sheets out of a ruled account book entitled “In Account With Ed.” These sheets showed certain dates and after each date in figures either $5.00 or $10.00. The first notation was dated June 19, 1939, and the last March 17,-1943. Also offered in evidence by the claimant were the depositions of LaVern Van Allen and Ira Van Allen, her husband. These depositions were taken on interrogatories. During the reading of them there was introduced in evidence by the claimant a letter written to Verna Steinmetz by Ed under date of December 4, 1941. Only a portion of one paragraph of this letter is of interest to us here. It reads as follows: “You mentioned the fact that the boys have about paid you off. This is something that I no nothing about. I am sure that they will never let you down and be in want. Your check from me will come as long as I am living and if something happens to me it will still continue to come so you need not worry about that. Check enclosed as usual. Life goes on so we must carry on the best that we can. I was glad to hear from you and write whenever you can.” This record is not as clear as we would like to have it as to just what objections were made by counsel to these depositions at the time they were read. In the abstract of appellant appears the following: “rulings op the court “In the deposition of LaVern Van Allen the following objections to questions by counsel for appellee were sustained: “Q. Did Edmund O. Steinmetz owe your mother any account or money other than this note? "Mr. Royer: To which we object as incompetent and irrevelant and calling for a conclusion of the witness. “The Court: Objection sustained. "Q. Would you have known of any indebtedness due your mother from Edmund O. Steinmetz? "Mr. Royer: To which we object on the ground that it is incompetent, irrelevant and immaterial and calling for a conclusion of the witness. “The Court: Objection sustained. “Q. Are there any set offs against this note? A. No, only the payments that he made monthly to mother. "Mr. Royer: We object to it on the ground that it is incompetent, irrelevant and immaterial and calling for a conclusion of the witness. “The Court: Sustained. “The Court: In the testimony of the witnesses here, there is one objection there where I missed the boat, and that was the objection to the conversation with Ed Steinmetz.. As that objection was made my mind was on the mother Steinmetz and she was dead and this wasn’t with her, so I overruled the ob jection and overlooked the fact that this was the conversation with the sole, heir, with Ed Steinmetz, who is also deceased. “Mr. Bolton: No. “The Court: That testimony, the objection should have been sustained to that and ’it will be sustained. “Mr. Lehman: If the Court please, may I just make this statement: At the time of that alleged conversation, LaVern Van Allen was not at that time the sole heir. The mother was still living. “The Court: Well, you had her testify there also. That is what I am talking about, and I am not so sure just offhand as to whether or not the husband’s testimony isn’t in the same situation. However, notwithstanding that I am satisfied that there is no sufficient showing here that there was ever any payment made on this note, and that if there were any payments made, between the two, that it was the intention of either of them that it should apply on the note. All of these checks have a simple notation: ‘Mother.’ Well, now, that could be for anything. The testimony of the two witnesses that they know of their own knowledge, that couldn’t be true, if they hadn’t gotten that information from parties who are now deceased. I think unquestionably that the judgment should be that the note is barred by the Statute of Limitations and the claim should be disallowed. That will be the order.” Counsel for appellee makes the statement in the counter abstract that throughout the reading of the depositions they objected to all the pertinent questions and answers on the ground that they were incompetent, irrelevant and immaterial, also because they called for a conclusion of the witness, as well as on the ground that they called for testimony as to a transaction had by the witness with a person since deceased and that these objections were sustained. This statement is not disputed by counsel for appellant. Ordinarily when an objection to a question is sustained on the ground that it is incompetent and irrelevant or calls for a conclusion of a witness counsel simply reframes the question so that the witness may answer it and the information goes into the record or it becomes clear that the witness is unable to furnish the information desired. Here, however, the depositions were taken by interrogatories. Once the objection was sustained on any ground at the time the depositions were read the evidence was unavailable. This brings us to a consideration of the issues of fact. There was a statement in the amended claim that thjs note was executed in Ohio and on that account the statute of limitations of Ohio governed. The only evidence in this record to prove this is the fact that the note itself had this notation just before the date “Cleveland, 0.” This standing by itself does not require a finding that it was executed there. Hence we are not concerned any further with that question. The note shows on its face that it was executed December 18, 1916, and was due in six months thereafter or on June 18, 1917. This claim was filed July 2, 1943, or twenty-seven years later. Hence on the face of the record it was barred unless the statute was tolled in some manner. Claimant pleaded that the statute was tolled in this case by payment and by acknowledgment in writing by the maker of the note. There is no question but that Ed Steinmetz did pay his mother some money after the statute had run on the note. He paid her about $430 in monthly payments of five^and ten dollars a month. The claimant had the further burden, however, of proving that these payments were intended by him to be payments on the note. In order for payments by a debtor to toll the running of the statute of limitations on the original obligation it must appear that the payment was made under such circumstances as to make it appear that the payer intended to acknowledge the debt. (See Pessemier v. Zeller, 144 Kan. 726, 62 P. 2d 882 and cases there cited.) Naturally for this rule to apply it was necessary for claimant to prove that these payments were made by Ed to his mother with the intention that they be applied on the note. To meet this burden claimant introduced the depositions to which reference has been made. LaVern Van Allen was Ed’s sister and the principal beneficiary under the will as well as executrix. She would have profited more than any other person should the claim have been allowed. We shall examine her testimony: First, she identified the note. There is no controversy about that. Then she said that her mother kept a record of the dates and amounts credited on the note. She identified a document which she said was such an account. This document was introduced and consists of two sheets headed “In Account With Ed” and sets out several months when payments of five or ten dollars were made by Ed to his mother. So far, however, the testimony fell far short of establishing that Ed made these payments on the note or intended them to be so applied. (See Pessemier v. Zeller, supra, also In re Estate of Badger, 156 Kan. 734, 137 P. 2d 198.) Following this, counsel inquired about whether Ed owed his mother any other money than the note and whether or not appellant would have known of any other indebtedness. The part of the rec ord that the appellant has brought here shows that the objection to those questions was sustained because it called for a conclusion of the witness. Counsel then asked the question: “Do you know, of your own personal knowledge, that this document is a record of payments on the note?” The record here shows that she answered “Yes, I do.” This question called for a conclusion of the witness. From the statement of appellee that objections were made and sustained to every pertinent question on the ground that it called for a conclusion of the witness, we conclude that the objection was properly sustained to this question and answer. The witness was then permitted to say she had discussed the note with Steinmetz but she did not testify as to the letter written by Steinmetz to his mother, to which reference has already been made in this opinion. The letter was introduced in evidence. She was then asked “Are there any setoffs against this note?” Witness answered: “No, only the payments that he made monthly to mother.” The record shows that the objection to this answer was sustained. We thus have only that part of the testimony of Mrs. Van Allen as to these payments, to which no objection was made that there was a record of payment of some sort kept. We go now to the depositions of Ira Van Allen, the husband of LaVern. He testified that he heard his wife say to her brother: “What about the note which you owe mother.” And he said: “I will pay off the note just as fast as I can and the checks will continue to come each month. I have taken out insurance in case anything might happen to me before the note is paid, so that the balance of what I owe mother on the note will be taken care of by the insurance.” He also testified that Steinmetz said in his conversation that the payments he was making were on the note he owed his mother. The trial court did not make detailed findings of fact but found that the note sued on by the plaintiff was barred by the statute of limitations. We are, however, favored with the remarks of the court which have been heretofore set out in this opinion. In these remarks the trial judge made a statement that he should have sustained the objection of the appellee to the testimony of Mr. Van Allen with Ed Steinmetz. There was some colloquy between the court and counsel at that point, whereupon the court said “Notwithstanding that I am satisfied that there is no sufficient showing here that there was ever any payment made on this note, and that if there were any payments made, between the two, that it was the intention of either of them that it should apply on the note.” We have concluded that regardless of the correctness of the court’s ruling as to whether the objection to these two depositions should have been sustained because they concerned transactions that the witness had with a person, since deceased, the court was not required to make a finding other than was made. We are fortified in this conclusion somewhat by the fact that when the first claim on this note was filed it was signed by Verna Steinmetz and verified by LaVern Van Allen and did not speak of any offsets at all or payments thereon and made the positive statement that there were no, offsets. The trial court was warranted in considering the circumstances as well as the fact that the claim was for $8,306.92, which is at least as much as the note would amount to without any offsets, and that both witnesses who testified for claimant were interested either directly or indirectly in .having the claim allowed. The trial court is not required to find the facts in accordance with the oral testimony. It was the court’s duty to weigh all the surrounding facts and circumstances. (See Swartz v. Levin, 108 Kan. 224, 194 Pac. 646, and Fenn v. Kansas Gas & Electric Co., 118 Kan. 131, 234 Pac. 77.) The conclusion we have reached requires that the judgment be affirmed. In her brief in this court appellant makes a strong argument, first, that these two depositions should have been admitted at first because they do not come under the inhibition in the statute, G. S. 1935, 60-2804, which provides — • “No person shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, . . And second, because no objeción was made to the use of these depositions before the trial. In that connection appellant relies on G. S'. 1935, 60-2847, which provides— “No exception other than for incompetency or irrelevancy shall be regarded, unless made and filed before the commencement of the trial.” We find it unnecessary to decide those two questions in view of the conclusion we have reached as to the trial court’s findings of fact. Furthermore, the objections sustained by the court were for incompetency and irrelevancy. Appellant also argues that the letter to which reference has been made constituted acknowledgment in writing of the debt. We have heretofore set this letter out in this opinion. Upon examination of it we find that this letter made no reference to the note. It is nothing more than a statement of Steinmetz, that he was sending his mother money to keep her in her old age. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by Harvey, C. J.: This was a workmen’s compensation case in which claimant was given an award for additional compensation and for additional medical treatment. The legal questions argued are the sufficiency of the evidence to sustain the additional award, the authority of the court to give any award for additional medical treatment, and the sufficiency of the evidence to sustain the award made. On September 16, 1943, claimant was carrying a bucket of hot tar which in some way became tilted so that a quantity of the tar spilled from the bucket onto his left wrist and forearm, causing a severe burn. It was stipulated that the relation of employer and employee existed between respondent and claimant; that they were operating under the workmen’s compensation law; that the accident arose out of and in the course of employment, and that claimant’s weekly wages were in excess of $30 per week. Respondent received prompt notice of claimant’s injury and had its doctor treat him from September 16 to December 14, 1943, at a cost to respondent of $110. Respondent also paid compensation to claimant from September 24 to November 5,1943, totaling $108. Claimant served his written claim for compensation upon respondent November 30 and filed it with the compensation commissioner December 14, 1943. There is no controversy about any of these matters. The hearing before the compensation commissioner was continued from time to time until January 24, 1945. Prior thereto and on May 29, 1944, claimant filed a written application for additional medical treatment. This application was never specifically ruled upon by the commissioner. On the date of the hearing it was further stipulated: “That claimant’s injury was confined to his left hand and forearm; that the issues herein are (1) extent of claimant’s loss of use of his left forearm and hand; (2) amount of compensation due, if any.” The commissioner made an award of compensation for thirteen weeks of temporary total disability followed by twenty-five percent permanent partial disability for 34.25 weeks, making the total compensation allowed $850.50, upon which respondent had credit for the compensation of $108'previously paid. No allowance was made for additional medical treatment. The award was filed February 8, 1945. Claimant appealed from the award. The district court, after a hearing, rendered a judgment and award, the journal entry of which, in addition to other pertinent matters, recited that the injuries caused claimant— “. . . to lose a large portion of the skin of his left wrist and left arm, and caused a stiffening of the wrist and left hand, and required that he be treated by a physician therefor. ... As the result of said injury, claimant bears a large white scar about the area of his left wrist, and also he has sustained a loss of gripping function in his left hand, and is unable to perform a full amount of work by reason of this loss. Claimant has resumed work, and has been employed by the Missouri Pacific Railway Company, since about January, 1944. In addition to an award for compensation, claimant also makes application for additional medical and surgical treatment for said injury to his left arm, left wrist and hand.” Also the court found that respondent had provided medical treatment at a cost of $110 and had paid compensation in the sum of $108. And further found: “As the result of said accidental injuries, the' claimant carries a large and very prominent white scar tissue about the area of his left wrist and arm. Claimant sustains a partial loss of the gripping functions of his left hand, which interferes with the full use of that hand in connection with his work. “Claimant has a partial, permanent disability of his left hand and forearm, to the extent of 25 percent permanent, partial loss of the use of that member, for the reason that his wrist and arm are stiff, and there is a restriction in the use and movement of said arm and wrist, which is caused by said stiffness.” And concluded: “Claimant is entitled to further medical and surgical treatment of said arm and wrist, for the purpose of reducing the unsightliness of the prominent scar and scar tissue, which was caused by, and which has resulted from said accidental injuries of September 16th, 1943. “Claimant is entitled to additional medical and surgical treatment for the purpose of further restoring claimant the normal use of said left wrist and left hand and left arm. “Claimant is entitled to the above mentioned surgical and medical treatment, not in excess of the sum of $390.00, which, together with the sum of $110.00 heretofore expended by the respondents, in behalf of claimant, makes the total not in excess of the total sum of $500.00. “In order that claimant may have the benefit of the said medical and surgical treatments, he will have to voluntarily submit himself to such doctor or surgeon as the respondents may designate. “Claimant is entitled to an award of 25% partial, permanent disability, subject, however, to further examination and modification of such award,, as provided by law.” The judgment was that claimant receive compensation for total disability for thirteen compensable weeks followed by 25 percent permanent partial disability for 48.25 weeks, making a total sum of $994.50 which should be paid claimant, less the $108 previously paid. And further ordered: “That claimant’s application for additional medical treatment be sustained, and that upon claimant’s submission to the doctor or physician furnished by the respondents, that he receive such medical and surgical treatment, said treatments to incur an additional expense not to exceed $390.00.” It was further adjudged that the compensation continue for a period of time provided by law, subject to review as provided by law. Respondent and its insurance carrier have appealed. They do not contend that the court was not justified in allowing claimant thirteen weeks of temporary total disability. They do contend that the evidence did not warrant the finding of additional partial disability. The evidence upon that point, which tends to support the judgment of the court, may be summarized as follows: The claimant (a colored man) testified that he was thirty-six years of age; that he had always worked at farming, railroading, wood or steel mills, sawmills, track work, roundhouse and defense plants; that he had done nothing but hard labor and was not qualified for other work; that his work for the railway company is operating a turntable, in which he runs the motor and gives signals — it is not manual labor; that his left hand is not as strong as it was before his injury; that he can pull himself up on an engine a time or two and then loses his strength; that he can shovel coal with that hand for five or ten minutes and then it gives out; that he has to use his right hand in opening a valve if it is shut off pretty tight; that he tried to grease engines with a grease gun, but was unable to do so; that his injury is about his wrist; that his grip is affected' — there is some limitation of the movement of the hand, and sometimes the hand pains him. Doctor Fairchild, of Osawatomie, testified that in his thirty years practice he had dealt with burns of the character here involved; that he had examined claimant; that the scar completely surrounds the wrist, just above the wrist over the radius and ulna bones, and that the scar tissue extends, to some extent, into the muscles and tendons; that the full scar is probably ten inches long; that' due to the scar tissue from the burn there is “more or less ankylosis of the joint due to adhesions and lack of motion of the extension of the loss of the tendons of the arm, forearm.” He further testified that the injuries are permanent and that in his opinion there is a loss of the use of the wrist and forearm of about thirty-five percent. He further testified that claimant can use his hand as a hook, as when a man picks' up the bail of a bucket; he can use it as a ring, as where a ball or round object is grasped between the thumb and forefinger; he can pick up some objects, using his hand as forceps; he has some use of his hand as pliers, as when he picks up a screw or bolt between the fingers and turns it. Doctor Lowe, of Paola, a general practitioner, who has handled some burn cases, perhaps not exactly like this, testified that he examined claimant twice; that the scar extends six inches above the wrist on the back of the wrist; there is some contraction of the scar just above the wrist; the scar extends around to the midline in front and clear across the front; there is some contraction on the radial side and back of the wrist; that whatever loss of use he has is due to the scar contraction on the back which might give him some pain and partly destroy his grip; that he has some loss of function of the hand on that account, possibly twenty-five percent of the use of the hand as compared to normal. Doctor Padgett, a plastic surgeon of Kansas City, Mo., testified by deposition that he had examined claimant July 9, 1944, and found that he had a heavy scar over the wrist region on the left hand on the dorsal surface which measured 3% by 2 inches; there was some thin scar around the undersurface which did not seem to have much contractual tendency; that over the dorsum of the wrist there is a scar which starts about the midpoint of the metacarpus and goes across the wrist and up from the wrist about three inches. In all the scar measures about six inches in length. The lower half of it is heavy and keloidal in nature; the scar encircles the wrist to the inner side and goes around to the ventral surface, where there is a scar extending from the base of the thumb metacarpal about 4% inches upward in a medial direction; the lower half of the scar is keloidal, which means a heavy hypertrophic scar. Flexion of the wrist is limited, about seventy-five percent of normal, extension limited fifty percent of normal. We think this evidence ample to support the trial court in finding a twenty-five percent loss of the use of the wrist and arm. Appellants contend that the court had no authority to make an additional award for medical treatment, for the reason, (1) that the commissioner had made no finding on claimant’s application for additional medical attention, hence there was no ruling of the commissioner on that point from which an appeal could be taken. We think the contention lacks merit. The very fact an application was pending before the commissioner, and he made no allowance upon it, is tantamount to a denial of the application. Aside from that, the appeal to the district court took the entire case to the district court that was before the commissioner. The argument of appellants in effect is that only a part of the proceedings before the commissioner was taken to the district court. We think there is no justification for that view. (2) Appellants point out that the trial court did not make a specific finding that this is an “extreme case.” (See G. S. 1943 Supp. 44-510 [1]). We find no requirement in the workmen’s compensation law for such a specific finding. Under the statute the court is simply required to hear the evidence and to make an award. (G. S. 1935, 44-556; Thompson v. Swenson Construction Co., 158 Kan. 49, 56, 57, 145 P. 2d 166.) Appellants further contend that the evidence is insufficient to sustain an award for additional medical treatment. Doctor Padgett testified that in his opinion a good skin graft would improve his condition seventy to eighty percent so that claimant would not have more thán a possible ten or fifteen percent disability of the wrist, and that it might do better; that a skin graft could be applied after excision of the scar and it would increase the functioning of his wrist probably to nearly normal; that if his skin is grafted claimant would be in the hospital three or four days and could then go home with a splint and dressing on his arm and return in another ten days, at which time the dressing and stitches would be removed; that after another ten days, with a dressing every other day, the arm should be healed if the take of the skin is all right; that the surgical fee would be $150 and the hospital bill about $40. “If the wrist is fixed up I should say that the function of the hand will be okay.” What is limited now in function is the pulling which is up above his hand. It is purely a soft tissue limitation due to the contracture of the scar. The deeper structure is not injured. He further testified that such an operation can be performed successfully on claimant, although there are ordinary chances one runs on any operation and no doctor can guarantee results; it is possible not to have a full take of the skin, but even if you don’t have a full take, it could be repeated and get a good result. Doctor Padgett is the only plastic surgeon who gave testimony. It is true that Doctor Fairchild expressed the view that the limited use of plaintiff’s hand could not be corrected by a further operation, but he testified that he was not experienced in industrial surgery. More than that, in examining the evidence to see if it is sufficient to sustain the judgment of the trial court we rely only upon that which tends to sustain the judgment. We find no error in the record. The judgment of the court below is affirmed.
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The opinion of the court was delivered by Hoch, J.: The substantive question presented by this appeal is whether, under the law then existing, an appointee named by the governor in 1943 to fill a vacancy in the office of sheriff was entitled to serve under the appointment until the next regular term began on January 8, 1945, or whether there was an “unexpired” term to be filled by election covering the period between the general election in November, 1944, and January 8,1945. The sheriff of Sedgwick county having been ousted from office, the governor appointed Keith E. Moore to fill the vacancy. Moore took office on July 20, 1943. At the general election in November, 1944, he was elected for the regular two-year term beginning on January 8, 1945. At the primary election in 1944 D. D. Smith was nominated for an “unexpired” or “short” term. At the general election his name was printed on the ballot- as a candidate for such term and he received sufficient votes to elect. Moore was not a candidate for an unexpired or short term, taking the position that under the law there was no such term and that under his appointment he was entitled to serve out the term to which his ousted predecessor had been elected, which would expire on January 8, 1945. Following the election in November Moore brought an action in injunction to enjoin the county commissioners from certifying to the county clerk the election of Smith for the alleged unexpired term; to enjoin the county clerk from issuing a certificate of election to Smith, and to enjoin Smith from entering into or taking over the office of sheriff or in any manner interfering with the plaintiff’s conduct of the office. A temporary injunction was granted. Defendant Smith filed a motion to dissolve the temporary injunction on the grounds that the court was without jurisdiction to grant it; that the right to an elective office could only be tested by proceedings in quo warranto or mandamus; that the plaintiff had no capacity to sue and was not the real party in interest; that the petition did not state a cause of action; and that the injunction as to the county officers was illegal and void since it restrained them from performing the duties imposed upon them by law. The motion to dissolve was overruled and defendant Smith demurred on substantially the same ground set'up in the motion. The demurrer was overruled. The county commissioners and Smith then filed answers. The gist of the commissioners’ answer was that their duties in the matter were “largely ministerial and clerical” in performance of the duties imposed by law and they asked directions by the court. In his answer Smith averred that he was a regular nominee for the unexpired term, was duly elected, had procured a good and sufficient bond in the sum of $20,000 for the faithful performance of his duties as sheriff which he was ready to file as required by law; that the election of a sheriff at the general election to fill an unexpired term, under the circumstances existing, is provided for by statute; that the plaintiff was estopped by his laches in not contesting defendant’s right to have his name placed upon the ballot. Other and formal parts of the pleadings need not be recited. It was stipulated that Smith had filed in time under the primary election law, paid the filing fee, and that his was the only name printed upon the general election ballot for the unexpired term. Evidence establishing the formal facts heretofore recited was received, after which defendant Smith demurred to the evidence. The demurrer having been overruled he moved for judgment, which motion was also overruled. The trial court based its rulings upon the ground that the situation was controlled by section 19-804, G. S. 1935, together with article 4, section 2 of the state constitution, and that no unexpired term as contended for by defendant is therein provided for. Defendant having elected to stand upon his demurrer and motion, judgment was entered permanently enjoining all defendants as prayed for. The court also found that the plaintiff should be required to post a bond in the amount of $5,000 “to secure the said defendant, D. D. Smith, against any damages he might sustain if it be finally decided that the permanent injunction herein ought not to have been granted,” and an order that such bond be posted on or before eleven o’clock a. m. on November 10, 1944, was made a part of the journal entry of judgment. It is not denied that such a bond was posted. On November 18, 1944, this appeal was taken by defendant Smith. The other defendants did not appeal. We first consider a motion by appellee to dismiss the appeal. He contends that the controversy has become moot; first, because the alleged short term has expired, and second, because the statute upon which he principally relies (G. S. 1935, 19-804) has been materially amended by an act passed by the 1945 legislature. (H. B. 268, now Laws 1945, ch. 162.) Appellee’s second contention, as to the change in the statute, requires no discussion. Without examining the provisions of the new amendment to section 19-804 it suffices to say that whatever changes it makes they can, of course, have no' effect on the present controversy. The rights of the parties were determined solely by the law governing the controversy when adjudicated.- Next, should the appeal be dismissed as moot because the alleged short term has expired? A “moot case” has been variously defined. One common definition is that it is a case in which determination of an abstract question is sought when in reality there is no actual controversy existing. Another common definition is that it is one which seeks a judgment upon some matter which if rendered could not have any practical effect upon any then-existing controversy. (27 Words and Phrases, Perm. ed. 536, 538.) The fact that an issue has become moot does not necessarily mean that the appellate court is without jurisdiction to determine it. The rule is one of court policy, founded upon the sound proposition that except when under some statutory duty to do so courts do not sit for the purpose of giving opinions upon abstract propositions not involving actual controversy presented for determination. ■ The rule as to moot issues requires further statement at this point. The fact that the only relief directly sought upon appellate review can no longer be given, owing to expiration of a period of time involved or to other change in circumstances following judgment, is by no- means always sufficient to justify dismissal of the appeal. One of the well-established conditions, as to dismissal, is stated in 4 C. J. S. 1945-1948, as follows: “The appeal . . . will be dismissed . . . unless . . . the judgment, if unreversed, will preclude the party against whom it stands as to a fact vital to his rights.” (Italics supplied.) Similarly, it is said in 3 Am. Jur. 310: “It is not every change in circumstances which might be said to render the case a moot one so as to require a- dismissal of the appeal or error proceeding, however. Thus, there will be no dismissal . . . whenever the .judgment, .if left unreversed, will preclude the party against whom it is rendered as to a fact vital to his rights, even though the judgment, if affirmed, may not be directly enforceable by reason of a lapse of time- or change of circumstances.” In a great number of cases, early and recent, this court has dismissed appeals because the issues had become moot.-- Every one of these many decisions which we have been able to locate has been carefully examined, along with textbook discussions and many cases from foreign jurisdictions. Among all of our own decisions we find very few where it could at all be contended that dismissal adversely affected any rights vital to the parties. It would unduly extend this opinion to support that conclusion by specific- analysis of the many cases. Appellee calls our attention to- only two cases in support of his motion to dismiss: Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P. 2d 1113, and State, ex rel. v. Smith, 140 Kan. 461, 36 P. 2d 956. In the Wakefield case the controversy related to violation of oil production orders issued by the state corporation commission under the proration law. Plaintiff, operating a lease adjacent to the lease of the defendant, alleged that he had been damaged by defendant’s excess production of oil in-violation-of proration orders. When the case reached this court it was admitted that subsequent to the judgment in the lower court production had been equalized as between the leases and that defendant’s overage no longer existed. That being true, and any alleged damage to the plaintiff having ceased to exist, we dismissed the apjseal .on the ground that it was moot. Appellee says, however, that an injunction bond had been given in that case and that in spite of the fact that appellant contended that dismissal might result in action on the bond we dismissed the. appeal as moot. The argument is not persuasive. Production having been equalized as between the leases and plaintiff’s alleged damage having ceased to exist; there would be no occasion for action on the bond. The surety could not be held liable if the principal’s liability ■ had terminated. So it does not appear that any vital right of appellant was affected by dismissal. State, ex rel., v. Smith was-a mandamus action in which the state sought to compel the county-commissioners to let a contract for the printing of .ballots to be used at a primary election at a certain rate •said to be specified in the statute. When the case.reached here the time had long since passed when the contract could be let at such rate or at any other rate, and the case was dismissed as moot. Again, no vital rights of the parties in an existing controversy were affected by dismissal. In the opinion the statement was quoted from State v. Gas Co., 102 Kan. 712 (syl. ¶4), 172 Pac. 713, which was as follows: “An appeal may be dismissed when this court can not make any order that will affect the rights of the parties thereto.” (p. 463.) We have a number of decisions involving actions in forcible detainer which, it may be argued, support or tend to support dismissal of an appeal as moot even though rights of the parties may be affected thereby. We have gone far in these cases in saying that we will not consider the merits of an appeal from a judgment of forcible detainer rendered against a tenant claiming under a lease, after the lease has expired. (Mueller v. Seiler, 158 Kan. 440, 148 P. 2d 266, and cases there cited.) These cases are not persuasive on the instant issue for the primary reason that we have a statute (G. S. 1935, 61-1303) which specifically provides that judgments in actions for forcible entry and detainer “shall not be a bar to any after action brought by either party.” Judgments in such cases not being res judicata, the reason for refusing to dismiss an appeal would in many cases, at least, disappear. It could not well be said that vital ¿rights would be affected by dismissal if the former judgment is not a bar to subsequent action between the parties. In saying this we are not unmindful of the fact that in McHenry v. Hubbard, 156 Kan. 415, 134 P. 2d 1107, section 61-1303 was held inapplicable in certain cases. The statute, however, still stands and is pertinent in appraising our former decisions in forcible detainer cases. Furthermore, our conclusion here as to the sound rule to be applied would not be altered even if it could be shown to be inconsistent with some statements made in the forcible detainer cases. The rule under discussion has been followed in many well reasoned decisions in other jurisdictions. We take note of a few of them. Kaufman v. Mastin, 66 W. Va. 99, was an action brought by a landlord to gain possession from a tenant holding under a lease. The plaintiff prevailed, the- defendant appealed, and appellee sought dismissal on the ground that the issue was moot, the appellant having vacated the premises. Refusing to dismiss, the court said: “In this connection, it is submitted that, since the tenant has vacated, the suit avails nothing; that it pertains only to the possession oí the property, which' possession can no more be-an issue; owing to the act of the tenant in delivering up- the.-same,-- .But-Mastin, who -obtained-this- writ' of error, re-sists the motion to'dismiss, and submits'that a decision as to the legality of the judgment for possession is still a vital one. He insists that if the judgment is to stand, he is bound to respond in an action to recover for 'the use and occupation of ’the property, since thejudgment binds him.to the fact that he unlawfully withheld possession from May 1; 1907; until he vacated one year thereafter. If the judgment is not overthrown, Mastín is' precluded by it, in an action to recover for use and occupation, from showing that he was in rightfully under the lease. Thus he may be. made to-pay a larger, sum than the stipulated rent. So it does appear vital to the interests of Mastín that he should continue to attack the legality of the judgment.” (p. 1Ó1.) Whether there was a statute in West Virginia similar to our section 61-1303 does not appear from the record, but it is a fair assumption that there was not. Click v. Sample, 73 Ark. 194, involved a contract for the employment of a public-school teacher. . The suit was one to enjoin.members of the school board and a teacher employed by them. Injunction was granted and appeal taken. Appellees moved to dismiss on the ground that the contract involved had then expired by its terms. The motion to dismiss was denied, and the court said: “While the contract- in controversy cannot now be enforced or enjoined, there is a judgment of the chancery court dissolving the injunction, and, if that judgment stands unreversed, a liability is fixed upon the appellants and their sureties on the bond. That judgment fixing this liability is a substantial controversy, beyond the costs, and can only be reviewed by hearing this appeal.” (p. 197.) Kensinger v. Schaal, 200 Ind. 275, involved an election contest over the office of county treasurer. On appeal dismissal was sought on the ground that the issue was moot, the term of office involved having expired. After stating the rule that appeals will ordinarily be dismissed when it is impossible to grant effectual relief, the court said: “We do not believe the present controversy is a moot controversy as defined in the case just quoted from. Here, although the term of office expired during the pendency of the appeal from the judgment of the county commissioners, substantial rights of the parties, other than’ the right to the title to the office, to-wit: the right to the emoluments of the office, depend upon the result of a trial and judgment to be had in the superior court.” (p. 281.) Gouaux v. Smith, 160 La. 618, related to the constitutionality of ■an act to shorten the terms of certain health officers. By injunction the appellant had been deprived of an office covering a certain pe riod and of the salary thereto attached. An injunction bond was given to cover any damages the appellee might suffer if it should be decided that appellant was not entitled to relief. A motion to dismiss was denied, the court saying: “If we should dismiss the appeal without reference to whatever right the appellants may have to sue on the injunction bond, and if they or one of them should sue on the bond, the present appellee and his surety on the bond might invoke .the judgment that has been rendered in this case by the district court, as a final judgment of a competent court,” etc. (p. 624.) Ind. School Dist. v. Pennington, 181 Iowa 933: This was another case involving the validity of a contract of employment of a teacher. When an appeal was heard the time in which the contract might be performed had expired but the court refused to dismiss, saying: “It is true that, even though we should disagree with the trial court, defendant’s contract must remain unperformed; for she was to teach 32 weeks, commencing September 4, 1916, and of course that time is past. But the question of her right to teach under the contract and to recover for the time she did teach remains undetermined.” (p. 935.) N. M. Motor Corp. v. Bliss, 27 N. M. 304, related to certain rights under a lease of a store building. It appeared, upon appellate review, that the appellant had vacated the premises and appellee asserted that the issue had become moot and moved to dismiss. The court declined to dismiss, saying that if the appeal were dismissed the judgment of the trial court would remain in full force and effect and if appellant had no rights under the lease appellee might recover full damages for occupancy of the premises on the ground that the appellant was a trespasser; whereas, if he had rights to hold under the lease his liability would be measured by the stipulated rental. Hampton et al. v. Lynch, 54 Okla. 249, was another forcible entry and detainer case, involving similar issues. On appeal by defendant it appeared that he had vacated the premises and no longer claimed right of possession, but the court refused to. dismiss the cause as being moot saying that substantial rights were still affected, particularly liability on an appeal bond. Again, the opinion does not disclose whether Oklahoma had a statute similar to our section 61-1303. It may well be that the motion to dismiss would have been granted had there been such a statute. Clark v. County of Beadle, 40 S. D. 597, 169 N. W. 23: This case involved the validity of a contract for the erection of a bridge. Certain taxpayers brought action against the county commissioners and the bridge company. From a judgement in favor of defendants,' the plaintiffs took an appeal. Appellees moved to dismiss on the ground that work under the contract had been completed and final payment made, and that there was nothing but a moot question left. The court declined to dismiss, saying that if the contract should be held invalid.alternative relief in the way of money damages might be available and that therefore it would be unfair not to determine the question. Green v. Okanogan County, 60 Wash. 309: Like the Beadle County case, supra, this case involved a contract for the construction of a bridge. Substantially the same question was presented and for like reasons dismissal was refused. City of Plankinton v. Kieffer, (S. D.), 13 N. W. 2d 298: The plaintiff city sought to enjoin the removal of a dwelling house from the corporate limits of the city. Upon appeal it was contended that the issue was moot since the house had already been moved and no effectual relief could be granted, even if appellant should prevail. Citing numerous cases the court refused to dismiss, saying that appeals 'will not be dismissed as moot unless it appears “clearly and convincingly” that the actual controversy has ceased and that “the only judgment which could be entered would be ineffectual for any purposes [italics supplied] and an idle act so far as concerns rights involved in the action.” Also, see Whipple v. Lee, 58 Wash. 253, 108 Pac. 601; People v. Botts, 376 Ill. 476, 34 N. E. 2d 403, 134 A. L. R. 983; Chapman v. Lamar-Bankin Drug Co., 64 Ga. App. 493, 13 S. E. 2d 734; Vines et al. v. Lee, 194 Ga. 520, 22 S. E. 2d 122; Reeves, Com’r of Rev., v. Talbott, Com'r of Finance, 289 Ky. 581, 159 S. W. 2d 51; Boston v. Santosuosso, 308 Mass. 202, 213, 31 N. E. 2d 572; Danciger O. & R. Co. v. R. R. Comm. of Tex., 122 Tex. 243, 56 S. W. 2d 1075. Would, then, the rights of appellant be vitally affected by dismissal of the appeal? He asserted that he was duly elected to a term of office provided for by the statute. He was enjoined from assuming the duties of the office. If his contention is correct he had at least two rights — to discharge the duties of the office and to receive the salary. It is now true that he can no longer serve during the term involved. But what about his right to receive the salary or to have damages? The trial court decided that the statute did not provide for an unexpired term covering the period from the election in November, 1944, to January, 1945. If this appeal were dismissed and an action were brought to collect the salary or for damages, could it be said that the issue was not res judicata? In a rather extensive research we have been unable to locate any case specifically holding that a judgment from which an appeal has been dismissed because the issue had become moot is res judicata, the same as though no appeal had been taken or an appeal had been taken and the judgment affirmed. In numerous cases, however, it has been said in denying motions to dismiss on the ground the issue was moot, that dismissal was refused because it would be unjust to the appellant to have him confronted in a subsequent action with the defense of res judicata. (Independent School Dist. v. Pennington, supra; N. M. Motor Corp. v. Bliss, supra; Clark v. County of Beadle, supra; Danciger Oil & Refining Co. v. R. R. Comm. of Texas, supra.) And no reason now suggests itself for saying that in such a case the judgment left undisturbed would not be regarded as res judicata. At any rate it would be unfair in this case to proceed upon any other theory than that dismissal of the appeal would bar any action for relief. This is of course not to say that if the instant judgment be reversed and action for some sort of relief is brought other defenses may not be available. We are not here concerned with any issues that might be involved in such an action. We conclude that although the injunction feature is no longer of consequence the motion to dismiss should be'denied. Let it be made clear that this conclusion is not at all based upon the ground that a question of public interest is involved. We have repeatedly applied the rule against deciding moot cases even though questions of great public interest were involved. (Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P. 2d 1113, and cases there cited.) The motion is denied upon the ground that dismissal would unjustly affect vital rights of the appellant in a controversy not fully determined. A further observation is in order as to appellant’s right to have the principal issue determined. There is merit in the suggestion that he was at fault in not expediting an appeal to this court. Upon the appeal from the order overruling his demurrer, entered on November 16, 1944, and upon proper application to this court, the case would have been given very early attention in harmony with our long-established practice of expediting decisions on questions involving the public interest. It is some extenuation, however, that following the trial appellant discovered for the first time that although appellee had secured his bond he had-failed to file it as required by the statute.- Thereupon- he ¡ promptly'-fileth¡motions*to -vacate the judgment and for a new trial, which motions were not overruled until December 8, 1944. Thus the time remaining before January 8, 1945, was materially lessened. In addition to all this it may also be said that appellee’s course is not free from criticism. Believing that there was no “short” term under the law he waited until after both primary and general elections had been held before taking any action. Ample opportunity was afforded him to have the question determined, at least before the general election ballot had been prepared. Or, if he preferred to take no steps in advance to determine the question he could have simply continued to occupy the office and awaited affirmative action in quo warranto or otherwise by Smith. We come to the merits of the controversy. Appellant’s first contention is that an action for injunction was not the proper remedy to determine whether the law provides for an “unexpired” term; that an action in quo warranto is the remedy provided by statute (G. S. 1935, 60-1602, First) to determine -the right to exercise any public office; and that in any event the action, if proper, should have been brought by the state on the relation of the attorney general or the county attorney. Preferring to determine this appeal upon the substantive question involved we shall pass this procedural question with brief comment. By way of argument in answer to appellant’s contention it may be said that if the defendant had been holding the office and the plaintiff had been seeking to test his right to do so, quo warranto would cléarly have been the proper action. But the plaintiff was occupying the office and seeking to cut off the defendant’s claim to it. No case has been called to our attention where quo warranto was recognized as the proper action in such a situation. However, we pass the question. The primary issue is whether, under his appointment, appellee was entitled to serve until January 8, 1945, or only until someone was elected for a “short” term at the election in November, 1944. There are two statutes primarily involved. The first is section 25-312, G. S. 1943 Supp., which provides: “All -vacancies in any state or county office, and in the supreme or district courts, unless otherwise provided for by law, shall be filled by appointment from the governor, until the next general election after such vacancy' occurs, when such vacancy shall be filled by election.” (Italics supplied.) The second is section 19-804, G. S. 1935, the pertinent' provisions of which — prior to the recent amendment heretofore referred to— were: “Whenever a vacancy occurs in the office of sheriff of any county, the undersheriff of such county shall in all things execute the office of sheriff until a sheriff shall be appointed by the governor, who shall hold his office until his successor is elected and qualified.” (Italics supplied.) Appellee does not deny that if. the case is governed by section 25-312, G. S. 1935, his term under the appointment extended only until the November, 1944, election, at which time the vacancy would be filled by election. But he calls attention to the words in that section “unless otherwise provided for by law”; contends that as to the office of sheriff it was, by section 19-804, supra, “otherwise provided by law” and that under the latter section the provision which reads “who shall hold his office until his successor is elected and qualified” gave him the right to serve until a successor elected for the regular two-year term took office on January 8,1945. Appellee’s argument may be summarized as follows: Section 25-312, which applies to the filling of offices generally by the governor “unless otherwise provided for by law” was enacted in 1868 and has never been changed; section 19-804, relating specifically to filling vacancies in the office of sheriff, was also enacted originally in 1868, but in 1870 was amended (Laws 1870, ch. Ill, § 1) by inserting the words ‘ffintil a sheriff shall be appointed by the governor, who shall hold his office until his successor is elected and qualified” (italics supplied); that the legislature of 1870, knowing that the general law (25-312) provided that appointees should serve only until the vacancy could be filled by election, must have intended when it used the words “until his successor is elected and qualified” to take the office of sheriff out from under the provisions of the general law and that those words should be interpreted to mean “until his successor, chosen for the following regular two-year term, is elected and qualified.” The immediate trouble with appellee’s interpretation is that in the case of State, ex rel., v. Mechem, 31 Kan. 435, 2 Pac. 816, this court rejected exactly the same contention with reference to the office of county attorney. The pertinent provisions of the two statutes are the same: Section 19-715, G. S. 1935, provides: “In case of vacancy in the office of county attorney, by death, resignation or otherwise, the judge of the-district court shall appoint a county attorney, who shall give bonds, take the oath, and perform the same duties as the regular county attorney, and shall hold his office until a successor shall be duly elected and qualified.” (Italics supplied.) It is true that in the case of county attorney the district judge and not the governor makes the appointment, but the words relied upon here by appellee — “until a successor shall be elected and qualified” — are precisely the same in both statutes. In the Mechem case the district judge appointed Welsh in July, 1883, to fill a vacancy caused by the death of the incumbent; at an election in November, 1883, Mechem was elected and took office at once. In an action in quo warranto Welsh asserted that he was entitled to hold the office until the end of the term to which his predecessor had been elected and that Mechem’s occupancy of the office was unlawful. He made the same argument that appellee now makes. Interpretation of the same statutes as are here before us was at issue, including what is now section 25-312 and which has remained unchanged. The court also called attention to section 59, chapter 25, of the Laws of 1879, which has not been changed and which is now section 25-314, G. S. 1935, and is as follows: “Any of said officers that may be elected or appointed to fill vacancies may qualify and enter upon the duties of their office immediately thereafter, and when elected they may hold the same during the unexpiredi term for which they were elected, and until their successors are elected and qualified; but if appointed, they shall hold the same only until their successors are elected and qualified.” (Italics supplied.) Referring to the latter statute the court said: “It was the evident intent of the legislature to provide that where officers are elected to fill vacancies, they are to hold during the unexpired term of the former incumbent; but if appointed, they are not to hold for the unexpired term, but only until their successors are elected and qualified.” In the opinion in the Mechem' case the court quoted from Hagerty v. Arnold, 13 Kan. 367, where Mr. Chief Justice Kingman speaking for the court said: “It.is the general policy of the constitution that the people shall elect the officers, and this policy is the one adopted by the legislature.” Also quoted was the statement in Rice v. Stevens, 25 Kan. 302, that “The theory of our law is that officers shall be elected whenever it can be conveniently done, and that appointments to office will be tolerated only in exceptional cases.” Similar statements have been made in many subsequent cases. But the decisions for one reason or another not being definite authority on the question before us they need not be cited. We find no reason for departing from the statutory interpretation made in the Mechem case. Under that interpretation, which we believe do be-sound', •.■appellee-‘«>a«'-oniyi''entitled ‘to serve -under the-appointment until a successor elected at the next general election in November, 1944, was ready and able to qualify; and that appellant was duly elected to an unexpired term covering the period between such election and the beginning of the next regular term on January 8, 1945. This conclusion makes it unnecessary to consider other questions raised. The judgment is reversed, with directions to dissolve the injunction and to enter judgment for the defendant for costs. Burch, J., not participating.
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The opinion of the court was delivered by Burch, J.: The question presented for consideration is whether a clause in a will created a joint tenancy or a tenancy in common. The action was brought for the partition of certain land and the issues were submitted to the district court upon a stipulation. The district court held that a joint tenancy was created by the will and from such ruling the appeal was perfected. A short statement of the essential facts follows. On August 20, 1901, Henry Householter, Sr., executed the will in question. Such will was written by M. Y. B. Sheafor, who had served one term as probate judge of Cloud county, Kansas, in 1889 and 1890. A little over a year after the will was executed the testator died and the will was admitted to probate, without contest, and became final and effective by the ordinary administration of the estate. Henry Householter, Sr., left surviving him four children, whose mother was his first wife; also his second wife, Elizabeth, and two sons of whom she was the mother. The litigation is between the two sons last referred to and arose after the death of their mother. The will, which was written in longhand, reads in substance, as follows: “. . .1 Henry Householter . . . being of mature age and of sound disposing mind . . . realizing the' uncertainty of life and the certainty of death . . . hereby make, declare and publish this my . . . will and testament. “That is to say that I Henry Householter ... do give, devise and bequeath my estate, real and personal, as follows . . . “1st. I desire that all my just débts shall be paid. “2d. I give devise and bequeath to my daughter Déla Hartbank now living in the state of Illinois and my son Harley M. Householter now living in Nebraska jointly the following described real estate to wit. [certain described land]. “3d. I give devise and bequeath to my son Lue Householter now living in Kansas and my son Edward Householter now living in Arkansas, jointly, [certain described land] to have jointly. “4th. I give devise and bequeath to my son Henry Householter the following real estate to wit [certain described land] to have jointly. “5th. I give devise and bequeath to my beloved wife Elizabeth or Lizzie Householter and my little boy Fried Householter jointly the following real estate to wit [certain described land], I also give devise and bequeath to my said wife and my said son Fried jointly [certain described land], I also give devise and bequeath to my said wife and my said son Fried all my personal property consisting of horses, cattle, hogs, in fact all live stock of every kind and nature that I may own at the time of my death. Also all other personal property of every kind and description that I may own at the time of my death. “And in this making, declaring and publishing this my last will and testament, I hereby revoke and declare null and void all other and former wills or will which I may heretofore made and in order to the end that this my last will and testament may be fully provided for in the due full and complete execution thereof. I hereby appoint my son Lue Householter executor of this . . . my last will and testament and it is my further desire that my said son shall not be required to give a bond as the executor. . . .” (Italics supplied). The will was attested by two witnesses in compliance with the statute. One of the witnesses was the scrivener hereinbefore named, M. V. B. Sheafor. The portions of the will which have been deleted herefrom, for the purpose of brevity are largely repetitious, superfluous and of no aid in considering the intent of the testator or of the writer of the instrument. We are concerned primarily with the proper construction which should be given to the fifth paragraph of the will. If paragraph five created a joint tenancy between the testator’s surviving wife and his little boy, Fried, then, as a matter of law, upon the death of either of them, the survivor would become the owner of all of the real property devised by the testator in such paragraph. If the paragraph created a tenancy in common, then, upon the death of either of them, the right of ownership would not accrue to the survivor but would descend to the heirs or pass by will to the devisees of the deceased. In the present case the widow, Elizabeth, survived her husband about thirty-seven years and died intestate on November 11, 1939. During such thirty-seven years she received all of the income from the land in question. She never remarried and left as her sole heirs the appellant, Henry Householter, and Fried Householter, who with his wife appear as the appellees. The appellant contends that as one of the surviving heirs of his mother, Elizabeth, he inherited a one-fourth interest in the involved land. Such a result would follow if the fifth paragraph of the will created a tenancy in common and not a joint tenancy. ' Early in the history of the common law of England joint tenancies were favored and constructions creating tenancies in common were looked upon with disfavor by the courts. Today the courts in England and in most of the states of our Union look with disapproval and discountenance upon any construction favoring the creation of a joint tenancy as distinguished from a tenancy in common. During the period when such a metamorphosis of the law occurred, the legislature of our state in May, 1891, passed what is now G. S. 1935, 22-132, which, in substance, abolished joint tenancy and survivorship in cases wherein they resulted by operation of law. Joint tenancies were not abolished by the statute, however, and in instances wherein the language used in the grant or devise makes it clear that a joint tenancy was intended to be created, the courts are bound to give it effect and they have no authority to deprive the parties of their right to' convey or devise property in such manner as they may desire under the law. A recent careful consideration of the general rules relating to legal construction of instruments creating a tenancy in common or a joint tenancy will be found in the opinion of this court written by Mr. Justice Wedell in the case of Bouska v. Bouska, 159 Kan. 276, 153 P. 2d 923. Courts, in furtherance of favoring constructions creating tenancies in common, have held that the mere use of such terms as “jointly” and “joint property” are not sufficient standing alone to create a joint tenancy and such is particularly true where it is apparent from other provisions of the will that the phraseology employed by the testator was not used in a technical sense or when other words inserted in the instrument indicate that the parties who were to hold the estate “jointly” could convey or devise the same and thus defeat or destroy the right of survivorship. (See Weber v. Nedin, 210 Wis. 39, 246 N. W. 307; Overheiser v. Lackey, 207 N. Y. 229, 100 N. E. 738, Ann. Cas. 1914C 229; Rodney v. Landau, 104 Mo. 251, 15 S. W. 962.) Other courts have held that such terms cannot be ignored and that it is improper for courts to excise or delete them from a document. (See Case et al. v. Owen et al., 139 Ind. 22, 47 Am. St. Rep. 253, 38 N. E. 395; also Regnier v. Regnier, 122 Kan. 59, 251 Pac. 392; 14 Am. Jur. 85, § 13; and 26 C. J. S. 428, note 24.) The controlling rule for the interpretation of wills which cannot be modified or diminished is that the intention of the testator must prevail. If the intention of the testator can be determined from the will itself it is unnecessary and often improper to give consideration to any other element. Correlating questions, however, often ■inject themselves into such controversies. In the present case a question occurring in conjunction with the execution of the will arises as to whether the testator intended to use the word “jointly” in a technical sense. In some instances if such a -word be used by a layman unfamiliar with technical distinctions, it may be insufficient. If the term be used, however, by one cognizant of its legal significance, courts are obliged, in most instances, to construe its use in accordance with its technical meaning. Also courts ordinarily will not indulge in the presumption that the testator acted without advice or learning in drafting his will. (See 28 R. C. L. 233, § 193, citing Edgerly v. Barker, 66 N. H. 434, 31 A. 900, 28 L. R. A. 328.) Applying the foregoing general principles to the present case results in the following observations: It is apparent that the will was drawn by someone who was more or less familiar with the technical meaning of the language used. The trial court made a special finding in its comprehensive and commendable memorandum opinion, reading as follows: “The context and language of said will as a whole exhibits a fair understanding of form, language and legal terms common to instruments of like character prepared by persons having legal training and experience.” It is true that the will was drawn by a party who was not a lawyer but such party had served as a justice of the peace, and also as a probate judge in 1889 and 1890. As hereinbefore set forth the legislature passed in May, 1891, an act which abolished joint tenancies and survivorship in cases where they resulted by operation of law. In such circumstances it is reasonable to presume that a man who had served as a probate judge in the year preceding the creation of the statute probably would have been cognizant of the legislation and more or less familiar -with the general subject of joint tenancies as distinguished from tenancies in common. Counsel for the appellant insist that the finding above set forth was not justified and that a reading of the document involved discloses that the drawer thereof didn't have any legal knowledge because he used the word “bequeath” in devising real property and the word “devise” in bequeathing personal property. Such indiscriminate usage is rather common. (See Breen v. Davies, 94 Kan. 474, 146 Pac. 1147.) Counsel for appellant also call our attention to improper phraseology, misspelled words, improper use of capital letters in the will and direct our attention, in particular, to the fact that in paragraph four of the will the devise is to but one person — “My Son Henry” — and that it concludes with the words “to have Jointly.” Such a circumstance can be accounted for readily when we realize that the will was drawn in longhand and that the phrase may have been added inadvertently to the wrong paragraph. When we consider, however, that the word “jointly” was used in the second, third and fifth paragraphs of the will, apparently advisedly, and that it was not used in that part of the fifth paragraph which bequeathed to the widow and the ap pellee, Fried Householter, the personal property, it becomes apparent that the drawer of the instrument probably used the term with full realization of its legal consequence. If this court should excise from the fifth paragraph of the will the word “jointly” in the two instances in which it is used in such paragraph, it would follow, as a matter of consistent legal logic,-that it should be excised also from paragraphs two and three, which would result in our deleting the term five times from the document. We would be changing entirely the legal significance of an instrument created forty-five years ago without any satisfactory explanation of why the term “jointly” was used. The more reasonable probability is that the term was used five times in the will with the intention on the part of the drawer of the instrument to have the word considered as significant from a technical standpoint. We cannot indulge in the presumption that, the testator executed ,the instrument containing such a repetition of the word “jointly” without having had some explanation made to him of its legal significance. If such reasoning be sound, then the intention of the testator clearly appears from the wording of the will, no ambiguity develops therein, and all else must yield to his expressed intent. Many other questions concerning equities, ambiguities, family understanding and laches have been presented and briefed by the respective counsel for the litigants but in view of our conclusion that the word “jointly” was used intentionally in a technical sense by the testator and the drawer of the instrument, it is unnecessary to give consideration to such extraneous questions. One other question is presented which must have our consideration. Counsel for the appellant contend that the district court should have allowed them attorneys’ fees even though they represented the unsuccessful party in the case. They assert that the sole question to be decided is the proper construction of a will and that without a decision on such question, the appellees would have been unable to perfect title to the involved real estate. In support of their contention they cite Singer v. Taylor, 91 Kan. 190, 137 Pac. 931, and other cases. In the present case, however, the appellant sought the recovery of a specific interest in described land. The appellees were forced involuntarily to uphold a will which did not appear on its face to be ambiguous. No estate or trust fund was benefited by the litigation. From a standpoint of construction and equity there appears to be no more reason why the appellees should pay attorneys’ fees to counsel for appellant than the other devisees named in the will even though they were not parties to the action. The appellant sought to recover for his personal benefit — not for the benefit of all. parties incidentally concerned with the litigation. In such cases attorneys’ fees ordinarily are not properly allowed to counsel for the unsuccessful party. (See Bartlett v. Mutual Ben. Life Ins. Co., 358 Ill. 452, 193 N. E. 501, and annotation in 142 A. L. R. 1459.) Counsel for the litigants in this case should be complimented upon the manner in which the case was tried and the candid helpful briefs filed in this court. The judgment of the district court is affirmed.
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The opinion of the court was delivered by Harvey, C. J.: This was a habeas corpus proceeding in which the trial court denied the writ. The petitioner has appealed. The facts disclosed by the record may be stated as follows: In April, 1945, there was pending in the district court of Sedgwick county, Division No. 2, Hon. Robert L. NeSmith, judge, a case entitled State v. Albert E. Reed, in which defendant had been charged with a misdemeanor, had entered a plea of guilty, and had been paroled. It was one of the conditions of his parole that he should report to the court on the first day of each term of court pending the- duration of the parole. At the time of his parole he had given the court the name of his mother-in-law, Hattie Hill, and her address and telephone number, as the person to call in making any inquiry of him. Under a statute (Laws 1945, ch. 182) then in force, the bailiff of each-division of the district court in Sedgwick county acts as a parole officer for such division. His duties as such parole officer are to assist the judge in having the provisions of paroles and probations fully complied with. On the opening day of the April, 1945, term of the court Albert E. Reed did not report, as required by his parole, and the judge of the court instructed his parole officer, Mr. R. M. Glass, to ascertain Reed’s whereabouts. The parole officer attempted to do so, without success, and later- filed an affidavit as to what occurred, which disclosed that he called Hattie Hill on the telephone, and recites: “Said affiant further states that Hattie Hill answered said phone and before he could inquire relative to the' whereabouts of said above named defendant, Albert E. Reed, said phone was jerked or taken from the hands of said Hattie Hill by a man whose name, so this affiant is informed and believes, and therefore, asserts the fact to be, Thurston Gambrell, of Hutchinson, Reno County, Kansas, that said Thurston Gambrell used vile and abusive language toward this affiant and among other things, stated, before affiant could inform said Thurston Gambrell who he was, or why he' had called — ‘What the hell do you want with him?’; that said Thurston Gambrell talked in a loud and apparently violent tone, refusing to permit affiant' to state the reason he was calling, and finally stated: ‘Go to Hell’ and hung up the receiver.” ’The affidavit further stated that the 'actions and remarks of Gambrell constituted contempt of court, and prayed that an attachment or other legal process be issued for him to be brought before the court, there to be proceeded against for contempt. Upon the filing of this affidavit an attachment was issued by the clerk of the court, directed to the sheriff of Reno county, commanding him to attach Gambrell and have him brought before the court to be then-and there proceeded against for contempt, ás shown by the affidavit of the parole officer. Gambrell was brought before the court and the proceedings there-are shown by the following order: '“Now on this 23rd day of April, 194’5, the above matter comes on for hearing upon the affidavit of R. M. Glass accusing Thurston Gambrell of contempt of court as set forth in the affidavit heretofore filed, said R. M. Glass appearing in person; Thurston Gambrell appearing in person. “Thereupon, the court inquired of Thurston Gambrell if he desired to file an answer to the accusation set forth in the affidavit, or desired to employ counsel to represent him, and upon being informed by said Thurston Gambrell that he did not desire counsel nor did he desire to file an answer, said matter proceeded to trial. “Thereupon the evidence of R. M. Glass, parole officer of the above named court, was introduced in evidence, and the testimony of Hattie Hill heretofore given was also introduced in evidence: Thereupon said Thurston Gambrell informed the court that his name was Thurston Gambrell, and said Thurston Gambrell introduced his evidence and rested; and the court, having heard the evidence, and being fully advised in the premises, finds: “That said Thurston Gambrell is in contempt of court. “It Is Therefore Ordered, that said Thurston Gambrell be taken by the sheriff of Sedgwick county to the Sedgwick county jail and there to be confined for a period of twenty (20) days.” Gambrell was committed to jail by virtue of the order, and soon thereafter filed his petition for a writ of habeas -corpus for his discharge, alleging that he was unlawfully restrained of his liberty by the sheriff and that the imprisonment was illegal and void for the reason that he was not a party to the case of the State v. Reed, was not under a process, order or obligation of the court or parole officer, and that the court had no jurisdiction in the contempt proceedings. This petition was assigned to Division No. 3 of the court, Hon. Clair E. Robb, judge, who issued a writ to have Gambrell brought before him. After a hearing, at which the petitioner appeared in person and by counsel and the parole officer appeared in person and by an assistant county attorney, an order was made which recited those facts, and continued, “and the court, having examined into the pleadings, finds that the writ of habeas corpus ■ should be denied.” The petitioner promptly appealed and was permitted to give bond in the sum of $200 pending the appeal. In support of the judgment of the court below denying the writ of habeas corpus it is argued that the contempt for which the petitioner was committed to jail was a direct contempt as distinct from an indirect contempt, and that the procedure outlined in the statute (G. S. 1935', 20-1203) was substantially complied with. We think neither point is well taken. The statute (G. S. 1935, 20-1202) reads: “That contempts committed during the sitting of the court or of a judge at chambers in its or his presence, are direct contempts. All others are indirect contempts.” The petitioner here was not in court during a sitting of the court, nor before the judge at chambers, and no complaint is made of anything he did in the presence of the court or judge. Hence, there was no direct contempt. And G. S. 1935, 20-1203, which prescribes the record to be made upon a hearing for direct contempt, among other things, provides: . : if the court or judge in chambers shall adjudge him guilty thereof a judgment shall be entered of record, in which shall be specified the conduct constituting such contempt, with a statement of whatever defense or extenuation the accused offered thereto, and the sentence of the court thereon.” The order of the court on the contempt proceedings contains no statement of the conduct constituting the contempt, neither does it contain a statement of whatever defense or extenuation the accused offered thereto. These matters are jurisdictional and the absence of them renders the order void. (See Wallace v. Weber, 134 Kan. 201, 5 P. 2d 855, and cases cited therein.) Neither was the procedure relating to indirect contempts outlined by G. S. 1935, 20-1204, followed in full. No accusation was filed and no time given for the accused to answer. Neither was the evidence preserved. The order does state certain witnesses whose testimony was considered, but the testimony, or its substance, is not set out. Possibly the accused could have waived the filing of a formal accusation, but we do not have that question before us and it is not clear that he did so. The statute (G. S. 1935, 20-1205) provides for review of contempt proceedings on appeal. In part it reads: “That the testimony taken on the trial of any accusation of contempt shall be preserved, and any judgment of conviction therefor may be reviewed.” In this- case the testimony was not preserved, hence the opportunity to have it reviewed on appeal was frustrated. Cases have reached this court, both on appeal and by habeas corpus. Because of the inadequacy of the record in this case the accused was justified in proceeding by habeas corpus. It has been held that habeas corpus by one committed for contempt raises jurisdictional questions only. Contempt is a proceeding somewhat arbitrary at the best, and the absence of essential proceedings in the record constitutes a showing of the lack of jurisdiction. Counsel for appellant contends that the matter complained of does not constitute either direct or indirect contempt. When that question is raised the court has authority to examine the contemptuous language or acts and determine whether or not they are sufficient to -constitute contempt. (See 39 C. J. S. 543, and cases there cited.) Without restating the language and conduct set forth in the affidavit of the parole officer we are convinced that it did not constitute contempt of the court, either direct or indirect. The petitioner never knew who it was talking to him, or that he held any official position; nor did he understand what it was the person talking to him wanted. That may or may not have been the petitioner’s fault, but the most we can see in the statement of his conduct and language is that he was discourteous to someone he did not know and who wanted to talk to him about some matter that he could not understand and which the person desired to talk about. The result is that the judgment of the court below must be reversed with directions to discharge the prisoner. It is so ordered.
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The opinion of the court was delivered by Hoch, J.: This was an action to recover damages for personal injuries received in a fall alleged to have been caused by a defect in a sidewalk. The plaintiff prevailed and the defendant city appealed. We must first determine what questions, if any, are here for review. At the close of the opening statement by the plaintiff the defendant moved for judgment on the pleadings and the opening statement. This motion was based upon variance between certain allegations of the petition and the opening statement as to the exact location and nature of the alleged defect in the sidewalk. Instead of ruling directly upon the motion the court permitted the plaintiff to amend the petition to conform to the opening statement, and the defendant then amended its answer, instanter. At the close of the plaintiff’s evidence the defendant demurred to the evidence. The demurrer was overruled on September 19, 1944. The case proceeded and verdict for $2,500 was returned in favor of the plaintiff. The jury also answered special questions. On September 19, 1944, judgment for plaintiff was entered. Two days thereafter, on September 21, 1944, the defendant filed a motion to set aside certain answers, also a motion for judgment on the answers notwithstanding the general verdict, and a motion for a new trial. When the motions came on for hearing the defendant announced that the only grounds which it cared to .urge were those which had been submitted in argument on the demurrer to the evidence. The motion for judgment on the pleadings and opening statement, the motion to set aside certain answers to special questions and the motion for judgment non obstante veredicto having thus been abandoned in the trial court they are not open for review here (State Bank of Stella v. Moritz, 146 Kan. 23, 24, 69 P. 2d 15). The motion to set aside answers and the motion for judgment were then overruled, as was the motion for a new trial, on October 14, 1944. Notice of appeal was filed on November 22, 1944. It thus appears that the notice of appeal was filed more than two months — the period within which appeal can be taken, undei; the statute (G. S. 1943 Supp. 60-3309) — after the demurrer was overruled, and after the judgment was entered. The appeal statute is controlling and we cannot entertain appeals filed' out of time. (In re Estate of Pennington, 154 Kan. 531, 532, 119 P. 2d 488; Achenbach v. Baker, 157 Kan. 292, 294, 139 P. 2d 407; Palmer v. Helmet, 159 Kan. 647, 650, 157 P. 2d 531.) Timely appeal having been taken from the order overruling the motion for a new trial there would be presented for review any trial errors as to which no independent appeal could have been taken. But the only such error assigned is the order overruling the motion for judgment on the pleadings and opening statement, and as already noted this was abandoned in the trial court when the motion for a new trial was presented. We may say, however, with out discussing the matter in detail, that even if the ruling were open to review it would not constitute error for the reason that acting within its discretion the trial court permitted amendment of the petition, the defendant then amended its answer, and it is clear from the record that defendant’s interests were not prejudiced. The ruling on the demurrer, being appealable under the statute (G, S. 1935, 60-3302 Second), cannot now be reviewed, in view of the facts above stated. A demurrer to the evidence presents solely a question of law and we have repeatedly said that in the case of an appealable order presenting a question of law only there is no occasion for a motion for a new trial. (Achenbach v. Baker, supra.) A motion for a new trial in such a case cannot extend the time within which appeal may be taken. (In re Estate of Badger, 156 Kan. 734, 740, 137 P. 2d 198.) The ruling on the demurrer would have been reviewable under the statute (G. S. 1943 Supp. 60-3314a) even though no independent appeal was taken therefrom if timely appeal had been taken from the judgment. (First Federal Savings & Loan Ass’n. v. Thurston, 148 Kan. 88, 89, 80 P. 2d 7.) But such appeal from the judgment was not taken. The precise question of review here presented aS to the ruling on the demurrer — and that is the alleged error upon which appellant principally relies — was considered in the recent case of Stinson v. McConnell, 160 Kan. 1, 159 P. 2d 406, and we held that an order sustaining or overruling a demurrer to the evidence cannot be reviewed unless an appeal is taken within two months thereafter, oían appeal is taken from the judgment within two months after the judgment was entered, even though the ruling on the demurrer was assigned as error in a motion for a new trial, filed after judgment, and timely appeal was taken from an order overruling the motion for a new trial. In line with that decision the instant appeal must be dismissed on the ground that no question is presented which is open to review. It is so ordered.
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The opinion of the court was delivered by Thiele, J.: This was an action to recover on certain mortgage bonds. Plaintiff’s demurrers to the answers of the corporate defendant and of the individual interveners were overruled and he appeals. Omitting matters not material to the appeal, the pleadings disclosed the following: In his petition plaintiff alleged he was the owner of Third Mortgage Gold Bonds issued by the defendant The Southwestern Sanitarium Company, hereafter referred to as the corporation, dated December 31, 1928, and due January 1, 1939, in the principal amount, of $18,287.50; that the bonds were issued under a deed of trust, duly recorded, between the corporation and The Wheeler-Kelly-Hagny Trust Company. -A copy of one of the bonds, with ten annual interest coupons, and identical with the others except for amount, was attached as an exhibit. Plaintiff alleged the amount of principal and interest due and prayed judgment for that amount. It is here observed the plaintiff did not seek in any manner to have foreclosure under the deed of trust. In its answer the corporation admitted execution of the bonds and alleged that all interest coupons prior to January 1, 1939, were barred by the statute of limitations; that it was formerly a corporation for profit with a capital stock of $40,000 and was converted into a nonprofit charitable corporation for the purpose of conducting an osteopathic hospital and the original common stock was exchanged for an issue of $100,000 par value of third mortgage bonds; that under the bylaws the members of the corporation should be the holders of said bonds and each member should have one vote for each $100 of the par value of the bonds held by him; that Dr. H. C. Wallace, husband of Cora C. Wallace and father of Velma Bernic.e Purpus and of the plaintiff died November 13, 1939, the holder of $66,100 of the par value of said third mortgage bonds and under his will one-half thereof was bequeathed to his widow and one quarter each to his two children; that a controlling interest in said bonds was held by Doctor Wallace to make sure the hospital would be maintained and operated, and in order to preserve the corporation and the conduct of the hospital and to protect their interests the plaintiff and his- mother and sister entered into a contract for the placing of said bonds with Wheeler-Kelly-Hagny Trust Company, where they were to remain for fifteen years. A copy of this contract was attached to the answer and is later mentioned. It was further alleged that except for one $50 bond, all bonds were still held in escrow. Then follows an allegation that plaintiff, his mother and sister held $75,000 of the third mortgage- bonds with attributes of ownership, membership and voting powers, and it is to their interest the functions of the corporation continue and that it be not disorganized and its property depreciated and dissipated, and that the agreement inures to the benefit of the defendant corporation by reason of the pro visions of the contract; that the maintenance of the present action is in effect a violation of the contract in that granting plaintiff judgment would be a discontinuance of plaintiff’s ownership in the bonds and a withdrawal of the same from the escrow, a discontinuance of the voting power thereof and of the rights of membership connected therewith, and would deprive the other parties to the contract of any participation in such rights granted to them by virtue of the contract in reciprocation of the rights granted by them in their bonds and the incidents thereto. Then follows an allegation that plaintiff should not be permitted to violate the contract and that the mother and sister should be permitted to intervene. It was further alleged in the answer that while the bonds became due January 1, 1939, and would have outlawed on January 1, 1943, defendant and all owners of bonds except plaintiff were willing to extend the maturity thereof, and upon plaintiff’s refusal to agree-, the corporation acknowledged in writing the indebtedness due on the bonds and delivered plaintiff a signed copy; that two installments of interest have subsequently been paid and the liability on said bonds renewed for a period of five years, and the corporation is informed that all holders except the plaintiff are willing that the bonds be renewed and the maturity extended. After setting forth the bylaws as to voting rights, it is further alleged that in view thereof, the existence of the corporation depends upon the existence and continuance of the third mortgage bonds, and it was not the intent of the holders of the common stock when exchanged for third mortgage bonds, nor of the holders of said bonds, that the bonds should be liquidated or foreclosed or reduced to judgment without the holders of one-third of said issue requesting the trustee to foreclose the same as provided in the deed of trust securing the bonds; that said bonds were issued under and are governed by the provL sions of said deed of trust and the holders of one-third of said bonds have not requested action on said bonds by the trustee or for foreclosure and plaintiff is not authorized to maintain an action on the bonds. We note there is no further statement as to the conditions of the deed of trust and no copy is made a part of the pleading. The application of Cora C. Wallace and Yelma Bernice Purpus to intervene and defend was allowed and they filed their answer. So far as is now material, their answer raised substantially the same defense as did that of the corporation. A.copy of the con tract between them and the plaintiff was made a part of their answer. The contract referred to in the above answers is dated February 1, 1940, and is by and between Cora C. Wallace, John Herbert Wallace and Velma Bernice Purpus, and no other person. It contains seven “whereas” clauses in which it is noted that the parties are legatees under the last will of Herbert Wallace, who bequeathed to them his personal property including $66,100 of the par value of the third mortgage bonds above mentioned and also $7,000 of the second mortgage bonds of the same corporation. After noting that certain of the parties individually owned first.and third mortgage bonds of certain amounts and that they would receive others of the third mortgage bonds upon final distribution of the Herbert C. Wallace estate and that the voting power of the corporation was vested in the holders of the third mortgage bonds, it was stated to be the desire of the parties to the contract that said bonds should remain the property of the parties for a period of fifteen years from the' date of the contract, except only such bonds as should be previously paid off. It was then agreed that in consideration of their mutual promises, all of the bonds then held or subsequently purchased by any of the parties should be placed in escrow with The Wheeler-Kelly-Iiagny Trust Company, to be held by the escrow agent during the fifteen years under certain conditions for surrender not necessary to be noticed. The ninth paragraph of the contract provided that during the period of fifteen years none of the parties should sell his or her bonds to any other person than one of the other parties without all of the parties consenting to the sale and the escrow agent was directed and instructed not to release any of said bonds from escrow during said period without being so authorized. Then followed extensive provisions for the voting of said bonds by the unanimous agreement of the parties and for an arbiter in the event they could not agree, it being provided, however, that insofar as voting for directors was concerned if the parties could not unanimously agree, each was granted the power to vote one-third of the bonds for himself or herself as director, notwithstanding he did not own that amount of the bonds. Further provision was made that if the bonds were refunded or substituted by a new issue of bonds carrying with them membership and voting power, the agreement should continue in force and effect as to such new bonds and such new bonds were to be placed with the escrow agent to be held and delivered under the terms of the agreement. Provision was also made that the incompetency or death of any one of the parties should not terminate the contract but the legal representative was vested with the same rights, privileges and obligations as the party himself had under the contract. Under the seventeenth clause of the contract it was provided that upon the expiration of said fifteen years, or upon the termination of the agreement if the same should be sooner terminated, all of the bonds then in escrow should be distributed by the escrow agent to the parties entitled as the owners thereof. Further provision made the rights, benefits and obligations existing under the contract extend to and be binding upon the heirs, legatees, personal representatives of the parties and the assignees where assignment is permitted. The last paragraph is a statement of the amount of bonds held by each of the individual parties. Endorsed on the contract is a consent of the escrow agent to act and a receipt for the several bonds mentioned in the contract. The plaintiff demurred separately to the answers of the corporation and of the interveners, and those demurrers being overruled he perfected his appeal in due time. His specification of errors includes error in permitting the intervention and error in overruling the demurrers. For convenience we shall refer to the parties as they appeared below. In his brief, plaintiff states that it may have been a proper exercise of discretion by the trial court to permit the intervention, but the answer filed by the interveners disclosed no right on their part to ask that plaintiff be denied relief. In view of that concession and of the fact that no contention is made that the allowance of intervention was erroneous, we shall not discuss further the first specification of error but shall confine ourselves to whether the answers stated a defense. In a general way plaintiff contends the contract pleaded in the answers was not for the benefit of the corporation, and it may not take advantage thereof, but it cites no authorities in support. The contract is later discussed but it may be remarked here that if the contract be construed that the interveners are entitled to urge it to prevent plaintiff’s maintenance of his action, the corporation of necessity does benefit thereby. In connectioñ with the above, plaintiff further contends that if the contract be construed to benefit the corporation, by depriving plaintiff of his right to sue for fifteen years, the agreement is contrary to public policy and in violation of G. S. 1935, 60-306 Seventh, in that it provides for an enlarged statute of limitations. Whether that result follows depends on the terms of the contract, a matter later discussed. Plaintiff’s principal contention is that the contract does not preclude him from maintaining his action. The sum and substance of the argument is that although in one of the “whereas” clauses there is a statement that it is the desire of the parties that the ownership of the bonds remain the property of the parties for a period of fifteen years, there is no provision in the contractual portion to that effect, where the agreement is that none of the parties shall sell any bonds except to the other parties, and that it was not intended that each of the parties should retain all of his bonds for the full period as it is expressly provided either might sell to the others. It is also contended that there is no provision of the contract susceptible of construction as a waiver of plaintiff’s right to sue on his bonds and protect himself, and that there was no waiver by contract of a right to sue. Our attention is also directed to the fact that the parties to the contract do not hold all of the third mortgage bonds, and it is argued either one of the parties ought not to be powerless to protect himself in any action taken by other bondholders. Plaintiff also attacks the agreement as being in apparent violation of G. S. 1943 Supp., 17-3307, which provides that voting trust agreements irrevocable for periods of more than ten years are void, and in support cites Perry v. Missouri-Kansas, P. L. Co., 22 Del. Ch. 33, 191 Atl. 823, where it is said such statutes are mandatory and not to be liberally construed. Some other argument is predicated on what the trustee under the deed of trust which secured the third mortgage bonds may do. That particular argument may be ignored for the trustee named is not a party. We cannot assume in this case that the trustee may not fully perform its duties under the deed of trust. The gist of the argument of the corporation and- of the interveners in opposition is that under the agreement, the parties pooled their interests in the bonds placed in escrow and provided thereafter for joint, and not several, control over them, and under the agreement the substance is that none of the bonds shall be converted, merged in judgment or in effect withdrawn from the escrow without consent of all the parties; that if plaintiff is permitted to reduce his bonds to judgment, any rights under the bonds are merged in the judgment, and by such action plaintiff will ac eomplish .by indirection what he has specifically agreed not to do directly. They also direct our attention to certain cases dealing with contracts held to be for the benefit of a third party. They also answer plaintiff’s contention that the contract creates a voting trust agreement in violation of statute by saying that bonds, not stock, are the subject of the contract and that the statute does not apply. It is not necessary that we devote any time to a discussion of third party beneficiary contracts, for as has been observed, if the interveners may prevent plaintiff’s maintenance of his action, the corporation receives a benefit, even though the contract was not made primarily for its benefit, nor even though it was not intended to benefit it. In our opinion the contract in question does not offend the provisions of G. S. 1943 Supp. 17-3307, as creating a voting trust of deposited certificates of capital stock irrevocable for a period of more than ten years. We shall assume for present purposes that the voting privileges accorded the third mortgage bonds make them the equivalent of shares of stock. The present contract however did not vest in the deposit agent or trustee the right to vote the stock as specified in the statute — that right was expressly reserved to the depositors under the conditions heretofore mentioned. But assuming the statute is applicable, the limitation against irrevocability for a period of more than ten years does not apply where the voting rights granted are coupled with an interest in the shares to which they relate and as defined in the statute. If, under the present contract, any voting rights were transferred to a trustee, the limitation on irrevocability would not apply, for coupled with such voting rights as are mentioned are agreements concerning sale of the bonds (shares) and for their being held as a unit pending the life of the contract. Without further discussion we think the contract may not be stricken down as being in violation of the above mentioned statute. So far as need be the frame of the contract has been set out heretofore and will not be repeated. There is no provision in the contract that specifically states that one of the owners of deposited bonds may not bring an action and reduce his bonds to judgment, and if that were the sole matter for consideration we would be impelled to hold, as contended by plaintiff, that the bond being a contract to pay, he had a right to bring action on his bonds. But as we read and construe the contract, the omission of any provision that would permit or deny any one of the parties from bringing an action on his bonds is not decisive. All of the contract must be examined, what it states as well as what it does not state. The contract does provide a plan for the control of the deposited bonds as a unit, and limits the rights of the parties. All of the third mortgage bonds were due January 1, 1939, and were in default when the contract was made on February 1, 1940. The parties, knowing the bonds were in default, and that any holder was then at liberty to bring an action to protect himself, entered into the contract. We here ignore the provisions of the deed of trust for foreclosure either by a bondholder or by the trustee for we are not advised as to its terms. By the contract in question each party agreed to deposit not only bonds then held by him individually, but also those which he would receive on final settlement of the Herbert C. Wallace estate, to be held in escrow by the named escrow agent, during the fifteen-year period, or a lesser period if so unanimously agreed. The contract specifically provided that neither party, without consent of the other two parties, could sell his bonds to third parties, and the escrow agent was instructed not to release any of the deposited bonds during the period without such consent; and by another provision the escrow agent was directed to hold the bonds for the stated period, unless sooner unanimously terminated, and then to make distribution to the parties. The contract makes it clear the parties intended to pool their interests, and that none could withdraw without consent of the others. This is reinforced by the provisions of the contract covering the event of death or incompetency and by the further provision that rights and obligations under the contract are binding upon the heirs, legatees, personal representatives and assignees, where assignment was permitted, of the parties to the contract. Although the contract is silent on the right of one to bring an action on his bonds, it is clear that each party did deposit his bonds under such circumstances that his ownership and power of disposal were substantially limited. If one be permitted to reduce his bonds to judgment, his status passes from that of bondholder, with accompanying voting rights, to that of judgment creditor with rights pertaining to that status, and the plan for joint control is frustrated. We do not overlook some argument that holders of bonds, other than the contracting parties, may force an action on their bonds, or that in action by the trustee under the deed of trust may prejudice them. But these are arguments only. We have noted the trustee is not a party to the contract, and the deed of trust is not before us. We are not now deciding what result might follow in event of an action by another party. We must assume that the trustee will faithfully perform his duties and whatever the situation may be, if the trustee or some other bondholder forces action, the parties to the contract may protect themselves. The contract made for the deposit of bonds in escrow may not have been wise or provident, but there is no claim now that the parties to it were not competent, nor that anyone was overreached, nor that it is illegal, other than that it is an illegal voting trust agreement, a contention not sustained, and that it is an unlawful attempt to vary the statute of limitations, hereafter discussed. We are of the opinion the interveners had a right to insist upon performance of the contract, and that under its terms one of the parties may not, without consent of the others, bring an action on bonds deposited by him, and thus, by indirection, accomplish his withdrawal from the obligations of the contract. Plaintiff contends the contract is illegal in that it extends the period of the statute of limitations in violation of G. S. 1935, 60-306, Seventh. It may be observed the contract was not made with or for the debtor corporation. Neither does it provide for any limitation of a time to sue nor for any extension of such a period. On the contrary, by their joint action, the parties may exercise any right that they as bondholders have, not merely to bring action on the bonds as such, but to foreclose the deed of trust given to secure payment of the bonds. The contract does contain some provision for substitution of present bonds for new bonds, if they should be issued, and that substitution requires unanimous consent, but we discern nothing in it attempting, to fix any extension of time or any date prior to which the trustee under the deed of trust could not bring an action. The plaintiff’s contention the contract violates the above provision of the code of civil procedure cannot be sustained. The trial court’s order and ruling that the demurrers be overruled is affirmed.
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The opinion of the court was delivered by Harvey, C. J.: This was an eminent domain proceeding by which the city acquired for municipal airport purposes a tract of 151 acres of land owned by the Schamp family. They appealed from the award of the condemnation commissioners, filed May 15, 1943, to the district court, where there was a jury trial which resulted in a judgment in their favor. The city has appealed and argues: (1) That the court admitted incompetent, irrelevant and immaterial evidence and refused to strike the same on motion; (2) that the verdict and judgment are based on speculative testimony as to value, for which reason the city’s motion for a new trial should have been granted. The location of the land involved, the municipal airport, the improvements made thereon, and the industries nearby, are best shown by the accompanying plat. Beginning about 1928 the city established a municipal airport and acquired section 12, shown in the plat, for that purpose, and since then has improved the property and enlarged it by acquiring additional lands in sections 1, 6, 7 and 13, so that it contains about 1,500 acres, and has made of it a large, well-equipped airport. At some time, not definitely stated, two airplane manufacturing companies established factories near the airport. The Cessna Aircraft Company located its plant on the northeast quarter of section 1, and later acquired for its use the north half of section 6. The Boeing Airplane Company located its first plant on the northeast quarter of section 11 adjacent to the airport, and later its second plant south of the first one in the same section, and also acquired forty-five acres in section 14 for warehouse purposes. Beginning about 1940 these factories have been greatly enlarged. We were told at the argument the Boeing has more than 20,000 employees. Housing 1 facilities for employees of the plants were provided by building on section 2 a city known as “Planeview.” A two-lane cement highway, known as George Washington boulevard, was built from the city southeasterly to the municipal airport and the Boeing plant. There is a north-and-south street west of the airport paved thirty feet wide with asphalt, which is intersected at the southeast corner of section 11 by an east-and-west highway paved with cement west to the four-lane highway shown on the plat, and to the east is a graveled road extending along the north line of the Schamp land. There was regular bus service from the business part of the city of Wichita to the airport and to each of the airplane factories. Natural gas, electricity, city water and sewer had been provided for Planeview, the airport and each of the airplane,factories, but these facilities had not been extended to the Schamp land. The above states the general situation early in 1943 when the,city acquired the land in question. In the district court the landowners, whom we shall refer to as plaintiffs, contended that the most advantageous use for which the land taken was adaptable was for industrial or commercial purposes, while the city, which we shall refer to as defendant, contended that its most advantageous use was for farming or dairying. It had previously been used for farming purposes. To sustain their contention plaintiffs called as a witness L. E. Watson, who testified that he was engaged in the real estate business in Wichita and had been since 1916; that he was familiar with the Wichita municipal airport; that he sold to the Cessna Aircraft Company, about 1929, the first land purchased for a factory site in the vicinity of the airport; that he bought for the Boeing people the land for their factory No. 2 site, and also the forty-five acres for its warehouse; that he had acted for the city in purchasing land in sections 7 and 13 for the'enlargement of its airport; that he was familiar with the development of the airport and factory sites about it and with the value of land adjacent to or near the airport, and gave it as his opinion that the plaintiffs’ land was worth $250 per acre in May, 1943; that it was well adapted for industrial or commercial use, and a purchaser might have appeared at any time wanting the land for such purposes. He fixed the value of the land for farming purposes alone at $125 per acre, but 'stated it was worth much more for industrial use. E. R. Shaffer testified that he was a farmer and township trustee; that he lived a half mile east of plaintiffs’ land, was familiar with it, had lived there for twenty-five years; that he had seen the development of the airport and the factory sites about it, that he knew prices paid or asked for land in the vicinity-, and that in his opinion the land was worth $250 per acre; that the most valuable use for which it was adapted was for factory sites, also that it might be used for warehouses or railroad terminals. Hobart Brady testified that he had taken educational work in appraising and determining land values, was a senior member .of the American Institute of Real Estate Appraisers, admission to-which is governed by a minimum of ten years practical experience in appraising, together with an examination and recommendation; that he was a member of the Urban Land Research Institution for the study of such property for utilization of land for industrial and commercial purposes; that he was a mortgage loan correspondent for an eastern life insurance company, which made loans on industrial plants and in that capacity made appraisement of the property on which the loans were made; that he had acted as an appraiser under appointment from the federal court for such properties ; had frequently appraised industrial property for the Missouri Pacific and Santa Fe railways; made similar surveys on behalf of the buyers for the Safeway Stores and Montgomery Ward; that he specialized in industrial and commercial real estate, and that he had made appraisals on three aircraft plants, which were named; that he had been engaged to make an appraisal, as of May 15, -1943, of plaintiffs’ land to determine its fair market value as of that date; that he had examined the land, and he gave it as his opinion that it was then of the value of $237.50 per acre, or a total of $35,625; that in making this appraisement he investigated prices paid for the land in the vicinity of the airport and the volume of traffic in and out of the airport, and examined the studies made by Bartholomew Associates relative to Wichita’s future population growth; had investigated factors which would induce industries to locate adjacent to the airport, the factor of physical limitation of the land which had such adjacency value; that he considered the highest and best use of the land under appraisement, the adequacy of transportation, electricity, water and sewage, the availability of the industrial labor supply, and considered the factor of the reasonable time in connection with the conversion of the property to its best use. He further testified that he considered the highest and best use of the land as industrial use, and that he knew of industries which would be interested in that type of location. He was pressed on cross-examination as to just when an industry might want plaintiffs’ land, and testified that he thought at any time within from five to ten years would be considered reasonably near in industrial real estate. Defendant moved that all of the testimony of this witness be stricken out. The motion was overruled. Ezra E. Beard, a farmer and member of the board of county commissioners, had lived not far from plaintiffs’ land since 1906, was familiar with the development of the airport district, and in most cases with the prices paid for land around the airport and at private sales of land to others than the city. He gave it as his opinion the north half of plaintiffs’ land was worth $250 per acre and the south half of it $200 per acre. It developed on cross-examination that he gave it a higher price and value than if used for farming purposes, which he placed at $125 per acre, because of its use and availability for airport purposes. On motion of defendant that part of his testimony was stricken out. There is no cross-appeal here and the correctness of that ruling is not before us. Defendant called real estate men and farmers familiar with the land, who, while they differed somewhat in details, in general it may be said that they testified that the land was worth from $60 to $75 for agricultural purposes, but that it had an additional value because of its location, which made it worth $125 per acre. The court’s instructions, none of which was objected to, properly defined the issues, told the jury plaintiffs were entitled to the fair market value of the land taken, determined according to the most advantageous use which could have been made of it at the time it was condemned unaffected by conditions prior or subsequent thereto, and properly defined terms used. At defendant’s request the court gave an instruction properly defining speculative value, and which included the following: “While the investment value of the land in question may be taken as a criterion for arriving at its fair market value, yet this is true only insofar as evidence as to the investment value is not a matter of guesswork and conjecture. Damages cannot be based upon mere guesswork or conjecture on the part of witnesses. In determining, the fair market value of the land in question, you are not to consider fanciful uses to which the land is not naturally adapted, nor are you to consider its value for purposes which are based on speculation.” The court submitted to the jury two special questions which, with their answers, are as follows: “1. Q. What was the most advantageous use for which the 151-acre tract of the plaintiff was adaptable on May 15, 1943? A. Industrial. “2. Q. What do you find to be the fair and reasonable market value for the most valuable use to which it was adaptable, of the 151 acres taken by the city of Wichita, as of May 15, 1943. A. $200.00 per acre or $30,200.” Defendant filed a motion to set aside the answer to special question No. 2 and to set aside' the verdict and grant a new trial. This motion was considered and overruled and judgment was rendered for plaintiffs on the general verdict, which was in harmony with the answers to the special questions. Defendant, as appellant in this court, argues that the court permitted incompetent, irrevelant and immaterial testimony and refused to strike the same on motion. The point is not well taken. Defendant made no objection to the testimony of plaintiffs’ wit: nesses Watson and Shaffer. Its only objection to the testimony of the witness Beard was sustained. Its motion to strike out “all of the testimony” of the witness Brady was properly overruled. Aside from the testimony respecting his qualifications he was careful in his direct examination to make it clear that his opinion of the value of the property was of the date of May 15, 1943, and that the property was adaptable to industrial use at that time; that a purchaser for it at that time, or soon thereafter, for such purposes was likely to be found. On his cross-examination he was led into the expression previously set out, which was that in the development of an industrial property within a period of five to ten years would not be unreasonable. But this did not disclose that he was fixing a valuation of the property at five to ten years in the future. He had already fixed it at a previous date. Appellant’s contention that a new trial should have been granted because the verdict of the jury was based on speculative testimony as to value is equally untenable. The court was careful in its in structions to guard against any possibility of that. Appellant does not question the rule of law embodied in the court’s instructions that plaintiffs were entitled to have the property valued upon the basis of the most valuable use to which it was adaptable. It wTas the contention of plaintiffs at the trial that such most valuable use was for industries. All of the witnesses called, those for defendant as well as for plaintiffs, testified that it had at the time of the condemnation a value for use in addition to its use for agricultural purposes. Answering special question No. 1, that the most advantageous use for which plaintiffs’ land was adaptable was industrial, defendant did not move to set aside that answer. It is not now in position to say that the answer was not sustained by competent, substantial evidence. The legal principles involved in the proceedings are well established and are not' controverted here. Appellant cites and relies heavily upon our decision in Glover v. State Highway Comm., 147 Kan. 279, 292, 77 P. 2d 189. In that case the owner of land condemned for highway purposes testified that when he purchased the land he had in mind that some day he would lay it out as an addition to Kansas City. It was several miles west of the city. Some of the additions to the city, laid out much closer to the city than the land in question, had proved to be too far out to be financially profitable. There was no testimony from any other source that the land then being considered had an added value at the time it was taken by the highway commission because of its location for future platting. The case is not helpful to appellant here. Appellant cites some cases from other states where the suggested added value in the development for industrial purposes was too remote to be taken into account, and the appellees cite a number of cases from other jurisdictions where such matters were taken into account because the evidence disclosed reasons for the added value. .We see no purpose in citing and analyzing these cases. After all, this is largely a fact case. The witnesses had different opinions as to value. The verdict of the jury was not extreme either way. It was approved by the trial court. We find no reason to disapprove it. To do so would be to substitute our judgment for that of the triers of fact. The judgment of the court below is affirmed. Burch, J., not participating.
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The opinion of the court was delivered by Hoch, J.: This was an action to quiet title to real estate. The controversy centers on the proper construction of a devise in a will. The plaintiff contended that the devise gave her a fee tail estate which by subsequent conveyance and a reconveyance to her had ripened into a fee simple title. Certain defendants contended that the devise gave her a life estate only. The plaintiff prevailed and the defendants appealed. Imkea Goellert Handevidt, a resident of Thomas county, died testate on December 16, 1936. Her will, which was executed on March 1, 1935, contained numerous bequests and devises, mostly to her sons, daughters and grandchildren. Paragraphs fourth and fifth of the will have heretofore been before us for construction, but the issues in that case have little, if any, bearing upon those here presented. However, the opinion in the former case (Alexander v. Goellert, 153 Kan. 202, 109 P. 2d 146) contains a preliminary narration of facts and circumstances that would be pertinent here but need not be repeated. The provision of the will here at issue is paragraph sixth, which reads as follows: “I give, devise and bequeath to my daughter, Emma Morehead, a Life Estate in and to my residence property, more specifically described as lots 16, 17 and 18 in block 74, in the First or West Addition to the City of Colby, Kansas, and upon her death to descend to her issue if any there be; but if there be no issue, then to descend to my children Herman Goellert, Otto H. Goellert, Ida Hand and Esther Sewell, share and share alike.” The action to quiet title was brought by Emma Morehead, the devisee named in paragraph sixth. Certain defendants, Herman Goellert, Otto H. Goellert and Esther Sewell, who were among those also named in paragraph sixth, filed an answer and cross petition. The plaintiff filed a reply denying all allegations of the answer inconsistent with those of her petition. The pertinent facts are not in dispute and allegations of the pleadings need not be set out in full. At the time of the action Emma Morehead was a married woman more than forty-five years of age. No issue had been born to her. Sometime prior to bringing the action, and on March 13,1945, she and her husband J. L. More-head, had executed a warranty deed conveying the real estate described in paragraph sixth to one Ella Anderson, and about six months thereafter — which was also prior to the institution of this action- — Ella Anderson, a single person, had conveyed the real estate back to Emma Morehead. The purpose and intent of such conveyance to Ella Anderson was to cut off the entailment if the devise to Emma Morehead constituted a fee tail estate. Appellants concede that such conveyance did have that effect and that by the reconveyance to her appellee did become the holder of a fee simple title, if by the devise she was vested with a fee tail estate. Appelants contend that the devise gave Emma Morehead a life estate only. It should first be noted that the instant will became effective prior to the enactment in 1939 of the statute abolishing estates tail as to future instruments (G. S. 1943 Supp., 58-502). Prior to that statute such estates were recognized in this state and no contention otherwise is here made. There is no disagreement here as to the general definition of a. fee tail estate. “Estates tail are estates of inheritance which, in stead of descending to heirs generally, go to the heirs of the donee’s body, which means his lawful issue, his children, and through them to his grandchildren in a direct line, so long as his posterity endures in a regular order and course of descent, and on the extinction of such issue the estate determines” (31 C. J. S. 35). “An estate tail or fee tail is commonly defined as an estate in which lands and tenements are given to one and the heirs of his body begotten. It is an estate of inheritance which is to pass by lineal descent” (19 Am. Jur. 507). Although such words as “heirs of the body” or “issue” are most frequently used to create a fee tail estate, it is now generally held that other expressions are sufficient if they clearly indicate an intention to give the devisee an estate of inheritance descendible only to his lineal heirs (19 Am. Jur. 513; 69 C. J. 492; 1 Tiffany, Real Property, 3d ed., 54). The first part of the instant devise seems clearly to fall within the definition of an estate tail. It reads: “I give, devise and bequeath to my daughter, Emma Morehead, a life estate in and to my residence property . . . and upon her death to descend to. her issue if any there be.” But the testatrix did not stop there. The devisee continues: “but if there be no issue, then to descend to my children Herman Goellert, Otto H. Goellert, Ida Hand and Esther Sewel, share and share alike.” What is the effect of this latter provision upon the nature of the devise to Emma Morehead? It is a well-recognized rule that if the devise provides for a gift over to take effect upon failure of issue, such contingency must be upon “indefinite failure” of issue rather than upon a “definite failure” of issue if an estate tail is to vest in the devisee. That is to say, the failure of issue upon which the gift or limitation over is to vest must be one which may occur at some indefinite time in the future. If the devise indicates a fixed time when the estate in the first taker is to terminate because of failure of issue, then no fee tail estate is created by the devise (31 C. J. S. 35; 10 R. C. L. 659; 19 Am. Jur. 515; Burnworth v. Fellerman, 131 Kan. 186, 289 Pac. 433). But what are the words or provisions which import a definite or an indefinite failure of issue? That is the question which immediately confronts us here. Before considering the legal effect of the devise it is necessary first to determine the proper construction of the words used by the testatrix. What did she mean by the words: “if there be no issue”? We think there can be only one answer. She meant “if there be no issue” of the devisee at the time of the devisee’s death. The clause cannot be read apart from the words which immediately preceded it. The descent was to be to “her issue if any there be” “upon her death”; but “if there be no issue” then the gift over was to be to the other named children of the testatrix. It is true that the testatrix did not repeat the words “upon her death” after the words “if there be no issue,” but such meaning is just as clear as though she had done so. The time fixed when the gift over to the children named might take effect was unmistakably the death of the devisee. Where there is a limitation over to take effect upon the death or at the death of the first taker without issue, is the provision to be classed as one for “definite” or for “indefinite” failure of issue? At this point an essayist might well trace the development of the common law with fine distinctions often drawn between the words employed. This would involve a broad review of conflicting cases dealing with the question. We find no need for so extending the opinion in this case. Either view — one upholding the theory of “indefinite” and the other of “definite” failure of issue — could be supported by many decisions from other jurisdictions, and perhaps our own decisions from the beginning are not wholly harmonious. The cases, and particularly the older ones, are full of debates as to the significance and effect of slight divergences in various devises which have received judicial scrutiny. But we think that on this particular point our own cases now give unmistakable guidance. Particularly by our later decisions it has been made increasingly clear that a provision in a devise for a gift over to take effect at or upon the death of the first taker without issue fixes a definite as distinguished from an indefinite time for determining failure of issue as a contingency. In Berthoud v. McCune, 130 Kan. 634, 287 Pac. 904, the devise was “to my granddaughter, Lottie Naylor . . . during the term of her natural life . . . and after the death of said Lottie Naylor . . . unto such of the issue of said Lottie Naylor as may be living at the time of her death, in equal proportions . . . in fee simple . . . But if said Lottie Naylor shall die leaving no living issue of her body, then and in that event . . . unto such of the half brothers and half sisters of the said Lottie Naylor as may be living at the time of her death” etc. It was’ held that the limitation over was upon “a definite failure of issue” (italics supplied) and that an estate tail was not created. In Burnworth v. Fellerman, supra, the limitation over was “If said Nathána Corbin die without any child or children of her body surviving her, and without any grandchild . . . then and in that event said above-described land . . . shall be and become the absolute property of the children of my brother” etc. This was held to provide for a definite failure of issue, and no estate tail was created. Although in Woodley v. Howse, 133 Kan. 639, 3 P. 2d 475, to which reference will later be made, the gift over was held to be upon “indefinite failure of issue” and the devise to be a fee tail, it was said in the opinion: “He (the grantor) may, of course, provide for the disposition of the property on an indefinite failure of issue, but if this is attempted on a definite failure, such as at the time of the death of the devisee named or other fixed time, the estate tail fails” (italics supplied). In Coleman v. Shoemaker, 147 Kan. 689, 78 P. 2d 905, the devise was to the testator’s wife for life and upon her death to the testator’s daughter, Mamie Jordan Taylor for life and “at the death of the said Mamie Jordan Taylor ... in fee simple, to the living issues of the body of the said Mamie Jordan Taylor, if any there be.” In the event the daughter should not be living at the time of the death of the wife, the first taker, but should leave living-issue, then the property was to “pass to said living issue” etc. Although there were other issues in the case one reason given for holding that no fee tail was created was that “the limitation over is upon a definite failure of issue. A time is definitely fixed for the possibility of such failure, viz., at the death of Mamie Jordan Taylor.” In Jones v. Jones, 153 Kan. 108, 109 P. 2d 211, the grant in a deed was “unto said Mary B. Jones for and during her natural life and in fee to the issue of her body living at her death and their heirs and assigns.” It was held that a fee tail estate was not created, one reason given being that “the limitation over is upon a definite failure of issue . . . namely, at the death of Mary B. Jones.” A very recent case is Delp v. George, 158 Kan. 774, 150 P. 2d 334. The devise was to the testator’s daughter Lilian B. George “during her natural lifetime” and upon her death “to be divided among the children” of said daughter. “But in the event that the said Lilian B. George dies without issue of the body” then the property “shall descend to be divided among my other children.” In further language the testator repeated substantially the same provisions in order to make his intentions clear. The question argued upon the appeal was whether the will provided for a gift over upon definite' or indefinite failure of issue of the daughter. It was held that the provision fixed a definite time for failure of issue and that the devise did not create an estate tail. Appellee relies almost entirely upon Gardner v. Anderson, Trustee, 114 Kan. 778, 227 Pac. 743, a case which has been much discussed. In that case the devise was to the testator’s daughter “Georgia Gardner ... for the length of her lifetime only” and if she marry and have issue the property to “descend to them equally . . . In the event of no issue, then at her death, all my property shall revert to the Gardner estate.” It was held that an estate tail vested in the daughter and there is language in the opinion which supports appellee’s contention here. However, it should be noted that the decision in the case was based in part at least upon the view that an “estate ... is not a person or entity which can take under a will” and that therefore the provision in the devise for reversion “to the Gardner estate” in case of failure of issue of Georgia Gardner was void and that this would, under the facts of the case, leave Georgia Gardner with the fee simple title even though she be regarded in the first instance as a life tenant only instead of a holder of a fee tail estate. Moreover, the Gardner case has a further history which must be noted. It was cited, as controlling, in the later case of Allen v. Pedder, 119 Kan. 773, 241 Pac. 696, in which a quite similar devise was construed. The devise in that case was: “to my adopted son, Joseph Pedder . . . for and during his natural life and after his death ... to his children of his own blood . . . Should my adopted son ... die without children of his own blood born in lawful wedlock then ... to my great nephew.” These provisions were held — following Gardner v. Anderson, Trustee, supra— bo import “indefinite” failure of issue. But in Delp v. George, supra, it was said: “Appellant cites and relies strongly upon. Allen v. Pedder, 119 Kan. 773, 241 Pac. 696, and Woodley v. Howse, 133 Kan. 639, 3 P. 2d 475. While some other considerations controlled the decisions in those cases, insofar as they were based upon the view that the will under consideration did not fix a definite time when failure of issue was to be determined they are not in harmony with the other decisions of this state and are disapproved.” Thus, in the Delp case this court disapproved the holding as to an “indefinite failure of issue” in Allen v. Pedder, supra, in Woodley v. Howse, supra, and by necessary inference, in Gardner v. Anderson, supra. The devise in Woodley v. Howse was similar to that in Allen v. Pedder, being “to my daughter, Iola Ross . . . for the term of her natural life” and at her death “to . . . whatever child or children may hereafter be born to her in lawful wedlock, and the descendants of said child or children per stirpes; and if my said daughter, Iola Ross, shall die without leaving a child . . . or the descendants of any such child . . . then ... at her death ... to and be owned by my brothers, or their heirs.” Appellee contends that the holdings of the Pedder and Howse cases were disapproved in Delp v. George, supra, for the reason that in those cases the terms “child” or “children” were held to be words of limitation rather than words o'f purchase. The opinion gives no support to that contention. The decision did not turn upon the use of the word “children” instead of the word “issue.” The clear holding of the Delp case, with its disapproval of what had been said in the two cases named, related to “definite” as distinguished from “indefinite” failure of issue under the various devises examined. Moreover, as hereinbefore noted, it is generally held that any words clearly indicating descent in lineal line only are sufficient to create an estate tail. Words which are ordinarily words of purchase may, by context, be construed as words of limitation. The conclusion that an estate tail was not created by the instant devise is further and strongly fortified by the presumption that a definite failure of issue is contemplated where the remaindermen named to take upon'failure of issue are persons then living, as in this case. (1 Tiffany, Real Property, 3d ed., 63; 2 Underhill on the Law of Wills, 1278, ¶ 850; Mebus Estate, 273 Pa. 505, 117 Atl. 340, 343.) It is also pertinent to say that text writers note that the modern tendency in cases of doubtful import, is to construe a failure of issue referred to in a devise as one occurring at the death of the first taker rather than at some indefinite time in the future. (69 C. J. 301 et seq; 1 Tiffany, Real Property, 3d ed., 61, 62 and note 2 p. 62.) The devise contained in paragraph sixth did not create an estate in fee tail. It gave to Emma Morehead a life estate only, and to Herman Goellert, Otto H. Goellert, Ida Hand and Esther Sewell, the persons named in the gift or limitation over, a contingent re mainder to vest only upon the death of Emma Morehead without leaving issue. Any issues that might possibly arise in case Emma Morehead dies leaving issue were not presented and are, of course, not here determined. The judgment is reversed with directions to enter judgment in harmony with this opinion. Parker, J., not participating.
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The opinion of the court was delivered by Burch, J.: This is an action for damages for wrongful deaths alleged to have resulted from a defect in a state highway. The jury was unable to agree. The defendant has appealed from orders overruling its demurrer to plaintiffs’ evidence, its motion for a directed verdict and its request for certain instructions. Marie Thummel and Georgine Thummel, two young daughters of the plaintiffs, together with two other occupants of an automobile, were drowned in the waters of Coon creek, near Kinsley, Kan., on July 9,1942. The story of the tragedy as it develops for consideration on demurrer follows: About 10:30 at night Raymond Dvorak and James O’Brien drove to the home of the two girls and in the course of the visit which followed it was suggested that they get into the car, drive out somewhere and get some soft drinks. From the Thummel home the car was driven by Raymond Dvorak to a filling station which was located near the east extremity of Kinsley in a triangular piece of ground at the junction of U. S. Highway 50S and a new highway project designated as 50S-24-FA 302 H (5). Hereinafter Highway 50S will be referred to as the highway and the new project will be referred to as the project. The project ran in a northeasterly direction from a point approximately across from the filling station, while the highway ran almost straight east. As they rode out of the filling station and onto the highway, the occupants of the car proceeded to the east a little less than a mile on the highway until they must have reached the intersection of the highway and a township road which ran north to a point where the township road intersected the project. It is possible that the four young people stopped on the township road for a short time before proceeding to the intersection, but whether they did is not significant. About nine weeks prior to the calamity there occurred in the vicinity north and east of the city of Kinsley a notoriously destructive flood. As a result thereof the township road had been washed out immediately north of its intersection with the project and the township officials had erected a barricade across the township road immediately north of the intersection, but the state highway commission had not erected any barricade on the project so that it was possible to turn off of the township road onto the project and proceed in a southwesterly direction. Apparently the automobile did so. Testimony was introduced showing that at the time the project was in a drivable condition. Its surface was not “black-topped” or paved but it appeared to' be a good, wide, graded road with two definite lanes of travel available upon its surface. Nothing was heard of the Thummel girls or their escorts after they left the filling station until the evening of the next day when they all were found drowned in Coon creek. In order for the automobile to have reached Coon creek from the intersection hereinbefore referred to it would have been necessary for it to have been driven along the project in the southwesterly direction until it came to a barricade which had been installed about thirteen feet northeast of a washout adjacent to the northeast end of the Coon creek bridge. The' barricade had been erected by employees of the state highway commission. The evidence developed that the barricade consisted of a snow fence which extended only part way across the highway so that it was possible to drive the automobile around the right side of the barricade without driving off the shoulder of the highway. The snow fence originally had been painted 'red, but it had become so weather-beaten that it was difficult to distinguish it from the surrounding visibilities. The road beneath it was so similar to the color of the barricade that a motorist might not have detected the presence of the barricade in time to have stopped in the ordinary course of travel before running into it. One witness testified that she could not see it the next evening, even though she knew it was there, until she was within about fifteen feet of it. The sheriff, who found the automobile and later the bodies of its occupants in Coon creek, testified that he found evidence of car tracks to the northeast of the barricade which indicated that the automobile had been driven gradually to the right side of the project beginning at a point some twenty to twenty-five feet northeast of the barricade and had proceeded from such point past the right end of the barricade and had continued until it reached the precipitous banks of the washout where it ran on into a pool of water which was eight or ten feet deep. When the car was found it was headed in the opposite direction in which it apparently had been going immediately prior to its fall into the water, but there was no evidence of the car having been turned around and there was no evidence of tracks of any kind on the other side of the washout. In addition to evidence of the foregoing, the plaintiffs introduced a stipulation which admitted that in April, 1941, the state highway commission had passed a resolution, pursuant to which a right of way had been acquired for a relocation of a portion of the highway so that eventually the project would be substituted for the highway as a part of Highway 50S. It also was stipulated that a contract had been let by the state highway commission for the earth and culvert work on the project and that such work had been completed and accepted on August 30, 1941, by the state highway commission; that the bridges on the project had been completed and accepted with the exception of the bridge across the Arkansas river which was not accepted until August 15, 1942. The plaintiffs also proved that some of the flood damage which had occurred during the spring of 1942 had been repaired by employees of the state highway commission; that authorized representatives of the commission had knowledge of the defect in the project long in excess of the time required by the applicable statute; that the statutory demand had been made and that the project had been used by the public. The evidence relative to the use of the project by the public and others requires careful scrutiny because unless a state highway has been opened for travel and there has been extended to the public an invitation, either expressed or implied, to use the highway, then there is no basis for recovery from the state. The evidence touching upon the question of whether the project was open for travel may be summarized as follows: As before stated, there was no barricade on the township road, south of its intersection with the project and there was no barricade immediately west or east of its intersection with the project. The plaintiffs’ witness, Ered Lancaster, testified that he could get onto the project through his driveway or at the southwest end of such project, or on the township road intersection with it. He further testified that in 1941 there was a time when he didn’t remember seeing a sign at the intersection of the project and the highway, immediately east of Kinsley. He was asked the following question and gave the following answer: “Q. And in the fall of 1941, Mr. Lancaster, did you observe traffic on this new road, would you see other people driving on it? A. Yes, sir; several of them drove that road, a lot of them.” Fred Fletcher testified: ' “Q. Do you recall whether the grade there was well beaten by traffic? A. Well, it was good road.” Sherman Holland, a witness for the plaintiffs, testified that in the fall of 1941 and in the spring of 1942 he observed some travel on the project. When asked whether the road showed signs of considerable traffic, he replied there was some traffic on it and that the project showed signs of traffic the full width of it. He testified that after September 5,1941, at which time the Coon Creek bridge was completed, the traffic on the project between the city of Kinsley and the intersection of the township road was by maintenance and construction workers and sight-seers. Fred Fletcher also testified that in the fall of 1941 he traveled the project about every day from his home northeast of Kinsley. He would drive south on the township road until he came to the project and then would drive on it into the city of Kinsley. He stated he was certain that the project at that time was being maintained by the state highway department and that employees thereof observed him using the project road and did not make any objection to his using it; that on such occasions he also met other people who were using the project and that it was used quite extensively. Mrs. Fred Fletcher testified that she had used the project many times prior to the flood and that while it was being maintained by the highway department, she saw other cars on it and that the project road showed signs of considerable traffic. The father of the girls testified that he traveled the project in the fall of 1941 and spring of 1942 before the flood. The resolution introduced by plaintiffs read as follows: “Resolution for Relocation and Redesignation of road in Edwards County, Project 50S-24-FA 302 H. (5) ... be established, laid out, and opened in Edwards County, and be designated as a state highway and as a part of the state highway system in Edwards County, Kansas, and That the road in said county, which has dangerous curves, described as follows, to-wit: [describing old road.] “Be hereby ■ withdrawn from the system of state highways in Edwards County, Kansas, with the provision that the road shall be maintained and traveled as a detour highway until such time as the herein designated route shall be completed and opened for traffic. “Net length of Old Road 2.164 miles Net length of New Road 1.880 miles Difference • 0.284 miles (deduction)” Counsel for the plaintiffs contend that the resolution, the construction work and the testimony as to the use, maintenance and condition of the project road are sufficient to raise a question of fact for the jury to determine whether the project road by implication had been opened for travel. The district court overruled the defendant’s demurrer and submitted that issue, with others, to the jury. In support of the contention and the ruling the plaintiffs cite the case of Payne v. State Highway Comm., 136 Kan. 561, 16 P. 2d 509. The opinion in the cited case contains the following statement: “There may be a defect in a state highway before it is improved or constructed, but liability under the statute does not arise until such highway is open for travel. This is the fundamental basis of liability. Designation is the first step in the establishment of a state highway, but does not necessarily open it for travel. It is not open for travel until there has been extended to the public an invitation, expressed or implied, to use such highway. When a highway is open for travel may, under certain circumstances, be a question of law for the court. On the other hand, cases may arise where it would be a question of fact for the jury to determine under all of the circumstances of the particular case. It is clear to us that the legislature did not intend liability should arise against the state for defects on the mere designation of a strip of land as a highway. The construction of the highway must have reached a point where the ordinary, prudent person would be warranted in believing that it was open to public use and a safe place to travel.” (p. 565.) 1. In the case of Payne v. State Highway Comm., supra, the alleged accident occurred at a time when the project was not being used for highway purposes and a review of the facts in such case clearly discloses that the project had not been opened for travel. Moreover, the plaintiff in such case was not using any part of the project as a highway but on the contrary regarded the involved area as part of his farm, and while he was operating a lister it struck a stake which had been driven level with the ground by an employee of the highway department. Under such circumstances this court held, as a matter of law, that the highway had not been opened for travel and that.no invitation had been extended, by implication, to the public to use it and that consequently no liability existed on the part of the state. The present case presents a more difficult question for decision. Counsel for the defendant contend that the record discloses no evidence which warranted the trial court in overruling the defendant’s demurrer insofar as it raised the question whether any showing had been made to the effect that the project had been, by implication, opened to public use for travel purposes. In such connection the defendant contends that it affirmatively appears from plaintiffs’ evidence that a regularly established and opened state highway existed from the northeast end of the project, which was barricaded, and the southwest end of the project, which was also barricaded; and further that such highway was designated as US 50S and all road signs directed traffic over such regularly.established and maintained highway into and out of the city of Kinsley from the east city limits to a point approximately two miles northeast thereof, which point was also the northeast extremity of the project. Counsel for the plaintiffs contend, however, that the project also was opened, by implication, from the point where the township road entered such project running in a southwesterly direction to the point of the washout immediately northeast of the Coon creek bridge where the snow fence barricade had been erected. Viewing the plaintiffs’ evidence in its most favorable light from the standpoint of the demurrer, it can be said that a driver of a car in the vicinity of the city of Kinsley might have desired to go north on the township road for some purpose and upon reaching the intersection thereof with the project would have noted the barricade across the continuation of the township road and upon seeing the project road leading to the southwest would have thought it was reasonably safe to travel thereon and therefore have turned the automobile in such direction and continued thereon until the automobile reached the barricade near the Coon creek bridge. Consequently, it is the opinion of the court that the statement hereinbefore quoted from the case of Payne v. State. Highway Comm., supra, is controlling and that the trial court was justified in submitting to the jury the question, among others, whether the.project had been opened for public travel by implication. In such connection it should be noted that under the evidence submitted it cannot be said, as a matter of law, that the condition of the project at the point of its intersection with the township road was such that it did not invite public traffic or that an ordinarily prudent person would not have been warranted in believing that the project was open and a safe place to travel. Such a question was for the jury. So far as the traveling public is concerned, a highway is open if by its condition it presents, in the mind of an ordinarily prudent person, an invitation to travel thereon. A township road is as much a public road as any other and in many cases township and county roads are better than some state highways. If a traveler reaches a project road and sees that it is well traveled and there are no signs thereon indicating that it should not be used, it then becomes a question for the jury whether, under the existing circumstances, an ordinarily prudent traveler would have regarded the project as having been opened for public use. As hereinbefore set forth, the testimony in the present case develops that one witness testified he had traveled that'part of the project many times; that lié had seen others traveling it; that highway employees had seen him traveling it and had not protested; that it was a good road. Another testified that the road showed signs of traffic the full width of it; and still another testified that the road had good tracks on both sides. These conditions were shown to have been known and permitted by the highway commission and, therefore, the question whether they were such as to have constituted an implied invitation to an ordinarily prudent person to travel thereon must be regarded as one for the jury. The court is of the opinion that it would be unwise to have the law in such condition that the highway commission might aquiesce in the public use of a road and avoid liability for injuries resulting from defects therein. 2. The next question raised by the defendant’s demurrer is whether there was any evidence introduced by the plaintiffs proving that the accident was due to a defect in the project. In other words, it is the contention of the defendant that nothing was shown except that an accident occurred, and that beyond such showing the plaintiffs’ case rests purely on speculation and conjecture. It is well settled that the mere occurrence of an accident is not evidence of its proximate cause. Juries, however, are permitted to draw reasonable inferences from established circumstances even in the absence of direct and positive testimony, provided the circumstances relied upon are of such a nature and so related one to the other that a reasonable conclusion to be drawn therefrom is the theory sought to be established. No contention is made in the instant case that the washout, which extended across the project as well as on the sides of it, did not constitute a defect. As herein stated the evidence of the plaintiffs established that the snow fence barricade was difficult for a motorist to see. Evidence as to tracks made by the car developed the following: “I believe the furtherest back that I noticed them [20 to 25 feet from the barricade] it looked like the brakes had been applied, and from there on it was a continuous line on a slight angle, showing very slightly, like a skid would be, just enough to be noticeable.” The evidence also was to the effect that the washout was ten or fifteen feet beyond the barricade; that both wheels were on the top of the road but on the extreme right-hand side — inside the vegetation; and that the tracks just missed the side of the barricade. Other evidence as to tracks conflicted somewhat with the foregoing but we can consider only the evidence favorable to the plaintiffs for the’ purpose of the demurrer. Such conditions bring us to consideration of the rule of circumstantial evidence and its application in this case. The plaintiffs contend that the evidence, circumstantial and otherwise, justifies the conclusion that the driver of the car could not see the barricade until he was twenty to twenty-five feet from it; that he then applied the car brakes, turned the car to the extreme right side of the project road and was unable to stop the car before it came to the bank of the washout some ten or fifteen feet beyond the barricade. Adding the estimates as to distances from the point where the car started to turn to the right results in the observation that the car traveled only thirty or forty feet after it began to turn before it ran into the washout. In the face of such evidence this court cannot assume that the driver of the car saw the barricade in adequate time to have stopped the car before it reached the barricade but nevertheless deliberately drove off the project road into the field near the end of the bridge fqr some unexplained reason. We are confronted also with the presumption of due care in death cases. Consequently, this court is unable to say, as matter of law, in this case that the plaintiffs’ direct and circumstantial evidence wholly failed to prove a cause of action. 3. The defendant contends also that its demurrer should have been sustained because it affirmatively appears from the plaintiffs’ evidence that the proximate cause of the accident was the negligence of the driver of the car; that without such negligence no accident would have occurred and that consequently the driver’s negligence was the only proximate cause. The question of contributory negligence is not involved in the present case. It was not pleaded and it is not contended that the two little girls were negligent. Neither is it alleged that any negligence of the driver can be imputed to the girls on the theory of joint enterprise, agency or any other theory. The issue is clear under the pleadings: Was the accident due to a defect in the project or to the negligence of the driver of the car? The defendant cites in support of its contention the case of Mosier v. State Highway Comm,., 136 Kan. 468, 16 P. 2d 477. The cited case is clearly a contributory negligence case and is not in point. Our attention is also called to the case of Smith v. Mead Construction Co., 129 Kan. 229, 282 Pac. 708. The cited case is authority for the rule if two distinct causes are successive and unrelated in their operation one must be regarded as the proximate cause and the other as the remote cause. Assuming that the driver of the car was negligent, can it be said in the present case that his negligence was unrelated to and distinct from the difficult-to-distinguish barricade and the defect beyond it? Can we in this case disregard the defect as a remote cause and conclude, as a matter of law, that the driver’s negligence caused the accident? Our opinion is in the negative. In the last cited case the jury found that the driver of the car was negligent and in order to bring the case squarely in point we would be forced to conclude that the driver was negligent in the present case. We pass the question for the moment. The defendant also cites the case of Whitcomb v. Atchison, T. & S. F. Rly. Co., 128 Kan. 749, 280 Pac. 900, in which case a demurrer was sustained to a petition. In that case, however, the petition clearly discloses that the accident was due to the negligence of a third party and not to any negligent omission on the part of the railway. The defendant also relies on the case of Norris v. Ross Township, 98 Kan. 394, 161 Pac. 582. In such case the township did not have five days’ notice of the defect which caused the accident, and the decision turns on such a point. Ordinarily the question of what is the proximate cause is one for the jury. (See Clark v. Powder Co., 94 Kan. 268, 146 Pac. 320, and Corley v. Railway Co., 95 Kan. 124, 147 Pac. 842.) Difficulty, however, frequently occurs in the application of the law relative to proximate and remote causes and since counsel for the defendant insist that the proximate cause in this case must have been the negligence of the driver, as a matter of law, additional consideration will be given the contention. The case of Clark v. Powder Co., supra, has been cited with approval by this court in many subsequent decisions and may be regarded as a leading case on the subject. Reference to the opinion in such case, which was written by Mr. Justice Dawson, who was later Chief Justice, discloses that the law relative to intervening causes is not controlling and does not necessarily relieve a defendant of liability in cases wherein it is clear that the injury or damage is the natural and probable consequence of the original wrongful act. From the opinion the following is quoted: “Running through all the precedents in analogous cases the test appears to be: Is the injury or damage the natural and probable consequence of the original negligence? The mere intrusion of an intervening ágency does not always excuse the original wrongdoer.” Continuing, the opinion quotes with approval from the case of Stone v. Boston & Albany Railroad, 171 Mass. 536, 51 N. E. 1, the following: . . it was the duty of the original wrongdoer to anticipate and provide against such intervention, because such intervention was a thing likely to happen in the ordinary course of events. ... ‘In actions of this description, the defendant is liable for the natural and probable consequences of his negligent act or omission. The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended. The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. . .’ The question is not whether it was a possible consequence, but whether it was probable, that is, likely to occur, according to the usual experience of mankind ... a wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinal and usual experience. One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable.” (p. 273.) In considering the question it is well to bear in mind, that in fixing the proximate cause of injury or damage, it is not necessary that ordinary caution and prudence would require that a specific injury would probably result but only that some injury would likely result therefrom. (Walmsley v. Telephone Association, 102 Kan. 139, 169 Pac. 197.) We are aware also of the rule that where an injury may be due to two causes, one an inanimate object and the other a negligent act of another, that the person who committed the negligent act is held liable but such a rule is subject to the qualification that the position of the inanimate object and the part which it played' in the accident cannot be attributed to the wrongdoing of some third person. (Durst v. Wareham, 132 Kan. 785, 297 Pac. 675.) It is true that ordinarily cases involving proximate and remote causes also involve different acts of negli gence as distinguished from one act of 'negligence and a statutory liability such as a defect in a highway. However, the same rule has been applied in cases wherein one of the causes is statutory in its nature such as a defect in a highway and the other is based upon common-law negligence. (See Lincoln Township v. Koenig, 10 Kan. App. 504, 63 Pac. 90.) In the present case since the question whether the project was open by implication was for the jury, then it must follow from what has been said that the question whether the defect in the project was the proximate cause of the accident was also for the jury. It cannot be said, as a matter of law in this case, that a reasonably prudent person would not have anticipated that the project would be used for travel purposes. Such in turn would have necessitated that a barrier of adequate visibility should have been erected in such manner that it would have served as a warning to the driver of an automobile of the hazard beyond it in time for the driver to have seen the barrier and avoided an accident. The contention might be advanced that the failure to erect an adequate barricade was an omission in the nature of negligence and that the statutory liability is not predicated upon negligence. However, it is alleged that the failure to surround the washout with sufficient and proper barriers, having lights, reflectors, signs, notices or warnings thereon, constituted a defect in the project and from a practical standpoint a contention to the contrary would not be sound. (See Story v. Brown County, 116 Kan. 300, 226 Pac. 772, and Snyder v. Pottawatomie County Comm’rs., 120 Kan. 659, 245 Pac. 162.) In the opinion of the court a jury in the present case could have found from the evidence of the plaintiffs that the proximate cause of the accident was the improperly-guarded defect in the project. The jury also could have found that the proximate cause was the intervening careless driving of the car as indicated by the track testimony to the effect that the car was traveling at such speed when it reached the washout that it did not cave in the sides thereof before plunging into the same. Therefore, the proximate cause was a question for the jury. We need not pass upon the question whether the negligence of the driver was established as a matter of law because if a jury, on retrial, should .find the acts or omissions of the driver were not the proximate cause of the accident, then the question would become immaterial. 4. Counsel for the defendant urge us to consider certain instruc tions which they contend ate erroneous. Perhaps it would be helpful to respective counsel and the trial court if we depart from our usual rule and consider the question from an anticipatory standpoint. To do so, however, would require us to anticipate too much. It would require us to assume that the same evidence would be introduced; that the trial court would make the same rulings on demurrers and on a motion for a directed verdict and give the same instructions. On retrial a verdict of a jury or its answers to special questions might make possible errors in instructions immaterial. We neither approve nor disapprove the instructions because in the present case the jury was unable to agree and therefore, in this appeal we do not reach the question of what instructions should be given in some other trial. Counsel for the defendant request us to consider also the possible errors arising in connection with the overruling of the demurrer to all the evidence and the motion for a directed verdict. Such rulings raise only the same questions raised by the demurrer to the plaintiffs’ evidence. No new uncontradicted defense testimony was injected into the record which requires a different ruling on the demurrer to all the evidence and on the motion for a directed verdict. Therefore, the rulings of the district court are affirmed.
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The opinion of the court was delivered by Wedell, J.: This was an action for divorce and for a full settlement of all claims of defendant, the wife, in accordance with a certain provision of an antenuptial contract pertaining to a separation of the parties. The grounds alleged for a divorce were defendant’s extreme cruelty and gross neglect of duty. Plaintiff tendered to defendant in court the sum of $2,000, that being the amount specified in the settlement provision of the contract in the event of a separation of the parties for any cause. The defendant contested the divorce and by cross petition sought cancellation of the entire antenuptial contract on the grounds it was contrary to public policy and was otherwise unenforceable for various reasons to be stated later. The district court refused plaintiff a divorce and struck down the settlement provision of the contract on the ground it was unreasonable and unjust, violated public policy and was void. In other respects the contract was sustained. Judgment was also rendered for the separate support and maintenance of the wife over the objections of plaintiff. Both parties filed motions for a new trial, which were overruled. Plaintiff has appealed from those portions of the judgment which denied him a divorce, which held the separation paragraph of the contract void, from the order allowing an amendment of defendant’s cross petition after the court had filed its findings of fact, from the judgment for support and maintenance and from the order overruling his motion for a new trial. Defendant has cross-appealed from that portion of the judgment which upheld any part of the antenuptial contract, contending the contract was not fairly and understandingly made, and from the order overruling her motion for a new trial. We shall begin with a consideration of the primary appeal of the plaintiff and shall continue to refer to the parties as plaintiff and defendant. While counsel for plaintiff argue that, in their opinion, plaintiff was entitled to a divorce, they also concede that in view of the conflicting testimony the court was vested with a wide discretion in determining whether it would grant a divorce. In other words, they do not argue that specification of error. We, therefore, shall regard it as having been abandoned. Under these circumstances it will serve no useful purpose to' narrate the evidence pertaining to the alleged grounds for divorce. A brief narrative of some facts will, however, be helpful on other aspects of the appeal. Plaintiff was a businessman sixty-five years of age at the time of the marriage at Albuquerque, N. M., on June 23, 1941. He is worth approximately $150,000 to $160,000. His property consisted mostly of lands. His annual income ranged between $10,000 and $12,000. His home was in Pratt, Kan. He had four adult children by a former marriage. He met defendant in December, 1940, at Colorado Springs, where she was employed as a hotel clerk at $10 per week. She also did a small amount of art work and sold an occasional picture which she painted and from which she realized small returns. Defendant was forty-seven years of age and also had been married. She had one married son. She owned a small home in Enid, Okla., worth approximately $1,500, had about $1,000 cash and a 1937 Dodge automobile, which she sold for $350. The parties had a brief courtship prior to their marriage and lived in Colorado Springs until September 8, 1942, when they moved to Pratt. Plaintiff purchased a modest five-room brick house for $6,000. The house was comparatively new and well arranged. The value of the household furnishings was $1,500. In the antenuptial contract each party waived and relinquished all claim to and control over the property of the other. The contract made provision for defendant in the event she survived him as his widow as follows: “In consideration of the contemplated marriage and the covenants of Frances Marie Rancier hereinbefore set forth, Arthur S. Fincham hereby covenants that the said Frances Marie Rancier shall have and receive out of his property and estate at the time of his death, if she shall then be his widow: (1) all statutory allowances and exemptions, together with the homestead rights; (2) an undivided one-fifth (%) interest in and to all other property, whether real or personal, of which he the said Arthur S. Fincham may die siezed and possessed.” The separation agreement upon which plaintiff relies reads: “It is further mutually agreed between the parties hereto that if, after the solemnization of said marriage and for any cause, the parties hereto separate and live separate and apart for any reason whatsoever, then the said Arthur S. Fincham, upon demand of the said Frances Marie Rancier, shall pay to her the sum of Two Thousand dollars ($2,000) in cash, for and as a. complete settlement of every claim that the said Frances Marie Rancier may or shall have against the said Arthur S. Fincham by reason of said marriage; and upon the receipt of said sum of Two Thousand dollars ($2,000), the said Frances Marie Rancier shall release and discharge the said Arthur S. Fincham from further liability on any account, and shall no longer be entitled to share in the estate and property of the said Arthur S. Fincham. And the said Frances Marie Rancier covenants and agrees that in such a contingency she does hereby renounce all claim against the property and estate of the said Arthur S. Fincham, of every kind and description, and this contract shall be accepted by any court as a full and complete settlement and satisfaction of the property rights of the parties hereto. And it is expressly declared and agreed that all rights, either legal or equitable, that the said Frances Marie Rancier may have in and to the property and estate of the said Arthur S. Fincham shall then be forever extinguished.” The trial court found, “The plaintiff would not have married without some form of prenuptial agreement.” The court further found, “. . . the contract was freely, fairly and knowingly entered into, and without fraud”, and that the provision for defendant in the event she survived plaintiff as his widow . . would be not only adequate, but very reasonable and equitable.” The court, however, concluded the contract was divisible. It struck down the separation provision on the ground it was unreasonable and unjust, smacked of concubinage, violated public policy and was void. The court sustained all other provisions of the contract. Before considering the validity of the separation provision, and the effect of that decision on other parts of the contract, we shall consider defendant’s contention on cross-appeal that the contract was void to toto. Defendant argues the evidence discloses the contract was not fairly made in that she was not advised concerning plaintiff’s present and prospective property holdings, was not given an opportunity to know or seek advice concerning her rights in the premises and that the contract was not fair and equitable in its provisions. We do not deem it necessary to narrate the conflicting testimony concerning the manner and circumstances under which the contract was entered into. The trial court resolved that issue. There is competent substantial evidence to support the court’s finding upon that subject and the finding is conclusive on appeal. Moreover, whether defendant was fully advised concerning the extent of plaintiff’s property holdings, as to which the court found she was not greatly interested, the court found the provision for defendant as a widow was . . not only adequate, but very reasonable and equitable.” In that finding we concur. Contracts of settlement, both antenuptial and postnuptial, have had the consideration of this court on numerous occasions. Many of them were cited in Dunsworth v. Dunsworth, 148 Kan. 347, 352, 81 P. 2d 9. In the more recent case of In re Estate of Cantrell, 154 Kan. 546, 119 P. 2d 483, we said: “The general rule in this state is that contracts, made either before or after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to cany out the intentions of the makers, and to uphold such contracts where they are fairly and understandingly made, are just and equitable in their provisions and are not obtained by fraud or overreaching. (See Dunsworth v. Dunsworth, 148 Kan. 347, 352, 81 P. 2d 9, and cases cited.) Generally speaking, such contracts are not against public policy, although a different rule obtains where the terms of the contract encourage a separation of the parties. (Neddo v. Neddo, 56 Kan. 507, 44 Pac. 1.) It may here be said that there is nothing about the present contract which warrants application of the last rule.” (p. 551.) In the Neddo case, supra, it was held: “A marriage settlement which is unreasonable, inequitable or against public' policy will not be upheld; and where, by its terms, the contract invites and encourages a separation as a source of pecuniary profit to either party, it is void.” (Syl. IT 2.) In the case at bar it is evident the provision for settlement in case of separation did not invite and encourage a separation as a source of pecuniary profit to the wife. It was not to her advantage to bring about a separation and in consideration of $2,000 be denied a home, support and maintenance for the remainder of her life and also lose the contractual benefits inuring to her on the death of her husband. The contract did, however, permit her to effectuate a separation at any time and for any cause whatsoever whether legal or otherwise. The price' agreed upon for their cohabitation was the same whether for a day, a month, or longer, namely $2,000. In that respect the contract was against public policy insofar as either party was concerned. Did the provision for settlement, in case of separation, invite and encourage a separation as a source of pecuniary profit to the husband? Manifestly it did. The result is that quite naturally he might be inclined to be less considerate of his marital duties and obligations. Pie might even become grossly abusive, completely intolerable and deliberately bring about a separation in the contractual assurance that irrespective of the cause of separation he could effectively relieve himself of all marital and contractual obligations by the payment of $2,000, a rather insignificant sum in comparison with his financial worth of approximately $160,000. In refusing plaintiff a divorce the trial court made a rather pertinent factual observation with reference to the settlement provision in the contract. It reads: “In this, [referring to the charge of extreme cruelty] as well as in the charge of gross neglect of duty, I cannot overlook the fact that the plaintiff sought and obtained from the woman he married an antenuptial agreement which in some particulars the plaintiff thought to be very favorable to his side; that his reliance upon that agi’eement no doubt affected his attitude towards the defendant and he became more independent, less considerate, and possibly more provoking himself than he realized or otherwise would have been.” As previously indicated we have held contracts of settlement, antenuptial and postnuptial, must be not only fairly and understandingly made, but must be just and equitable in their provisions. While, as stated, the trial court found this antenuptial contract was fairly and understandingly made and that the provision for defendant, in the event she survived plaintiff as his widow, was reasonable and equitable, it also found the settlement provision, in the event of a separation, was unreasonable and unjust. We think the findings with respect to both parts of the contract are sound. In order, however, for such.a contract to be upheld it must be fair and equitable in not only one but in all of its material provisions. That principle is particularly significant in the instant contract. What would it avail the wife if the provision made for her at her husband’s death is fair and equitable if that provision can be rendered entirely nugatory by a provision which is unjust and inequitable? In other words, if the separation agreement is valid plaintiff might on any day of their honeymoon or at any later time that suited his pleasure or convenience, and for any cause wholly without legal merit, abandon the defendant and compel her to accept $2,000 in full settlement of the fair and equitable provision made available to her at his death. Moreover, if the separation provision is declared to be valid he may without just cause abandon her and for the wholly inadequate sum of $2,000 relieve himself of his personal marital duty, his statutory duty, to support and maintain her for the remainder of her natural life. That constitutes an unfair, inequitable and unenforceable bargain which courts of equity do not approve. The reason is the contract involves a subject, the marriage relationship, in which not only the parties but society has a vital interest. (Neddo v. Neddo, supra; King v. Mollohan, 61 Kan. 683, 688, 60 Pac. 731; Relihan v. Relihan, 157 Kan. 249, 251, 139 P. 2d 385; 17 Am. Jur., Divorce and Separation, §§12, 13, 14, 15; Anno. 70 A. L. R. p. 826; Restatement, Contracts, § 584; 41 C. J. S., Husband and Wife, § 80.) While courts do not encourage divorce or separation they are required to be realistic concerning the matter. They can compel parties to meet their financial marital duties and obligations but they cannot compel them to live together. There are sound reasons why courts should not attempt to do so when the parties reach a point .where they are wholly discordant. That fact, likewise, is now recognized by society. Its representative, the legislature, therefore has provided a remedy for such a contingency whether the parties are in equal wrong or not and where a divorce is refused. G. S. 1935, 60-1506 reads: “When the parties appear to be in equal wrong, the court may in its discretion refuse to grant a divorce, and in any such case or in any other case where a divorce is refused, the court may for good cause shown make such order as may be proper for the custody, maintenance and education of the children, and for the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties, and in such case the order of the court shall vest in the parties a fee-simple title to the property so set apart or decreed to them, and each party shall have the right to convey, devise and dispose of the same without the consent of the other.” Under the statute it will be observed courts are not compelled to make a division of property rights. They may, however, do so and whether they will do so rests in their discretion. (McCormick v. McCormick, 100 Kan. 585, 587, 165 Pac. 285.) The statute gives courts the power to make an equitable division of property whether the title thereto be in the name of either or both of the parties. No reason therefore appears why they may not do so where the property is affected by a contract between them. It has been held that in awarding alimony in a divorce case courts of equity are not bound by an antenuptial contract which is unfair and unjust but may make such an order as to them seems just and equitable in the premises. (Watson v. Watson, 37 Ind. App. 548, 77 N. E. 355.) In order to make such a division and disposition of property in the instant case the court, in our opinion, could not give separate effect to the part of the contract which made provision for defendant in the event she survived plaintiff as his widow. It could not give effect to that provision merely because, if standing alone, it would have constituted a valid provision. Here the invalid separation provision undoubtedly was an important consideration for the marriage and for the other provision of the contract, at least insofar as the plaintiff was concerned. It follows those provisions of the contract were not properly divisible in an action for the enforcement of the separation provision. We think, however, that if the trial court had desired to make an equitable division and disposition of property, and it would have been amply justified in doing so, it might have given some consideration to the terms of the antenuptial agreement but it was not obliged to do so nor could it give effect to any of its provisions on the theory they constituted a binding contract. It is true the court did not make a division of property rights. What has been said concerning the power of the court to make such a division is prompted by a part of the record which indicates the court was of the opinion it was obliged to give effect to the provision for defendant at plaintiff's death because it believed the contract was divisible. We have made the foregoing observations by reason of the further fact that the record discloses the court believed it had no power to make an equitable division of property rights in the absence of a request for that relief in the pleadings. The court had that power without such a demand or request in the pleadings. (McCormick v. McCormick, supra.) Plaintiff contends the entire contract should stand. From the court’s memorandum opinion it appears plaintiff argued below that the separation settlement provision was solely for defendant’s benefit and constituted an option which she could elect to accept if she so desired. The same contention, is made here. The first trouble with the contention is that it is contrary to the construction either party placed upon the provision. The second is that plaintiff clearly did not predicate his petition on such a construction. His petition, which is before us, was plainly based on the theory the parties were separated and that under those circumstances defendant was bound to accept his tender of $2,000 in full settlement of all claims against his property and all other claims arising out of the marriage relationship. The third difficulty with plaintiff’s contention is that while the provision was not drawn as artistically as it might have been, it fairly appears the provision was not intended to grant defendant an option but was. intended to mean what plaintiff thought it meant when he filed his action. The provision was previously quoted herein. The words “upon demand” do not alter the fact that the parties intended that upon a separation for any cause a complete settlement would be made for the sum of $2,000. They also intended the $2,000 would be paid in cash by plaintiff upon demand of the defendant. All that is necessary to make the intended meaning entirely clear is to transpose the phrase, “upon demand of the said Frances Marie Rancier,” from its present position to the position immediately following the word “cash.” The sentence would then read: . . . then the said Arthur S. Fincham shall pay to her the sum of Two Thousand dollars ($2,000) in cash, upon demand of the said Frances Marie Rancier, for and as a complete settlement of every claim. . . . Furthermore if plaintiff ’s contention that the provision constituted an option were sound then the plaintiff’s action for a settlement under the contract must fail. This is true for the self-evident reason that it is conceded defendant made no demand and refused the tender of $2,000. Plaintiff finally contends that, “. . . apparently she had 'exercised that option; she was gone half the time and mad the other half.” Defendant states the first time plaintiff has contended de fendant exercised an option by conduct is on appeal in this court. Plaintiff does not deny that statement and is therefore not entitled to have the contention considered. In any event, if there was no option, she could not exercise it by her conduct. On the other hand, if there had been an option her conduct' — assuming it to have been as stated by plaintiff' — would not have been a demand for $2,000. It follows plaintiff cannot sustain the settlement provision on any option theory. In further support of plaintiff’s contention the entire contract should be upheld he cites Sanger v. Sanger, 132 Kan. 596, 296 Pac. 355; Dunsworth v. Dunsworth, 148 Kan. 347, 81 P. 2d 9; and In re Estate of Cantrell, 154 Kan. 546, 119 P. 2d 483. He does not contend the cases are in all respects in point factually but, quite properly, directs our attention to statements of principle therein contained. Those cases, cases therein cited and others, have been carefully reviewed. In view of the nature of those cases and the facts involved we adhere to the decision reached in each of them. We do not deem it necessary to discuss them at length. In the Sanger case, as in others, the Neddo case, previously referred to, was distinguished. The contract in the Neddo case was held invalid. It is true the later cases pointed out that the contract in the Neddo case contained only a settlement provision with respect to a divorce or separation and made no other property provision for the wife. The other cases relied upon by plaintiff, in which the contracts were upheld, are clearly distinguishable from the instant case. In the Sanger case, supra, it was emphasized, first, that there was no abandonment in the case or failure to perform marital duties and that, therefore, the separation agreement was not operative. The law of the case as laid down in the syllabus in nowise pertains to the subject of public policy as related to cases of this character. In the Duns-worth case it was definitely stated that no question of rights arising because of separation or divorce was involved; that the contract had been fully executed by the parties; and the validity of the separation provision was no longer material. We have already quoted from In re Estate of Cantrell, supra, in which the doctrine laid down in the Neddo case was clearly recognized and the case was cited as authority therefor. The principal question in the Cantrell case was whether the contract was knowingly and understandingly made and whether it was fair and equitable in its provisions. Counsel for defendant direct our attention to the fact the contract was executed in the state of Colorado. They assert that, in their opinion, the decisions of this state support their contention with respect to the invalidity of the-contract but that such question must be determined by the laws of Colorado. The antenuptial contract provides: “. . . this contract is to be construed by the laws of the State of Kansas, which are now in force.” In view of this express agreement we need not discuss legal questions which otherwise would be pertinent. Should judgment for the separate support and maintenance of the defendant have been rendered in this case? Plaintiff insists it should not and that the judgment rendered cannot stand. He points out there was no issue joined on that subject by the pleadings, no trial wras had thereon and that the amendment to defendant’s cross petition asking such relief on the ground of plaintiff’s extreme cruelty and gross neglect of duty, made after the trial court had filed its memorandum opinion containing its findings of fact, constitutes error. He further contends there is no evidence and finding to warrant the judgment. The action was tried on plaintiff’s petition for a divorce on the grounds of the wife’s extreme cruelty and gross neglect of duty and for a settlement pursuant to the provision of the antenuptial contract previously discussed. Defendant contested the granting of the divorce on the grounds she was not guilty of such misconduct and that the entire antenuptial contract was void. Neither her answer nor cross petition contained a charge of misconduct on the part of the plaintiff of any kind. There was no prayer for alimony or for separate support and maintenance. Upon the issues indicated the action was tried. The amendment to defendant’s cross petition brought in ah entirely new cause of action against the plaintiff. No issues were joined thereon. In the amendment plaintiff was advised for the first time that defendant would seek affirmative relief against him in the form of alimony or separate support and maintenance on the ground of his extreme cruelty or gross neglect of duty. While great liberality is allowed in pleadings G. S. 1935, 60-759 does not sanction the amendment made. It allows amendments, before or after judgment, in furtherance of justice when such amendment does not substantially change the claim or defense. In view of the circumstances we do not believe the amendment fairly could be said to have been allowed in furtherance of justice. Defendant, of course, might have embodied the above charges in her original cross petition or she might have amended it, with leave granted to join issues thereon. She might then have obtained a judgment for alimony without a divorce, under evidence warranting it. G. S. 1935, 60-1516 reads: “The wife may obtain alimony from the husband without a divorce, in an action brought for that purpose in the district court, for any of the causes for which a divorce may be granted. The husband may make the same defense to such action as he might to any action for divorce, and may, for sufficient cause, obtain a divorce from the wife in such action.” It is true that in Wohlfort v. Wohlfort, 116 Kan. 154, 225 Pac. 746, we held: “When a husband abandons his wife without just cause, she may maintain a suit for separate maintenance, though the abandonment has not been for a period sufficient to constitute a cause for divorce.” (Syl. ¶ 1.) But the wife in the Wohlfort case brought a separate action for the express purpose of obtaining separate maintenance and proved the husband had abandoned her without just cause and it was so found. The separation in the instant case began in May, 1944. An order for temporary support was made. The action was tried December 28, 1944. We have diligently searched the memorandum opinion and the findings of the trial court but are unable to discover a finding which places' the blame for the separation upon the plaintiff. We find considerable indication by the court that both parties were partly at fault. As previously indicated such circumstances justified a division of property, without a divorce, under the provisions of G. S. 1935, 60-1506. We think, however, we would not be justified, under the circumstances of this case, in sustaining a judgment against the husband for alimony or separate support and maintenance in the absence of a finding that plaintiff abandoned the defendant without just cause. The judgment denying plaintiff a divorce is affirmed. The judgment for separate support and maintenance is reversed and the case is remanded with directions to set aside the judgment in that respect.
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The opinion of the court was delivered by Hoch, J.: This is an original proceedings in habeas corpus. The petitioner, W. E. Maxwell, was convicted in Lyon county of murder in the first degree, and on November 29, 1939, was sentenced to life imprisonment in the state penitentiary, where he has since been confined. Before considering the contentions made it is pertinent to narrate briefly the history of the proceeding. The petitioner having filed various letters and papers in which it was alleged that he was unlawfully restrained of his liberty and that he was unable to employ counsel this court, on July 3,1944, appointed Mr. J. Willard Haynes of Kansas City, Kan., an experienced attorney and a member in good standing of the Wyandotte county bar, to represent him and all papers in the case were made available for his examination. On August 14, 1944, Mr. Haynes addressed a letter to this court, which was made a part of the files, in which he reviewed the facts disclosed by the records — to which further reference will presently be made— and stated that after examining the record and discussing the matter at a conference with the petitioner he was of the opinion that no valid grounds for granting a writ existed and so advised the petitioner. Thereafter an order was issued permitting the filing of the papers prepared by the petitioner without deposit for costs, and the respondent, warden of the penitentiary, was given twenty days in which to plead. The respondent filed a motion to make definite and certain which was allowed and the petitioner then filed another petition together with another motion for appointment of counsel. Answer was made by the respondent and the case set for hearing on January 25, 1945. The petitioner filed a brief in his own name and the case was duly submitted. On February 22, 1945, the petitioner was advised that upon examination of the various papers filed by him the issues did not appear to be clearly presented and that Mr. John E. Addington of the Shawnee county bar had been appointed to represent him and had been asked “to examine the files and after conference with him to prepare, if possible, an amended petition setting out the matters complained of in an issuable form, giving names of parties and time and circumstances as fully as possible, and to take such further action on behalf of petitioner as may be necessary or proper to fully represent him in the above matter.” Like the attorney previously appointed, Mr. Addington is an experienced attorney of high standing. Further consideration of the case was held in abeyance' in order to afford the petitioner further opportunity clearly to present his complaints. On September 13, 1945, Mr. Addington filed his affidavit in the case in which he recited that following his appointment as counsel he went to the state penitentiary, accompanied by his law partner, Mr. Howard A. Jones, where they had a private conference with the petitioner and went over the entire case with him from the time of his arrest until his confinement in the penitentiary; that thereafter he prepared an amended petition and on April 20, 1945, mailed it to the petitioner with the request that he sign the verification and return it to him as soon as possible; that not having heard further from the petitioner he wrote him on May 10,1945, asking why he had not returned the amended petition but received no reply; that he then wrote to the warden asking that the petitioner be interviewed about the matter, and after doing so the warden replied that the petitioner stated he was not ready to reply and wanted more time. The affidavit recites further that affiant had received no further communication from the petitioner; that the petitioner apparently did not care to cooperate with him and there did not appear to be anything more he could do for him. Other statements in the affidavit as to the petitioner’s attitude and mental state correspond to statements made by Mr. Haynes, the counsel first appointed, and need not be set out here. No amended petition has been received. In view of the facts above stated dismissal of the petition would have been and would now be amply justified. However, the case was again set down for hearing and upon request of petitioner for early determination the date was advanced to November 5, 1945. No further representations involving the merits were made by the petitioner. The petitioner makes some contentions as to matters which are not reviewable in a habeas corpus proceeding. For instance, he contends that if the question were submitted to a ballistic expert it would be shown that the bullet which caused the death of the man of whose murder he was convicted was not fired from any gun owned or used by him. His counsel, Mr. Everett Steerman, says in his affidavit that the defendant at no time contended that the fatal shot was not fired from his gun. From the many letters and other papers filed by the petitioner we have attempted to sift out such contentions as can be here considered. In a letter to his attorney, Mr. J. Willard Haynes, dated September 6, 1944, the petitioner asked that a petition for a writ be drawn up embodying three charges — “denial of counsel, denial of material witnesses, illegally changing the trial date,” and “any other denial or error you locate.” In drawing up his amended petition, however, he added the additional charges that he was not “legally charged in the information with murder in the first degree”; that county officials defrauded him of his rights by giving him drugs and by “abuse, coercion, duress and threats”; and that he was not allowed to file a motion for a new trial nor to take an appeal to this court. The contention that petitioner was denied counsel of his own choosing is abundantly disproved by the record. In the memorandum of proceedings had before the justice of the peace in the preliminary hearing — copy of which petitioner attaches to his amended petition— it appears that the petitioner, when asked if he had employed any attorney, replied that he had talked to an attorney but had not employed any and did not want any local attorney, and that upon being asked if he waived counsel for the preliminary hearing did not answer “yes” or “no” but said “go ahead.” It is clear that in the district court great care was taken by the trial court to see that the defendant was adequately represented by counsel. The defendant stated that he had not employed counsel but had talked to Mr. Shaw, an attorney “in the north part of the state.” The court went over one by one the names of the members of the Lyon county, bar, making inquiry of the defendant as to each of them. From the transcript of the proceedings we take the following excerpts: “Judge Rolston: . . . Under our constitutional law, you are entitled to a trial by jury; you are entitled to be represented by counsel. If you do not have counsel and are unable to employ counsel to represent you, the court can appoint not to exceed two. Of course, I would comply with the wishes of the defendant and appoint the attorney you want appointed. If you can tell me some member of the bar you want the court to appoint — I shall do so. Apparently from what you say you don’t want Mr. Samuel. Is there anyone else you want the court to appoint to represent you? “Mr. Maxwell: I don’t know. I am not very well acquainted. Could I represent myself? “The Court: You will have to have a lawyer when we go to trial in this case. You certainly can not present your own case. You are not familiar with the rules or procedure or the rules of evidence and you would not be properly protected and that is the reason that the law provides that the court can appoint not to exceed two atorneys. Have you any finances so that you can obtain counsel to represent you — that is pay an attorney? “(No answer.) “The Court: Do you have anybody in mind that you want the court to appoint! I am going to appoint two anyway. If you are going to trial sometime this month you have to have a lawyer from time to time to check upon things and consult with you and see that your rights are preserved. “The Court: Now, you have heard the names I have read to you — now who do you wish me to appoint as your counsel, provided you have' made no arrangement with any other attorney — and as I understand you have not? “Mr. Maxwell: No, I haven’t. “The Court: Do you have any preference? “Mr. Maxwell: The only ones I would have would be Harris and Steerman. “The Court: You want Everett Steerman and Mr. Harris — -is that the way I understand you? “Mr. Maxwell: They are all right with me. “The Court: I want you entirely satisfied. “Mr. Maxwell: They are all right with me. “The Court: If you have funds and wish to employ counsel you may still do so. “Mr. Maxwell: They are all right. “The Court: You understand the officers will get in touch with any attorney you desire and have them consult with you — -if you wish to get in touch with Mr. Shaw — I am sure the sheriff will see to it that you are given the opportunity of talking to him. “Mr. Maxwell: Mr. Harris and Mr. Steerman are all right. “The Court: I will appoint Judge W. C. Harris and E. E. Steerman, members of the bar, to represent you in this case, and I will have them come over and see you and talk with you and make plans with reference to the trial of this case. They will be notified immediately. Is there anything you want to ask me about? “Mr. Maxwell: I guess not. Thanks.” It may be added that both Judge Harris, since deceased, and Mr. Steerman were leading members of the bar. The former had been judge of the district court and the latter had been an assistant attorney general. Both attorneys actively participated in the conduct of the case. Petitioner’s contention that he was denied the right to subpoena witnesses is likewise groundless. The record of the preliminary hearing discloses that the defendant cross-examined witnesses for the state and that when the state rested the defendant was asked if he had any witnesses and replied that he wanted Mrs. Faye Davis, widow of the man whom he was accused of having killed,, to take the stand. She did so and he asked her a number of questions. At the trial in the district court more than a dozen witnesses were subpoenaed at his request.- There is on file here an affidavit by Hon. Joe Rolston, Jr., who was then judge of the district court of the Fifth Kansas Judicial District, of which Lyon county is a part, and who presided at the trial, in which essential facts with reference to the trial are related in detail. It is unnecessary to set out the affidavit in full. As to defendant’s witnesses Judge Rolston said: “All witnesses requested by the defendant were duly subpoenaed, and affiant does not recall that any witness requested by the defendant was unable to appear or testify or that defendant or his counsel did not have adequate time to prepare for trial.” There is also on file here a sworn statement by' Mr. Steerman, counsel for petitioner, which might well be incorporated in full. In view of its length we set out at this point only that part referring to defendant’s witnesses. Mr. Steerman says in his affidavit: “At the trial a number of character witnesses were called and testified for and on behalf of the defendant and the defendant did take the witness stand and did testify, as to the difficulty which he had with the said Faye Davis which provoked the altercation out of which the said Faye Davis was killed by a shot fired from a gun held in the hand of the said Maxwell. “Affiant further states that every person whose name was called to the attention of the Honorable W. C. Harris and this affiant and all persons in the neighborhood who might have known anything about the controversy between Maxwell and Davis and out of which the said Davis was killed, and every person who might have been a witness for the defense of Maxwell, were interviewed and that the only witnesses that could be produced were character witnesses and a number of them dfd testify for and on behalf of the defendant as the record in said case fully discloses. . . . “Affiant states that the Honorable W. C. Harris and this affiant had ample time to and did interview all of the witnesses whose names were furnished by the said Maxwell and did interview a great number of others that the said Maxwell did not name in an effort to get evidence to establish facts which would justify the jury in rendering a verdict of justifiable homicide.” The facts with reference to the setting of the case for trial are that at the close of the preliminary hearing on October 27, 1939, the defendant was bound over for trial at the February, 1940, term of the district court, and was committed to jail to await trial. On November 2, 1939, the county attorney filed the information in the district court with the names of the witnesses to be called by the state endorsed thereon. On the same day the defendant was brought into court and the proceedings relating to appointment of counsel as hereinbefore related took place, and the case was set for trial on November 20, 1939, the same being a regular day of the term of the district court then in session. Such setting was made pursuant to G. S. 1935, 62-1301, which provides: . “Time of Trial. All indictments and informations shall be tried at the first term at which the defendant appears, unless the same be continued for cause. If the' defendant appear or is in custody at the term at which the indictment or information is found, such indictment or information shall be tried at that term, unless continued for cause.” Mr. Rolston, who presided at the trial and Judge Jay Sullivan who was the county attorney who prosecuted the case and who is now the district judge in the Fifth Kansas Judicial District say in affidavits filed here that before setting the case for trial the trial court informed the defendant that the case would be set for sometime the latter part of November unless good cause were shown why that should not be done and that neither the defendant nor his counsel made any objection to going to trial on the date set, or asserted that they did not have adequate time to prepare for trial. Mr. Steerman, in his affidavit, makes a similar statement, saying that the defendant made no request of them that they ask for a continuance and that in his opinion the defendant’s rights were in no way prejudiced by reason of the time when the case was set for trial. There is no merit in the petitioner’s contention that a charge of murder was not sufficiently made in the information. It is not necéssary to set out the information in full. Clearly and beyond question it charged murder in the first degree as defined in the statute. Petitioner’s contentions that he was given drugs and that county officers by threats, abuse and coercion deprived him of his rights and did not permit him to file a motion for a new trial or to take an appeal are wholly unsupported. Although the petitioner was notified that this court had granted the respondent’s motion to’ require him to make the petition definite and certain with reference to these allegations he has not specified what county officers were guilty of the acts alleged or what the nature of the alleged threats and abuse was or what county officers prevented his filing a motion for a new trial or taking an appeal nor in what way they so prevented him. In his affidavit heretofore referred to, Mr. Rolston, the presiding judge, said: “Affiant further says that he has no recollection of any evidence of abuse, coercion, duress, or threats being applied against the defendant; that he was accorded the full processes of the court, and the constitutional rights of the defendant were fully and adequately protected to the best ability of affiant, and in every case of doubt it was resolved in favor of the defendant and not against him. “Affiant further states that while the facts of the case were still fresh in mind, and on the 5th day of December, 1939, he wrote a letter to the Honorable Leroy Bradfield, pardon attorney, Governor’s Office, Topeka, Kansas, pursuant to the requirements of law, advising such official concerning the trial of said action, which letter is by reference made a part of this affidavit as if fully and completely here set out at length. Affiant further states that there was no motion for a new trial filed and, as affiant recalls, defendant’s counsel advised the court that they knew of no error in the trial of the case and therefore were not filing any motion for a new trial. Affiant further states that he believes the record will disclose, and the letter above referred to does disclose, that at the time the defendant was sentenced he advised affiant that he had had a fair trial.” In his affidavit hereinbefore referred to Judge Sullivan, the then prosecuting attorney says: “Affiant further says that defendant did not at anytime before, during or after the' trial, while being held in the county jail of Lyon county, Kansas, contend that he had been abused, coerced or that any threats had been made against him. Affiant further states there was no motion for new trial filed and defendant’s counsel stated they knew of no error in the trial of the case and therefore were not filing a motion for new trial.” We find no grounds for granting the writ and it is hereby denied.
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The opinion of the court was delivered by Smith, J.: This is an original action in mandamus wherein the plaintiffs ask us to order the state superintendent of public instruction to consent to the annexation of certain territory to a rural high-school district. We issued an alternative writ. The defendant filed a motion to quash. The cause was submitted on this motion. Such a motion is equivalent to a demurrer. The action was originally brought in the name of Joint Rural High School District M & L No. 1. It should be noted that this district maintains a rural high school at Hunter, a town located within a mile of the south border of Mitchell county. After the formal allegations the petition alleged that petitions and enumerations were presented to the board requesting the annexation to the district of certain territory; that the board examined the petitions, found that a majority of the electors residing in the territory had signed them and approved the annexation of the territory. The description of the territory which it was sought to have the district annex showing that it comprised land partly in Mitchell and partly in Lincoln county was then set out. The petition then alleged that the annexation petitions were signed by seventy-one percent of the electors residing in the territory; tljat about eighty-three percent of the electors residing in that part of the territory which was in Mitchell county signed the annexation petitions and about sixty-five percent of those who resided in Lincoln county signed them. The petition then alleged that the annexation petitions and enumerations were presented to the county superintendent of Mitchell county who approved the annexation; that the petitions and enumerations, together with the approval of the board and the approval of the county superintendent of Mitchell county, were presented to the county superintendent of Lincoln county and that official refused to consent to the annexation. The petition then alleged that in due time the plaintiffs appealed to the state superintendent of public instruction and that official conducted a hearing and announced that he would disregard the formalities and that no record would be made of the proceedings; that the witnesses would make their statements free from questioning by any attorney and that he would accept letters or written statements of a representative of any witness not present although plaintiffs had objected to the use of any affidavits or writings; that the original petitions and enumerations were submitted to the state superintendent; also the consent of the county superintendent of Mitchell county and the refusal of the county superintendent of Lincoln county; that it was shown that one hundred and nine students had attended Hunter Rural Higu School frdm the territory in question since its beginning; that last year there were six high-school students from the proposed territory in Mitchell county and thirteen from the territory proposed in Lincoln county; that one-third of all the students in the high school came from the territory which it was propoeed to annex. The petition then alleged there was no objection by any one in Lincoln county except from one township; that the proposed territory extended seven miles south of Hunter to within nine miles of Sylvan Grove and was properly within the Hunter Rural High School District. The petition then contained the following allegation: “A copy of the decision of the State Superintendent is hereto attached, that the Court may see the reasoning whereby he reached his decision and the plaintiffs say that his said decision is not in accordance with law. It is inaccurate and speculative and not based on facts. He discusses the minimum size of a Rural High School district, but he fails to mention the fact that this same law requires a two million dollar valuation or if there is a High School building, a one million, two hundred and fifty thousand dollar valuation, all of which has nothing to do with the law of this case.” The petition then contained allegations in which plaintiffs objected to the mánner in which the state superintendent arrived at the conclusion reached and refers to G. S. 1935, 72-3514, and alleged that the duty of the state superintendent thereunder upon appeal was ministerial and the superintendent had no discretionary or judicial powers; that the only duty the county superintendent had was first to determine that the proposed territory was adjacent to a rural high-school district and then determine if a majority of the resident electors had signed petitions for annexation; that plaintiffs had no adequate remedy at law. At the time the state superintendent made his decision to refuse to consent to this annexation he wrote a memorandum opinion. A copy of this opinion was attached to the petition. When the suit was filed we issued an alternative writ. The defendant filed a motion to quash it on the grounds that the plaintiffs had no legal capacity to sue; that neither the writ nor the motion therefor stated facts showing that the plaintiffs were entitled to relief and that the action was brought for the purpose of compelling the defendant to perform discretionary acts. Before the case came on for final submission to the court on proper motion the state was made a party on motion of the plaintiffs endorsed by the county attorney of Mitchell county so the question of the legal capacity of the original plaintiffs to bring the action went' out of the case.' The section of the statute pursuant to which these proceedings were had is G. S. 1935, 72-3514. That section provides, in part, as follows: “Territory outside the limits of any rural high-school district, but adjacent thereto, may be attached to such high-school district for high-school purposes, upon application being made to the rural high-school board by a majority of the electors of such adjacent territory, and upon the approval of said rural high-school board and the consent of the county superintendent of public instruction: Provided, That an appeal may be taken from the decision of the county superintendent to the board of county commissioners, if such property proposed to be attached is within one county, and to the state superintendent of public instruction if same be within two or more counties, whose respective decision in either case will be final . . It will be seen that this statute provides for the annexation of new territory to a rural high-school district under certain conditions. Where the territory is all in one county annexation is brought about by securing petitions signed by a majority of the electors of the proposed territory followed with the approval of the rural high-school board and the consent of the county superintendent of public instruction. The statute, it will be noted, then provides for an appeal to the county commissioners. Obviously this means an appeal by either party, that is, by the people who want to see the territory annexed or by the people opposed to it. The lawmakers knew that there were certain situations such as the one we have here where the territory which some district wished to annex would be in two or more counties. It would hardly do to have the appeal lie to the county commissioners of one of these counties so the legislature provided that the appeal should lie to the state superintendent of public instruction in cases where the territory is within two or more counties, as is the case here. Plaintiffs argue that the state superintendent had no authority to exercise any discretion in the matter; that the matter of approving the annexation of the territory was purely a ministerial act and that once compliance with the statute was shown, that is, that there was a sufficient number of signatures on the petitions and the territory lay outside of any regularly organized district, then there was nothing for the county superintendent in the first instance or the state superintendent on appeal to do but approve the annexation. That argument, however, runs counter to a reasonable interpretation of the language of this act. In the first place, the act provides that territory may be attached upon application being made by the majority of the electors of the proposed territory but the statute goes on and makes an additional condition, that there must be the approval of the rural high-school board. No one would argue but that there would have to be the approval of the high-school board as well as the proper number of signatures. The statute goes on, however, in the very next clause and says “And the consent' of the county superintendent of public instruction.” We find then three provisions that must be met, That is, the signatures of the electors, the approval of the board and the consent of the county superintendent. It is pretty hard to see why the lawmakers provided that the county superintendent had to consent if his action was purely ministerial. Such a construction renders the use of the word “consent” meaningless. An appeal may be taken from the decision of the county superintendent. Now if an appeal may be taken, why would the statute provide for the consent of the county superintendent and then provide that an appeal could be taken from his decision if his act were purely ministerial? If after the board approved or refused its approval the rest of the steps were ministerial there would not be any reason at all for providing for an appeal. The act provides for an appeal to the board of county commissioners if the property is located in one district and to the state superintendent of public instruction if the territory is in two or more counties. Furthermore, the lawmakers saw fit to provide that in either case the decision of the board of county commissioners or the state superintendent of public instruction should be final. It is hard to see why the decision of the state superintendent would be final if it was intended that his action should be purely ministerial, as urged by plaintiffs here. The plaintiffs cite and rely on, State, ex rel., v. Mowry, 119 Kan. 74, 237 Pac. 918. In that case a county superintendent had attempted to detach territory from one district and attach it to another under the provisions of G. S. 1935, 72-3509. Without going into the facts at length it is perfectly clear that the decision of the county superintendent in that case was set aside because the court held that his acts wrere actuated by malice and so arbitrary and capricious as to be tantamount to fraud. On account of the arguments of plaintiffs in this respect the allegations of the petition here have been set out somewhat at length.- We have examined these allegations and nowhere in the petition do the plaintiffs allege either malice or arbitrary or capricious conduct on the part of the state superintendent. There are many decisions to the effect that the decisions of an administrative officer or board may be set aside by the courts when he is guilty of being capricious or acting in an arbitrary manner or actuated by malice. We do not have such a case as that here, however. The most that the petition alleges is that the state superintendent used bad reasoning in reaching his result and reached the wrong legal conclusion. Plaintiffs ask us to set aside the action of the state superintendent of public instruction because he examined writings of witnesses who were not present and did not permit the witnesses who were there to be cross-examined by counsel who represented the proponents of the adoption of the proposed territory and because he reached a different conclusion than counsel for plaintiffs think should have been reached from the evidence and facts that were considered by the superintendent. Once we have reached the con- , elusion that the use of the words “approval”'and “consent” as used in the section under consideration vests the officers referred to with discretionary powers we are led to the conclusion that we will not disturb the decision of the state superintendent of public instruction. In State, ex rel., v. Storey, 144 Kan. 311, 58 P. 2d 1090, we considered G. S. 1935, 72-3501 and 72-3502. G. S. 1935, 72-3501, conferred .on the state superintendent of public instruction the power to approve or disapprove the organization of a proposed rural high-school district where the land lay in two or more counties. The trial court had held that this statute was unconstitutional because it conferred on the state superintendent legislative power. We pointed out that the formation of school districts was a governmental function which was properly under the supervision of the state superintendent of public instruction. See article 6, section 2 and article 6, section 1 of the state constitution. In cases where boards and officials are charged with the duty of investigating and determining what is best to be done under a particular situation the tribunal or official is not required to conduct the examination into the matter under the strict rules of evidence that are required for courts. In that case we said: “We agree with appellee that the questions considered by the state superintendent of public instruction, as shown by his testimony, pertain to the prudence or advisability of establishing the joint rural high-school district, with its proposed boundaries, were legislative in character, but they pertained also to the educational interests of the state, and particularly to the educational interests of those who would be immediately affected by the organization of the new school district.” The statement applies with equal force to this case. The state superintendent of public instruction is charged with the duty of general supervision over the educational system of the state. To hold that the question of the advisability of consenting or not consenting to the annexation of certain territory by a rural high-school district could be tried out in courts after the state superintendent had passed upon it would be to render meaningless the language “whose decision in either case will be final.” There is a reason why that should be the case. The state superintendent is better equipped to ascertain what is good for the particular school district than a court would be. We find upon careful examination of the petition and the alternative writ of mandamus that it does not state facts sufficient to warrant us in ordering the state superintendent to consent to the annexation of this territory. Therefore, the motion of the defendant to quash the alternative writ will be sus- , iained and judgment entered in his favor. It is so ordered.
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The opinion of the court was delivered by Lockett, J.: Terry Coleman, a passenger and a Kansas resident, was injured in a one-car accident. Coleman brought an action in the United States District Court against Brian Yeager, the driver, who is insured by Farm Bureau Mutual Insurance Company (Farm Bureau), and the car owner, Tawanna Gibson, who is insured by Old Hickory Casualty Insurance Company (Old Hickory). The personal injury action was settled for $50,000. Old Hickory tendered its policy limits of $10,000 and Farm Bureau paid the remaining $40,000. Farm Bureau brought an action in the district court of Leavenworth, Kansas, for declaratory judgment against Old Hickory to determine the extent of Old Hickory’s liability. Farm Bureau moved for summary judgment. The trial court denied Farm Bureau’s motion for summary judgment and granted Old Hickory judgment. Farm Bureau timely appealed and this case was transferred to this court pursuant to K.S.A. 20-3018(c). The facts are not in dispute. Old Hickory issued a 30-day automobile liability policy to Gibson on a 1973 Ford Maverick which was registered in the State of Louisiana. At the time the policy was issued, Gibson was a resident of Sulphur, Louisiana. The insurance policy provided $10,000 maximum bodily injury coverage per person per occurrence as required by Louisiana law. Old Hickory is authorized to do business in Louisiana but not in Kansas. Yeager is covered by a policy issued by Farm Bureau, which is authorized to conduct business in Kansas. Gibson’s automobile liability policy contained the following provision: “D. CHANGES IN YOUR POLICY “1. Except when your policy is automatically amended to be in, line with the laws of your state no other changes will be of any effect unless or until actually endorsed on the policy by us. And no knowledge that you, your agent, or any other person may have is of any effect to make such a change until the change is actually endorsed on the policy by us.” (Emphasis added.) In its motion for summary judgment, Farm Bureau claimed Gibson was a resident of Kansas at the time of the accident. Because the minimum liability coverage required for a Kansas resident is $25,000, Farm Bureau argued that, under the terms of Old Hickory’s insurance contract with Gibson, its limit of $10,000 should be increased to the $25,000 liability coverage required for a Kansas resident under the Kansas Automobile Injury Reparations Act, K.S.A. 40-3101 et seq. Both parties stipulated that Gibson was a resident of Louisiana on the date the policy was issued. Farm Bureau argued that Old Hickory’s policy, as written, provided insurance in conformity with the laws of the state in which the policyholder resided at the time of the accident. Old Hickory argued that Gibson was still a resident of Louisiana at the time of the accident. After finding that the only factual dispute concerned Gibson’s residency at the time of the accident, the district court determined under the circumstances it was not necessary to resolve that issue. After denying Farm Bureau’s motion for summary judgment, the district court found that the terms of Old Hickory’s policy were not ambiguous, stating: “The language provides that except when your policy is automatically amended to be in line with the laws of your state no other changes will be of any effect unless or until actually endorsed on the policy. This is a provision which defines the circumstances under which a policy may be changed. It provides that no such changes shall occur unless they are actually endorsed on the policy, unless this one exception, the policy is automatically amended to be in fine with the laws of ‘y°ur state.’ This policy itself does not automatically amend to be consistent with the laws of other states’ financial security laws. Kansas law, likewise, if this was Tawanna Gibson’s state in the phrase, ‘y°ur state,’ does not provide that a foreign insurer who is not authorized to do business, transact business in the state of Kansas must nevertheless have its [policy reformed] to be consistent with Kansas financial security limits.” Simply stated, the district court found the phrase “your state,” as used in Old Hickory’s policy, means the state in which the policy was issued, i.e., Louisiana. Farm Bureau argues that a reasonable person would understand the phrase “your policy is automatically amended to be in line with the laws of your state” to mean that the insurance would automatically provide the minimum bodily injury required by the state’s insurance laws where the insured resides. Regardless of the construction of a written contract made by the trial court, on appeal a contract may be construed and its legal effect determined by an appellate court. To be ambiguous, a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it generally uncertain which one of two or more meanings is the proper meaning. The language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties. Where the terms of a policy of insurance are ambiguous or uncertain, conflicting, or susceptible of more than one construction, the construction most favorable to the insured must prevail. Since the insurer prepares its own contracts, it has a duty to make the meaning clear. If the insurer intends to restrict or limit coverage provided in the policy, it must use clear and unambiguous language in doing so; otherwise, the policy will be liberally construed in favor of the insured. When an insurance contract is not ambiguous, the court may not make another contract for the parties. Its function is to enforce the contract as made. Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741 (1987). Prior to determining that the policy language was not ambiguous, the district court looked to other jurisdictions for guidance. It is necessary that we review those cases relied on by the district court. American Hardware Mut. Ins. Co. v. Bradley, 153 N.J. Super. 72, 379 A.2d 53 (1977), concerns an automobile policy issued in New York on a vehicle registered in New York and involved in an accident in New Jersey. New Jersey law required $15,000 minimum liability coverage. The New York policy provided $10,000 coverage. The policy stated that “terms of this policy which are in conflict with the statutes of the State wherein this policy is issued are hereby amended to conform to such statutes.” 153 N.J. Super. at 76. The New Jersey court noted that this clause merely stated that the policy would conform to the laws of the state where issued. It found that it would be “unreasonable to assume a gratuitous undertaking by the insurer to have a policy issued in one state ambulate elsewhere to provide coverage under the financial responsibility laws of all other states through which the insured might happen to pass.” 153 N.J. Super. at 78. The court held that the policy’s statement it would conform to the statutes of the state where issued could not be interpreted to mean the minimum limits set by New Jersey, where the accident occurred. See Stewart v. National Insurance, 171 N.J. Super. 457, 410 A.2d 48 (1979) (Pennsylvania policy should not be read to provide the limits of the New Jersey statute). In Protective Casualty Insurance v. Cook, 734 S.W.2d 898 (Mo. App. 1987), an automobile policy issued in Florida provided $10,000 liability coverage. The accident occurred in Missouri, which required $25,000 minimum coverage. The Missouri court refused to increase coverage, finding that absent any provision in the policy or Missouri statutes, it could not reform the insurance policy to provide increased coverage. See also Delos Reyes v. Travelers Ins. Co., 175 Ill. App. 3d 169, 529 N.E.2d 764 (1988). In Wisdom v. Stonewall Insurance Company, 139 Ill. App. 3d 1082, 487 N.E.2d 1289 (1986), the policy contained endorsements entitled “Conformity with Financial Responsibility Laws” and “Out of State Insurance.” The “Out of State Insurance” provision in the policy stated, “If an insured person becomes subject to the financial responsibility law or the compulsory insurance law or similar laws of another state because of the ownership, maintenance or use of your insured car in that state, we will interpret this [policy] to provide any broader coverage.” 139 Ill. App. 3d at 1083. The Illinois court noted that the Missouri Motor Vehicle Safety Responsibility Law comes into play only after the occurrence of a motor vehicle accident in Missouri and a person is faced with suspension or revocation of his license, registration, or operation privileges in Missouri. The Wisdom court found since the insured was a nonresident and driving a car that was not registered in Missouri, the Missouri sanctions regarding the driver s license and the automobile’s registration could not be invoked. The court determined if the Missouri financial safety law is not applicable to the insured, the liability coverage is limited to the amount stated in the policy. 139 Ill. App. 3d at 1085-87. Amick v. Liberty Mut. Ins. Co., 455 A.2d 793 (R.I. 1983), involved an insurance policy issued in Massachusetts that, in addition to the compulsory insurance required by statute, allowed the insured to purchase a second type of insurance defined as “optional insurance.” It included a section called “Optional Bodily Injury to Others,” which contained the following language: “Some other states and Canada’s provinces require visiting autos to have higher amounts of bodily injury or property damage coverage than you may have purchased. But, if you have purchased any coverage at all under this part, we will automatically provide the required higher coverage.” 455 A.2d at 794. The insured was involved in an automobile accident in Rhode Island. The Supreme Court of Rhode Island held that the extraterritorial coverage clause of an automobile policy purchased by the insured extended the limits of the insurance policy to $25,000 as required by the Rhode Island Motor Vehicle Safety Responsibility Act. The cases cited are instructive but not controlling. The language in each of the policies discussed is not similar to the language in Old Hickory’s policy. The issue is whether the statement “your policy is automatically amended to be in line with the laws of your state” is ambiguous. To be ambiguous, a contract must contain a provision or language of doubtful or conflicting meaning, as gleaned from a- natural and reasonable interpretation of its language. Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation are applied to the instrument and there remains a genuine uncertainty which one of two or more meanings is the correct meaning. Clark v. Prudential Ins. Co., 204 Kan. 487, 491, 464 P.2d 253 (1970). Though Old Hickory does not do business in Kansas, it does not limit sale of its policies to residents of the state or states where it does business. When Old Hickory prepared its contract here, it had the duty to make the meaning of the policy clear. If Old Hickory intended to restrict or limit coverage provided in the policy, it should have used clear and unambiguous language in doing so. Rather than stating “your policy is automatically amended to be in line with the laws of your state,” it could have merely stated that its policy would conform to the laws of the state where issued. Instead, it chose language that is susceptible to more than one meaning; therefore, the insurance contract is ambiguous and is liberally construed in favor of the insured to provide the minimum coverage required by the state in which the insured resides. Old Hickory claims the voluntary settlement of the underlying action of Coleman v. Yeager in the United States District Court precludes any subsequent recovery by Farm Bureau in a declaratory judgment action in state court. Though the issue was raised in the state district court, the district court determined not to address that issue. Old Hickory chose not to cross-appeal. In order for an appellate court to determine an issue, the issue must have been raised and determined at the trial court level. See Kutilek v. Union National Bank of Wichita, 213 Kan. 407, 516 P.2d 979 (1973). Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K. S.A. 1990 Supp. 60-256(b). There are issues of material fact that remain. To determine the minimum coverage of Old Hickory’s policy, it is necessary to resolve the questions of (1) whether Gibson was a resident of Kansas or Louisiana at the time of the accident, and (2) whether the voluntary settlement in the original action precludes Farm Bureau from obtaining any subsequent recovery from Old Hickory. We therefore reverse the district court’s grant of summary judgment and remand the action to the district court for further proceedings. Reversed and remanded.
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The opinion of the court was delivered by Herd, J.: This is a personal injury action. Jacob Anderson appeals from the trial court’s grant of a partial directed verdict in favor of Randy Scheffler and Industrial Bearing & Transmission Company. This case was before this court once before, and the underlying facts were stated therein. Anderson v. Scheffler, 242 Kan. 857, 752 P.2d 667 (1988). For convenience, we again summarize them. On February 2, 1982, Jacob Anderson and his brother James delivered a load of poultry meal to Badger By-Products Company (Badger) in Wyandotte County, Kansas, a plant owned by Beatrice Companies, Inc., (Beatrice) a Delaware corporation. James backed the hopper trailer over an underground auger pit and began to unload the meal. From the top of the trailer, Jacob used a pole to push the meal through an opening at the bottom of the trailer. When he finished, Jacob descended from the trailer and walked across a grate covering a second auger at the rear of the trailer. Jacob’s foot slipped between the bars of the safety grate and his foot and leg plunged into the auger. His leg was severed above the knee. 242 Kan. at 857-58. Jacob, a Missouri resident, filed suit in Wyandotte County District Court against Badger. The suit was removed to federal district court and amended to include as defendants Beatrice; Conveyors, Inc., (Conveyors) the auger manufacturer; and Arthur J. Gallagher & Co. (Gallagher), supervisor of hazardous conditions at Badger. A motion to join Industrial Bearing & Transmission Company, Inc., (IBT) supplier of the auger, was denied because it would destroy diversity. 242 Kan. at 858-59. Jacob settled with Badger, Beatrice, and Conveyors. 242 Kan. at 859. Summary judgment was granted to Gallagher based on Jacob’s failure to establish that Gallagher owed a duty to him under Restatement (Second) of Torts § 324A (1965). Jacob and James filed a second suit in Wyandotte County District Court against IBT and its employee Randy Scheffler. Schef fler had accepted the order from Badger for the auger. The district court granted summary judgment in favor of IBT and Scheffler. Upon appeal, we determined summary judgment of Jacob’s claim was premature and remanded the case for trial. 242 Kan. at 859-60, 866. At trial, Jacob established that Badger’s plant manager, Philip Rogers, contacted Scheffler concerning the implementation of a new underground conveyor system. Scheffler’s deposition, read into evidence, indicated that Rogers called and requested 24 feet of 12-inch screw conveyor to put underground. Rogers indicated he had a motor for the conveyor system but needed the drives to go along with the rest of the system. Rogers wanted a system that could transport 40,000 pounds of material per hour, but left computation of the necessary variable drives to Scheffler’s expertise. In his deposition, Scheffler admitted he knew a grate was necessary to protect people from the auger and that a safety hazard existed without some kind of covering. Nevertheless, he did not order a grate along with the other component parts of the conveyor system because it was not a part of the conveyor system IBT sold. Finally, Scheffler’s deposition established that Rogers had asked Scheffler about the strength of metal needed for a guardrail over the floor auger. In response, Scheffler advised Rogers to obtain professional help from someone knowledgeable about grates. Scheffler conceded upon cross-examination that he gave Rogers advice on how to improve the movement of a portable auger. Jacob’s expert witnesses testified that Scheffler undertook to provide engineering services when he designed and provided the component parts necessary to produce a specific capacity conveyor system. In the experts’ opinions, Scheffler failed to exercise the standard of care of a reasonable engineer because he should have known an underground conveyor could not be safely designed without a grate and because he failed to warn Badger of the system’s dangerous condition without a grate. At the close of Jacob’s evidence, IBT and Scheffler sought a directed verdict on the issue of liability. The trial court determined sufficient evidence was presented for the jury to find Scheffler had failed to exercise reasonable care and that he undertook a duty in designing the conveyor system. Thus, the motion for directed verdict was overruled. Scheffler’s trial testimony established that Rogers did not request a grate and Scheffler did not recommend one because Rogers routinely assembled his own parts. Scheffler also stated he had never ordered, designed, or installed a grate because it was not a part of the conveyor system. Philip Rogers testified he placed an order with IBT for a screw conveyor and trough, and when the parts arrived he installed the conveyor system without assistance from IBT. Rogers also designed and installed a grate to cover the auger, but because poultry meal bridged on the grate and would not pass through it, he modified the grate to allow passage. Rogers stated he designed steel plates to cover the grate when the auger was not in use and informed Badger employees to keep the auger covered. Other evidence established that Badger was a sophisticated customer. Several IBT conveyor salesmen indicated they had never sold, designed, or ordered a safety grate to cover an auger. Scheffler’s expert witness testified that Scheffler did not perform engineering services and compared his work to purchasing groceries from a list. Scheffler and IBT renewed their motions for a directed verdict at the close of all the evidence. The trial court declined to rule on the issue at that point. However, the trial court refused to instruct on Jacob’s proposed instruction following Restatement (Second) of Torts § 324A. The trial court found there was sufficient evidence to establish that Scheffler had a duty to provide an adequate warning to the buyer. The trial court further ruled, however, that there was insufficient evidence to establish that Scheffler undertook to render services which he should have recognized as necessary for the protection of third persons. Therefore, the court granted Scheffler’s motion for directed verdict on the issue of § 324A tort liability but allowed the jury to consider liability based upon the failure to warn. The jury attributed 100% fault to Badger and assessed damages at $4,979,112.20. Jacob Anderson appeals. I Jacob contends the trial court erred in granting a directed verdict to IBT and Scheffler on the issue of liability under § 324A. He argues sufficient evidence was presented to allow recovery on this theory of liability. In ruling on a directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and where reasonable minds could reach different conclusions based on the evidence the motion must be denied and the matter submitted to the jury. Wozniak v. Lipoff, 242 Kan. 583, Syl. ¶ 1, 750 P.2d 971 (1988); Carter v. Food Center, Inc., 207 Kan. 332, 335, 485 P.2d 306 (1971). The same rule applies when appellate review is sought on a motion for directed verdict. Holley v. Allen Drilling Co., 241 Kan. 707, 710, 740 P.2d 1077 (1987). Restatement (Second) of Torts § 324A provides: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if “(a) his failure to exercise reasonable care increases the risk of such harm, or “(b) he has undertaken to perform a duty owed by the other to the third person, or “(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” This court adopted the theory of liability espoused in § 324A in Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982), and has considered the issue on numerous occasions. See Meyers v. Grubaugh, 242 Kan. 716, 750 P.2d 1031 (1988); Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986); Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984); Ingram v. Howard-Needles-Tammen & Bergendoff 234 Kan. 289, 672 P.2d 1083 (1983). Jacob asserts Scheffler undertook to render engineering and design services to Badger and should have recognized a safety grate was necessary for the protection of third persons using the conveyor system, including himself. Jacob alleges Scheffler’s failure to order a safety grate was a failure to exercise reasonable care, which increased the risk of harm to third persons. Jacob also asserts Scheffler participated in creating the conveyor system and thereby undertook to perform a duty owed by Badger to create a safe conveyor system and to warn customers of its dangers. The threshold requirement for application of § 324A is that the defendant must undertake, gratuitously or for consideration, to render services to another. Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 669, 792 P.2d 993 (1990). In order to meet this requirement, the defendant must assume an obligation or intend to render services for the benefit of another, and the person to whom such actions are directed must accept such services in lieu of, or in addition to, such person’s obligation to perform services. 246 Kan. at 674-76. Thus, a duty is owed to third persons by one who undertakes to render services to another and is then negligent in performing those services. However, one who does not assume an obligation to render services does not owe a duty to third persons. McGee v. Chalfant, 248 Kan. 434, Syl. ¶ 6, 806 P.2d 980 (1991). The issue we address is whether Scheffler undertook to render engineering or design services necessary to protect third persons. The evidence viewed in the light most favorable to Jacob Anderson establishes that Rogers, Badger’s plant manager, placed an order with Scheffler for a specific conveyor system. Rogers ordered 24 feet of 12-inch screw conveyor with the capacity to move 40,000 pounds of material per hour. Scheffler viewed the location of the conveyor system and made a sketch for future reference. Before ordering the conveyor system, Scheffler had to compute the proper horsepower required for the system and called the conveyor manufacturer to get a recommendation. There was some evidence Scheffler may have considered alternative ideas, such as a tapering screw or conveyor belt, but Scheffler denied these ideas pertained to Badger. In addition, Scheffler knew Rogers intended to install the auger and conveyor system underground and that something was needed to cover the auger. Nevertheless, he did not advise Rogers to use a grate and did not order one because he did not consider a grate part of the conveyor system. Finally, the evidence shows that Rogers asked Scheffler about a safety grate, but Scheffler recommended that Rogers seek professional services in designing or building a grate. Examination of the facts leads us to conclude Schefiler did not undertake to render engineering services to Badger involving a grate. Badger did not request a safety grate in its very specific order for a certain type of conveyor system and Schefiler did not order one. Although Schefiler did calculate the necessary horsepower for Badger’s system he did not design the system; rather, he merely ordered the component parts requested by Badger. There is no evidence Schefiler assumed the obligation of designing a safe conveyor system, nor did he help install the system. Thus, although Schefiler knew a safety grate was necessary, he did not undertake the duty to provide one. Therefore, Schefiler cannot be held liable for a task he did not agree to assume, and we hold Schefiler did not owe a duty of care to Jacob Anderson. The trial court did not err in granting the directed verdict and refusing to instruct the jury on a theory of liability based upon § 324A. II In light of the foregoing conclusion, we need not address Jacob’s argument that the trial court erred in instructing on the other theory of liability concerning Schefiler’s failure to warn Badger about the dangers of an unprotected auger since he assumed no duty with regard to the protective grate. III Jacob next contends the trial court erred in allowing hearsay testimony into evidence. During direct examination of Badger’s assistant manager, Schefiler’s attorney asked if he had ever heard of an incident at the plant in which a particular Badger employee’s foot slipped through the bars of the grate involved in the present case. The assistant manager acknowledged that he had learned of the incident, although he could not remember if he learned about it before or after Jacob’s accident. Jacob’s argument is without merit. No objection to the testimony was raised at trial. The erroneous admission of evidence may not be raised as an issue on appeal unless there appears of record a timely objection so stated as to make clear the specific ground of the objection. K.S.A. 60-404. State v. Wilson, 247 Kan. 87, 98, 795 P.2d 336 (1990); State v. Garcia, 233 Kan. 589, 608, 664 P.2d 1343 (1983). The judgment of the district court is affirmed.
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Per Curiam: This is an original attorney discipline proceeding filed by the Office of the Disciplinary Administrator against Larry D. Ehrlich, of Russell, Kansas, an attorney duly admitted and licensed to practice law in the State of Kansas. A formal hearing was held before a disciplinary panel of the State Roard for Discipline of Attorneys on August 24, 1989. Respondent appeared in person. The hearing panel report states: “Thereupon, the Respondent stipulated that the allegations of the formal complaint are true and that if the Disciplinary Administrator’s Office were to offer evidence in support thereof, the allegations would be proven by clear and convincing evidence. “The panel unanimously accepted the stipulations of the parties and upon the pleadings, the evidence and the stipulations, and after hearing the statements of the Office of the Disciplinary Administrator and the Respondent, the panel unanimously makes the following findings of fact from clear and convincing evidence.” The findings of fact, taken from the Final Hearing Report of the Kansas Roard for Discipline of Attorneys, filed September 20, 1989, are as follows: “1. The Respondent, Larry D. Ehrlich, is an attorney at law, Kansas Attorney Registration #08324, with a registration address with the Clerk of Appellate Courts as Bankers Building, P. O. Box 431, Russell, Kansas 67665. The Respondent has practiced law in Russell, Kansas for over 15 years and has served as Russell County Attorney. [COUNT I] “2. Faye Charles, the Complainant, retained Respondent to probate the estate of her uncle, John Addington. Respondent was retained soon after the death of Mr. Addington on October 19, 1986. “3. To the date of the hearing the Respondent had taken no action to probate the Addington estate. The Complainant and various other people associated with the estate have tried on numerous occasions to contact the Respondent with regard to the estate and the Respondent has failed and refused to communicate with those persons. “4. The Respondent has property of the estate in his possession for which no accounting has been made. [COUNT II] “5. In October 1986 Charles J. Sellens and Paula J. Sellens transferred their interests in certain oil producing properties to their sons, Chuck and Jason. The Respondent was retained by Charles J. Sellens to do all the legal work with regard to the transactions. “6. On several occasions in 1987 Charles J. Sellens contacted the Respondent to find out the status of the transactions. Sellens was told by the Respondent that the transactions had been taken care of, including the recording of the deeds evidencing the transactions. “7. On December 8, 1987, a judgment was taken against Charles and Paula Sellens and on January 5, 1988, as a result of the judgment taken against the Sellens, the property which Respondent had represented to have been transferred to Chuck and Jason Sellens, was levied upon. “8. Charles Sellens immediately contacted the Respondent about the execution and was told by the Respondent that the deeds had been properly recorded and that any execution on the property would be invalid. Later Respondent admitted to Charles Sellens that the deeds had not been recorded. “9. On January 28, 1988, a sheriffs sale occurred and at that sale the Respondent purchased one of the three mineral interests which were to have been transferred from Charles Sellens to his sons. The Respondent purchased this mineral interest in the name; of Chuck and Jason Sellens. The other two interests were purchased by a man named Willie Shultz. “10. Subsequent to the sheriffs sale, the Respondent told Charles Sellens that he wbuld transfer the property he purchased to Chuck and Jason Sellens. He also told Charles Sellens that he would take whatever action was necessary to reclaim the mineral interests sold to Willie Shultz. The Respondent failed to take any further action with respect to any of the mineral interests to the date of the hearing. “The Respondent failed to cooperate in the investigation of this matter in violation of Supreme Court Rule 207 [1990 Kan. Ct. R. Annot. 141]. [CONCLUSIONS] “The panel unanimously makes the following conclusions: “1. Upon the aforestated findings the Respondent violated DR 9-102(B) [1990 Kan. Ct. R. Annot. 204] and by his conduct after March 1, 1988, violated MRPC 1.15 [1990 Kan. Ct. R. Annot. 247] in his representation of Faye Charles. “2. In his actions with respect to the representation of Charles J. and Paula J. Sellens, the Respondent violated DR 1-102(A) [1990 Kan. Ct. R. Annot. 165]; DR 6-101(A)(3) [1990 Kan. Ct. R. Annot 188]; DR 7-101(A) [1990 Kan. Ct. R. Annot. 193]; DR 9-102(B)(l), (3) and (4) and by his conduct following March 1, 1988, has violated MRPC 1.3 [1990 Kan. Ct. R. Annot. 219], 1.4(a) [1990 Kan. Ct. R. Annot. 220], 1.15 and 8.4(c) [1990 Kan. Ct. R. Annot. 290]. “3. By the Respondent’s failure to respond to inquiries from members of the Bar assigned to investigate the complaints, the Respondent has violated Supreme Court Rule 207(b). “Recommended Discipline “In his statements to the panel, the Respondent offers no excuse or reason for his misconduct other than embarrassment to communicate with the investigating members of the Bar. Further, the Respondent did not indicate to the panel what steps, if any, would be taken by him in the future to avoid further misconduct. The Respondent did offer restitution at the hearing, but offered no concrete plan or timetable for restitution. Although the Respondent is an experienced, mature lawyer and the panel is only aware of these two complaints, the panel is not convinced that the Respondent is prepared to discharge his professional duties to clients, the public, the legal system, or the profession and therefore unanimously recommends that the Respondent be indefinitely suspended from the practice of law.” Thereafter, respondent contacted his friend, John Ambrosio, who agreed to represent him. Mr. Ambrosio requested the opportunity to have respondent evaluated by the Menninger Foundation prior to the imposition of discipline. The request was granted. Pursuant to an order of this court dated December 28, 1989, the matter was remanded to the panel for consideration of respondent’s evidence of mitigation. The hearing thereon was held on May 30, 1990. The panel’s supplemental hearing report provides, in part: “3. As shown by respondent’s Exhibit 1 and as supplemented by Dr. Maxfield’s testimony, the respondent was found to be suffering from major depression without psychotic overtones and to have an obsessive-compulsive personality disorder. “4. The respondent has since that date received extensive psychological counseling and medication for his depression. Respondent has made excellent progress in recovery from the depression. He recognizes and is dealing with the personality disorder. . . . “5. The respondent has withdrawn from his law partnership, concluded his affairs and discontinued the practice of law effective January 19, 1990. “6. The respondent has either made full restitution or has reached a compromise which will result in full restitution to the complainants. “7. The respondent has determined to discontinue the practice of law, has taken a job with an insurance company in Wichita and is making arrangements to move his family to Wichita as soon as practicable.” The panel then recommended the following: “The panel is of the opinion that the factors cited by the panel in its Recommended Discipline section of the September 19, 1989, report have materially changed. The respondent has now made lull restitution, is seeking treatment for the factors which apparently caused his misconduct and certainly may now be said to be taking concrete steps to avoid further misconduct. The panel therefore recommends that the respondent be disciplined by suspension of his license for a period of one year at which time he be readmitted without petition . . . .” This recommendation was followed by a number of conditions that respondent had to comply with during the period of suspension. These were primarily concerned with respondent continuing his treatment program. We have carefully reviewed the record herein. The panel was obviously impressed with the steps respondent has taken to get his professional and personal life in order since the first hearing herein and desired to encourage the progress respondent is making. We essentially accept the panel’s amended recommendation. It is The Order of The Court that Larry D. Ehrlich be indefinitely suspended from the practice of law, provided, however, that he shall be readmitted after one year’s suspension without petition if he establishes to the satisfaction of the Disciplinary Administrator that he has complied with the following conditions: 1. continued his therapy programs at the Menninger Foundation in effect on May 30, 1990, or such successive pro- ' grams at Menninger or elsewhere if referred by the Menninger Foundation; 2. faithfully taken all medication prescribed through his treatment programs; 3. not engaged in the practice of law; 4. earned the minimum continuing legal education credit hours required for the period involved; and 5. paid the costs of this proceeding. It is Further Ordered that this order be published in the Kansas Reports, and that respondent pay the costs of this proceeding.
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Per Curiam: This is an original proceeding in discipline filed by the office of the disciplinary administrator against Kent Alan Roth, of Great Bend, an attorney admitted to the practice of law in Kansas. The complaint filed against respondent is in two counts. The first count alleges violations of MRPC 7.3 (1990 Kan. Ct. R. Annot. 283) (direct contact with prospective clients) and MRPC 8.4(g) (1990 Kan. Ct. R. Annot. 290) (engaging in other conduct that adversely reflects on the lawyer’s fitness to practice law). The second count alleges violations of MRPC 4.1 (1990 Kan. Ct. R. Annot. 270) (making a false statement of material fact to a third person in the course of representing a client), MRPC 4.3 (1990 Kan. Ct. R. Annot. 272) (dealing with an unrepresented person), MRPC 8.4(c) (engaging in conduct involving misrepresentation), MRPC 8.4(d) (engaging in conduct prejudicial to the administration of justice), and MRPC 8.4(g) (engaging in conduct that adversely reflects on the lawyer’s fitness to practice- law). The respondent and the disciplinary administrator stipulated to the facts and that, as to count I, respondent’s conduct in contacting the mother before and at the funeral of her son constitutes a violation of MRPC 8.4(g) and that his contacting the mother of a child purportedly fathered by the deceased, constitutes a violation of MRPC 7.3. As to count II, respondent stipulated that his conduct concerning Mary Helen Misegadis constitutes a violation of MRPC 8.4(g). The hearing panel of the Board for Discipline of Attorneys found, as to count I, that respondent had contacted the mother of a young man who had been killed in a work-related accident. The first contact was by telephone before the funeral and the second contact was at the funeral. The purpose of both contacts was to obtain information concerning the whereabouts of a young woman who had given birth to a child who was allegedly the son of the deceased worker. Respondent, having obtained the name and address of the child’s mother, who lived in a different town, went to her home. He talked to her about representing the child in a workers compensation case arising out of the death of the worker and entered into a written contract to do so. The panel concluded respondent violated MRPC 8.4(g) when he contacted the mother before and at the funeral of her son and violated MRPC 7.3 when he personally contacted the mother of the child alleged to be the child of the deceased worker. As to count II, the panel found the respondent contacted Mary Helen Misegadis in connection with his represention of an individual in a workers compensation case. He did not disclose to Miségadis that he wanted her services for a workers compensation case. He told her he was seeking competency testing for his client. After the testing was completed, Misegadis realized the respondent wanted her to serve as a witness in a workers compensation case. She advised respondent she was not qualified to state the opinions and findings requested by respondent and did not want to be involved in a workers compensation case. Misegadis next received a cover letter from the respondent with a proposed opinion letter for the complainant’s signature. The draft did not accurately represent the content of Misegadis’ conference with the respondent, and she refused to sign it. Respondent then appeared at Misegadis’ place of employment with a subpoena for her to appear for a deposition (Misegadis had earlier refused his request to appear for a deposition). Respondent, without stating his intention, walked past Misegadis’ secretaries, interrupted a meeting that was in progress, and dropped the subpoena in front of Misegadis. The panel found his conduct violated MRPC 8.4(g). The disciplinary administrator’s office recommended public censure as appropriate punishment. Two of the three panel members noted the problems in this case occurred while respondent was suffering depression after the death of his mother, who died as a result of brain cancer. The respondent has had no prior discipline from the disciplinary administrator. Two panel members recommended public censure. The third panel member recommended private censure. Respondent filed no exceptions to the report of the panel. The court, having considered the record herein and the report of the panel, and, after considering the mitigating factors, accepts and concurs in the findings, conclusions, and recommendations of the hearing panel majority. It Is Therefore Ordered that Kent Alan Roth be, and he is hereby, disciplined by public censure in accordance with Supreme Court Rule 203(a)(3) (1990 Kan. Ct. R. Annot. 137) for his violations of the Model Rules of Professional Conduct. It Is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to the respondent.
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The opinion of the court was delivered by Lockett, J.: The State of Kansas filed an interlocutory appeal from the district court’s order suppressing evidence seized during the execution of a search warrant. The district court found that the warrant was defective because it lacked sufficient particularity in describing the place to be searched. The Court of Appeals found that the warrant met the test of practical accuracy sufficient to identify the residence to be searched and reversed the district court. We accepted the defendant’s petition for review. The estranged wife of James LeFort told Osborne County Deputy Sheriff Lockhart that she had seen marijuana joints in her husband’s house as recently as three days earlier and that two marijuana plants were growing behind that residence. Later that day Lockhart drove to LeFort’s residence and observed marijuana plants outside his back door. The next day, Lockhart prepared an affidavit and application for a search warrant using a five-page form set. The form with carbon paper inserts combines the affidavit and the application for a search warrant on the first two pages, followed by the search warrant and return on the next three pages. Unfortunately, the carbon paper inserts for the warrant did not extend far enough for the full description of the premises to be searched to be reproduced on the warrant. The search warrant provides the location to be at or on: “the person of James Donovan LeFort and or the following described realty and or dwelling: a single family two-story type frame dwelling, white with blue trim and/or premises outbuildings to include two mobile home type trailers, all located or situated on realty at or adjacent to southwest corner of Second Avenue and Fourth Street and recorded by deed as owned by James LeFort and Geneva . . . .” While the search warrant signed by Judge Megaffin ended with the word “Geneva,” the application and affidavit signed by Officer Wade Lockhart for the search warrant continued, stating: “LeFort and legally described as Lot One (1) and the north sixteen feet (16’) of Lot Two (2) in block twenty-two (22) in Fifield’s Second Addition to the City of Alton, KS; and/or within motor vehicles parked on said realty which are identifiable as being owned or in the possession or control of James and Geneva LeFort, to wit: 1973 Dodge pickup truck, I.D. No. D17AJ35051019; 1980 Ford pickup truck, I.D. No. F15EPHJ4007; and including a 1949 Tray housetrailer, I.D. No. 6333426T, or any other motor vehicles upon the described realty.” The application for the search warrant was approved by a magistrate judge and the warrant issued. During the execution of the search warrant, Lockhart and the four law enforcement officers assisting him seized marijuana and drug paraphernalia. LeFort was arrested and charged with two counts of possession of marijuana with the intent to sell, K.S.A. 1989 Supp. 65-4127b(b); one count of possession of marijuana without having paid tax on it, K.S.A. 79-5204; and one count of possession of drug paraphernalia, K.S.A. 1989 Supp. 65-4153a(2). Prior to trial, LeFort filed a written motion to suppress the evidence seized, claiming that the search warrant was defective because it failed to particularly describe the place to be searched. At the hearing on the motion to suppress, the court noted there are seven towns in Osborne County, and an officer executing the search warrant could not ascertain from the face of the warrant the place to be searched. The district court found that the warrant failed to particularly describe the premises to be searched and sustained the defendant’s motion to suppress the evidence seized. The State filed its interlocutory appeal. The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Section 15 of the Bill of Rights of the Kansas Constitution states: “The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.” The scope of Section 15 of the Kansas Constitution Bill of Rights is identical to that of the Fourth Amendment to the United States Constitution. State v. Deskins, 234 Kan. 529, Syl. ¶ 1, 673 P.2d 1174 (1983). To satisfy the specificity requirement of the constitutions the search warrant must describe the premises to be searched with sufficient particularity to permit the executing officer to locate the same from the face of the warrant. Steele v. United States No. 1, 267 U.S. 498, 69 L. Ed. 757, 45 S. Ct, 417 (1925); State v. Lambert, 238 Kan. 444, 447, 710 P.2d 693 (1985); State v. McClelland, 215 Kan. 81, 84, 523 P.2d 357 (1974). LeFort claims that an officer attempting to execute the warrant would not have a sufficient description to locate the premises to be searched. He contends the search warrant was so broad that it could allow officers to search wherever they wanted. He relies on State v. Gordon, 221 Kan. 253, 258, 559 P.2d 312 (1977), which said: “[I]t is constitutionally required that a search warrant shall ‘particularly’ describe the place to be searched. Thus general or blanket warrants which give the executing officers a roving commission to search where they choose are forbidden.” (Emphasis added.) The State argues that under the circumstances the lack of the street address, city, county, and state on the face of the warrant is only a technical defect and the evidence should not be suppressed. The State refers to K.S.A. 22-2511, which states: “No search warrant shall be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the accused.” The State cites State v. Ames, 222 Kan. 88, 563 P.2d 1034 (1977), as authority that lack of specificity in the search warrant as to the premises location is merely a technical irregularity. In Ames, the defendant argued that a holster seized by officers during the execution of a search warrant should not have been admitted into evidence as the warrant only authorized the seizure of the gun. In addition, the defendant claimed that an accumulation of technical irregularities invalidated the search. The defendant pointed out that: (1) the return was unsigned; (2) the holster was not listed as an item seized in the return; (3) the officer gave the gun to the district attorney without prior authority of the magistrate, in violation of K.S.A. 22-2512; (4) no receipt for the items seized was given to the accused or filed with the magistrate, in violation of K.S.A. 22-2512; and (5) the date on the return was in error. 222 Kan. at 92-93. The Ames court noted that the courts prefer searches conducted under the authority of warrants to those conducted without benefit thereof. Therefore, warrants and their supporting affidavits are interpreted in a common sense, rather than a hypertechnical, fashion. To do otherwise would tend to discourage police officers from submitting their evidence to a judicial officer before acting. Because of the courts’ preference for warrants, it is presumed, in the absence of a showing of illegality, that search warrants are valid. This presumption of legality also applies to supporting affidavits, as well as the proper performance by the issuing magistrate of his official duties. Consequently, one who attacks the validity of a search warrant carries the burden of persuasion. 222 Kan. at 92. The Ames court said that the test to prevent general searches is one of practical accuracy rather than one of technical sufficiency, and absolute precision in the search warrant is not required in identifying the property to be seized. It found that the warrant met the constitutional requirement of particularity. The court observed that the irregularities occurred after a valid search and seizure; hence, they were not constitutionally significant. 222 Kan. at 93. In this case, the Court of Appeals expanded the ruling set out in Ames, that irregularities occurring after a valid search and seizure are not constitutionally significant, to include technical irregularities in the description of the particular place to be searched in the warrant that do not affect the substantial rights of the defendant. For authority, it used the rationale of our sister state, Colorado. In People v. Leahy, 173 Colo. 339, 484 P.2d 778 (1970), the defendant was charged with possession of marijuana. The marijuana was seized pursuant to a search warrant. The warrant described the place to be searched as “1704 Pine St., County of Boulder, State of Colorado.” 173 Colo. at 346. The defendant argued the failure to show the name of the city made the warrant defective. The Colorado trial court disagreed and held the absence of the name of the city was not fatal. The defendant appealed, contending the search warrant was defective. The Colorado Supreme Court upheld the trial court, noting that the prosecutor had proved to the trial court that the place to be searched was the only residence in the county with that address. The Court of Appeals found Leahy factually similar to this case. The alleged defect in each of the search warrants was the failure to allege the particular city where the residence to be searched was located. Considering the detail available on the face of the warrant describing the place to be searched, including the street address, the type of construction and the color of the house, the particular outbuildings described and the ownership specified, it found that the warrant meets the test of practical accuracy sufficient to identify the LeFort residence in Osborne County and no other. The Court of Appeals observed that, because of his prior knowledge, the officer who executed the search warrant knew the particular place the magistrate had authorized to search. It noted that under these circumstances the failure to include the name of the town in the warrant was a technical irregularity which did not affect the substantial rights of the accused. We agree. The Fourth Amendment to the Constitution of the United States and Section Fifteen of the Kansas Bill of Rights prohibit only unreasonable searches and seizures. Cady v. Dombrowski, 413 U.S. 433, 37 L. Ed. 2d 706, 93 S. Ct. 2523 (1973); State v. McClelland, 215 Kan. 81, 83, 523 P.2d 357 (1974); State v. Brunner, 211 Kan. 596, 507 P.2d 233 (1973); State v. Thompson, 205 Kan. 442, 469 P.2d 279 (1970). Both constitutions prohibit the execution of warrants except those particularly describing the place to be searched and the persons or property to be seized. The purpose of this requirement is to prevent general searches and to prevent the seizure of an- item at the discretion of the officer. State v. Ames, 222 Kan. 88, 92, 563 P.2d 1034 (1977); Stanford v. Texas, 379 U.S. 476, 13 L. Ed. 2d 431, 85 S. Ct. 506 (1965). The statutory scheme for obtaining, executing, and returning the search warrant is set out in K.S.A. 22-2502 et seq. A search warrant is required to particularly describe a person, place, or means of conveyance to be searched and things to be seized. K.S.A. 22-2502(a). A search warrant shall command the person directed to execute the warrant to search a particular place described in the warrant. K.S.A. 22-2507. No search warrant shall be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the accused. K.S.A. 22-2511. Is LeFort correct in his claim that the evidence seized during the execution of the search warrant must be excluded? The exclusionary rule is not a necessary corollary to the Fourth Amendment, nor is it’s application required by the conjunction of the Fourth and Fifth Amendments. The exclusionary rule is neither intended nor able to cure the invasion of the defendant’s rights which he has already suffered. The exclusionary rule operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the person aggrieved. The right to invoke the exclusionary rule is limited to cases in which the prosecution seeks to use the fruits of an illegal search or seizure obtained by the police. By refusing to admit evidence gained by illegal conduct, the courts hope to instill in those particular investigating officers or their future counterparts a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale of the exclusionary rule loses much of its force. United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, reh. denied 468 U.S. 1250 (1984). In U.S. v. Gahagan, 865 F.2d 1490 (6th Cir. 1989), the defendant’s motion to suppress the evidence was based upon the claim that the warrant failed to particularly describe the place to be searched. Specifically, the defendant asserted that the address of “7609 Douglas Lake Road” alone, was insufficient to include Cabin #3 because Cabin #3 was a separate residence with its own address of 7577 Douglas Lake Road. The court observed that the warrant itself did not contain a sufficient description of Cabin #3, 7577 Douglas Lake Road. The court in Gahagan noted that the test for determining the sufficiency of the description of the place to be searched can be divided into two components: (1) whether the place to be searched is described with sufficient particularity as to enable the executing officers to locate and identify the premises with reasonable effort; and (2) whether there is reasonable probability that some other premises may be mistakenly searched. 865 F.2d at 1497. See United States v. Turner, 770 F.2d 1508, 1510 (9th Cir. 1985). However, the Gahagan court observed that the description in the affidavit accompanying the search warrant sufficiently de scribed both House B and Cabin #3 so that the executing officers could reasonably ascertain the premises to be searched. It noted that where a warrant fails to describe the area to be searched with sufficient particularity, that defect can be cured by the accompanying affidavit if the affidavit is attached to the warrant and the warrant incorporates the affidavit by reference. See United States v. Klein, 565 F.2d 183, 186 n.3 (1st Cir. 1977). The Gahagan court recognized that the affidavit itself was not attached to the warrant. However, the officer executing the warrant had testified that the affidavit was in his vehicle and readily accessible to the officers. The court noted at least one commentator has concluded that if the description contained in the warrant itself is inadequate, “ ‘it is appropriate to look to the description appearing in the warrant application or affidavit if it is clear that the executing officers were in a position to be aided by these documents.’ 2 LaFave, Search and Seizure § 4.5(a), p. 209 (2d ed. 1987) (emphasis in original).” 865 F.2d at 1497. The circuit court further found that the description of the property to be searched contained in the affidavit, as well as the relevant information known by the executing officers, can be relied upon to validate a warrant if the description contained in the warrant itself is less than complete. There was no risk that a mistaken search of another premises was possible given the officers’ knowledge of the facts surrounding the nine-month investigation. Further reducing the risk of an unauthorized search of another house was the fact that there were no other residences in the area except House B and Cabin #3. The Gahagan court determined that when one of the executing officers was the affiant who described the property to the judge, and the judge found probable cause to search the property as described by the affiant, and the search was confined to the areas which the affiant described, then the search was in compliance with the Fourth Amendment. In State v. Spaulding, 239 Kan. 439, 720 P.2d 1047 (1986), the State took an interlocutory appeal from the district court’s suppression of evidence seized from the defendant’s automobile. While working an accident that involved the defendant’s automobile, the Highway Patrol officer observed a “roach clip” used for smoking marijuana in the defendant’s car. The trooper pre sented an affidavit for a search warrant to the magistrate. The affidavit was subscribed and sworn to before the magistrate. The magistrate inadvertently failed to sign the search warrant prior to execution. The search warrant was executed, the evidence seized, and the warrant filed with the clerk. The defendant filed a motion to suppress, claiming that the failure of the issuing magistrate to sign the warrant is not a technical irregularity, but a permanent manifestation of his intent showing both a lack of probable cause and an intention to deny the warrant, and without his signature the warrant is void. The defendant’s motion to suppress was sustained. The State filed an interlocutory appeal, claiming that the lack of the magistrate’s signature on the warrant was merely a technical irregularity not affecting the substantial rights of the defendant. We determined that the issuing judge had made a finding of probable cause and intentionally issued the search warrant. The magistrate’s failure to sign the warrant was a mere oversight, a technical irregularity, which did not prejudice the defendant. Shortly after his conversation with Mrs. LeFort, but prior to applying for the search warrant, Lockhart drove out to the LeForts’ residence and confirmed that two marijuana plants were growing near LeFort’s back door. Lockhart drafted the application for the search warrant and the affidavit. The application and the affidavit contained the correct description of the particular place to be searched. Lockhart swore that the information contained in the affidavit was correct. Lockhart participated in the execution of the search warrant and made the return to the judge. The purpose of the constitutional requirement that search warrants particularly describe the place to be searched and the person or property to be seized is to prevent general searches and the seizure of items at the discretion of the officer executing the warrant. The test is one of practical accuracy rather than one of technical sufficiency, and absolute precision is not required in identifying the place to be searched or the property to be seized. State v. Ames, 222 Kan. 88, 92, 563 P.2d 1034 (1977). The officers’ prior knowledge of the particular location authorized to be searched by the magistrate substantially reduced the possibility of a mistake in locating the place to be searched. In determining whether the description given the executing officer in the warrant was sufficient, the initial examination is directed to the description stated in the warrant. However, if the description in the warrant is inadequate due to technical irregularity, the focus then shifts to the description contained in the application or affidavit for the warrant if the officers were able to use that description to execute the search warrant. When the officer executing the search warrant is the affiant who described the property to be searched, and the judge finds there was probable cause to search the property described by the affiant and the search is confined to the area which the affiant described in the affidavit, the search does not affect the substantial rights of the accused and is in compliance with the Fourth Amendment of the Constitution of the United States and Section Fifteen of the Kansas Bill of Rights. The fact that the complete address of the particular place to be searched failed to be copied through the carbon in the warrant was a mere oversight, a technical irregularity, which did not prejudice the defendant. Under the facts of this case, no invasion of LeFort’s rights under the Fourth Amendment to the Constitution of the United States and Section Fifteen of the Kansas Bill of Rights occurred. The judgment of the district court is reversed. The judgment of the Court of Appeals is affirmed. The case is remanded to the district court for further proceedings. Abbott, J., not participating.
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The opinion of the court was delivered by Lockett, J.: Appellants John D. Brunett and Patricia G. Brunett, husband and wife, filed a civil action against appellee Merle D. Albrecht, a real estate agent, and Howard C. Kline and Betty J. Kline, the sellers, for fraudulent misrepresentation in the sale of residential real estate. In addition, the Brunetts claimed damages from Albrecht for his failure to disclose the actual conditions of the real estate as required by the Real Estate Brokers’ and Salespersons’ License Act, K.S.A. 58-3034 et seq. Though the plaintiffs prevailed at the trial court level, on appeal they claim that the trial court erred in: (1) ruling that evidence of similar acts or misrepresentation by Albrecht in the sale of other residences would not be admitted into evidence; (2) excluding evidence of Albrecht’s economic or financial status; and (3) ruling that the Real Estate Brokers’ and Salespersons’ License Act does not create a separate cause of action. The Brunetts contacted Albrecht in July, 1986, to assist them in locating a home. They testified they informed Albrecht that, because of Mr. Brunett’s health condition and Mrs. Brunett’s craft business, they required a well-constructed house with a good roof and a dry basement with storage space. On September 23, 1986, Mr. and Mrs. Kline listed their home in Hope, Kansas, with Albrecht as an agent of the Carlson Real Estate Agency of Herington. The Brunetts testified that prior to showing the house Albrecht told them the Klines’ house was in perfect condition. When the Brunetts inspected the basement, its walls were covered by paneling, cabinets, food lockers, and clutter. The Brunetts testified they were advised on the first visit that there were no problems with the basement and on the second visit that the basement was dry and ideal for storing craft materials. The evening of the second visit, the- Brunetts agreed to purchase the Klines’ property for $37,500.' In March 1987, after a rain, the basement was flooded with approximately three inches of water. Filler which had been placed in the cracks of the basement wall fell out. When the Brunetts watered the yard, the basement walls leaked. Plaintiffs claim that the Klines and Albrecht misrepresented the condition of the basement walls and that neither the Klines nor Albrecht made full disclosures of the true condition of the basement. Prior to trial, Albrecht filed two motions in limine: (1) to prevent the Brunetts from introducing any evidence regarding civil wrongs on specific occasions pursuant to K.S.A. 60-455 and (2) to prohibit the introduction of evidence of Albrecht’s financial status to the jury. After the jury was selected, the trial court ruled that the 60-455 evidence would not be admitted and that Albrecht’s financial condition was not an issue until the judge determined if punitive damages were appropriate. During the second day of trial, the Brunetts settled their claim against the Klines for $5,000. The trial continued against Albrecht. An expert witness for the plaintiffs testified that the basements walls were severely cracked as the result of a longstanding problem of water inflow into the basement. He described the basement as a typical wet basement with buckled walls that had been braced. He stated that the significance of the cracks in the basement walls would not have been evident to the Brunetts. A contractor testified that the cost to correct the basement was approximately $32,508. Albrecht testified he had been a real estate agent since 1980. Albrecht stated that when he was preparing the data sheet he measured the house and discovered that the basement measured 250 square feet smaller than the house. He said the Klines had informed him the basement was wet and that the walls were braced by a deadman. Albrecht asserted that though he failed to include this information in the data sheet he showed to the Brunetts, the Brunetts were told that the walls were braced by a deadman and the function of a deadman was explained. Although Albrecht knew the walls were cracked and buckled, he testified the basement was as good or better than 70-80% of the basements in the Hope area. He claimed the specifications that the Brunetts gave were'to find a clean and neat house under $40,000, in a small town that was ready to move into. In answer to questioning on cross-examination, Albrecht acknowledged he had noticed that Mr. Brunett had difficulty in walking, but asserted he was never told by the Brunetts that they needed a house in good condition. Albrecht also testified that Mrs. Brunett never advised him of her plans to use the basement for her crafts. Albrecht stated that he advised them not to buy this house if they needed a third bedroom because the basement was damp. The Brunetts testified that Albrecht misled them when he told them that the VA appraiser had the responsibility to find defects in the house. Albrecht asserted though he had described the house as in perfect condition, that was a term of art meaning the house met all the buyers’ requirements. He also testified that he did not tell them that the VA appraiser would find all the faults. He had informed the Brunetts that it was their prerogative to hire either an appraiser or an engineer to inspect the house. The Brunetts were not sophisticated buyers. This was their first purchase of a house and they relied on Albrecht’s experience. After all the evidence had been submitted and prior to closing arguments, the trial judge informed counsel that the Real Estate Brokers’ and Salespersons’ License Act does not create a separate cause of action and that he would instruct the jury on common-law fraud and allow the jury to consider awarding punitive damages. After being informed of the judge’s decision, plaintiffs’ attorney made no comment, objection, or a request to reopen their case to present evidence of Albrecht’s financial condition. The jury awarded the Brunetts $2,600 for compensatory damages and $400 for punitive damages. The Brunetts appeal, claiming the trial court rulings significantly diminished their verdict. REFUSAL TO ADMIT EVIDENCE OF OTHER CIVIL WRONGS Evidence that a person committed a civil wrong on a specified occasion is inadmissible to prove his or her disposition to commit a civil wrong as the basis for an inference that the person com mitted another civil wrong on another specified occasion. Subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. K.S.A. 60-455. Relevancy is more a matter of logic and experience than of law. Evidence is relevant if it has any tendency to prove or disprove a material fact, or if it renders the desired inference more probable than it would be without the evidence. State v. Faulkner, 220 Kan. 153, 155, 551 P.2d 1247 (1976). The purpose of a motion in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible evidence, prejudicial statements, and improper questions by counsel. State v. Quick, 226 Kan. 308, Syl. ¶ 1, 597 P.2d 1108 (1979). When the trial judge granted Albrecht’s motion in limine, he prevented the Brunetts from introducing K.S.A. 60-455 evidence of other civil wrongs committed by Albrecht. The admission of evidence of prior acts or occurrences in a civil case is committed to the sound discretion of the trial court and will be overturned on appeal only upon a showing of abuse. Folks v. Kansas Power and Light Co., 243 Kan. 57, 66, 755 P.2d 1319 (1988). K.S.A. 60-455 is to be strictly enforced and evidence may not be admitted for the purpose of proving the defendant’s inclination, tendency, attitude, propensity, or disposition to commit a civil wrong. State v. Bly, 215 Kan. 168, 175, 523 P.2d 397 (1974). In ruling upon the admissibility of evidence of prior civil wrongs under K.S.A. 60-455, the trial court must:'(1) determine it is relevant to prove one of the facts specified in the statute; (2) determine the fact is a disputed, material fact; and (3) balance the probative value of the prior civil wrong evidence against its tendency to prejudice the jury. State v. Nunn, 244 Kan. 207, Syl. ¶ 1, 768 P.2d 268 (1988). The following proffer of the evidence of Albrecht’s prior civil wrongs was made by counsel for the Brunetts: “My argument, which was not taken down on the record, against that motion is basically as follows. And I might make this as a joint proffer of expected testimony, as well as argument against prohibiting plaintiff from introducing such evidence.” “No. 1, 60-455 says that evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In this case Mr. Albrecht has in my opinion been subject to civil redress in certain other matters, the first one being—which would be Gary King v. Albrecht which was a Dickinson County case that was filed in Dickinson County and involved substantially the same issues that are involved in this case, a misrepresentation, etc. In that case Mr. Albrecht’s deposition was taken in which he testified substantially different than what he has been testifying to here in this case. “No. 2, Mr. Albrecht has also been subjected to civil redress in a case entitled Jack Jacobs and his wife v. Merle Albrecht. That also has been filed in Dickinson County, Kansas. And it also alleges the same type of action, fraud, misrepresentation of material fact. “There is a third case which has not blossomed to fruition which involves a Mr. Hancock (sp.) who is present in court today who also has a similar action which is pending—has not been filed.—involving the same allegations of .misrepresentation of fact, nondisclosure, concealment, etc. And this property is also in Herington, Kansas. “As part of the plaintiffs’ reason for requiring—or requesting that they be permitted to put on this evidence is that Mr. Albrecht has testified under oath that he is a real estate broker licensed under the laws of the State of Kansas, and as such he occupies a capacity of superior position over these plaintiffs. And we feel—the plaintiffs feel—that this action should also be made known to the court and the jury, especially as to the motive and intent in his business operations. “For these reasons we are asking that we be permitted to put this evidence on.” Although the Brunetts claim these civil cases involved the same issue of fraud or misrepresentation, the proffer is void of any specific information as to why these other civil cases are relevant. In actions involving fraud, evidence of the same or similar fraudulent misrepresentations made to someone other than the injured party is competent and relevant for the purpose of establishing the elements of knowledge, malice, and intent to defraud. U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, 359, 629 P.2d 196 (1981). In Celotex, the Court of Appeals found that the documents of complaints and incidents about this particular type of proof were submitted to show Celotex’s continued misrepresentations; therefore, the trial court did not err in admitting evidence of other similar Celotex roof failures. Unlike the numerous documents available to the trial court in Celotex, the Brunetts’ proffer is void of any similar acts or oc currences by Albrecht. Without a detailed proffer from the Brunetts’ counsel, the trial judge was being asked to allow the admission of three other incidents and their accompanying collateral issues. Under our facts there was no abuse of discretion by the trial judge’s refusal to allow the facts in three other civil claims against Albrecht to be introduced into evidence. In their motion for a new trial, the Brunetts filed a particularized statement of misrepresentation by Albrecht in the other civil cases. On appeal the Brunetts argue that it was the trial court’s responsibility to require them to make a more detailed proffer of the evidence. We disagree. When a motion in limine has been granted, it is the responsibility of the party being limited to proffer sufficient evidence to the trial court in order to preserve the issue for appeal. Cf. State v. Nunn, 244 Kan. 207, Syl. ¶ 5. The plaintiffs’ proffer was insufficient to preserve the issue for appeal. EVIDENCE OF ALBRECHT’S FINANCIAL CONDITION The trial judge ruled that evidence Albrecht’s financial status would not be admitted until it was determined that the question of punitive damages should be submitted to the jury. After all of the evidence had been submitted and prior to closing argument, the trial judge informed counsel he would instruct the jury that, if it found the defendant’s conduct was fraudulent, the jury could award the plaintiffs punitive damages. The Brunetts argue that the trial court’s failure to indicate that it would instruct the jury on punitive damages prior to submission of all the evidence was error. The order resulting from a motion in limine may prohibit reference during trial proceedings to material which is irrelevant or prejudicial to a fair trial. The order is a temporary protective order that is subject to change during the trial; to predicate error thereon it will be necessary to again present the material or proffer the evidence during trial on a motion to reconsider. State v. Quick, 226 Kan. at 313. The trial judge’s order in limine as to Albrecht’s financial status was a temporary protective order. Where the trial court has made the introduction of evidence subject to a future ruling, the party wishing to avail himself of the evidence is required to renew the objection and secure a ruling from the trial court so that it appears on the record. A party who does not renew an objection to direct the court’s attention to the objection cannot claim error on appeal. It is not the trial court’s duty to pursue introduction of evidence. Because the plaintiffs failed to proffer evidence of Albrecht’s financial status during trial or request the opportunity to reopen their case prior to the trial judge instructing the jury, they failed to preserve the issue for appeal. REAL ESTATE BROKERS’ AND SALESPERSONS’ LICENSE ACT The trial court instructed the jury on common-law fraud. The Brunetts claim the trial court erred in not allowing a separate cause of action based on the Real Estate Brokers’ and Salespersons’ License Act. They cite Johnson v. Geer Realty Estate Co., 239 Kan. 324, 720 P.2d 660 (1986), for authority that violations of the Real Estate Brokers’ and Salespersons’ License Act may be the basis of suits brought against real estate brokers. Albrecht argues that after our decision in Johnson the 1986 legislature’s amendment to the Act reversed the Johnson decision. In Johnson, purchasers of real estate brought an action against the broker and vendors alleging negligent and fraudulent misrepresentation. This court found that under the Act the real estate broker could be held liable to purchasers for failing to disclose that the house had a septic tank rather than a sewer system since the real estate broker with his greater knowledge should have known the true facts. The trial court instructed the jury in language that paralleled K.S.A. 58-3062(a)(31), which provides: “No licensee shall: “(31) Fail to disclose, or ascertain and disclose, to any person with whom the licensee is dealing, any material information which relates to the property with which the licensee is dealing and which such licensee knew or should have known.” (Emphasis added.) After Johnson, the legislature amended the Act. L. 1986, chs. 209, 210. Recovery from the Real Estate Recovery Revolving Fund is now limited. K.S.A. 1986 Supp. 58-3068 provided the monies in the Real Estate Recovery Revolving Fund shall be used to reimburse persons who suffer monetary damages by reason of specified acts committed in connection with any transaction involving the sale of real estate in the state by any broker or salesperson who is licensed under the laws of this state at the time the act was committed or by any unlicensed employee of such broker or salesperson. Among the specified acts for which recovery is allowed is engaging in fraud or making any substantial misrepresentation. K.S.A. 1986 Supp. 58-3068(a)(l)(B). Another 1986 amendment to the Act, K.S.A. 1986 Supp. 58-3034(b), states that “[n]othing in this act shall be construed to grant any person a private right of action for damages or to eliminate any right of action pursuant to other statutes or at common law.” The Brunetts claim that the addition of this language to the Act does not prohibit a private cause of action derived from a violation of the Act. The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, so far as practical, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). The common law is subject to modification by judicial decision or legislative enactments in light of the changing conditions. We recognize the rule that a breach of a duty imposed by law is negligence and that damages may be predicated on a violation of the law if the breach is the proximate cause of the injury or substantially contributes to the injury. The declaration of public policy of whether an action can be brought under the common law or pursuant to a statute is a function of the legislative branch of our government. Ling v. Jan's Liquors, 237 Kan. 629, 640, 703 P.2d 731 (1985). The Brunetts’ logic is flawed. By amending the Real Estate Brokers’ and Salespersons’ License Act, the legislature made the Act regulatory in nature and intended it to benefit the public rather than a special class of individuals—those who purchase or sell property through real estate brokers. Though the Act, as amended, may no longer be the basis for a private cause of action for negligent or fraudulent misrepresentation, the legislature’s amendment of the Act did not eliminate any right of action pursuant to other statutes or at common law. The district court correctly determined that the Act, as amended, did not create a separate cause of action. Affirmed.
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The opinion of the court was delivered by Herd, J.: Ricky Redford was convicted on September 25, 1986, of aggravated kidnapping, K.S.A. 21-3421; aggravated criminal sodomy, K.S.A. 1987 Supp. 21-3506; rape, K.S.A. 1987 Supp. 21-3502; burglary, K.S.A. 21-3715; criminal damage to property, K.S.A. 1987 Supp. 21-3720; and aggravated battery, K.S.A. 21-3414. The convictions were affirmed on appeal. State v. Redford, 242 Kan. 658, 750 P.2d 1013 (1988). Codefendant Lisa Shannon was acquitted of aggravated criminal sodomy. K.S.A. 1987 Supp. 21-3506. The jury was unable to reach a verdict on the aggravated kidnapping charges against Shannon and a third codefendant, Gary Kanak. Mistrials were declared and eventually those charges against Shannon and Kanak were dismissed. On September 29, 1988, Redford filed a motion for new trial on the grounds of newly discovered evidence. The district court denied the motion and Redford appeals. Redford contends newly discovered hotel registration records show that he, Shannon, and Donna, the kidnapping victim, spent the night of April 30, 1986, at the Holiday Inn Plaza in Wichita. At the hearing on the motion for new trial, Donna admitted she stayed at the Holiday Inn Plaza with Redford and Shannon the night before they kidnapped her. Redford argues the new evidence discredits the State’s theory that Donna was kidnapped on April 30, 1986, and the trial testimony of Wilbur Just, who testified that he saw the kidnappers with Donna on April 30, 1986. Redford also argues the newly available testimony of Lisa Shannon supports his argument that there was no forcible kidnapping and that it could not have occurred on April 30. Shannon testified at the hearing on the motion for a new trial that she called Donna on April 30 at Paul Gestl’s house and asked Donna to join her and Redford at “The Tubs”. Donna did not have a ride so Shannon picked her up at Gestl’s and the trio spent several hours at “The Tubs” before renting a room at the Holiday Inn Plaza. Shannon testified that several calls were made to Gestl’s home from the room, and the next day, May 1, she took Donna back to Gestl’s house. Later in the day, Shannon called Donna, who stated that Gestl had beaten her. Shannon and Redford drove to Donna’s home. Donna was upset and had red marks on her face and neck. According to Shannon, Donna agreed to go along with her and Redford in order to get away for a few days. Shannon stated the three drove to Gary Kanak’s farmhouse in Ellsworth County. The rules governing motions for new trial based upon newly discovered evidence, established by K.S.A. 22-3501, have been repeated many times: “The granting of a new trial for newly discovered evidence is in the trial court’s discretion [Citation omitted.] A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon retrial. [Citation omitted.] The credibility of the evidence offered in support of the motion is for the trial court’s consideration [Citations omitted.] The burden of proof is on the defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. [Citations omitted.] The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. [Citations omitted.]” ’ ” Baker v. State, 243 Kan. 1, 11, 755 P.2d 493 (1988). Concerning the hotel registration records, Redford contends the trial court abused its discretion in denying the motion for new trial because Michael Wilson, Redford’s trial attorney, exerted reasonable diligence in an attempt to produce the records. Wilson testified he spent fifteen minutes at the Holiday Inn Plaza seeking registration information for April 30, 1986. Wilson stated he used Redford’s name and other alias names used by Redford, together with the room number and date, but was unsuccessful in discovering any information. Wilson unsuccessfully tried a second time to locate the registration records by using different name and room number combinations. He did not, however, use Shannon’s or Donna’s names. For support, Redford relies on State v. Neal, 243 Kan. 756, 763 P.2d 621 (1988). In Neal, the defendant, who was convicted of felony theft and aggravated robbery, informed his attorney prior to trial that he had been working on the night of the robbery. 243 Kan. at 757. Neal, his father, and his attorney made considerable efforts to obtain the work record printout of Neal’s employer on the evening of the crimes, but were told the records did not exist. 243 Kan. at 758. After Neal’s conviction, a general manager for the employer was contacted and it was discovered that time records were in fact available but few managers possessed this knowledge. 243 Kan. at 758-59. We found the newly discovered evidence was material and that reasonable diligence had been employed in an effort to recover the records prior to trial. Thus, we ruled there was no abuse of discretion by the trial court in granting the motion for new trial. 243 Kan. at 761-62. Redford’s reliance on Neal is misplaced. In Neal, the defendant provided his attorney with all the information he possessed. In the present case, Redford knew the hotel registration was not under his name but failed to relay this information to Wilson. In State v. Arney, 218 Kan. 369, 544 P.2d 334 (1975), the defendant was convicted of kidnapping, battery, and murder. At trial, evidence was presented that the defendant had left Kansas City on August 3, 1972. In his motion for new trial defendant offered evidence of collect phone calls to his mother which had been placed from Kentucky on August 2, 1972, and a hotel registration card, from a hotel in Kentucky, for the same date. This court ruled that facts fully within the knowledge of the defendant at the time of trial cannot subsequently be categorized as newly discovered evidence. In Arney, the defendant would have known at the time of trial if he had made the phone calls and registered at the hotel; therefore, there was no abuse of discretion in denying the motion for new trial. 218 Kan. at 373. See State v. Anderson, 211 Kan. 148, 151, 505 P.2d 691 (1973). We believe Arney governs the present case. Redford knew at the time of trial that Shannon, not he, had registered at the Holiday Inn Plaza. Redford chose not to provide his attorney with the same information. Although Redford’s attorney used reasonable diligence in attempting to recover the registration record, Redford did not. Therefore, we find the district court did not err in denying the new trial motion where Redford possessed full knowledge of the alleged new evidence at the time of trial. Next, we consider whether the testimony of a codefendant, who had elected not to testify at the convicted codefendant’s trial, is newly discovered evidence for purposes of a new trial. Redford asserts Shannon elected not to testify in the joint trial. Under protection of the Fifth Amendment, Shannon could not be compelled to testify at the trial. Therefore, Redford argues, Shannon’s “newly available” testimony should be treated as newly discovered evidence. In State v. Littlejohn, 236 Kan. 497, 694 P.2d 403 (1984), codefendants Moses and Littlejohn were convicted of felony murder and attempted aggravated robbery. In support of motions for a new trial, Moses and Littlejohn offered their own affidavits and the affidavit of convicted codefendant Thomas. 236 Kan. at 498. The information provided in the affidavits was not offered at trial and presented substantially different evidence that, in effect, placed all the guilt on Thomas. The trial court found the Little-john and Thomas affidavits were new evidence in Moses’ hearing because Littlejohn and Thomas would have taken Fifth Amendment protection and refused to testify at Moses’ trial. The same rational was applied to the Moses and Thomas affidavits in Little-john’s motion. Nevertheless, the trial court denied the motions for new trial, ruling that the information contained in the affidavits would not have changed in a new trial. Defendants appealed. 236 Kan. at 501-02. On appeal, the State argued there was no new evidence because the contents of the affidavits and the identity of the witnesses were known at trial. The State further argued that defendants failed to demonstrate the use of reasonable diligence because the witnesses were not subpoenaed and forced to claim Fifth Amendment protection. Stating that the trial court erroneously ruled that the evidence was newly discovered, we agreed with the State’s arguments and affirmed the trial court’s judgment as correct but for the wrong reasons. 236 Kan. at 503. Numerous federal courts have considered the validity of “newly available” testimony as newly discovered evidence under Rule 33 of the Federal Rules of Criminal Procedure. In United States v. Diggs, 649 F.2d 731, 734 (9th Cir.), cert. denied 454 U.S. 970 (1981), codefendants were convicted of mail and wire fraud and conspiracy to commit fraud. In support of a motion for new trial, one codefendant offered the affidavit of the other. 649 F.2d at 739. The circuit court refused to accept the exculpatory testimony of a codefendant who had refused to testify at trial as newly discovered evidence. 649 F.2d at 740. The Fifth Circuit Court of Appeals also refused to accept exculpatory statements and ex parte depositions of indicted coconspirators as newly discovered evidence where the coconspirators had refused to testify at trial. United States v. Vergara, 714 F.2d 21, 23 (5th Cir. 1983). In United States v. Carlin, 573 F. Supp. 44, 45 (N.D. Ga. 1983), aff'd 734 F.2d 1480 (11th Cir. 1984), the defendant Carlin was convicted of interstate transportation of forged securities. At trial, a witness charged with the same criminal actions in another case asserted his Fifth Amendment privilege and refused to testify. After the Carlin trial, the witness was convicted, and Carlin asserted the newly available testimony of Carlin’s alleged innocence thus became newly discovered evidence. The district court ruled the previously unavailable testimony was not newly discovered evidence under Rule 33. 573 F. Supp. at 46. The court found the witness’ testimony was not new evidence because it was always known by the defendant. In addition, the court denied the motion for new trial because the convicted witness who sought to exculpate the defendant lacked credibility. 573 F. Supp. at 47. See United States v. Persinger, 587 F. Supp. 899, 901 (W.D. Pa. 1984); United States v. Gerard, 574 F. Supp. 874, 875 (E.D. Mo. 1983); Annot., 44 A.L.R. Fed. 13. Our review of the state and federal case law has convinced us that Shannon’s newly available testimony was not newly discovered evidence. Shannon and the content of her testimony .concerning Redford’s alleged innocence were known to Redford at the time of trial. We further find Redford failed to show he used reasonable diligence to obtain Shannon’s testimony. No formal motion was filed to compel Shannon’s testimony and force her to claim the Fifth Amendment. Nor did Redford seek a severance, even when the other codefendants sought separate trials. Finally, we note the testimony offered was not likely to produce a different verdict at retrial and was cumulative to Redford’s own testimony. Baker v. State, 243 Kan. at 11-12. The judgment of the district court is affirmed.
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The opinion of the court was delivered by Brewer, J.: The only question in this case is, as stated by counsel in their briefs, and as appears from the record, whether a judgment in this state is a lien on after-acquired lands of the judgment-debtor in the county, or binds only those belonging to him at the time the judgment takes effect, that is, either the first day of the term, or the day at which it is entered. The language of the statute is: “Judgments * * * shall be liens on the real estate of- the debtor within the county in which the judgment.is rendered from the first day of the term at which the judgment is rendered; but judgments by confession, and judgments rendered at the same term during which the action was commenced, shall bind such lands only from the day on which such judgment was rendered.55 Civil Code, §419. This question has been before the courts of many states, and decided both ways. In Pennsylvania, Ohio, Iowa, and Mississippi, it has been decided that a judgment-lien does not bind after-acquired lands. Rundel v. Ettwein, 2 Yeates, 23; Calhoun v. Snider, 6 Binney, 135; Packer’s Appeal, 6 Barr, 277; Morehead v. McKinney, 9 Bar’r, 265; Richter v. Selim, 8 Serg. & E. 425; Waters’ Appeal, 35 Penn. St., 523; Roads v. Symmes, 1 Ohio, 281; Stiles, ex dem., v. Murphy, 4 Ohio, 92; Harrington v. Sharp, Adm’r, 1 G. Greene, 131; Woods v. Mains, 1 G. Greene, 276; Moody v. Harper, 25 Miss. 484. In the case of Calhoun v. Snider, supra, in which is the fullest and most exhaustive discussion óf the question, Ch. Justice Tilghman, while assenting to the judgment upon the strength of a prior adjudication, expressed a strong dissent to the soundness of the doctrine, a dissent repeated by the court in the case of Richter v. Selim. On the other hand, the courts of New York, Virginia, West Virginia, Tennessee, Indiana, Illinois, Minnesota, and Arkansas, hold that the judgment does bind after-acquired lands. Stow v. Tifft, 15 Johns. 464; Jackson v. Rank U. S., 5 Cranch Ct. Ct. 1; Handley v. Sydenstricker, Adm’r, 4 West Va. 605; Greenway v. Cannon, 3 Hemp. 177; Chapron v. Cassady, 3 Hemp. 663; Davis v. Burton, 2 Sneed, 665; Relfe v. McComb, 2 Head, 558 ; Ridge v. Prather, 1 Blackford, 401; Michaels v. Boyd, 1 Ind. 259; Wales v. Bogne, 31 Ill. 464; Root v. Curtis, 38 Ill. 192; Steele v. Taylor, 1 Minn. 274; Banning v. Edes, 6 Minn. 402; Trustees R. E. Bank v. Watson, 13 Ark. 74. See also, Freeman on Judgments, § 367. A decision either way, therefore, would be well supported by authority. Counsel for plaintiff in error contend that our statute resembles the Ohio statute, and that therefore, adopting it, we adopt the construction given there. Our statute is not a copy of the Ohio statute; and while it resembles it very closely, yet little if any more so than it does the statute of some of the other states, as for instance, Tennessee. See 2 Sneed, supra. Nor do we under-' stand the Ohio court, in the case in 1 Ohio, in which the question was first decided, as resting their decision upon the peculiar language of their statute. It should perhaps be stated, that the statute now in force in Ohio, and from which it is claimed ours was taken, is not exactly like the one in force at the time of the decisions quoted.. (Chase’s Stat. 129.) That is even more unlike ours than the present. The language of the statute is not very clear or decisive upon the question. It would not be doing violence to its terms to construe it either way. We are inclined to favor the views of the last-named courts, and hold that the lien does bind after-acquired lands. A single fact favoring this view may be stated. The 4th section of the mortgage act, passed by the same legislature, but a few days after the code, provides, that “a mortgage given by a purchaser to secure the payment of purchase-money shall have preference over a prior judgment against such purchaser.” This tends to sustain the view that, but for this section, the prior judgment would be a lien, and a lien preferred to the mortgage. The judgment will be affirmed. Kingman, C. J., concurring.
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The opinion of the court was delivered by Valentine, J.: On August 29th 1871 the superintendent of public instruction of Pottawatomie county formed a new school district from territory previously belonging to School Dist. No. 13 of said county, and designated said new district as District No. 63. Everything pertaining to the formation of said new district seems to have been regular, except that the superintendent did not, at the time of such formation, apportion the amount of the property to which each district was entitled. The school-house and other property remained in the old district. Afterward, and on March 25th 1872, the superintendent did apportion said property, and in the apportionment determined that School District No. 13 should pay the new district the sum of $131110 as its proper proportion. The only question now presented to us for consideration is, whether said apportionment is void, or valid. We think it is valid, although there are some very strong reasons tending to lead to a different conclusion. The objection to the apportionment is, that it was not made at the time of the creation of the new district, and this is the only objection. Of course, under the law it should have been made at the time of the creation of the new district. (Gen. Stat. 926, § 50.) But does its validity depend upon its being made precisely at that time? Is time of the essence of the law, in this respect? We think not. It is fair, and just, and equitable, when a school district is divided into two new districts, that each should have its fair proportion of the value of the property belonging to the old district at the time of the division. Or what is the same thing, it is fair when a new district is carved out of an old one that the new district should have its fair proportion of the property or value thereof which belonged to the old district at the time the new one was created. And this fairness, equity and justice we think is more of the essence of the law, than mere time in making the apportionment. Will it be claimed that the new district must lose its proportion of the property, or the value thereof, if the superintendent should for a single day after creating the new district fail or neglect to make the apportionment? If neither of the districts, nor any person having any interest in either of the districts, has any right to appeal from the action of the superintendent in making or failing to make any apportionment, then there would seem to be but little reason for requiring that the apportionment should be made on any particular day, provided it be made within a reasonable time after the new district is created. And the statute (Gen. Stat. 926, § 51; Laws of 1872, p. 372, § 2,) does not in terms seem to give the right of appeal to either of the districts as a corporate entity, but merely to some person, or persons, who shall feel aggrieved. The word “person,” or “persons,” as used in the statute, may however include the corporation as well as real persons, for the corporation itself is in one sense a person, an artificial person. And the right of individual persons to appeal may be confined to personal grievances alone, and may not be extended to grievances which directly affect only the district as a corporation, and which indirectly affect all the individuals alike, one as much as another. (As to private individuals championing the rights of the public, see Bridge Co. v. Wyandotte County, 10 Kas. 326, 331, and cases there cited; Miller v. Town of Palermo, 12 Kas. 14.) Besides, a question may be raised under the statute, whether the right to appeal extends merely “ to the formation or alteration of a school district,” and no further, or whether it extends as well to all matters incidental “to the formation or alteration of a school district.” For the purpose of this case we shall assume that the right of appeal exists, and has existed to the fullest extent ever since said new district was created. It would seem unreasonable that the legislature should not give an appeal in cases of this kind. And with a liberal construction of their language, probably they have given it. Then, if we are correct so far, we think it follows, that the superintendent, after he created said new district, had the right, at any time, and of his own volition, to make said apportionment; that the new district had the right at any time after the failure to make said apportionment to compel him to do so by an action of mandamus; that any person or persons feeling aggrieved by such failure had a right to appeal to the board of county commissioners, (Gen. Stat. 926, § 51,) and after the superintendent made the apportionment any person or persons who felt aggrieved thereby had a right to appeal. If any right to an appeal from an apportionment has ever existed, it is because the apportionment is incidental to the creation of the new district and the alteration of the old. And if the apportionment may be made at any time after the new district has been created, it is also because of its connection with creation of the new and the alteration of the old. And therefore, as the right to make the apportionment follows (whenever made) as an incident to the creation and alteration of the two districts, the right of appeal also follows (provided it exists in any case of apportionment,) as incidental to such creation and alteration, and may b’e exercised by any person feeling aggrieved by the apportionment whenever the same is made. If there should be any fraud in the apportionment, we should also think that the district defrauded would have a remedy, either as plaintiff or defendant, by a proceeding in the nature of a bill in equity. With reference to taking an appeal from said apportionment, it has been said that the law was so amended in 1872, (just four days before the apportionment was made) that an appeal would be impossible in this particular case. (Laws of 1872, pp. 372, 373, §§ 2, 3.) This may be true, if the law of 1872 is to govern; but under §1, of the act concerning the construction of statutes, (Gen. Stat. 999, § 1, sub. 1,) we think the law of 1872 would not govern in this case, but that the provisions of the previous laws would govern. Willetts v. Jeffries, 5 Kas. 473; Gilleland v. Schuyler, 9 Kas. 569; The State v. Boyle, 10 Kas. 113; Morgan v. Chappel, 10 Kas. 224; The State v. Crawford, 11 Kas. 32; Jenness v. Cutler, 12 Kas. 500, 511, 512; Ayers v. Probasco, 14 Kas. 175. The judgment of the court below is affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: The plaintiffs in error were sued upon a promissory note. Mehnert filed an answer in person, alleging part payment to the amount of $166.10, and that after the maturity of the note he and his co-defendant had given a mortgage due in twelve months as security, and that this time had not passed. They made no appearance at the trial, and judgment was rendered for the face of the note and interest. On the same day they, by an attorney, filed a motion to vacate the judgment, and grant them a new trial, on the ground that they were prevented from making their defense by “accident, which ordinary prudence could not have guarded against, and unavoidable misfortune.” This motion was overruled, and this is the error complained of. Mehnert’s affidavit was the only testimony offered upon said motion. He testified that he filed th§ answer, and that it was true, that he lived twelve miles from Fort Scott, where the court was in session; that he had a large amount of stock, and no male help on his place, and was consequently obliged to be home every night; that in order to be present in court in time on that morning he rose between three and four o’clock, attended to his home duties, and started with his team for Fort Scott between five and six o’clock, drove with all possible dispatch, and made no stoppages on the road; that he reached the court-house about ten o’clock, and found that the case had been called and disposed of a few. minutes prior thereto; that the delay in driving in was caused by the bad and almost impassable condition of the roads. Was this accident which ordinary prudence could not have guarded against, or unavoidable misfortune? It does not appear that the roads were for that season of the year, December, exceptionably bad, or that by an unexpected change in the weather they had become suddenly bad, or that Mehnert did not by frequent travel have full knowledge of their actual condition. At that time, it is no uncommon thing for country roads to be very rough, and in very bad condition. Common prudence would dictate that one who was acting as an attorney, and attending to business in court then in session, should not run the risk of getting into court in the morning over such roads from a remote part of the county. The real difficulty was, that Mehnert was attempting to perform the double part of suitor and attorney. While this is perfectly proper,' yet whoever attempts it subjects himself to the obligations and liabilities of both. It is the duty of an attorney having business in court to be present during its sessions. There is his business; there is his work. Oftentimes that which will excuse the absence of a suitor, will come far. short of excusing the absence of his attorney. Now, Mehnert was acting as an attorney, intrusted with business in the court then in session. Instead of employing some one to take care of his stock on -his farm, and being himself in readiness to attend to his case, he is with full knowledge of his great distance from the court-house, and the almost impassable condition of the roads, attempting to take care of both stock and lawsuit. He succeeded in the former, but failed in the latter, and failed simply from omitting the ordinary precautions which men take under similar circumstances. Hill v. Williams, 6 Kas. 17. The judgment will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This is a controversy between these two corporations as to the title to certain lands situated near the junction of their roads, and claimed by each respectively under a congressional land grant. The suit was brought by the plaintiff in error in the district court of Davis county, and embraced nearly one hundred thousand acres of land in the counties of Davis and Dickinson. As to the major portion of these lands the district court decided in favor of the defendant, and the plaintiff now brings the case here on error. Each company claims under a land grant. In neither is it pretended that there was any specific designation of the lands granted. In each, the location of the road determined the specific tracts. It becomes necessary therefore, as to each road, to examine the terms of the grant, as well as to ascer tain when the line of the road was definitely fixed. The plaintiff, originally known as the “ Leavenworth, Pawnee & Western Railroad Co.,” subsequently as the “Union Pacific Railway Co., Eastern Division,” and finally by its present name, claims under the acts of congress in aid of the construction of a road from the Missouri river to the Pacific ocean. The first of these acts was approved July 1st 1862, and while it contemplated but a single main line it also provided for the construction of two or three branches on the eastern end. One of these branches was to be constructed by the plaintiff. Sec. 3 defines the land grant to the main company. It reads, “ That there be and is hereby granted to the said company * * * every alternate section of public land designated by odd numbers to the amount of five alternate sections per mile on each side of said railroad on the line thereof, and within the limits of ten miles on each side of said road, not sold, reserved, or otherwise disposed of by the United States, and to which a preemption or homestead claim may not have attached at the time the line of said road is definitely fixed.” Sec. 4 provides that commissioners should be appointed upon the completion of every forty miles of road, to examine and report whether such completed portion was built as required by the act, and upon a favorable report patents were to issue for the adjacent lands. In § 6 the grants were declared to be upon condition that the bonds issued by the United States in aid of the construction should be paid at maturity, that the road should be kept in repair, and the mails, troops, etc., transported thereon. In § 7 the assent of the company to the act was required within one year, and the completion of the road by July 1st 1874; and then follow these provisos: “Provided, That within two years after the passage of this act said company shall designate the general route of said road, as near as may be, and shall file a map of the same in the Department of the Interior, whereupon the Secretary of the Interior shall cause the lands within fifteen miles of said designated route or routes to be withdrawn from preemption, priváte entry, and sale; and when any portion of said route shall be finally located the Secretary of the Interior shall cause the said lands hereinbefore granted to be surveyed and set off as fast as may be necessary for the purpose herein named: Provided, That in fixing the point of connection of the'main trunk with the eastern connections, it shall be fixed at the most practicable point for the construction of the Missouri and Iowa branches, as hereinafter provided.” By § 8 the president was authorized to designate the initial point of the main line, which was to be on the one-hundredth meridian west from Greenwich, and at which all the eastern branches were to unite. Sections 9 and 10 refer to the plaintiff's road, and are as follows: “Sec. 9. And he it further enacted, That the Leavenworth, Pawnee & Western Eailroad Company of Kansas are hereby authorized to construct a railroad and telegraph line from the Missouri river, at the mouth of the Kansas river, on the south side thereof, so as to connect with the Pacific Eailroad of Missouri, to the aforesaid point on the one-hundredth meridian of longitude west from Greenwich, as herein provided, upon the same terms and conditions in all respects as are provided in this act for the construction of the railroad and telegraph line first mentioned, and to meet and connect with the same at the meridian of longitude aforesaid; and in case the general route or line of road from the Missouri river to the Eocky mountains should be so .located as to require a departure northwardly from the proposed line of said Kansas railroad before it reaches the meridian of longitude aforesaid, the location of said Kansas road shall be made so as to conform thereto; and said railroad through Kansas shall be so located between the mouth of the Kansas river as aforesaid, and the aforesaid point on the one-hundredth meridian of longitude, that the several railroads from Missouri and Iowa, herein authorized to connect with the same, can make connection within the limits prescribed in this act, provided the same can be done without deviating from the general direction of the whole line to the Pacific coast. The route in Kansas, west of the meridian of Fort Eiley, to the aforesaid point on the one-hundredth meridian of longitude, to be subject to the approval of the President of the United States, and to be determined by him on actual survey. And said Kansas company may proceed to build said railroad to the aforesaid point on the one-hundredth meridian of longitude west from Greenwich in the territory of Nebraska. * * * “ Sec. 10. And be it further enacted, That the said company chartered by the state of Kansas shall complete one hundred miles of their said road, commencing at the mouth of the Kansas river as aforesaid, within two years after filing their assent to the conditions o.f this act, as herein provided, and one hundred miles per year thereafter until the whole is completed.” * * * Under this act the plaintiff, as appears by the proceedings, filed a map of its general route, and the fifteen-mile strip on either side thereof was duly reserved from sale. This route extended up the Kansas river to the left bank of the Eepublican, and thence along the bank of said last-named river to the one-hundredth meridian. Subsequently, and on the 2d of July 1864, congress passed an amending act, which increased the land grant, the area of reserved lands, and authorized the plaintiff to connect its road with the main line at other than the one-hundredth meridian, providing however that the grant of bonds of land should not thereby be increased. Again, on the 3d of July 1866, congress passed an act authorizing the location of a new route, the filing of a map thereof, and the reservation of the adjacent lands, § 1 of which is as follows: “An Act to amend an act entitled, ‘An act to aid in the construction of a railroad and telegraph line from the Missouri Eiver to the Pacific Ocean/ etc. etc., Approved July 2d 1864.’ “Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the Union Pacific Eailway Company, Eastern Division, is hereby authorized to designate the general route of their said road, and to file a map thereof as now required by law, at any time before the first day of December 1866; and upon the filing of the said map, showing the general route of said road, the lands along the entire line thereof, so far as the same may be designated, shall be reserved from sale by order of the Secretary of the Interior: Provided, That said company shall be entitled to only the same amount of the bonds of the United States to aid in the construction of their line of railroad and telegraph as they would have been entitled to if they had connected their said line(with the Union Pacific Eailroad on the one-hundredth degree of longitude, as now required by law: And provided further, That said company shall connect their line of railroad and telegraph with the Union Pacific Railroad, but not at a point more than fifty miles westwardly from the meridian of Denver, in Colorado.” In pursuance of this act, and on the 11th of July 1866, the plaintiff filed a map of its newly-selected route up the Smoky Hill, instead of the Republican river, and on the 26th of July 1866 the lands along the line thereof were all duly reserved from sale by order of the Secretary of the Interior. This reservation included all the lands in controversy. Prior thereto the road had been completed to Fort Riley, and soon thereafter work commenced on the extension up the Smoky Hill. On the 14th of December 1866, the president of the company made his affidavit of the completion of twenty miles, and on' the 20th of same month the commissioners appointed by the President were directed to make their examination. Before making their examination the company had completed five additional miles, and on the 10th of January 1867 the commissioners were directed to examine and report upon the twenty-five miles of completed road. The commissioners on the 17th of January 1867 reported favorably, and on the 22d of said month the President of thé United States approved the same, and directed the issue of patents for lands due the company on account of this completed section of twenty-five miles. All the lands in controversy were covered by this executive order. These are the facts material to the plaintiff’s title. From them it seems that two propositions are clearly deducible: first, the lands in controversy were among others on the 26th of July 1866 duly and legally reserved from sale, and second, that as between the U. S. and the plaintiff full title to these lands passed, at least upon the approval of the President of the. report of the commissioners, and the order to issue patents. It is probable that title passed upon the permanent location of plaintiff’s road adjacent to these lands, but as the time of such location is not definitely shown by the findings, and as a vesting of title prior to the approval of the President would not, in the conclusions to which we have come, have any effect upon the decision, we forbear further inquiry in that direction. So far as the action of the President was required, the subsequent approval was equivalent to a prior selection of the route. Turning now to the claim of defendant, let us see upon what it rests. The first act in its chain of title was approved March 3d 1863. So much as is material is as follows: “An Act for a grant of lands to the State of Kansas, in alternate sections, to aid in the construction of certain Eailroads and Telegraphs in said state. “Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That there be and is hereby granted to the State of Kansas, for the purpose of aiding in the construction, * * *; Second, of a railroad from the city of Atchison, via Topeka, the capital of said state, to the-western line of the state, in the direction of Fort Union and Santa Fé, New Mexico, with a branch from where this last-named road crosses the Neosho, down said Neosho Valley to the point where the said first-named road enters the said Neosho Valley — every alternate section of land designated by odd numbers, for ten sections in width on each side of said road and each of its branches. But in case it shall appear that the United States have, when the lines or routes of said road and branches are definitely fixed, sold any section or any part thereof, granted as aforesaid, or that the right of preemption or homestead settlement has attached to the same, or that the same has been reserved by the-United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected, for the purpose aforesaid, from the public lands of the United States nearest to the tiers of sections above specified, so much land, in alternate sections or parts of sections, designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved, or otherwise appropriated, or to which the rights of preemption or homestead settlements have attached as aforesaid; which lands, thus indicated by odd numbers, and selected by the direction of the Secretary of the Interior as aforesaid, shall be held by the state of Kansas for the use and purpose aforesaid: Provided, That the land to be so selected shall in no case be loca ted further then twenty miles from the lines of said road and branches: Provided further, That-the lands hereby granted for and on account of said roads and branches'severally shall be exclusively applied in the construction of the same, and for no other purpose whatever, and shall be disposed of only as the work progresses through the same, as in this act hereinafter provided: Provided, also, That no part of -the land granted by this act shall be applied to aid in the construction of any railroad or part thereof, for the constructor of which any previous grant of land or bonds may have been made by congress: And provided further, That any and all lands heretofore reserved to the United States, by any act of congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be and the same are hereby reserved to the United States from the operations of this act, except so far as it may be found necessary to locate the routes of said road and branches through such reserved lands; in which case the right of way only shall be granted, subject to the approval of the President of the United States.” In this act was no grant affecting in any way the lands in controversy; but the legislature of the state of Kansas (Laws 1864, p. 151,) in accepting on the 9th of February 1864 this grant, and transferring certain of the lands to the A. T. & S. F. Railroad Co., added this proviso: “And provided further, That if the congress of the United States shall, on or before the 4th of March 1866, consent that the Neosho "Valley branch of the above-named road may be extended so as to intersect the Union Pacific Railroad, Eastern Division, at or near Fort Riley, and shall make a grant of land for such extension of like amount with that granted per mile for the construction of the herein above-named principal road, then said Atchison, Topeka & Santa Fé Railroad Company shall proceed to construct such branch to such intersection, on the terms and conditions herein above prescribed, applicable to the construction of such main road.” In pursuance of this implied request congress, on the 1st of July 1864, passed an act making a land grant to the state of Kansas to aid in the construction of the road indicated in the above proviso, which grant was made expressly “subject to all the provisions, restrictions, limitations, and conditions in regard to selection -and location of lands, and otherwise,” of the act of congress of March 3d 1863, heretofore noticed. Subsequently, with the assent of the state, the A. T. & S. F. Railroad Co. transferred to the defendant all its interest in this grant, and on the 26th of July 1866, congress passed a new act granting lands, of which the title and the first section are as follows: “An Act granting lands to the State of Kansas, to aid in the construction of a southern branch of the Union Pacific Railway and Telegraph from Fort Riley, Kansas, to Fort Smith, Arkansas. “Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That for the purpose of aiding the Union Pacific Railroad Company, Southern Branch, the same being a corporation organized under the laws of Kansas, to construct and operate a railroad from Fort Riley, Kansas, or near said military reservation, thence down the valley of the Neosho river to the southern line of the state of Kansas, with a view to an extension of the same through a portion of the Indian Territory, to Fort Smith, Arkansas, there is hereby granted to the state of Kansas, for the use and benefit of said railroad company, every alternate section of land or parts thereof, designated by odd numbers, to the extent of five alternate sections per mile on each side of said road, and not exceeding in all ten alternate sections per mile; but in case it shall appear that the United States have, when the line of said road is definitely located, sold any section, or any part thereof, granted as aforesaid, or that the right of preemption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected, for the purposes aforesaid, from the public land of the United States nearest to the sections above specified, so much land as shall be equal to the amount of such lands as the United States have sold, reserved, or otherwise appropriated, or to which the right of homestead settlement or preemption has attached as aforesaid, which lands, thus indicated, by the direction of the Secretary of the Interior shall be reserved and held for the state of Kansas for the use of said company by the said secretary for the purpose of the construction and operation of said*railroad, as provided by this act: Provided, That any and all lands heretofore reserved to the United States by any act of congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or other purpose whatever, be and the same are hereby reserved and excepted from the operation of this act, except so far as it may be found necessary to locate the route of said road through such reserved lands, in which case the right of way, two hundred feet in width, is hereby granted, subject to the approval of the President of the United States: And provided further, That said lands hereby granted shall not be selected beyond twenty miles from the line of said road.” The Union Pacific Eailroad Co., Southern Branch, named in said act, is the defendant here, the name having been subsequently changed to that of the M. K. & T. Eailway Co. Between the 5th and 20th of September 1866, the defendant caused its line to be surveyed and made on the ground adjacent to the lands in controversy, which survey and location was approved by the board of directors of the defendant, and a map thereof filed in the office of the Secretary of State of the State of Kansas on November 14th 1866, and in the office of the Secretary of the Interior December 16th 1866. On the 9th of June 1870 the defendant’s road was completed to the south line of the state, accepted by the governor, and by him certified to the Secretary of the Interior as a first-class railroad, and thereupon accepted by the President. This constitutes the defendant’s chain of title. Looking merejy to the granting-clause in these acts under which defendant claims, and the words used are words of present grant — “That there be and is hereby granted.” Now if there were any designation of specific tracts, or any reference to existing lines, whether natural or artificial, from which by mere survey and measurement the specific tracts could be ascertained, it might well be said that the title to those tracts passed immediately, subject to be defeated by a failure to perform the conditions of the grant. Perhaps too, if there were no other limitation than the want of a definitely located line of road, the location of the road would make the grant operative from the day of its date, and thus cut off all intervening claims. But other limitations appear in both the acts of March 3d 1863, and July 26th 1866. It is provided 'that “ in case it shall appear that the United States have, when the lines or routes of said road and branches are definitely fixed, sold any section or any part thereof granted as aforesaid, or that the right of preemption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected for the purposes aforesaid from the public lands of the United States nearest to the tiers of sections above specified so much land * * * as shall be equal to such lands as the United States have sold, reserved, or otherwise appropriated,” etc. This limitation operates to exclude from the grant any lands which at the time the line of road is definitely fixed have been by the United States reserved for any purpose whatsoever. It leaves the specific sections undetermined until the definite location of the road, and then excludes from the grant any lands to which adverse rights and interests have attached. Now, from the findings it appears that the line of defendant’s road, adjacent to these lands, was not definitely fixed until between the 5th and 20th of September 1866, but on the 26th of July prior thereto they had been by the United States duly reserved, in pursuance of positive and direct legislation therefor. It seems to us that they were by the very terms of the acts under which defendant claims excluded from the operation of its grant, and that therefore there is nothing in defendant’s claim to interfere with the title which passed to the plaintiff by the completion and acceptance, by the President of the United States of its road. As the facts seem to be undisputed, we can but think the case of Johnson v. Towsley, 13 Wall., 72, leaves the courts free to apply the law correctly to those facts, and as in the view we have taken of the law the plaintiff has the better title to these lands, it becomes our duty to so adjudge. Inasmuch as no exception appears to have been taken to the facts as found, it is also our duty, under the law, to make, so far as the courts of this state are concerned, a final disposition of the case. The judgment of the district court will therefore, as to the lands adjudged by it to the defendant, be reversed, and the case remanded with instructions, as to those lands, to enter judgment for the plaintiff, as prayed for in the petition. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: All the Justices concurring. At the commencement of the trial of this case, an order was made by the court below excluding from the court-room, during the trial, all the plaintiff’s witnesses, except such witness as might be called in at any time for examination. During the trial, Mary Atkinson, one of plaintiff’s witnesses, came into the court-room in violation of said order, and heard all the evidence-in-chief of another witness of the plaintiff. Afterward x the plaintiff offered to introduce this witness, but the defendant objected on the ground that she had violated said order. “The plaintiff [then] insisted that the witness should be allowed to testify; that they had called the attention of the court to the fact of the witness being in court as soon as the fact came to the knowledge of the plaintiff’s counsel; that it was no fault of theirs, but of the witness ; that the fact of the witness being in court before the plaintiff was apprised of the fact of said witness being in court, was known to defendant’s counsel.” This statement was not sworn to, and whether true, or untrue, we have no means of determining. And what the testimony of the witness might have been, we cannot tell, for the court excluded the whole of it, not even allowing the witness to be examined on any subject, and the plaintiff made no statement as to .what the testimony would be. Did the court below err in refusing to allow this witness to be examined ? We think it did. There is no pretense that the witness was not a competent witness in every respect, except that she had violated said order. And there is no pretense that her testimony would not have been relevant and competent, if it had been admitted. Her testimony was excluded simply and solely because she violated said order of the court. This was probably no punishment to the witness, but was rather a severe punishment to the plaintiff, who, as we must presume from the circumstances of the case, was an innocent party. Mr. Phillips says, in his work on evidence, that, “If a witness, who has been ordered to withdraw, continue in court, it was formerly considered to be in the judge’s discretion whether or not the witness should be examined. But it may now be considered as settled, that the circumstance of a witness having remained in court in disobedience to an order of withdrawal, is not a ground for rejecting his evidence, and that it merely affords matter - of observation.” (2 Phil. Ev., 5th Am. ed. 744; star page, 887; and also see cases there cited.) This is evidently the correct rule. A hostile witness should not have the power, by violating an order of the court, to deprive an innocent party of his testimony. Nor should the ignorance, mistake, misapprehension, or inadvertence on the part of the witness, 7 r 7 have the effect to deprive an innocent party of his testimony. The testimony of the witness should be received, and should go to the jury; but the conduct of the witness may also be shown to the jury, for the purpose of affecting his credibility. That this view of the question is correct, see also Keith v. Wilson, 6 Mo. 435; State v. Salge, 2 Nevada, 321; Gregg v. The State, 3 West Ya. 705; Grimes v. Martin, 10 Iowa 347; Bell v. The State, 44 Ala. 393; State v. Sparrow, 3 Murphy, (N. C.) 487; Hopper v. Commonwealth, 6 Grat., (Va.) 684. The witness may be punished, as for a contempt, by fine and imprisonment for violating the order of the court. So • also may any party or person who prooui’es or abets such violation. And if the party who wishes to examine the witness abets the violation of the order of the court, he may be punished by excluding the evidence of the witness; or at least this seems to be the weight of authority up to the present time. But all this is punishment for a supposed contempt of the court; and the guilt of the party punished must either come under the personal and judicial cognizance of the court, or it must be proved to the satisfaction of the court by evidence. No innocent person can be punished in any manner; and no person is to be presumed without proof to be guilty; but on the contrary, every person, in the absence of anything showing the contrary, is presumed to be innocent. Hence, in the present case, with or without the said statement of the plaintiff, as there is nothing in the record tending to show the plaintiff’s guilt, he must be presumed by the supreme court to be innocent. There was nothing that transpired during the trial tending to show his guilt. It will also be presumed that the plaintiff was prejudiced by the exclusion of the testimony of said witness. Mr. Powell says: “It seems that to reject a witness which the record shows to be a competent witness, would be error, for it would appear prima fade that the party was prejudiced by the rejection. And where a competent witness is excluded as incompetent, no necessity exists to set out in the bill of exceptions the matter expected to be proved by the witness, for the ground of the rejection would have been his legal disability to testify in the case, and there the contrary appeared from the record.” (Powell on Appellate Proceedings, 218, 219, § 12.) See also, Fairly v. Fairly, 34 Miss. 18, 21; State v. Salge, 2 Nevada, 321, 326; Gregg v. The State, 3 West. Va. 705, 709, et. seq., and other cases above cited. In the case of Fairly v. Fairly, supra, the court say: “The .record states that the plaintiffs offered the witness to prove their case, and it must be inferred, in the absence of any showing to the contrary, that if the court had permitted the witness to testify, this proof would have been made.” The rule seems to be this: When the court below excludes evidence because the evidence, and not the witness, is supposed to be incompetent, the record must contain the evidence sought to be introduced, so that the appellate court may see whether it is competent or not,; but where the court below excludes a witness because the witness, and not his evidence, is supposed for any reason to be incompetent, then all that is necessary to be put in the. record is enough to show whether the witness is competent or not upon the ground upon which he is excluded; and it is not necessary in such a case to put into the record what the witness would testify to. Where the competency of the witness is objected to for any particu lar reason, it will be presumed, unless the contrary appears, that no other reason for his exclusion exists. And hence, in such a case, all that is necessary, as a general rule, for the record to contain is, enough to show that the particular reason given for the exclusion is not sufficient. In the present case the witness was excluded solely because she herself, without any encouragement from any one else, violated an order of the court. The record contains sufficient to show that such reason is not sufficient, and hence the judgment of the court below must be reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by Brewer, J.: This was an action for an injunction. A temporary injunction was granted by the judge of the district court, to reverse which order this proceeding in error has been brought. Three questions are presented by counsel. I. It is contended that this was an attempt to stay the execution of a mandate of this court, and that such a stay was beyond the power- of the district court. The facts are these: An election had been held for the relocation of the county-seat. The canvass of the commissioners had given it to Fredonia. Application was made for a mandamus to compel certain of the county officers to remove their offices from Fredonia to Neodesha, alleging that Neodesha had received a majority of the legal votes, and was therefore entitled to the county-seat. The district court sustained the application and awarded the mandamus. On error to this court the judgment was affirmed. (Russell v. The State, ex rel., 11 Kas. 308.) Paulen, (the defendant in error here,) was the successor in office of said Russell, and as such successor was made a party to that judgment. Pending the proceedings in that suit, another county-seat election was had, and as declared by the canvass of the commissioners, Fredonia received a majority of the votes, and became the county-seat. Paulen now brings this action to stay execution of the former judgment, on the ground that by the subsequent election all rights which Neodesha had at the time of the commencement of that action have been swept away, and that Fredonia being the legal county-seat, it would be illegal to compel the county officers to remove their offices therefrom. We fail to see any such trespass by the district court on the prerogatives of this court, as counsel for plaintiffs in error conceive. There is no attempt to question the validity of- the judgment previously rendered, or disregard the adjudication upon the rights in controversy. It is conceded, that.at the time of the commencement of that action, Neodesha was the county- seat, and entitled to the county offices; but it is claimed that by subsequent proceedings, within the power of the people to make, the county-seat had been located elsewhere, and therefore this last determination of the people should be upheld by the courts. We think this entirely proper, and no trespass on the power of the court, or disregard of its authority. It would be worse than useless to insist on an actual enforcement of the judgment by a removal of the offices to Neodesha, to be followed by an immediate removal back, in obedience to the declared result of the last election. It would be a judicial farce, equaled only by that suggested by the oft-quoted couplet— “The King of France, with twenty thousand men, Marched up the hill, and then marched down again.” II. The second question is one of more difficulty. The petition and order for the county-seat election were presented and made on the 7th of December, 1872. It is contended that there was no legal session of the board upon that day, and that therefore all orders attempted to be made . . A were void, and no foundation for any subsequent proceedings or rights. The only evidence offered on the hearing of the application, upon this point, was the record of the county, commissioners. This record showed a meeting on the 9th of November, at which two of the commissioners were present, and an adjournment to the 22d of November. On the 22d of November this entry appears: “Board of county commissioners, November 22d, 1872.— Present, M. A. Brooks, commissioner; C. C. Chase, county attorney; James C. G. Smith, clerk. Met, but not being sufficient members of the board present, adjourned until December 6th 1872. M. A. Brooks, Commissioner. “Attest, J. C. G. Smith, County Clerk.” The next entry that appears is of a meeting on December 6th, and commences as follows : “ December 6th, 187%. State of Kansas, Wibon Cownty. Board of County Commissioners. “Present, Henry Brown, Milton A. Brooks; W. A. Peffer, acting county-attorney, James C. G. Smith, county clerk. Commenced by electing Henry Brown chairman.” Then follows a record of the transaction of sundry business, and an adjournment to the next day. On the next day the petition and order for the election were presented and made. Now it is contended that as no quorum was present on the 22d of November, there was no power on the part of a single commissioner to order an adjournment, and that therefore the regular session, which commenced on the first Monday in October, and had been continued from time to time by adjournment, was then ended. The board could not thereafter meet before the first Monday in January, except in special session, which it is conceded might be had- at any time, but only “on the call of the chairman, at the request of two members of the boards (Gen. Stat. p. 256, § 13.) The record does not purport to be the record of a special session, shows no request or call therefor. It is a session on a day to which there was an attempted adjournment. On the other hand, it does not recite a meeting pursuant to adjournment, and there is nothing in the record inconsistent with the fact of a special session. The law nowhere requires ^ reCOrd to be made of the call, does not HS-quire even that it should be in writing. The call need not precede the session any definite amount of time; nor is any public notice required. We see no reason to doubt the legality of a session called by the chairman on the request of two members, when the request is verbal, the call verbal, the notice to the members verbal, and the session held at the very hour of the call, provided that all the members receive notice of the session in time to attend, and a quorum is actually present. And a record which shows a session, purporting to be a special session, and at which all the members are present, will unquestionably show a valid session, even though it does not in terms state that the session was called by the chairman at the request of two of the members. Again, it must be noticed that in the location or relocation of county-seats, the important matter is the action of the people, and little if anything is committed to the discretion of the county board. “ Upon the petition of t'hree-fifths of the legal electors * * * the board of county commissioners shall order an election,” is the language of the statute. It is not a matter which they may or may not do, according to their judgment of its wisdom, but the duty is imperative upon the presentation of the petition, to order the election. And the result of the subsequent election or elections determines the county-seat, independent of the wishes or judgment of the commissioners. Hence it seems to us, that' when a quorum of the county board, with the clerk, is present, assuming to act as a county board, and at a time and place at which a legal session is possible, and to such board in actual session a proper and legal petition is presented for a county-seat election, and an election ordered, and thereafter full and legal notice given of such election, two elections had, generally participated in by the electors, the result canvassed and declared, and no objection made thereto for more than a year, it will be too late to question the validity of the election on the ground that the record of the proceedings of the commissioners shows that the chairman was absent, and fails to show a session pursuant to a legal adjournment from a regular session, or that the session was a special session and duly called by the chairman on the request of two members. This is not a case in which parties are claiming adverse to the county, upon the basis of the action of the county board. Where a party insists that a county is bound by the action of its agents, it may well be held that he must show affirmatively, not merely that those agents acted, but that they acted in the manner in which alone they could legally bind the county. But the county here has no adverse interests; and the only duty of the commissioners is the formal one of submitting the question to the electors for decision. In a certain sense, all the parties interested, the electors of the county, have accepted the action of the commissioners, and treated it as valid; and while the doctrine of estoppel can have technically no application to a matter like this, yet courts should, if possible without too great a disregard of the established rules of procedure, uphold that which has received the gen eral assent of the parties interested and affected thereby. We conclude, though with some hesitation, that the election cannot be set aside upon this ground. III. The remaining question has little difficulty. The statute requires thirty days’ notice of the election. The notice was published in a weekly newspaper, the first publication more than thirty days prior to the election, and in each successive issue to the time of the election. This was sufficient. McCurdy v. Baker, 11 Kas. 111; Whitaker v. Beach, 12 Kas. 492. This temporary injunction was granted upon notice, and after hearing both parties. Of course then the court was not bound to entertain a motion to vacate, based upon matters existing at the time the suit was commenced, and evidence of which could have been had if desired. Gen. Stat. 676, § 250. There being no other question the judgment will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by. Valentine, J.: The defendant, Harvey Brown, was charged with killing and murdering one William H. Phillips. The charge was murder in the first degree. The defendant was tried, and found guilty of murder in the second degree. After he was sentenced, he brought the case to this court on appeal. Several errors are assigned, but it will not be necessary to consider many of them. Among other assignments of error, the defendant claims that the court below erred in impanneling the jury. The record shows that, “upon the examination of said jurors, touching their competency to serve as jurors in said cause, L. S. Howe, one of said jurors, answered in response to the question, whether he had formed or expressed an opinion upon any material fact in the case, that he had formed the opinion that Phillips, the deceased, was killed, and that Brown (the defendant,) killed him. ” And again, “the question was asked said juror in the following manner and form': Have you formed or expressed an opinion that Phillips the deceased was killed, and that Brown, the prisoner, killed him? and the said juror answered that he had so formed an opinion.” Said juror was then challenged for cause, but the court overruled the challenge. Afterward however the defendant challenged said juror peremptorily, and he was discharged on the peremptory challenge. The defendant exhausted all his peremptory challenges. The foregoing is all that the record ,shows concerning said juror. Section 10 of the Bill of Rights of the constitution provides that a defendant in a criminal action shall have the right to be tried “by an impartial jury;” and §205 of the criminal code, (Gen. Stat. 853,) provides that, “It shall be a good cause of challenge to a juror that he has formed or expressed an opinion on the issue, or any material fact to be tried.” We think the court below erred. The question, whether the defendant killed Phillips, was a “ material fact to be tried.” It was indeed one of the principal facts in this case. The question of the competency of jurors, as involved in this case, differs widely from the question concerning the same subject decided in the case of The State v. Medlicott, 9 Kas. 257. There is nothing in this case that tends to show that the opinion of the juror amounted only to an impression, slight or otherwise. There is nothing that tends to show that the opinion was founded merely upon newspaper articles, or rumor. And there is nothing which tends to show that the opinion was hypothetical, conditional, indefinite, or' uncertain. It would seem from the record, that the opinion was in fact an opinion, and that it was definite and absolute. We have no disposition to disturb in the least the rule enunciated by the court in the Medlicott case. But this case differs so materially from that case, that while this court held that there was no error in impanneling the jury in that case, we must hold that there was error in impanneling the jury in this case. And as the defendant exhausted all his peremptory challenges, we must hold that the error was material, although said juror was.finally discharged by the court on one of the defendant’s peremptory challenges. The judgment of the court below is reversed, and cause remanded for a new trial. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was an action to quiet title brought by Harttmann against the Hutchinsons. The plaintiff in his petition set up title and possession in himself. The defendants in their answer denied the plaintiff’s title, and set up title in themselves, but did not deny the plaintiff’s possession. “ On the trial it was stipulated and agreed that on the 24th of September 1855 the legal title to the lot in controversy, to-wit, Lot No. 64, on Massachusetts street, in the city of Lawrence, was vested in A. S. Addis, and that both plaintiff and defendants claim title from and under said A. S. Addis.” The plaintiff’s title is a deed from Addis to himself, dated March 1st 1856, recorded in E. D. Ladd’s register September 2d 1857, and recorded in the county register’s office July 30th 1864. He was a bona fide purchaser of the lot, without notice of any prior deed having been executed by Addis. The defendants’title is as follows: Heed from Addis to John S. Mott, dated September 24th 1855, never acknowledged, nor recorded in the county register’s office, but recorded in Ladd’s register March 23d 1857. An informal and conditional power of attorney from Mott to G. W. Hutchinson to sell lots in Lawrence (not naming the lots) dated December 4th 1855, not acknowledged, nor recorded in the county register’s office, but recorded at some time (when not shown) in Ladd’s register. Two letters from Mott to G. W. Hutchinson, not acknowledged or recorded anywhere. Deed from Mott, executed by G. W. Hutchinson as attorney-in-fact for Mott, to Walter O. Hutchinson, dated March 1st 1857, not acknowledged, nor recorded in the county register’s office, but recorded in Ladd’s register March 23d 1857. Deed from Walter C. Hutchinson and wife to Rebecca D. Hutchinson, dated May 2d 1861, acknowledged, and recorded in the county register’s office December 5th 1861. Rebecca D. Hutchinson is dead, and the defendants are her heirs. Some of these matters were proved on the part of the defendants by very questionable evidence, but for the purposes of the case we shall consider them sufficiently proved. The judgment in the court below was in favor of Harttmann. We do not understand that the plaintiffs in error claim that the recording of said deeds in Ladd’s register, or the act of the legislature of February 20th 1857, entitled “An act appointing trustees for the city of Lawrence,” (Laws of 1857, page 316,) affect the merits of this case in the least. While they may claim that said act gave them a right to read from said register copies of said deeds as evidence, we do not understand that they claim that said act dispensed with any of the requirements of the general registry laws, or relieved any person from any of the consequences that would naturally result in any case from a compliance or noncompliance with said registry laws. Hence we shall have nothing further to say with reference to said Ladd’s register, or said act. The principal portion of the argument of the plaintiffs in error is made upon the hypothesis that the act of the legislature of 1855 “regulating conveyances,” (Laws of 1855, p. 173, et seq.,)was not in force on September 24th 1855, when the deed from Addis to Mott was executed; and upon this hypothesis they seem principally to rest their case. But the hypothesis is not correct. Said act took effect and was in force from and after its passage, which was sometime in August 1855. The legislature that passed said act adjourned sine die on August 30th 1855. Now, under said act (Laws of 1855, p. 182, § 42,) said deed never had any validity as against Harttmann, for it was never recorded in the county register’s office; and although Harttmann was a subsequent purchaser of the property, yet he was an innocent and bona fide purchaser of the same, for a valuable consideration actually paid, and he took possession of the property under his purchase, and had his deed therefor duly recorded in the county register’s office. Even if Harttmann’s deed under the same act was void as to Mott and the Hutchinsons (as it probably was) until he had it recorded in the county register’s' office, still he finally had it so recorded. The act of 1859 “regulating conveyances” (see Laws of 1859, p. 290, §13; Comp. Laws of 1862, p. 355, §13,) could not by its terms make Mott’s deed valid as against Harttmann without being recorded, although such act may have made Harttmann’s deed valid as against Mott and the Hutchinsons before it was recorded, for none but Harttmann was a “ subsequent purchaser for a valuable consideration, without notice” from Addis, within the meaning of §13 of that act. Only one deed in the defendants’ chain of title from Addis down to Rebecca D. Hutchinson was ever recorded in the county register’s office, and that was the deed from Walter C. Hutchinson and wife to Rebecca D. Hutchinson. Now probably all the deeds in the defendants’ chain of title from Mott down to Rebecca D. Hutchinson were void on acount of the defective and informal execution of the deed from Mott to Walter C. Hutchinson; but even if they were not void for that reason, still we think they cannot affect the plaintiff’s title, because the title of Mott llimself is void as against the plaintiff’s title. Neither can the recording of the deed from Walter C. Hutchinson and wife to Rebecca D. Hutchinson affect the plaintiff’s title. The record of that deed simply gives notice of the existence and contents of such deed to all subsequent purchasers of the property from Walter C. Hutchinson. It does not give notice to any person that Walter C. Hutchinson and wife had any right to the property in controversy. Nor does it give notice to any person of any of the prior deeds in the defendants’ chain of title. That is, the recording of one deed does not constitute a record of all deeds prior to it, and which with it constitute a chain of title. But the said deed from Walter C. Hutchinson and wife to Rebecca D. Hutchinson does not pretend or purport to show where Walter C. Hutchinson obtained his interest in the property. It is merely a quitclaim deed. (The authorities sustaining these propositions will be found in the brief of defendants in error, and in 3 Washb. on Real Prop. 285, 591.) The judgment of the court below, in addition to what is necessary to be contained therein contains an order that the plaintiff shall recover the premises from the defendants. Now while this order is wholly unnecessary, and therefore erroneous, yet we cannot see how it can affect the substantial rights of the defendants. Of course the plaintiff does not want to recover what he already has. He merely wants to have his title and possession quieted, and this is all that the judgment below should have attempted to do. The judgment may be corrected in this respect, without costs. In all other respects the judgment of the court below will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: The facts in this case are briefly these: On June 28th 1872, the defendants in error contracted with one H. H. Lindsay for the building of a house on a lot belonging to them in the town of Wichita. The contract-price was $1,300 — $800 of which was paid at the execution of the contract, and before the commencement of the work. Lindsay completed his contract. The plaintiffs in error sold Lindsay lumber for the building to the amount of about $900. Having taken, the proper steps to perfect their lien, the question is, whether it extends to the full amount of their bill, or simply to the amount due the contractor. It is not pretended that Lindsay received any money from the defendants after the plaintiffs had commenced furnishing lumber, or indeed after the commencement of the building — the only payment being the $800. The law in force at the time of this building, (the law of 1872, ch. 141, p. 294, § 2,) giving to sub-contractors their lien, requires the filing of the statement Within sixty days after the completion of the building, etc., and then reads: “And if the contractor does not pay such person or subcontractor for the same, such sub-contractor or person shall have a lien for the amount due for such labor or material, on such lot or lots from the same time, and to the same extent, and in the same manner and to the same extent, as such original contractor: Provided, That the owner shall not be liable to such sub-contractor for any greater amount than he contracted to pay the original contractor; but the risk of all payments made to the original contractor shall be upon the owner until the expiration of the sixty days hereinbefore specified; and no owner shall be liable to an action by the contractor until the expiration of said sixty days,” etc. Three things are clear from this: First, that the sub-contractor has a lien for his work or material; second, that the limit of such lien is the amount contracted to be paid to the original contractor; and third, that the risk of all payments up to a certain date is upon the owner. Now the money contracted to be paid in this case was $1,300. That then is the limit of the sub-contractor’s lien. Not the amount due at the time of notice, or delivery of material, but the amount contracted to be paid. True, the owners had paid $800 of that amount, but the risk of such paymeñt was upon them. The very purpose of this clause in the statute, was to prevent the cutting off of the liens of sub-contractors by early payments to the contractor. And this is a clause, the exact counterpart of which we have not found in the statutes of any other state. In most, the lien applies only to the amount due at the time of notice. Such also, until 1872, was our own law. Laws of 1871, p. 253, § 2; Gen. Stat., p. 756, § 632. It must be borne in mind that this is not an attempt to compel payment by the lot-owners before the time fixed by the contract therefor, for though the contract called for note and mortgage for the five hundred dollars, yet the answer admits that amount to be due; nor to compel payment in money, when payment in some other commodity was stipulated for. Payment was contracted for in money; and the only question is, whether by advance payment the lien of the sub-contractor can be cut off. The plain letter of the statute forbids it. We do not think the law obnoxious to the constitutional objections raised against it. We do not understand that the attorney’s fees can be taxed in a case like this. Stover v. Johnnycake, 9 Kas. 369. The judgment of the district court will be modified, and the case remanded with instructions to adjudge the entire amount found due the plaintiffs in error (less the attorney’s fees) a lien upon the premises. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: Plaintiffs in error, plaintiffs below, brought their action in the district court of Douglas county, seeking to restrain the defendants from selling their property for the non-payment of certain special taxes, and obtained, without notice, a temporary injunction. Subsequently upon motion the injunction was dissolved, and this ruling is the matter brought here for review. Two or three important questions-are presented. One, and perhaps the most important, is this: The tax in dispute was for the pavement of Massachusetts street in the city of Lawrence with the Wyckoff pavement. It is insisted that this pavement, being covered by a patent, excludes competition, and that therefore the city which was by law obliged to let all contracts to the lowest bidder, had no power to let a contract for such an improvement. The right of a city to avail itself of patented inventions in the improvement of its streets, etc., where the law required the letting of contracts to the lowest bidder, has been before the courts of several states, and the adjudications thereon are not uniform. In Wisconsin, California and Louisiana, the right has been denied; while in Michigan and New York it has been sustained. Dean v. Charleton, 23 Wis. 590; Nicolson Pavement Co. v. Painter, 35 Cal. 699; Burgess v. Jefferson City, 21 La. An. 143; Hobart v. City of Detroit, 17 Mich. 246;. Matter of Anthony Drugro, 50 N. Y. 513. These cases are alike in these matters, that in each the precise question was as to the power of the city to charge the cost of the improvements on the adjacent lots, and also that the city was expressly required to let the contract to the lowest bidder. They differ in these respects: In Wisconsin, it is provided that the estimates of total cost and expense to each lot shall be filed in the office of the city clerk, time fixed for doing the work, and notice thereof given to the lot-owners. If the work is not done by the lot-owners within that time, then it may be let by contract to the lowest bidder. In California, the bids are opened and the work awarded to the lowest responsible bidder. Then notice is published of the award, and the owners of a major portion of frontage may take the contract upon the same terms. If they fail to take the contract within the specified time, it is then finally given to the party to whom it was first awarded. In both these states, therefore, it will be noticed that special provision is made for securing to lot-owners the 'privilege of doing the work themselves, a privilege the courts consider of no value if the contemplated improvement is covered by a patent, and can only be made by the patentee, or such person as he chooses to permit. In Louisiana, the court notices and lays stress on the fact that the city may, under the general grant of power to improve, etc., avail itself of any patent by making the cost of such improvement a charge on the general funds of the corporation, and is only restricted to contract with the lowest bidder when it seeks to throw the cost of the improvement on the adjacent lot-owners; while in New York and Michigan there is a general restriction on the power of the city to enter into contracts above a specified amount without letting them to the lowest bidder — thus, as the courts say, if the doctrine announced in the other courts be correct, cutting off the city from the right to avail itself of those improvements in pavements, sidewalks, etc., which the genius of our inventors is constantly discovering, until after the expiration of the patents therefor. The question is a doubtful one, and one on which courts will continue to differ. The writer of this opinion is inclined to favor the views of the courts in Michigan and New York upon this question. There is however such a distinction between the case before us, and those cited, as will enable us to dispose of it without definitely deciding this question. In each of those cases there was an express direction, that the contract be let to the lowest bidder, and upon that rested the argument of the courts. Here, there is no such express direction; nor is it, we think, necessarily implied from any of the express directions. Sec. 31, of ch. 19, Gen. Stat.' of 1868, p. 169, is the section from which the implication is claimed. That section provides that, prior to any contract the city engineer shall make and submit to the council an estimate of the cost, and that in advertising for bids the amounts of such estimate shall be published. Counsel contend that the city is required to advertise for bids, and that therefore when the bids are received, she must let to the lowest bidder. We dissent from both premise and conclusion. The section does not declare that before any contract is let an advertisement shall be made for bids. It simply says that “ in advertising for bids,” certain things shall be published. Requiring, that when an advertisement is made, certain things shall be published, is by no means equivalent to requiring that advertisements be made in all cases. We see no reason to doubt the right of the city under that section to make a valid contract without any advertisement. Nor does it necessarily follow from the fact of an advertisement for bids, that the contract must be let to the lowest bidder. There is a strong implication that such ought to be the result, but it is not the necessary legal conclusion. We think therefore that the contract in question must, under the law in force at the time it was made, be sustained. Another important question is, as to the power to pay and to contract to pay for such improvements in bonds. The contract provided for the payment in bonds, one-third payable in one year, one-third in two, and the balance in three years, and the entire transaction from the first resolution of the council to the acceptance of the work seems to have proceeded upon the idea of payment in such manner. It is earnestly contended that this was beyond the power of the city. By paragraph 38 of § 30 of the act of 1868, incorporating cities of the second class, Gen. Stat. 166, such cities are authorized “to issué from time to time, street bonds to contractors * * * on such terms and in such manner as the council may provide.” This, it is contended, is limited by a clause in § 32 of same act, which declares that “the mayor and council shall have no power to sell or dispose of scrip, orders, or bonds at less than ninety cents on the dollar.” If the city may legally contract for labor to be paid for in bonds, this prohibition is practically nullified, and the city disposes of its bonds at just such a value as the contractor places upon them. Therefore, all contracts must be made upon the basis of payment in cash, though after the debt has been contracted, it may be settled by the city, by the issue of its bonds therefor at ninety cents on the dollar. But § 30 was repealed in 1871, (Laws 1871, p. 166, § 81,) and in lieu thereof upon this matter this was enacted: “The assessments (those like the one in question) shall be known as special assessments for improvements/ and except as hereinafter provided shall be levied and collected as one tax. * *• * But the mayor and council shall have power to issue the bonds o'f the city for the costs of paving, * * * to be made payable as follows: one-third of the aggregate amount of such bonds of any issue in one year; * * * and for the payment of said bonds assessments shall be made in each year,” etc. Laws of 1871, p. 149, §17. Now the purpose and scope of this enactment was to grant authority to a city to distribute over three years the burden of street improvements. That being the obvious purpose, it is both fair and legal that the city should contract with reference to this authorized mode of payment. It is just to the lot-owners, that they may know whether to encourage or ob ject to the proposed improvement, for they might well object to that the cost of which must be met in a single, year, when they would gladly indorse the same work if they could have three years in which to pay for it. It is just to all bidders for the contract, for often the time and manner is as important as the fact and amount of the payment. It must be borne in mind that these bonds are to be paid in the same way, and out of the same property, as though the improvement was paid for in a single year, and by one assessment. So that though these instruments issued.to the contractor are called bonds of the city, yet they are not like ordinary obligations, primarily chargeable upon its entire property, while the “scrip, orders, and bonds “spoken of in § 32 are doubtless its ordinary and general obligations. We think therefore that the city might legally contract for the street improvement upon the basis of payment in the manner provided in the contract before us. It would seem therefore to follow, that all the other proceedings, including the estimate of the engineer required by §31, (Gen. Stat. p. 169,) should.be had upon the same basis. These are the principal questions in the record as presented by counsel, and in them appearing no error, the judgment will be affirmed. It is understood that the same questions are involved in the case of McCurdy v. The City of Lawrence, and therefore the same judgment must be entered in that case. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was a criminal prosecution for grand larceny. It is insisted on the part of the defendant (who is appellant,) that the court below erred in refusing to quash the information filed in this case, and also in refusing to arrest the judgment. The grounds upon which this claim is based are as follows: 1st, The information is not signed by the proper officer. 2d, The information is not properly verified. The information was signed by “R. F. Thompson, Prosecuting Attorney,” and he is described in the body of the information as the prosecuting attorney of Ottawa county, state of Kansas. Under the laws of Kansas, all criminal informations must be signed and filed “by the prosecuting attorney of the proper county, as informant;” (Gen. Stat. 831,832, §§ 67, 68, 71.) And also, under the laws of Kansas, the “prosecuting attorney” is always the “county attorney.” (Gen. Stat. 283, 284, §§ 135,136,137.) That is, every criminal action., prosecuted in the name of the state, must be prosecuted by the county attorney, who is the public prosecutor. Therefore, for the purpose of prosecuting criminal actions, the prosecuting attorney and the county attorney is one and the same person. Besides, the first statute above cited, which recognizes the public prosecutor as “prosecuting attorney,” was passed nearly six years after the other, which gives to'him the title of “county attorney.” Therefore, in our opinion a criminal information signed by the public prosecutor, as “prosecuting attorney,” is equally as valid as though it should be signed by him as “county attorney.” He is both. But would the information be void if he should merely sign his name to the information, and give no description of his official character? The statute does not in terms require that he should give any description of his official character. The description does not seem to be very material, for even where he described himself as county attorney for the wrong county the information was nevertheless held sufficient; (The State v. Tannahill, 4 Kas. 117, 118;) and the district court must always take judicial notice of the official character and identity of the public prosecutor. (See authorities cited in appellant’s brief, and 5 U. S. Dig., First Series, 490, paragraphs 151 to 163.) There is no pretense in this case that the information was not signed by the proper public prosecutor. But even if there were, it would not be tenable, for the district court recognized him as such. He prosecuted the defendant until the defendant was finally convicted and sentenced, and he is described in other portions of the record as “R. F. Thompson, county attorney of Ottawa county.” And there is nothing in the record that tends to show that he was not the county attorney. We therefore think that the information in this respect was sufficient. “The verification of an information by a prosecuting attorney upon information and belief is sufficient.” (The State v. Montgomery, 8 Kas. 351; Laws of 1871, page 279, §3.) The judgment of the court below is affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This was an action of injunction. The petition alleges that in August 1874, one C. G. Scrafford obtained a judgment in the district court of Washington county against the plaintiff for $200; that on September 24th then next, the plaintiff filed in the office of the clerk of the supreme court a petition in error, with a transcript of the record, for the purpose of obtaining a reversal of said judgment; that afterward, and on September 25th, he filed his bond to stay proceedings, duly executed and approved, with the clerk of the district court of Washington county; that prior to the-commencement of the proceedings in error, an execution had been duly issued on the judgment to the defendant, sheriff of said county, who levied on certain goods and chattels of plaintiff, and notwithstanding the proceedings in error, and the stay, is about to sell them; that such sale will, if permitted, work great and irreparable injury. On the 26th of September an application was made for a preliminary injunction upon this petition. The application was overruled, and this is the error complained of. We think the ruling must be sustained. The petition was filed on the 24th, the bond on the 25th, and this application made on the 26th. It is nowhere alleged that the sheriff had any actual notice of the filing of either the petition or bond, or any knowledge or information concerning them. Now it seems to us, that before the sheriff is subjected to an action, and mulcted in the costs therefor, for executing a process, valid on its face, and lawfully issued to him, he should have some actual notice or information of proceedings staying the execution of such process. For all that the petition shows, the first intimation the sheriff had that there was any thought of proceedings in error, was the notice of this application for an injunction. Doubtless the statute is defective in not making any provision for notice; and unquestionably by the steps taken the execution was legally stayed. But common 'justice to the officer requires that he should be informed of what had been done before subjected to the vexation and costs of a suit, that he make suitable inquiry and govern his actions accordingly. We do not mean to be understood as deciding that if, after being informed of the proceedings in error, and the stay, the sheriff should still attempt to make a sale, he could not be restrained by injunction; though we think even in such cases the better practice would be to file a motion in the case in which the judgment was rendered for an order on the officer to return the execution. The judgment will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: On March 2d 1870, an act of the legislature of Kansas, amending “an act to incorporate cities of the second class,” was passed, which provides among other things, as follows: “The mayor and council of each city created or controlled by this act, shall have the care, management and control of the city, and its property and finances, and shall have power to enact and ordain any ordinances not repugnant to the constitution'and laws of this state, and such ordinances to alter, modify, or repeal, and shall have power * * * to levy and collect a license-tax on * * * fire or life insurance com panies, or agencies, * * * and to impose fines, forfeitures, and penalties for the breach of any ordinances,” etc.— (Laws of 1870, page 97, et seq.) On May 21st 1870, the mayor and council of the city of Leavenworth — it being a city of the first class — passed an ordinance which provides, among other things, as follows: “Sec. 1. No person or persons shall engage in the business of fire or life insurance, nor shall any company do business as a fire or life insurance company, in this city, after the 15th day of June 1870, without first having obtained a license therefor. The price of such license for each and every fire insurance company doing business in this city, shall be fifty dollars per annum; and the price for such license for each and every life insurance company doing business in this city, shall be one hundred dollars per annum.” “ Sec. 4. Each and every person or agent who shall violate any of the provisions of this ordinance shall, on conviction before the police judge, be fined not less than fifty dollars, nor more than two hundred dollars, for the first offense, and shall be fined the further sum of fifty dollars for each and every day he shall continue to violate the same.” There is no provision in the ordinance, or elsewhere, prescribing what shall be done with the money received for licenses. On March l§t 1871, an act of the legislature was passed, creating an insurance-department, (Laws of 1871, page 214,) and providing for the appointment of a “superintendent of insurance,” (§ 2,) and also providing that, “the said superintendent shall have the sole and exclusive charge of and control over said insurance department, under the laws relating thereto; ” (§ 3.) Said act also provides that certain things shall be done, and certain moneys shall be paid by each and every insurance company, before it shall have any authority whatever to do business in Kansas. And said act further provides, that— “ Whenever the existing or future laws of any other state or government shall require insurance companies organized under the laws of this state, applying to do business by agencies in such other state or government, or of the agents thereof, any deposit of security in such state for the protection of policyholders therein, or otherwise, or any payment for taxes, fines, penalties, certificates of authority, licenses, fees, or otherwise, greater than the amount required for such purposes from insurance companies of other states by the then existing laws of this'state, then, and in every such case, all companies of such states or governments establishing agencies in this state shall make the same deposit, for a like purpose, with the superintendent of insurance of this state, and pay to said superintendent, for taxes, fines, penalties, certificates of authority, licenses, fees, or otherwise, ah amount equal to the amount of such charges and payments imposed by the laws of such other state or government upon the companies of this state and the agents thereof.” (§ 17.) In February 1874 the Northwestern Mutual Life Insurance Company of the state of Wisconsin applied to the superintendent of insurance of this state for permission to do business in Kansas. The agreed statement o'f facts upon which this case was tried in the court below shows among other things as follows: “The laws of said state of Wisconsin in force therein ever since and before the first day of January 1874, require insurance companies organized under the laws of this state (of Kansas,) or of any state other than said state of Wisconsin, applying to do business by agencies in said state of Wisconsin, payment of the sum of $325 in amount, per annum, for taxes, fines, penalties, certificates of authority, licenses, fees for the privilege of-doing business therein, and because thereof; and under and by virtue of § 17 of the act of the legislature of the state of Kansas, entitled ‘An act to establish an insurance department in the state of Kansas, and to regulate the companies doing business therein/ approved March 1st 1871, the superintendent of insurance of this state of Kansas did, in the month of February 1874, demand and require of and from the company first aforesaid, that it pay to him said sum of $325 before he would grant authority thereto to transact business in the state of Kansas. And the company first aforesaid then, in February 1874, paid to said superintendent of insurance of this state pf Kansas, $325 for taxes, fines, penalties, certificates of authority, licenses, and fees, for the privilege of doing business in this state of Kansas for the term and period of one year from the 28th of February 1874. And thereupon said superintendent of insurance of this state of Kansas authorized and licensed the company first aforesaid to engage in, do, and transact business as such life insurance company in this state of Kansas for the term and period of one year from and after the time last aforesaid, and to establish agencies in this state and to engage in and do and transact such business in this state by an agent or agents of said company.” On March 6th 1874 the legislature reenacted in substance the provisions of the act of 1870 first quoted in this opinion, without attempting to repeal said provision, either directly, or by implication. (Laws of 1874, page 58, § 13.) The defendant William Booth is the duly-authorized agent of said Northwestern Mutual Life Insurance Company, for Kansas; and the company, through him, did business as an insurance company in the city of Leavenworth on the -22d of April 1874, without having obtained from said city any license to do such business. On the 24th of said April the defendant was ai’rested on the charge of violating said city ordinance, by doing life insurance business as aforesaid for said company, in said city, without - having any city license therefor. The case was tried before the police judge of said city. The defendant was found guilty, and fined fifty dollars. He then appealed to the criminal court of Leavenworth county, where he was again tried, found guilty, and fined fifty dollars; and he now appeals to this court. The only question involved in this case is, whether said city ordinance is valid, as applied to this class of insurance companies, but involved in this question are several others. 1st, Do the provisions of the statute first quoted in this' opinion, by its terms authorize the passage of such an ordinance as was passed ? That is, does it authorize the passage of an ordinance requiring more to be paid for the insurance license than the mere cost of issuing the license*? 2d, If said provision does by its terms authorize the passage of such an ordinance, then was not it, and any ordinance passed under it, so modified by the act of 1871 creating the insurance department, that such provision will no longer apply to this class of insurance companies which pays to the superintendent of insurance, on account of the laws of their own state, a sum greater than the amount ordinarily paid by the insurance companies in lieu (as is claimed) of all “ taxes, fines, penalties, certificates of authority, licenses, fees,” etc.? 3d, Is said provision itself valid ? Involved in this last question are these other questions: Is said provision in contravention of § 1 of article 11 of the constitution, which reqdires that “The legislature shall provide for a uniform and equal rate of assessment and taxation ?” Is it in contravention of § 4 of article 11 of the constitution, which provides that “No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same?” We think the said ordinance is valid so far as it has any. application to this case. There are many kinds of business, like that of selling intoxicating liquors, for instance, which may, under our constitution, be absolutely prohibited by the legislature, or be licensed, restrained, and regulated. And we of no good reason why the business of insurance may not come within this category. Many good people believe that the world would be better off without insurance, than with it, and all believe that it may be restrained, regulated, and allowed to exist only under a license. And of the different .kinds of business which may be allowed to exist only under a license, there are many whose license-tax may be vastly more than the mere cost or value of issuing the license. And again we could instance the business of selling intoxicating liquors. In granting licenses the items which may be taken into consideration as elements in fixing the costs of the same, would seem to be about as follows: first, the value of the labor and material in merely allowing and issuing the license; second, the value of the benefit of -the license to the person obtaining the same; third, the value of the inconvenience and cost to the public in protecting such business, and in permitting it to be carried on in the community; fourth, and in some cases an additional amount imposed as a restraint upon the number of persons who might otherwise engage in the business. None of these items contemplates, except incidentally, the raising of revenue for general purposes. In many cases a license, which, if issued for proper purposes, would be valid, would not be valid if issued merely for the purpose of obtaining or increasing the general revenue fund. A proper license-tax is not a tax at all, within the meaning of the constitution, or even within the ordinary signification of the word “tax.” (City of East St. Louis v. Wehrung, 46 Ill. 393; Addison v. Saulnier, 19 Cal. 83; Carter v. Dow, 16 Wis. 318; State v. Herod, 29 Iowa, 123, 125; Mitehell v. Williams, 27 Ind. 62.) This is so even where the license-tax is much greater than the mere cost of issuing the license, and even where the surplus fund incidentally arising from the issuing of the license goes into the treasury to swell the general revenue fund. (Charity Hospital v. Stickney, 2 La. An. 550; Tenny v. Lewy, 16 Wis. 566, 567; Chilvers v. The People, 11 Mich. 43; Ash v. The People, 11 Mich. 347; Baker v. The City of Cincinnati, 11 Ohio St. 534, 543, 544; Johnson v. Philadelphia, 60 Penn. St. 445, 450; Henry v. The State, 26 Ark. 523, 525; Orton v. Brown, 35 Miss. 426.) And there are still other decisions, holding that the constitutional provisions with reference to taxation have no reference to the collection of license-taxes, .among which are the following: Anderson v. The Kerns Draining Co., 14 Ind. 201; Thomasson v. The State, 15 Ind. 449, 451; Bright v. McCullough, 27 Ind. 223, 232; The People v. Coleman, 4 Cal. 46. The imposition of a license-tax is in the nature of a sale of a benefit, or privilege, to a party who would not otherwise be entitled to the same. The imposition of an ordinary tax is in the nature of requisition of a contribution from that which the party taxed already rightfully possesses in the state. But whether the foregoing views are right or wrong, still we think the same conclusion must necessarily be reached from other considerations. It must be remembered that the insurance company involved'in this controversy is a foreign insurance company, having no rights in this state except such as the state may see fit to confer upon it. It has no power to do business in Kansas by virtue of its organization in Wisconsin. It has no power to do business in Kansas by virtue of the laws of Wisconsin, or by virtue of the constitution or laws of the United States, or by virtue of all combined. (Paul v. Virginia, 8 Wallace, 168; Ducat v. Chicago, 10 Wallace, 410; Liverpool Insurance Co. v. Massachusetts, 10 Wallace, 556.) It can do business in Kansas only under the laws of Kansas, and by permission from the state of Kansas. This state might absolutely exclude it, or might require that it do business only uqcler a license, and might require that it not only get a license from the state; but also that it get a license from every city, county, or village in which it should attempt to do business. The state may permit such insurance company to come into the state under just such restraints and regulations as the state may choose. Hence, the state is not bound to permit said insurance company to come to this state, (as individual citizens of other states have a right to do,) and then, for the purpose of raising revenue, resort only to the ordinary modes of taxation. On the contrary, the state, without resorting to taxation at all, may require that such insurance company shall pay for the privilege of coming into the state, and of doing business therein, and may require that it ijhall not only pay a sum to the state for the privilege of doing business therein, but that it shall also pay a sum to every municipal corporation in the state in which it shall attempt to do business. And all this the state may do without violating any provision of its own constitution. The provisions of the constitution with reference to taxation, have no application whatever to this class of cases. And it would make no difference if these sums, required from foreign insurance companies, were required solely for the purpose of swelling the general revenue fund. That these views are correct, we would refer to the following decisions: Fire Department of Milwaukee v. Helfenstein, 16 Wis. 136; The People v. Thurber, 13 Ill. 554; Ducat v. City of Chicago, 48 Ill. 172; Slaughter v. Commonwealth, 13 Grattan, (Va.) 767, 774, et seq. We might refer to other authorities', but do not think that it is necessary. The said statute of 1870 (Laws of 1870, page 97, et seq.,) unquestionably authorized the city of Leavenworth to pass said ordinance; and we do not think that either the statute or the ordinance was subsequently repealed or modified by the act of 1871 creating the insurance department. The act of 1871 does not purport to repeal or modify that of 1870, or anything done under it • and the two acts are- not necessarily in conflict. Both may stand together. It is a well-settled principle of law, that repeals by implication are not to be favored. The intention of the act of 1871 was, that foreign insurance companies might, by paying a certain sum, be authorized to come into the state for the purpose of doing business therein. The intention of the act of 1870 was, that all insurance companies, domestic as well as foreign, already rightfully in the state, and ready to do business therein as far as the state is concerned, should, if they desired to do business in any particular city, pay to such city a license-tax. In this there is no conflict. The judgment of the court below is affirmed. Kingman, C. J., concurring. Brewer, J., not sitting.
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The opinion of the court was delivered by Brewer, J.: The facts in this case are briefly as follows: Defendant in error commenced a suit before a justice of the peace against one George Parker, and caused an attachment to be issued and levied on a certain lot of corn. Plaintiffs in error came in under ch. 164 of the laws of 1872, and claimed the property. They claimed under a chattel mortgage given by Parker. The proceedings before the justice were commenced before the filing of this mortgage, and it is conceded by counsel for plaintiffs in error that if Cowley “acquired any right by virtue of said proceedings,” the plaintiffs by their laches had lost their right to the property. Could they, coming in as they did, question the regularity of the proceedings ? and if so, were these proceedings so far void as to give no lien to Cowley in the corn ? The first question, it seems to us, must be answered in the affirmative, to this extent, and no further: they could question them just as though they were attacking them in an independent collateral action. They did not, by coming in, waive all objections to the proceedings, and concede their regularity; nor did they place themselves in the shoes of the defendant in the action, and acquire his right to object to errors in the proceedings. They could not avail themselves of such irregularities as were simply errors sufficient for reversal, but only of such as were fatal to the process and the jurisdiction. Though coming in to the action, they claimed adversely to it. There was a fatal defect in the attachment proceedings. The grounds for the attachment alleged in the affidavit were, “that the defendant is a foreign corporation, or a nonresident of Brown county.” There are two objections to this, one that it is in the disjunctive. Drake on Attachments, § 101. The other that nonresidence in the eounty, does not warrant an attachment, but only nonresidence in the state. Laws of 1870, p. 182, § 3. There was therefore no warrant for the issue of the attachment, and the plaintiff in the suit obtained no lien. on the goods by the service of the writ. The facts of the case also bring it exactly within the decision in Repine v. McPherson, 2 Kas. 340. There was no personal service; the defendant did not appear; nor does it appear from ■any of the papers that he had any property within the jurisdiction of the court, nor that the property attached was his property. But it is insisted by defendant in error, that the mortgage of plaintiffs in error is void as against the creditors of the mortgagor, under § 9 of the mortgage statute. (Gen. Stat. p. 584.) It is sufficient reply to this, that as the record stands there is no evidence as against plaintiff in error that defendant in error was a creditor. The mere bringing of a suit, is not evidence of that fact against a third party; and as there was no valid service or appearance, there has as yet been no valid judgment. Further than this we do not care to go. We see that many questions may be raised beyond this, such as these: Was not the mortgage filed within such reasonable time as to bring it within the statute ? Will the mere fact that it is shown by parol evidence that the defendant in error was, at the time of the commencement of his action, a creditor of the mortgagor, avoid the mortgage? It will be time enough to dispose of them, if they ever arise, when the facts are fully known. The judgment will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This is an attempted appeal from the judgment of a justice of the peace directly to this court. This cannot be done. The constitution, art. 3, § 10, explicitly declares that “ all appeals from probate courts and justices of the peace shall be to the district courts.” Language could not be plainer. It is not in the power of the legislature to provide for an appeal from a justice of the peace directly to this court. And whatever may be the defects of the statute, or failure, if failure there be, to; provide any way for appealing a case of this kind, a complaint for selling liquor without a license, to the district court, or whatever express or implied statutory grant of an appeal to this court, the paramount law forbids us to take cognizance of an appeal from a justice of the peace. The appeal must be dismissed; All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: On June 27th 1872 the city of Independence, a city of the second class, passed an ordinance, that no dog should be permitted to run at large in any public place in said city unless the owner of the dog should first pay to-the city a tax of one dollar for each male owned by him, and five dollars for .each female, and should cause a collar and check, which were to be provided by the city, to be worn by each dog. Said ordinance also made it the duty of the city marshal to kill and bury every dog found running at large in violation of said ordinance, and also provided that the marshal should receive from the city as compensation for bis services in this respect one dollar for each and every dog killed and buried. Under this ordinance, and from July 9th to December 30th 1872, the marshal killed and buried 168 dogs. The city then refused to pay him for his services. He then commenced this action to recover for the same. The plaintiff in error in its brief says: “ The defendant in error brought suit against the plaintiff in error in a justice’s court to recover the sum of $168 for services as marshal of the plaintiff in error, under an ordinance. Judgment for that amount was rendered in favor of plaintiff. Defendant appealed to the district court, where the case was tried at the December Term 1873, and judgment for the amount claimed, $168, was there rendered.” The city then brought the case to this court on petition in error. The city now claims that said ordinance is illegal and void, and imposes no binding obligation upon the city to pay for services rendered under it. It sometimes happens that municipal corporations, as well as individuals, believe that it is eminently legal to incur obligations, but manifestly illegal to fulfill them. This is a kind of frugal respect for law eminently beneficial to those who can successfully exercise it, but not so congenial to those who must innocently suffer by it. Hence, what may seem to be a commendable example of prudential economy by the party pleading the illegality, may be regarded as a pernicious example of moral obliquity by the other. We perceive no sufficient reason why the plaintiff cannot recover in this case. No sufficient reason has been given, and we perceive none, why said ordinance should be held to be invalid, so far at least as it affects any question involved in this case. It should certainly not be held to be invalid because of the sacredness of the property that may be held in dogs. Property in dogs is of such a low character that it is hardly considered as property at all. And a vast number of dogs running at large upon the public streets, without any known owner, is always considered as a nuisance. We do not suppose that property in dogs is of such a sacred character that dogs found running at large upon the public streets, in violation of a city ordinance, cannot be destroyed, but must be taken up and impounded, as a cow or other more valuable animal, and notice thereof given to the owner, and that the dogs must then be offered for sale at public auction, to the highest bidder, if the owners thereof (if they have any) should not in a reasonable time pay charges and take them away. The ordinance is made for dogs owned and kept in the city of Independence, and not for dogs casually there. And we must presume, as the record comes to us, that no dog was killed except such as the marshal had a right to kill. It was not error for the court below to permit said ordinance to be proved- by the introduction of the original “ordinance book” of the city. There seems to be no provision made by statute for the collection of judgments against cities of the second class. If this is so, then we suppose an execution may issue on such judgments. The judgment of the court below is affirmed. All the Justices concurring.
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•The opinion of the court was delivered by Valentine, J.: The facts of this case are briefly as follows: Henry Churchill, who was the owner of a certain judgment rendered in a justice’s court in favor of himself and against Gordon & J ones, caused an execution to be issued thereon and placed in the hands of W. W. Moore, a constable, for service. Moore by virtue of said execution levied upon a horse believed to belong to Gordon, but in fact belonging to Mrs. Mauritzius. Mrs. Mauritzius immediately replevied said horse. Moore then gave a redelivery bond, retained the horse, and afterward sold him on execution to Chui’chill for the amount of Churchill’s judgment and costs. Churchill acknowledged satisfaction of the execution, and the execution was returned satisfied. All this was done in accordance with the instructions of Churchill, and of Churchill’s attorney. Moore, at the instance of Churchill, defended said replevin action, Churchill himself employing the counsel, and through, his counsel directing the management of the action. Judgment was finally rendered in the replevin action in favor of Mrs. Mauritzius and against Moore for a return of the horse, or in case a return could not be had for $100, the value of the horse, and for costs taxed, as Moore alleges, at $141.55. Further costs to the amount of $11, as Moore alleges, afterward accrued, making a total, as Moore claims, of $252.55. The jury however in this case rendered a judgment in favor of Moore and against Churchill for $250.48, which sum we must presume was the correct amount. No portion of the judgment in favor of Mrs. Mauritzius and against Moore was paid or satisfied when this action was commenced. Indeed, no portion of said judgment was paid or satisfied when this action was tried, or when the jury returned their verdict into court. The court in this ease rendered judgment upon the verdict in favor of Moore, and against Churchill, for the said sum of $250.48. But in rendering judgment the following proceedings (as shown by the bill of exceptions,) were had and done: “Whereupon the court suggested that execution in this case be stayed until the judgment in the case of Mauritzius v. Moore was [shall be] satisfied; whereupon it was shown that said judgment had been paid after the verdict in this case was rendered; whereupon the court rendered judgment in favor of plaintiff and against defendant upon the verdict, and that execution be issued.” This is all there is in the record tending to show that Mrs. Mauritzius’ claim or any part thereof has ever been satisfied'. Churchill is the plaintiff in error in this court, and seeks to reverse the judgment of the court below. Now, when Moore and Churchill took said horse from Mrs. Mauritzius they were both trespassers, and Mrs. Mauritzius could have sued either of them, and recovered the value of the horse. And if they had been ordinary trespassers, the one against whom she recovered would have had no action against the other for contribution. But in cases of this kind where one of the trespassers is an officer, and the property is taken under legal process for the benefit of the other trespasser, who is not an officer, the officer may have an action against the other for his loss actually sustained. Mere liability however on the part of the officer, is not sufficient to enable him to maintain the action. He must actually have lost something, and he can recover only to the extent of his actual loss. Both parties become liable to the party injured as soon as they commit the trespass, and that liability continues as against both until the party injured is entirely satisfied.for his or her loss. When Moore and Churchill took said horse from Mrs. Mauritzius (supposing Churchill participated,) both become liable to Mrs. Mauritzius, and both continued to be liable to her until her claim was fully satisfied, notwithstanding said judgment rendered in favor of Mrs. Mauritzius against Moore. That judgment did not by any means release Churchill from liability to Mrs. Mauritzius. Nothing but a Satisfaction of her claim would release any one of the trespassers. And if her claim were in any manner released as against any one of the joint trespassers, it would release all. Moore was just as liable to Mrs. Mauritzius on the day that he took the horse as he was after the judgment was rendered against him in her favor, and Churchill was no less liable to her after said judgment was rendered than he was on the day he participated in taking said horse. And yet we suppose no one will claim that Moore had any action against Churchill on the day that they took said horse from Mrs. Mauritzius. After said judgment was rendered against Moore, it was the right and duty of Churchill to satisfy the same. But if he did not satisfy it, then Moore might have done so if he had so chosen; and after doing so he would then have an action against Churchill for just the amount he necessarily paid in doing so. The theory upon which a sheriff or constable may recover against a co-trespasser, in a case like the one at bar, is not upon the principle that one trespasser may have an action for contribution against another trespasser, but it is upon the principle of an express or implied contract that the party for whose benefit the trespass is committed will indemnify the officer for all loss that the officer may afterward sustain by reason of the trespass. And when the officer sues for indemnity, his action is in the nature of an action on contract, and not in the nature of an action for a tort. Where the contract is not express, there must be sufficient circumstances from which a contract can be implied. The parties must then not know that they are making a contract to do an illegal act, but they must suppose that the facts are such that their acts about' which they are contracting will be legal. In the present case, no express contract was proved, though the circumstances were such that an implied contract may be presumed. But it cannot be presumed or supposed that Churchill would agree to pay Moore the amount of their liability to Mrs. Mauritzius, while Churchill himself was still liable to Mrs. Mauritzius, and while such a payment to Moore would not extinguish such liability. The finding of the court below, while rendering judgment in this case, that the judgment in the case of Mauritzius against Moore was paid after the verdict was rendered in this case, is a nullity for various reasons. There was no such question ever presented to the court in any proper manner by the parties. There is nothing to show that the question was ever tried upon any pleadings, motion, or otherwise. And it is not shown who paid said judgment. The judgment of the court below is reversed, and cause remanded for a new trial. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This was an action in the district court of Bourbon county, to foreclose a note and mortgage given by plaintiff in error and his wife to one Robert Armstrong, and transferred by indorsement of the note, first by the payee to G. W. Stewart, and by Stewart to plaintiff, defendant in error. Personal service was made on Knowles and his wife, who filed an answer, and then by leave of the court withdrew their answer and appearance. The errors complained of are, that the court allowed protest damages on the note, and that under .the summons it improperly rendered other than a money judgment. In reference to the first, it may be said that the petition alleges two indorsements, a demand and refusal of payment, and notice to the indorsers. This was sufficient under the statute. (Gen. Stat. 116, § 14.) In regard to the second objection, it appears that the summons was indorsed by the clerk as follows: “The plaintiff herein claims $1,313.80, together with interest on $1,180 at the rate of 12 per cent, per annum from November 11th 1873, and for which judgment will be taken if the defendants fail to answer.” There was no indorsement of a claim for other relief than a personal judgment for money. Hence, counsel contends that it was error to take other than such a judgment. This point has been already decided in this court adversely to the claim of plaintiff in error. Weaver v. Gardner, 14 Kas. 347. The judgment will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: The plaintiff in error, who was also plaintiff below, set forth in his petition below, in two separate counts, two supposed causes of action. The defendant demurred to said petition, and to each count thereof, on the ground that neither of them stated facts sufficient to constitute a cause of action. The court below sustained the demurrer. Said supposed causes of action are founded upon certain alleged false and fraudulent representations made by the defendant for the purpose of inducing the plaintiff to purchase certain real estate from the defendant, and which did so induce the plaintiff so to purchase said real estate. The plaintiff still retains the land purchased, and now sues for the damages claimed to have resulted from said alleged false and fraudulent representations. Said alleged false and fraudulent representations were made, and the land purchased, on May 22d 1871. This suit was commenced September 5th 1873. The first question raised, and to be considered by this court, is, whether said supposed causes of action are not barred by the statute of limitations. Subdivision 3 of § 18 of the civil code provides among other things, that “an action for relief on the ground of fraud” can only be brought within two years after the cause of action shall have accrued, and “the cause of action in such case shall not be deemed to have accrued until after the discovery of the fraud.” It is contended by plaintiff that this statute does not apply to the case at bar, because this statute applies only to actions for “relief,” while the plaintiff claims that this action is not for “ relief,” but for damages. The claim of the plaintiff is not tenable. This is an action for relief, in the nature of damages, and for such relief as comes within such statute. If this action is not for relief, and such an action as may be barred by such statute of limitations, then there is no statute of limitations for this class of actions. The claim of the plaintiff is substantially this: An action for equitable relief founded on fraud comes within the statute, and is barred in two years; but an action for legal relief, founded on fraud, does not come within the statute, and is therefore never barred. In other words, all the entrances to a court of equity are closed in two years, for all actions founded on fraud; but courts of law are kept open for such actions forever. This claim is not tenable. The second count of the petition shows beyond all doubt that the cause of action set forth in that count is barred. The alleged fraud was consummated on May 22d 1871. The plaintiff knew of it at least as early as- August 1st 1871, for on that day he bought in the adverse claims which he now contends the defendant fraudulently represented that he had obtained and conveyed to the plaintiff. ' And this suit was not commenced until September 5th 1873. But with respect to the first count of the petition, a much more difficult question arises. That count does not show affirmatively when the plaintiff first obtained knowledge of the fraud alleged to have been perpetrated upon him; and therefore, it does not show affirmatively, unless by presumption or implication, when the statute of limitations commenced to run against the cause of action stated in such count. The cause of action stated therein was of course complete on the very day that the alleged fraudulent transaction was finally consummated; but for the purposes of the statute of limitations the cause of action is not to be deemed to have accrued until the discovery of the fraud by the party aggrieved. That is, in such actions, although the cause of action is perfect on the very day that the fraud is consummated, yet the statute of limitations does not begin to operate upon such cause of action until the fraud is discovered. Or in other words, the want of a discovery or knowledge of the fraud constitutes one of the exceptions which take the case out of the operation of the statute. Now, whose duty is it to plead this exception? And in what pleading must it be stated? It has, always been the duty of the plaintiff, both in courts of law and in courts of equity, to plead the exceptions, where the question of the statute of limitation has been properly raised by the defendant. And it never was the duty of the defendant in such a case to negative the exceptions. (Zane v. Zane, 5 Kas. 137.) The most that has ever been required of a defendant, has been, to require him to plead the statute, and even then, as in all other cases, it then devolved upon the plaintiff to plead the exceptions which he believed would take the case out of the operation of the statute. And in equity practice, and under the various codes where the bill or petition shows that the claim of the plaintiff is barred by the statute, it always devolves upon the plaintiff to plead the exceptions in his bill or petition, or the same will be considered defective on demurrer. The exact question we are now discussing has been decided in California: Sublette v. Finney, 9 Cal. 423; Boyd v. Blanknan, 29 Cal. 20, 44; Carpentier v. City of Oakland, 30 Cal. 444. In the first case the court say: “The seventeenth section of the statute of limitations provides that certain actions must be commenced within three years; and among others, an action for relief, on the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. The cause of action cannot be deemed to accrue upon the discovery of the fraud, in any other sense than that the statute will not be deemed to commence running until such period. Fraud is the substantive cause of action. Upon its commission the right of action arises, not upon its discovery. The policy of the law is, that actions on this ground should be commenced within three years; but that innocent parties may not suffer while in ignorance of their rights, the statute excepts them from the limitation until a discovery of the fraud. The latter clause of the section must, therefore, be considered as an exception merely to the general provision, and be pleaded as such. In the present case, then, the cause of action accrued upon the execution of the contract. As this was more than three years previous to the commencement of the suit, the cause of action was barred, and the objection being apparent upon the face of the complaint, could be taken advantage of by demurrer. If the plaintiff was within the exceptions of the statute, it was incumbent upon him to state it in his complaint.” (9 Cal. 425.) We do not think the court below erred in sustaining said demurrer. The petition showed upon its face that the fraud upon which the cause of action is founded was consummated more than two years before the commencement of this action; and the petition did not show that the plaintiff did not discover said fraud until within less than two years before the commencement of this action. The only allegation of the petition that has the slightest reference to such a showing is as hereafter stated. The alleged fraud was concerning the boundary lines of the land purchased by the plaintiff. And the said allegation is as follows: “ On said day [when said land was purchased] the plaintiff was, always before had been, and for a long time thereafter remained, ignorant of the boundary lines of said land, except as hereinafter stated, to-wit: that all knowledge he had in regard to the boundary lines of said land, before the sale was negotiated, he obtained from the defendant at the time he purchased said land.” This allegation does not pretend to show when the plaintiff discovered that the boundary lines were different from what he had previously believed them to be, and it does not pretend to show that such discovery was made within less than two years before the commencement of this action. We therefore think the petition is defective in stating a cause of action which appears to be barred by the statute of limitations. The judgment of the court below must therefore be affirmed. Kingman, C. J., concurring.
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